The end of secondary victim claims in clinical negligence? Paul, Polmear and Purchase appeals fail

On 11 January 2024, the Supreme Court handed down its long-awaited judgment in the conjoined appeals of Paul & another v Royal Wolverhampton NHS Trust, Polmear & another v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed.

In a decision likely to be welcomed by defendants, the appeals were dismissed, and the judgment concluded that secondary victim claims are in the majority of cases not applicable to clinical negligence matters.

Secondary victim claims concern, in short, circumstances where a claimant has suffered a psychiatric injury as a consequence of witnessing the death or injury of another person. They are often associated with witnessed accidents (road/workplace), or the immediate aftermath, caused as a result of negligence. Their application in clinical negligence cases is more controversial.

The appellants claims were unsuccessful in the lower courts and Court of Appeal, the courts regarding themselves bound by Taylor v A Novo (UK) Ltd [2013] EWCA civ 194, [2014] QB 150.

The issues for the Supreme Court to address were whether a doctor owes a duty of care to a patient’s close family to protect them against the risk of injury they may suffer should they witness the death or injury of the patient caused by negligence and, to find for the appellants, the court would be required, effectively, to determine that Taylor v Novo was wrong in its assessment of proximity in secondary victim claims.

For background, in the earlier case of McLoughlin v O’Brian [1983] 1 AC 410, the House of Lords allowed the recovery of damages for a claimant suffering “nervous shock” having witness the aftermath of a fatal accident caused by negligence.

Subsequently in Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 [1992] 1 AC 310 the House of Lords established further control mechanisms to limit the circumstances in which a claim could be brought. Specifically, Alcock held that to succeed, a claimant must i) perceive a “shocking event” or immediate aftermath with their own unaided senses; ii) suffer “sudden” shock; iii) have a close tie of love and affection with the injured/deceased person; iv) show that a person of normal fortitude would reasonably foreseeably suffer psychiatric damage as a result of witnessing the event.

As case law evolved, numerous claims based upon clinical negligence causing the “shocking event” were dismissed. Some were dismissed as the “event” which had to be witnessed was considered the act of negligence and not its consequences; some were dismissed due to the proximity between the negligence and the manifestation of injury (Taylor v Novo) ; and some were dismissed as the witnessed negligence could not be deemed “shocking” or “horrifying” (Sion v Hampstead Health Authority [1994]; Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015]; Brock v Northampton General Hospital NHS Trust & another [2014]) or that the event was not a single horrifying event, but a series of lesser events (Shorter v Surrey & Sussex Healthcare NHS Trust [2015]).

In Taylor v A Novo, the case central to the conjoined appeals, the Court of Appeal was not satisfied that the claimant had sufficient proximity to the original negligence (an accident at work) despite witnessing the fatal and traumatic consequences three weeks later. 

The decision in Taylor v Novo was subsequently followed in Wild v Southend Hospital NHS Trust [2014] in which witnessing the shocking manifestation of negligence (stillbirth) was not enough and did not equate with witnessing horrifying events that led to death/serious injury.

The control mechanisms for secondary victim claims are a challenging hurdle for claimants to overcome and courts have taken an unsympathetic stance in those linked with clinical negligence. This may well be on policy grounds to avoid the floodgates opening but also because there is no real equivalence of an “accident” to witness in respect of clinical negligence.

In a judgment that will comfort defendants and their insurers, not only did the Supreme Court maintain those tight control mechanisms, and confirm that Taylor v Novo was correctly decided, it went further to say secondary victim claims are not compatible with clinical negligence claims.

The court held:

“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.

 “There is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified… by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused and to apply restrictions which are reasonably straightforward, certain and comprehensible to the ordinary person….

A secondary victim, as a result of witnessing a death or manifestation of injury which is not caused by an external, traumatic event in the nature of an accident but is the result of a pre-existing injury or disease... [is not] analogous… the persons whom doctors ought reasonably to have in contemplation when directing their minds to the care of a patient do not include members of the patient’s close family who might be psychologically affected by witnessing the effects of a disease which the doctor ought to have diagnosed and treated. Hence there does not exist the proximity in the relationship between the parties necessary to give rise to a duty of care.

The thought that these tragic events could have been avoided if the hospital or doctor had exercised due care must, as in every case of wrongful death, add further to the agony and perhaps anger that they feel. The law cannot, however, impose duties and liabilities on the basis of sympathy, however strongly felt. The appeals must therefore be dismissed”.

It would now appear there are extremely limited, if any, circumstances in which a claimant can successfully bring a secondary victim claim where there has been clinical negligence. It would be sensible for insurers and indemnifiers to urgently consider withdrawing offers previously made and invite claimants to discontinue such claims.

As the Supreme Court acknowledged, these are tragic cases.  In many situations there will remain a claim by the family of the deceased for the patient’s injuries and losses either under the Fatal Accidents Act of the Law Reform (Miscellaneous Provisions) Act, but they will not in general be able to bring claims for any psychiatric injury they have suffered as a result of the death or injury.