The first judgment of the Supreme Court in the case of Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC1, also deciding the cojoined appeals of Polmear & Another v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed, will have a huge impact on a narrow but important area of the law. Following the decision today (11 January 2024) it will only be in rare circumstances that a secondary victim claim can be brought in medical negligence cases.
Secondary Victims
A secondary victim is someone who suffers psychiatric injury, not by being directly involved in an incident, but by witnessing an incident, caused by the negligence of a third party, which in turn has caused death, injury or fear of injury to another person (the primary victim). The law of England and Wales recognises the right of secondary victims to claim damages from the negligent party, but only in limited circumstances.
The Requirements for Secondary Victim Claims
The law on secondary victim claims has been largely shaped by three decisions of the House of Lords: McLoughlin v O’Brian [1983] 1 AC 410, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 which involved accidents, such as road traffic accidents or disasters, where the secondary victim was present at the scene or its immediate aftermath and directly perceived the harm or danger to the primary victim.
These cases established the following requirements (also sometimes referred to as control mechanisms) for a successful claim by a secondary victim:
- The claimant must have a close tie of love and affection with the primary victim.
- The claimant must have been close to the incident in time and space. This means that the claimant must have been either personally present at the scene of the accident or its immediate aftermath.
- The claimant must have directly perceived the incident or its immediate aftermath. This means that the claimant must have seen or heard the event or its consequences, rather than, for example, hearing about it from a third person.
- The claimant must have suffered a medically recognised psychiatric illness as a result of witnessing the incident or its immediate aftermath. This excludes claims for mere grief, sorrow, or distress.
The Application of the Requirements to medical Negligence Cases
In recent years, a number of cases have considered whether claims can be brought for secondary victims in medical negligence cases, where the secondary victim witnesses the death or illness of a relative from a condition that the defendant failed to diagnose and treat. There are two competing Court of Appeal cases of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 and Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 that are difficult to reconcile making it challenging for practitioners, litigators and the courts to work out when a secondary victim claim in medical negligence cases could be made.
Paul and another v Royal Wolverhampton NHS Trust
The case of Paul involved two claimants who witnessed the horrifying event of their father, the primary victim, suffer a heart attack collapse and die in January 2014 whilst out shopping. Their father’s heart attack was caused by the failure of the defendant NHS Trust in November 2012, when he had attended hospital, to perform an angiography which would have revealed significant coronary artery disease. But for the failure their father would have been treated successfully with coronary revascularisation in January 2013 and he would not have suffered his heart attack and died in January 2014.
The claim was struck out at first instance by Master Cook. He determined that “Mr Paul’s tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence, I must assume occurred in the hospital, cannot possibly be said to be the ‘relevant event’ for deciding the proximity required to establish liability under the established control mechanisms”.
The claim was reinstated following a successful appeal to the High Court.
Chamberlain J held that “the Master was wrong to conclude that these claims are bound to fail on the facts pleaded. Here, unlike in Taylor v A. Novo, there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack on 26 January 2014. On the facts pleaded, it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul’s death. The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and 9. The fact that the event occurred 14 ½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an “accident” in the ordinary sense of the word, but rather an event internal to the primary victim. In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete, Taylor v A. Novo does not preclude liability.”
The defendant appealed to the Court of Appeal.
Court of Appeal
Paul was conjoined with the cases of Polmear and Purchase. In the Court of Appeal (Sir Geoffrey Vos MR, Lord Justice Underhill, and Lady Justice Nicola Davies) were sympathetic to the claimants’ argument that it was not necessary for the horrifying event to be attached to the defendant’s breach of duty or completion of the primary victim’s cause of action. However, in their view, Novo decided that a secondary victim cannot claim for psychiatric injury caused by witnessing a “horrific event” involving injury to the primary victim resulting from the defendant’s negligence if the horrific event is a separate event removed in time from the defendant’s negligence and given that the breach of duty occurred long before the horrifying event in each of the claims they were bound by its previous decision and the claims could not succeed.
Both Sir Geoffrey Vos and Underhill LJ expressed reservations about whether Novo was correctly decided and indicated that if they were not bound by Novo, they would probably have reached a different decision. Permission was granted to appeal to the Supreme Court. The first time in 30 years that the highest court in the United Kingdom has had the opportunity to review the authorities and development of the law in secondary victim claims and clarify the principles that apply to such claims.
The Supreme Court's Decision
The Leading Judgment was delivered by Lord Leggatt and Lady Rose (with whom Lord Briggs, Lord Sales and Lord Richards agree)
The majority of the Court held that witnessing an accident (defined as an unexpected and unintended event which caused injury, or a risk of injury, by violent external means to one or more primary victims) or its immediate aftermath is a necessary condition for a secondary victim claim and that witnessing a medical crisis (the suffering or death of a relative from illness) or its aftermath is not sufficient. The court gave the following reasons for this conclusion:
- An accident is a discrete event that can be clearly identified in terms of time, place, and manner, whereas a medical crisis or its aftermath may be variable, prolonged, and uncertain. This makes it difficult to apply the requirement of proximity in time and space.
- Witnessing an accident involving a close relative is likely to be a traumatic and upsetting event in itself, regardless of whether the relative is injured or killed. This makes it understandable to draw a line between claimants who witnessed the accident and those who did not. However, witnessing the injury or illness of a relative is not necessarily traumatic, as it may depend on the severity, suddenness, and unexpectedness of the symptoms. This makes it arbitrary and subjective to distinguish between claimants who witnessed a medical crisis or its aftermath and those who did not.
- In accident cases, there is often no clear distinction between primary and secondary victims, as both may be exposed to physical danger and suffer injury from fear for themselves or their relatives. This makes it impractical and unjust to deny compensation to secondary victims who witness the accident or its aftermath. However, in medical negligence cases, there is no risk of physical harm to the secondary victim, and any injury suffered is purely of a secondary nature. This makes it unnecessary and unjustified to extend compensation to secondary victims who witness the medical crisis or its aftermath.
The majority also found that the “law has in our opinion taken an unfortunate wrong turn” in grafting onto the control mechanisms the requirement of proving that the injury was caused by a “sudden shock to the nervous system” and was a sufficiently “horrifying event.” A sudden shock is not a requirement for a secondary victim claim and it is sufficient to show a causal connection between witnessing the accident or its aftermath and the psychiatric illness. The court rejected the notion that psychiatric injury can only be caused by a sudden assault on the nervous system, as this is based on an outdated and discredited theory of the aetiology of psychiatric illness. The court also rejected the idea that the event witnessed by the claimant must be horrifying by objective standards, as this is also arbitrary and subjective and does not reflect the nature of the claimant’s perception of the event.
In terms of the authorities, the majority concluded that:
- Novo was correctly decided. There is no requirement for there to be closeness in time between the defendant’s breach of duty and the accident which caused the claimant psychiatric injury because no such requirement exists in a claim for a primary victim. There is also no requirement that the event witnessed must be the first manifestation of the damage to the primary victim. Novo decided that for a claim to succeed the secondary victim needed to witness an accident. There was an accident, but the claim failed because the claimant did not witness the accident (or its aftermath).
- Walters was wrongly decided on its facts. Had the defendant raised the defence that the claimant had not witnessed an accident (or its aftermath), the claim should have failed.
- The decisions in Sion v Hampstead Health Authority [1994] 5 Med LR 170, Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 “although correctly decided were decided on a wrong basis and that the claims in those cases should have been dismissed for the simple reason that the claimant did not witness an accident (or its aftermath) caused by the defendant’s negligence.”
The majority also considered whether the duty of care owed by a medical practitioner to a patient, extends to members of the patient’s close family to take care to protect them from the risk of illness from witnessing their loved one suffering a medical crisis caused by the medical practitioner’s negligence. They determined that it does not because to impose such a responsibility on hospitals and doctors would go beyond what is reasonably regarded as the nature and scope of the role. There is no proximity in the relationship between the medical practitioner and the relatives to give rise to a duty of care.
Lord Burrows (Dissenting) Judgment
In a powerful dissenting opinion, Lord Burrows disagreed with the majority and argued that the death should be treated as the relevant event in these cases, and that Novo should be overruled. He also criticised the requirement for the event to be shocking and horrific, and the distinction between acts and omissions, as unnecessary and unprincipled obstacles to recovery.
Lord Burrows rejected the focus on accidents or events external to the primary victim, which was advocated by the respondents and based on Auld J's reasoning in Taylor v Somerset Health Authority. He pointed out that this approach would exclude almost all medical negligence cases from liability, even though there was no principled reason to do so, and that it was inconsistent with the authorities, especially Walters, where recovery was allowed despite the absence of an external event. He also noted that the concept of an accident was vague and arbitrary, and that it could be defined from the perspective of the secondary victim, in which case the death would qualify as an accident.
He explained why the death was the relevant event in these cases, not least because it was witnessing the death or its immediate aftermath that caused the psychiatric illness to the secondary victims. He also emphasised that it was reasonably foreseeable that they would suffer psychiatric illness as a consequence of the death, and that all the established proximity or control factors were satisfied once the death was treated as the event.
He also rejected the objection that there was a significant time lag between the negligence and the death because that was irrelevant in accident cases and should not make a difference in medical negligence cases. He also rejected the objection that there was a time lag between the accrual of the primary victim's cause of action and the death because that was also irrelevant and could apply to latent injuries in accident cases.
He acknowledged that treating the death as the relevant event might be seen as a development of the common law, but he argued that it was a justified incremental step that fell within the traditional judicial role and that was entrusted by the Government to the courts in this area. He also argued that it was closer to the only truly principled solution, which would be based on reasonable foreseeability of psychiatric illness alone, without any arbitrary control mechanisms.
The Practical Implications
The requirement for the secondary victim to witness an accident (an event external to the primary victim) in practice means that only in rare circumstances, if any, will it be possible to bring a secondary victim claim in medical negligence cases. The court could have given a hypothetical example of when secondary victim claims could succeed in medical negligence claims, but they left that issue open to be determined on another day. Could the negligent overdosing of a primary victim with a drug causing immediate adverse reaction and injury amount to an accident, which if witnessed by a loved one causing psychiatric injury lead to a secondary victim claim?
However, there is some good news for secondary victims in accident cases who no longer need to prove the that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event.”
Comment
The Supreme Court has brought clarity to the application of the requirements in secondary victim claims arising from medical negligence cases by insisting that there must be an accident for there to be recovery for negligently caused psychiatric injury, but in so doing they have in the words of Lord Burrows taken an “unwarranted backward step” and departed “from the reasoning in almost all of the reported medical negligence cases in this area”.
Lord Burrows makes a compelling case for allowing the appeals and for overruling Novo. He advocates a more principled and flexible approach to the development of the common law in this area, which would not exclude medical negligence cases from recovery or impose unnecessary and unprincipled obstacles to recovery. I agree with his analysis and outcome.
The court’s approach is too restrictive and insensitive to those secondary victims who suffer psychiatric harm as a result of witnessing the death, injury or fear of injury to a loved one as a result of medical negligence.
Over 25 years ago the Law Commission of England and Wales prepared a report, Liability for Psychiatric Illness Law Com No 249 (1998) and recommended legislative reform in this area. The Government did not accept that legislation and passed the baton to the courts to develop this complex and sensitive area of the law. Has the Supreme Court dropped the baton? In early decisions Lord Steyn and Wilberforce referred to policy applying in this area. Did policy play a part in this decision?
The author of this article Phil Barnes of Shoosmiths LLP instructed Rob Weir KC of Devereux Chambers and Laura Johnson KC of Deka Chambers on behalf of the appellants in Paul.
Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) (supremecourt.uk)
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
