The recent Supreme Court judgement set out in Paul v Wolverhampton NHS Trust on Thursday 11th January 2023, dismissed the three conjoined appeals in Paul v Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Mahmoud Ahmed. The appeal focused on whether secondary victims in clinical negligence claims can make a claim for psychiatric injury.
The threshold to meet for secondary victims has always been extremely difficult to prove, just because you witnessed something that is deemed as a ‘shocking event’ the law does not always reward compensation. The legal test for who could claim originated from the case of Alcock v Chief Constable of South Yorkshire Police: In order to be able to pursue a success claim you had to be able to prove
- A close tie of love and affection to the primary victim.
- The ‘nervous shock’ must have come through the Claimant’s unaided senses as a consequence of the sudden appreciation of sight or sound of a horrifying event.
- The Claimant must have been present at the scene of the accident or witnessed its aftermath shortly afterwards.
- The injury arose from witnessing the death of, or extreme danger to, or injury and discomfort suffered by the primary victim.
- An element of physical proximity to the event and temporal connection between the event and the Claimant’s perception of it.
The Supreme Court closely analysed the relevant cases, including Alcock, McLoughlin v O’Brien [1983] and Frost v Chief Constable of South Yorkshire [1999] to come to their judgment.
Consequently, we now have a new three-stage test to apply:
1.The secondary victim must be present at the scene of an “accident” or its immediate aftermath. The Claimant witnesses the accident or its immediate aftermath.
2.The Claimant has a close tie of love and affection with someone involved in the accident who is injured or imperilled.
- You must show that the accident was caused by the defendant’s negligence and that the secondary victim has suffered a recognisable psychiatric injury. It must be reasonably foreseeable that the secondary victim would suffer injury – psychiatric or physical.
The Supreme Court agreed with the decision in the Court of Appeal that the gap in time between negligence and the accident should not prevent a claim by a secondary victim when it does not prevent a claim by a primary victim [see paragraph 94].
There is no longer a requirement for a ‘horrifying event’; the Claimant must show it is reasonably foreseeable that the Defendant’s negligence might cause her/him injury. Minor accidents might fail that test [see paragraphs 71 to 78].
The Supreme Court found that imposing a responsibility on hospitals and doctors to protect family members from the trauma of witnessing medical emergencies or death would go beyond the nature and scope of their role; ‘Medical practitioner [responsibilities do not extend] to protecting…family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative.’
The Supreme Court has created great difficulty for potential secondary victim claimants is by using the word “accident”. The Court clarified that ‘accident’ is defined by ‘an accident…a discrete event in the ordinary sense of that word…something which happens at a particular time, at a particular place, in a particular way. 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.’
The judgment has severely limited the occasions where a secondary victim can prove a claim. The new requirement for there to be an accident will not cover negligent acts such as delay in diagnosis, failure to consent or missed diagnosis.
In summary, this decision has been difficult for Claimant Lawyers as it is now hugely challenging to bring a successful clinical negligence secondary victim claim.
Written by Hollie Reardon, Trainee Solicitor, in the Clinical Negligence Department.
