The Supreme Court looks de Novo at Secondary Victim claims for psychiatric injury

12 Jan 2024

Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall NHS; and Purchase v Dr Ahmed [2024] UKSC 1 [for the full judgment click here]

Article by Joanna Lloyd, Bevan Brittan LLP and Charles Bagot KC, Gatehouse Chambers

With two notable exceptions, the common law does not recognise one person as having any legally compensable interest in the physical well-being of another. The law compensates the victim but not others who suffer harm as a result of the victim’s injuries or death, however severely impacted and whether the harm is psychological, physical or financial. The exceptions are found in the Fatal Accidents Act 1976 and in claims by secondary victims. It was this latter category that came to be examined in the much anticipated judgment of the Supreme Court in the conjoined appeals of Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent), Polmear and another (Appellants) v Royal Cornwall Hospitals NHS Trust (Respondent) and Purchase (Appellant) v Ahmed (Respondent), handed down on 11 January 2024.

The question raised by these appeals was whether witnessing a negligently caused “medical crisis” (or its immediate aftermath) can, in principle, be the basis for a claim for damages by a secondary victim or whether such a claim can only be brought where the triggering event is an accident, in the sense of an unexpected and unintended event which causes injury (or a risk of injury) by violent external means to one or more primary victims.

In a seminal judgment, from which only Lord Burrows dissented, the Court, made up of seven Justices, concluded that this exceptional category of case cannot and should not be extended to include cases where the claimant’s injury is caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant has negligently failed to diagnose and treat. At the heart of the decision lies the conclusion that it cannot be right to attribute to a doctor who enters into a doctor-patient relationship, an assumption of responsibility for the health of members of the patient’s family.

Paragraph 138:

“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

Whilst recognising the tragedy surrounding the sudden deaths of Parminder Singh Paul, Esmee Polmear and Evelyn Purchase and the shocking circumstances in which those deaths occurred, the Supreme Court concluded that in the perception of the ordinary reasonable person, such an experience is not an insult to health from which we should expect doctors to take care to protect us, but a vicissitude of life and part of the human condition [paragraph 139].

The detail of the judgment and its close analysis of the relevant cases, including McLoughlin, Alcock and Frost makes essential reading for all who practise in the field of personal injury and clinical negligence law.  Notably the following points emerge:

  • Must the claimant experience a sudden shock?

 No: The requirements established by the decision in Alcock were accurately summarised in Frost: 1) The plaintiff must have close ties of love and affection with the victim… (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else. Those requirements do not include a requirement that the claimant’s psychiatric injury must have been caused by a “sudden shock to the nervous system” [paragraph 71 onwards].

  • Must there be a “horrifying event”?

 No: This test is not one of the requirements established by Alcock and confirmed in Frost. The judgment powerfully notes that there is no available Richter scale of horror. Expecting trial judges to allocation cases across the spectrum between those circumstances which attract compensation and those which do not, although described as involving an “objective standard”, is in truth unavoidably subjective. It involves questions which are invidious and not susceptible to any proper answer [paragraphs 76 to 77]. “In engrafting onto those requirements [established by Alcock and confirmed in Frost] additional requirements of needing to prove that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event”, the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct” [paragraph 78].

  • What counts as one event?

 The judgment characterises the emergence of a legal test of whether what the claimant witnessed should be regarded as one event, or several events, as another unsatisfactory development which has given rise to intractable difficulties [paragraphs 79; 112]. The phrases adopted by judges in the cases which followed the decision of Ward LJ in Walters, such as “an inexorable progression” and “a seamless tale with an obvious beginning and an equally obvious end” were considered to be vague and not of much help.  These phrases described the period of 36 hours from the time when Mrs Walters’ baby suffered an epileptic seizure to the time of his death as one event and were adopted in subsequent cases such as Shorter and Ronayne.  The Supreme Court considered that this phraseology, and treating traumatic scenes witnessed over several days as themselves comprising an event founding liability, has led to an extension of the aftermath of true accidents to a period far beyond what was contemplated by Lord Wilberforce in McLoughlin. On the facts of Walters, the brain damage and death of Mrs Walters’ baby were not caused by an accident and it follows from the court’s conclusion that the claim should have failed; it was wrongly decided on its facts and should not be followed [paragraph 121]. The confusion created in Galli-Atkinson by transposing the analysis in Walters to the aftermath of accident cases disappears once the aftermath concept is returned to the confines set in McLoughlin. The Galli-Atkinson approach should also not be followed [paragraph 122].

  • What Taylor v Novo* [2014] QB 150 decided

 Mrs Taylor sustained injuries in an accident at work when racking boards fell on her. Liability for the accident was admitted by her employer. Three weeks later, she unexpectedly collapsed and died due to a pulmonary embolism caused by a DVT. Her daughter did not witness the accident but was present at her mother’s collapse and death and as a result developed PTSD. The defendant accepted that the claimant was a secondary victim who met all but one of the requirements, namely she was not present at the scene of the accident or its immediate aftermath. The Supreme Court concluded that on a proper analysis, the claim in Novo failed as whilst there was an external, traumatic event (i.e. “an accident”) which immediately caused injury to Mrs Taylor, the claimant did not witness this.  The event which she did witness and which caused her psychiatric illness was not an accident. The proximity (or lack of it) of the claimant to an accident was therefore critical to the court’s reasoning in Novo [paragraph 90]. The length of time between the defendant’s negligent act or omission and the event witnessed by the claimant and which caused her psychiatric injury was not a relevant factor and the Court of Appeal in Paul was wrong to say that was what Novo decided. Novo is authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate event removed in time from the accident [paragraphs 91-92]. Novo was correctly decided [paragraph 104].

  • Must the event be close in time to the negligent act or omission

 In agreement with the Court of Appeal, the Supreme Court saw no reason why, in a case of this kind, the gap in time between the negligence and the accident should prevent a claim by a secondary victim when it does not prevent a claim by a primary victim [paragraph 94]. The requirements established by Alcock include closeness in space and time to, and direct perception of, the accident. They do not include any requirement of closeness in space and time to the defendant’s breach of duty [paragraphs 94-95].

  •  Must the event be the first manifestation of damage to the primary victim

 This was the argument advanced by the claimants in Paul who submitted that there can only be one qualifying event capable of giving rise to a claim for damages by a secondary victim, and this event must involve the first manifestation of the damage which it was the defendant’s duty to prevent. The Supreme Court agreed with the Court of Appeal that this test would create unprincipled and complex factual disputes and would be both unprincipled and unworkable [paragraph 100]. There is no rational answer to any of the complex questions this proposed test gives rise to because there is no principle which justifies any version of the proposed test [paragraph 103].

  •  Should damages be recoverable in the absence of an accident?

 No: Novo was correctly decided for the reason given by Lord Dyson MR in Novo, namely that the claim could not succeed because the claimant was not present at the scene of the accident or its immediate aftermath and the event which she witnessed was not an accident. The occurrence of manifestation of injury is not part of what defines an accident. An accident is an external event which causes or has the potential to cause injury: it is not the injury, if there is one, caused by that event. Alcock and other cases in that line of authority have held that, where the claimant was not present at the scene of the accident (or its immediate aftermath) but saw the injured victim or the body of the victim afterwards, damages cannot be recovered. Since witnessing injury sustained by another person is neither a necessary nor sufficient condition for a claim as a secondary victim in an accident case, no ready or obvious analogy can be drawn from such cases to cases where the claimant witnesses injury that has not been caused by any external accident, but illness resulting from a person suffering a medical crisis [paragraphs 104-106; 115].

  • Why witnessing an accident is legally significant

Certainty: An accident happens at a particular time, at a particular place, in a particular way and thus whether someone was present at the scene and directly perceived the accident will usually be straightforward to determine [paragraph 108].

Public perception: the Court concluded that if a line is going to be drawn, then distinguishing between claimants who suffered the ordeal of actually witnessing an accident, in which someone close to them was killed (or injured), and those who did not is an intelligible place to draw it [paragraph 109]. To extend the scope of allowable claims by secondary victims to situations where the claimant witnesses the death or illness of a relative from disease would give rise to unacceptable and unfair differences in treatment between different categories of claimant. Such unjust differences in outcome could, of course, be avoided by removing the second and third requirements for claims by secondary victims established by the House of Lords in Alcock and confirmed in Frost. But it would not, in the Supreme Court’s view, be right to contemplate such a radical departure from settled law [paragraph 116].

Practicality: the court also concluded that a feature of accident cases is that it is often difficult or arbitrary to distinguish between primary and secondary victims. Thus, if courts are to compensate for psychiatric injury sustained without any physical impact, no distinction can reasonably be drawn between injury caused by fear for the claimant’s own safety and by fear for the safety of a close family member [paragraph 110].

None of these significant features of accident cases is applicable where the claimant suffers illness from witnessing physical injury or illness in another person but does not witness any accident.

  • Has the door been shut on recovery by secondary victims in medical negligence cases?

 The Court made clear that this was an issue for another day. The question did not arise in the index cases, as none of them involved an accident in the relevant sense and therefore this question is best left to be addressed in a case where an accident has arisen on the facts [paragraph 123]. The essential starting point should be an examination of whether the necessary relationship of proximity exists, such that a doctor’s duty of care extends to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or harm to a relative. Reasonable foreseeability of harm, although necessary, is not by itself sufficient to give rise to a duty of care. Circumstances where liability might be established are difficult to envisage. The Court also highlighted the need to bear in mind the risk of unintended consequences: End of life care must not become complicated by the risk that, if it is said that the death ought to have been prevented, the hospital will be exposed to potential legal liability to family members as a result of them being at the bedside of their loved ones and thereby witnessing death or serious illness [paragraph 117].

Charles Bagot KC represented all three Defendants in the Court of Appeal in Paul, leading Charlotte Jones; and they both appeared with Simeon Maskrey KC for all the Defendants in the Supreme Court, instructed by the co-author of this article Joanna Lloyd, and Alison Garrett, of Bevan Brittan LLP for the Defendant/ Respondent in Polmear; and by Jonathan Fuggle and Hannah Wallace of Browne Jacobson LLP for the Defendants/Respondents in Paul and Purchase.

 *Charles also appeared for the successful Defendant (with Charles Cory-Wright QC) in Taylor v Novo [2013] QB 150, a Court of Appeal case which was at the core of the Supreme Court’s reasoning in Paul.


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