The Supreme Court handed down the long-awaited judgment 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, Purchase (Appellant) v Ahmed (Respondent)  UKSC 1 on 11 January 2024. Gemma McGungle considers its impact.
Each case centred around allegations that the defendants failed to diagnose life-threatening conditions of the primary victims. Subsequently. the primary victims died having suffered “a traumatic death”. In Paul and Polmear, the shocking death occurred in the presence of close relatives, causing them psychiatric injury, whereas in Purchase, the close relative came upon the primary victim immediately after her death, again causing her psychiatric injury.
The question for the Court was whether the necessary legal proximity existed between the defendant and the close relative (“the secondary victim”).
Sir Geoffrey Vos, Master of the Rolls, Lord Justice Underhill, Vice President Of The Court Of Appeal (Civil Division) and Lady Justice Nicola Davies handed down the Court of Appeal judgment on 13 January 2022 having heard the second appeal in December 2021. They concluded that they were bound by the Court of Appeal in Crystal Taylor v. A. Novo (UK) Ltd  EWCA Civ 194, where Dyson LJ concluded that where there exists an interval of time between the breach of duty and the shocking event, no claim can be brought for psychiatric injury. Notwithstanding the conclusion, Sir Geoffrey Vos and Underhill LJ outlined their reservations as to whether Novo correctly determined the limitation on liability to secondary victims and permission was therefore given to appeal to the Supreme Court.
By a 6-1 majority (Lord Burrows dissenting) Lord Leggatt and Lady Rose gave judgment, dismissing the appeals.
The Court concluded that the secondary victim had to witness the “accident” suffered by the primary victim in order for there to be recoverability, witnessing a traumatic death caused by an accident (not witnessed) is insufficient. As put by Lord Carloway :
“the key feature of these exceptional cases, in which recovery is permitted, is that the claimant is present at the scene of an accident or its immediate aftermath. There must be an accident to be witnessed”.
In making the witnessing of an “accident” integral to recoverability for secondary victims the Court concluded that legal certainty was provided :
“Whether someone was present at the scene and whether they directly perceived an accident are in most cases questions which admit of a clear and straightforward answer. These criteria for determining whether a person is eligible to claim compensation as a secondary victim therefore have the great merit of providing legal certainty.”
Furthermore, drawing a line between illness consequent on bereavement and illness arising out suffering the ordeal of witnessing an accident causing the death of a close relative is a position that most people would accept as intelligible.
Thirdly, the Court determined that in such cases, it would not only be unjust but practically impossible to distinguish between the emotions of a primary or secondary victim; there can be no reasonable distinction “between injury caused by fear for the claimant’s own safety and by fear for the safety of a close family member.”
Ultimately, the Court considered that liability of negligent actions for secondary harm should be kept within “reasonable bounds” subject to 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.”
The Court made specific reference whether a doctor owes an extended duty to the family of 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.
However, the Court left open the question of whether there can be liability in circumstances where there has been a medical accident :
“The question was raised in argument of whether the rules governing claims by secondary victims arising from accidents could ever apply in a medical setting. The question does not arise in the present cases, as none of them involves an accident in the relevant sense. Various hypothetical examples were, however, posed in argument such as a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.”
Whilst this is not a welcome decision for those previously considered to be potential secondary victim claimants in clinical negligence claims, there is no doubt that it is a landmark decision. There is now clarity for those advising on the merits of a potential claim and the applicable criteria set down by the Court provide a level of certainty in an increasingly uncertain environment for clinical negligence lawyers (see fixed recoverable costs/the Intermediate Track). Crucially, the Court has not shut the door to potential claims where the facts determine that the criteria is met.
For more details on Gemma McGungle and 18 St John Street’s Clinical Negligence, Personal Injury & Costs Department please visit our website here. Or contact the clerks on 0161 278 8261 or email firstname.lastname@example.org