Secondary victims: the Supreme Court provides guidance for clinical negligence claims
Paul, Polmear and Purchase and another v Royal Wolverhampton NHS Trust [2024] UKSC 1
By way of three conjoined cases, the Supreme Court considered the issue of secondary victim claims in the context of medical negligence where the event giving rise to the psychiatric injury was distinct in time from the initial negligence to the patient.
Factual Circumstances of the Cases
Paul: Mr Paul attended hospital with chest pain. One year later, whist out with his daughters, he collapsed due to a heart attack, hit his head and suffered a brain bleed and died. Mr Paul’s daughters claimed for psychiatric injuries.
Polmear: Esme, a 6-year-old child, was misdiagnosed and as a result collapsed 6 months later. Her parents saw Esme lying on the floor and resuscitation attempts being made. One of her parents attempted CPR. Esme’s parents suffered with PTSD and depression.
Purchase: Miss Purchase was misdiagnosed with a respiratory tract infection as opposed to pneumonia. Three days later, her mother, the claimant, went out for the evening. Upon her return, she found Miss Purchase unconscious with her phone in her hand. Efforts to resuscitate Miss Purchase were unsuccessful. The claimant found that she had a voicemail from her daughter recording her last minutes. The claimant suffered PTSD, anxiety and depression.
Court of Appeal
Before the Court of Appeal, there was no dispute that, in principle, secondary victim claims could be made for psychiatric injuries sustained in clinical negligence claims.
The Court of Appeal held that it was bound by the five stage Alcock test as applied by the Court of Appeal in Taylor v A Novo [2013] EWCA Civ 194. This therefore meant that a claim could not succeed where the shocking event that gave rise to a secondary victim’s injuries was removed in time and space from the negligence that gave rise to that eventual shocking event.
On that basis, the claims in each of these cases failed before the Court of Appeal but permission was granted to appeal to the Supreme Court.
Supreme Court
The Supreme Court provided a lengthy judgment addressing secondary victim claims. This is a very significant judgement that clarifies a number of aspects of the test applied in secondary victims cases, but also suggests that the reasoning in many previous cases has been flawed.
The Requirements for a Claim to Succeed
The Supreme Court endorsed the requirements established in Alcock as set out in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 that a claimant:
- Must have a close tie of love and affection with the person killed, injured or imperilled;
- The claimant must be close to the incident in time and space; and
- The claimant must have perceived the accident themselves.
The Supreme Court has clarified that there is no requirement for there to be:
- A ‘sudden shock’ giving rise to psychiatric injury.
- Nor does the event have to be horrifying, noting that this inevitably involves an undesirable comparison of different traumatic events.
The court has also narrowed what is likely to be viewed as the immediate aftermath, criticising the extension of that principle. The court commented that the focus on whether there had been a single sequence of events gave rise to difficulties with interpretation and was an artificial exercise in separating out the index event and the aftermath.
There must be an ‘accident’
The Supreme Court has made clear that the witnessing of an accident or the immediate aftermath is integral to secondary victim claims and the Court of Appeal had erred in failing to treat the issue of whether there was the occurrence of an accident as material.
The Court clarified that an accident is “an external event which causes, or has the potential to cause, injury”. The Court affirmed that a claimant must witness the accident itself or the immediate aftermath for a secondary victim claim to succeed.
This need for an accident was held to be because:
- An accident is a discrete event, which could provide clarity and certainty in determining who is and is not a relevant claimant.
- Most people would accept that the correct line to be drawn in identifying claimants is to distinguish between those who witnessed an accident and those who did not.
- It can be difficult to distinguish between primary and secondary victims in accident cases where, for example, a mother and child are both put in danger and the mother would therefore fear for herself and her child.
The court also noted that it would be undesirable for end-of-life decisions to be complicated by questions of whether allowing a family member to see and be with a patient might give rise to potential liability.
Duty of Care
The court indicated that there has been insufficient focus in secondary victim claims in a medical negligence context on the question of whether doctors owe a duty of care to the family of patients.
The majority in this case held that it cannot be said that a doctor treating a patient has entered into a doctor patient relationship with any of the patient’s family and responsibility for their health is thereby assumed.
The court stated that the imposition of such a responsibility would go beyond what would be reasonably regarded as the nature and extent of the role of hospitals and doctors in current society.
Judgment Conclusion
The court concluded that it was necessary to restrict the class of claimants whose claims might succeed to those who are more closely and directly connected to the accident caused by the defendant and apply restrictions capable of being understood by ordinary people. This means, that for secondary victims to succeed, they must have been “present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim”.
The court expressly stated that it was not expressing a view about claims where there was an accident that took place in a medical setting, such as the injecting of an incorrect drug or dose causing a witnessed adverse reaction.
Discussion
On the face of the judgment, it would appear that the Supreme Court has limited secondary victim claims in a medical negligence context with its finding that doctors do not owe a duty of care to the family of patients.
Nonetheless, the specific issue of whether or not a doctor owes a duty of care to a family member in a medical accident scenario has been expressly stated to have not been determined. In order for such a claim to succeed, a claimant will have to satisfy the criteria set out in Frost. This willinclude proving physical proximity to the accident or the immediate aftermath, along with establishing that there had been the assumption of a duty of care by the doctor to those family members.
Importantly, in a clinical negligence context, very few claims arise out of ‘accidents’. As such, it is likely that defendants will take a more robust approach in defending these claims and dispute the basic existence of a duty of care owed to the family members.
Even in claims where there are potential accidents, the definition of what will or will not amount to an accident is likely to remain contentious and disputed, and what is likely to be held to be within the immediate aftermath will now be much narrower.
Moreover, a claimant will still have to prove they are worse off than they would have been as a result of bereavement alone and can only recover damages in respect of that portion of the injury (Hinz v Berry [1970] 2 QB 40).
In reaching their decision, the majority judgment (6-1) has effectively overturned much of the reasoning of previously decided medical negligence claims. It appears to be a judgment in line with other recent authorities by the Supreme Court in the field of clinical negligence and personal injury claims: adopting a more traditional less expansive approach to the law including a shift away from paternalism.
