The Supreme Court’s judgment in the case of Paul and another v Royal Wolverhampton[1] has, by a majority, but with a persuasive dissenting judgment from Lord Burrows, considerably reduced the pool of individuals who can bring their own claim as a ‘secondary victim’ in medical negligence cases. The Court ultimately determined that an accident, or ‘external event’, was required for such a claim to be successful and found that to be distinct from a ‘medical crisis’. Given the unlikeliness of 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’[2] in the context of medical negligence it appears that, save for in exceptional circumstances, the door to secondary victim claims in these cases is now closed.

But, when one door closes another one opens. In limiting secondary victim claims in the context of medical negligence, the Supreme Court provided clarification on a number of additions imported onto the Alcock[3] criteria by subsequent case law. This clarification may well widen the number of successful secondary victim claims in other circumstances.

In summary

The Supreme Court was dealing with three conjoined appeals in the cases of Paul, Polmear and Purchase. In each case the defendant was alleged to have failed to diagnose a life threatening condition of the primary victim and that negligent omission was said to have caused the primary victim’s traumatic death. The claimants were all close relatives of the primary victim and had sustained psychiatric injury as a result of witnessing the primary victim’s death or the immediate aftermath of their death.

The Court of Appeal had determined that they were bound by the earlier Court of Appeal decision in Taylor v A Novo (UK) Ltd[4] (‘Novo’), to conclude that the claims could not succeed. However, the Court of Appeal’s judgment expressed reservations about whether Novo had been decided correctly and indicated that, without that authority, they would probably have reached a different outcome. The Court of Appeal therefore granted permission to appeal to the Supreme Court.

The Supreme Court dismissed the appeals, finding that the following is necessary in secondary victim claims: (a) an accident to have occurred; (b) the secondary victim must have been present at the accident (or its immediate aftermath) and have witnessed it; and (c) the secondary victim must have a close tie of love and affection to the primary victim. In addition to that, the Supreme Court robustly stated that the duty of care of medical professionals did not extend to shielding individuals from witnessing the death of a close family member that they are treating, ‘such an experience is not an insult to health from which we expect doctors to take care to protect us.’[5]

The Facts

Paul

In the first appeal, the primary victim, Mr Paul, suffered a cardiac arrest and collapsed in the presence of his two daughters aged 9 and 12. Some 14 months prior to this, the defendant’s hospital had negligently failed to arrange a coronary angiography during Mr Paul’s admission for chest and jaw pain. That angiography would have revealed significant coronary artery disease which could then have been treated. His daughters were each claiming damages for psychiatric illness caused by witnessing his cardiac arrest and subsequent events.

Polmear

Esmee Polmear died as a result of the effects of pulmonary veno-occlusive disease in the presence of her parents. The previous year, Esmee had been referred to a paediatrician who had wrongly concluded that her symptoms related to exertion and failed to diagnose her with pulmonary veno-occlusive disease. Her parents were claiming damages for post-traumatic stress disorder and major depression as a result of witnessing Esmee’s death, which would not have occurred with proper diagnosis and management of her condition.

Purchase

Evelyn Purchase died from severe pneumonia at 20 years old, having been unwell for several weeks and having made two visits to her GP. The defendant examined her at an out of hours clinic and failed to recognise her symptoms and diagnose her with, and therefore treat, severe pneumonia. Evelyn’s mother returned home to find Evelyn lying motionless on her bed, later finding a voicemail from Evelyn left moments before her mother arrived home, which consisted of the sounds of Evelyn’s dying breaths. Evelyn’s mother developed post-traumatic stress disorder, severe chronic anxiety and depression for which she was claiming damages.

The issue

The key issue in these appeals is whether the exceptional category of secondary victim claims can, or should be, extended to include cases where the claimant’s injury is caused by witnessing the injury or death of a loved one from a medical condition which the defendant negligently failed to diagnose and treat and where there is not an ‘accident’.

The conclusion (of the majority)

The leading judgment gives a thorough consideration of the case law which has grown up in the wake of Alcock, and, importantly considers the following elements are unnecessary additions to the criteria set out by the House of Lords:

1. That the claimant needs to experience ‘sudden shock’[6], the court held that it was sufficient for the claimant to show that there was a ‘causal connection between witnessing the event and the illness suffered’[7], they dispensed with the need to demonstrate the ‘neurological or psychological mechanism’[8];
2. That the event needs to be ‘horrifying’, or horrifying by an ‘objective standard’[9]. The Court stated that such a test was ‘unavoidably subjective’[10], there being no ‘Richter scale of horror[11]’;
3. That the court must determine whether there was a single event or multiple separate events and whether those were an uninterrupted sequence of events[12];
4. That the gap in time, short or long, between the negligence and the event that it caused should affect the defendant’s liability[13]. Here, the Supreme Court agreed with the Court of Appeal that there is no good reason why the gap in time, short or long, between the negligence and the event it causes should affect the defendant’s liability. The requirements established in Alcock include closeness in space and time to, and direct perception of, the accident. They do not include requirement of closeness in space and time to the defendant’s breach of duty.

In addition, the Court made clear that the use of a ‘first manifestation of damage’ test, which was put forward by the legal team in Paul, would be unprincipled and illogical.[14]

Instead, the focus is on whether there has been an ‘accident’ and whether that accident was directly witnessed by the secondary victim. The Supreme Court noted that it was on that basis that the claim in Novo failed, as the claimant did not witness the external, traumatic event (or the accident) itself, but a later event. The analysis therefore hangs on the two elements: 1) an accident[15] and 2) that accident, or the immediate aftermath of it, being witnessed by the secondary victim. Importantly, it is the accident and not the injury that the accident caused which must be witnessed because, of course, secondary victim claims can be successful even when the primary victim suffered no injury.

The judgment goes on to give three ways in which the occurrence of an accident is integral to justifying the recognition of the category of claims by secondary victims at all and in defining the limits of the category:

1. An accident is a discrete event and the question of whether someone was present and directly perceived an accident usually provides a clear and straight forward answer, therefore providing legal certainty;
2. Witnessing an accident involving a close family member is likely to be a disturbing and upsetting event even if the person escapes unharmed and most people would accept that if a distinction is to be made between cases where harm as a result of bereavement can result in compensation and those where it cannot, distinguishing between those who witnessed the accident and those who did not is an intelligible distinction to make;
3. The distinction between primary and secondary victims in accident cases becomes difficult and/ or arbitrary once it is accepted that compensation can be recovered for psychiatric injury suffered without any physical impact.

In contrast, in non-accident cases there is often no discrete event comparable to an accident, even where there the primary victim suffers a cardiac arrest for example, the length of time for which the symptoms of injury or disease last before they recover or die is variable and produces uncertainty about what qualifies as an ‘event’. Similarly, the extent of the trauma is also variable.

On the basis of the Court’s analysis, the case of North Glamorgan NHS Trust v Walters[16] was incorrectly decided as there was no ‘accident’ which caused the death of Mrs Walter’s baby or the psychiatric injury which Mrs Walter’s complained of. The court pointed out that this defence was not raised and therefore was not considered by the trial judge or the Court of Appeal and, as such, could not be regarded as an authority which impacts the conclusion in this case.

The Supreme Court then went back to basics and considered the need firstly, and crucially, to establish an independent duty of care to the secondary victim. It is not sufficient simply to establish whether there was a breach of the duty owed by the defendant to the primary victim and, then, an appropriate relationship between the primary victim and the claimant. Reasonable foreseeability of harm is also not sufficient to give rise to a duty of care on its own. While there may be circumstances in which the duty of a medical practitioner goes beyond their patient, e.g. in infectious disease cases, the court did not accept that the responsibilities of a medical practitioner extend to protecting members of the patient’s close family from witnessing the death or injury of their relative, that would, the Court stated ‘go beyond what… is reasonably regarded as the nature and scope’[17] of a doctor’s role.

The majority therefore dismissed the appeals.

The dissent

Lord Burrows disagreed with the majority. Interestingly, Lord Burrows served as the Law Commissioner at the time of the Law Commission report into liability for psychiatric illness and reminded the Court of recommendation of that report; that reasonable foreseeability of psychiatric illness and a close tie of love and affection to the primary victim should be the only requirements. Therefore, the other restrictive common law requirements (i.e. closeness in time and space to the event, perception through one’s own unaided senses and the need for the event to be shocking) would be abandoned. That recommendation was obviously not accepted by the Government at the time, who stated that it was ‘preferable for the courts to have the flexibility to continue to develop the law’[18]. It is with that comment in mind that Lord Burrows viewed that it is inappropriate for the Court to continue to say ‘thus far and no further’.

In considering the decisions of the courts below, in particular, the judgment of Chamberlain J in Paul, who allowed the appeal after the claim had been struck out by Master Cook, Lord Burrows notes that Chamberlain J’s reasoning was based on the key question being whether Mr Pauls’ death could be the ‘relevant event’. If it could be, then it was not in dispute that the control mechanisms were satisfied on the facts.

The Court of Appeal then heard all three cases together and determined that there was no liability for the psychiatric injury of the claimants in any of the three cases. Sir Geoffrey Vos’ leading judgment identified the important question as what constitutes the relevant horrific event. Relying on Novo, the death could not be the relevant horrific event because the death was a separate event removed in time from the negligence.

Lord Burrows considers the correct approach is that death is the relevant event in these cases. The witnessing of the deaths of the primary victims had been the cause of the psychiatric illness now complained of and it was reasonably foreseeable that the claimants would suffer psychiatric illness as a consequence of the death. It is not in dispute that there is a close tie of love and affection, that the secondary victim was present at the relevant event or came across the immediate aftermath, that the psychiatric illness arose through the secondary victim’s own unaided senses and, finally, that the death was shocking and horrific. Lord Burrows explains that his judgment is not that death is the only relevant event in medical negligence cases, it could for example be if the primary victim becomes seriously ill.

He considers that death as the ‘relevant event’ can be described as the correct application of existing law to new facts. But, even if that is not accepted, the incremental step of treating death as a relevant event is a justified one as insisting on an accident would ‘needlessly’ deny recovery in nearly all medical negligence cases. That is also not an approach supported by the authorities. Lord Burrows considers that the decision of the majority leads to an arbitrary distinction between an accident as an event external to the primary victim but not as one external to the secondary victim.

The impact

Given the justification that the Court of Appeal gave for dismissing the appeals in their judgment, i.e. that if they were not bound by Novo they would have likely have allowed the appeals, the Supreme Court’s decision comes as somewhat of a surprise. It is clear from Lord Burrows’ dissent that this is not a clear cut or easily determined issue. But there is now clarity in respect of negligent failure to diagnose even if debate over the distinction between an ‘accident’ and a ‘medical crisis’ will continue.

It remains to be seen if there will be any factual scenarios in a medical negligence context which could be described as an ‘accident’ such that a secondary victim claim will be successful. The Supreme Court refused to opine on what hypothetical situations might amount to an ‘accident’ sufficient for a secondary victim claim in a medical setting, instead stating that ‘the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts’[19].  However, it is now clear that a negligent failure to diagnose a primary victim will not lend itself to the recovery of damages for the psychiatric injury of a close relative who witnesses the result of that failure to diagnose.

This will undoubtedly be welcome news to the medical profession, in particular, with the Supreme Court being clear that the duty of care of medical professionals does not extend as far as preventing their family members from witnessing their deaths.

However, the Supreme Court’s useful summary of the law of secondary victim claims and their rectification of the unnecessary additions to the Alcock criteria may now lead to more secondary victim claims in other circumstances.

Rebekah Batt

[1] [2024] UKSC 1

[2] Paragraph 52

[3] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310

[4] [2013] EWCA Civ 194

[5] Paragraph 139

[6] Paragraph 73

[7] Paragraph 74

[8] Ibid

[9] Paragraph 76

[10]Ibid

[11] Ibid

[12] Paragraph 79

[13] Paragraph 94

[14] Paragraph 103

[15] Defined as above as ‘an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims.’

[16] [2002] EWCA Civ 1792 – the claimants relied heavily on this case as an example of a successful secondary victim claim in a clinical negligence context.

[17] Paragraph 138

[18] Paragraph 146

[19] Paragraph 123