Secondary Victims reach the Supreme Court

Please follow the link at the end of this blog if you wish to watch the recording of the webinar discussion about this case, first broadcast on 15 January 2024.

Introduction

A little under two years after the Court of Appeal’s decision, the Supreme Court handed down a judgment on 11 January 2024 on the trio of clinical negligence secondary victim cases: Paul, Polmear and Purchase (Paul and another v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [2024] UKSC 1). The appeals were dismissed by a majority of 6:1 – Lord Leggatt and Lady Rose gave the leading judgment, Lord Burrows dissenting.

The lead judgment essentially rules out almost all prospect of clinical negligence giving rise to a secondary victim claim.  While a very small potential window is left ajar, in effect, such claims will be highly unlikely to succeed in the future.

Lord Burrows dissented, on the basis that the Government had given the duty of expanding or considering changes to the law back to the hands of the Courts and the common law, and was of the view that expanding the category of secondary victims to include claims which originated from clinical negligence was a chance to make a pragmatic and incremental expansion to the common law in line with modern practice.

It is important to remember that each of these three cases contain at their centre the witnessed death of loved ones in terrible circumstances which lead to the development of psychiatric illness.

Paul was a claim by Mr Paul’s two young daughters for the psychiatric illness they allege arose from witnessing their father suffer a cardiac arrest and collapse in the street in January 2014.  Mr Paul’s heart attack and death were caused by an occlusion of his coronary artery.  This arose from underlying atherosclerosis that the claimants say the defendant negligently failed to diagnose and treat.

Polmear concerned the death of Esmee, aged 6.  Her parents allege the defendant’s negligent failure to diagnose her pulmonary veno-occlusive disease and initiate treatment led to her dying before them in July 2015.  Her father carried her when she was tired and breathless, and tried to give her mouth-to-mouth resuscitation following her collapse.  Her mother also witnessed the unsuccessful life-saving attempts of paramedics.  Both claimed for PTSD and depression.

In April 2013, Evelyn Purchase died of pneumonia aged 20. Her mother had taken her to the defendant GP where her illness was not recognised. Two days later, Evelyn developed heart palpitations.  Having left her for the evening, Evelyn’s mother returned to find her motionless and holding a phone, she had tried to call for help and her dying breath was recorded on her mother’s mobile. Attempts to give mouth-to-mouth resuscitation failed and Evelyn’s mother claimed for PTSD and severe chronic anxiety and depression.

These facts are important, not simply because it is vital to remember they are the central losses from which the claims arise, but because the Supreme Court has now ruled that such events, while horrific and shocking to witness, and while being the unfolding of a life-ending drama witnessed by loved ones as they happen, are not events capable of giving rise to a secondary victim claim. While it was an agreed fact that each of the claimants suffered from a medically recognised psychiatric illness, their claims failed due to the underlying cause of the primary victims’ deaths being an alleged failure to diagnose and/or treat a life-threatening condition: a failure to deliver medical care.

Secondary Victims: A Reminder

Secondary victims are those who suffer injury (which can be physical, but is usually psychiatric) as a result of witnessing or apprehending the injury or endangerment to another – subject to qualifying restrictions. The category of secondary victim claims is a common law exception to the usual rules of recovery. Paul considered whether secondary victims should include those who suffer harm by witnessing the death or injury of a close relative due to a medical condition which the defendant has negligently failed to diagnose or treat.

The grounds for the secondary victim claims are set out in three House of Lords decisions. First, McLoughlin v O’Brien [1983] 1 AC 410 a road traffic collision where the secondary victim mother was not involved, but rushed to hospital where she found the “immediate aftermath” of the accident: members of her immediate family killed and seriously injured. This case is notable for the 2 hour window in which the claimant came upon the “immediate aftermath” of the collision. In considering whether or not the claimant had come across the “immediate aftermath” it was important that the claimant’s relatives were still unwashed and untreated in hospital.

Secondly, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 gave the first definition of secondary victims as a concept, describing them as “no more than the passive and unwilling witness of injury caused to others”. Lord Oliver defined the common features of secondary victim cases leading to “the essential requirement of proximity” being (1) a marital or parental relationship (2) secondary victims’ injuries arising from “sudden and unexpected shock to plaintiff’s nervous system” (3) the secondary victim was either “personally present at the scene of the accident or ..in more or less immediate vicinity” and (4) injury to the secondary victim arose from “witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim”. Lord Oliver did not suggest his Alcock analysis gave firmly fixed tramlines for secondary victim claims, but urged caution against a continued, albeit pragmatic, extension of the “proximity” concept.

In Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 their Lordships agreed the Alcock requirements needed to be met. Lord Steyn re-stated them as the secondary victim: (1) having a close tie of love and affection with the person killed, injured or imperilled (2) being close to the incident in time and space, and (3) directly perceiving the incident. 

A key issue confirmed by the Court of Appeal in Taylor v Novo [2013] EWCA Civ 194 and adopted and confirmed by the Supreme Court in the Paul judgment is the concept of proximity being both physical and temporal to the primary victim event, and this proximity (which is an essential component in secondary victim cases of the distinct concept of legal proximity) is a key determinant of the successful claim.

Basis for Making a Claim

In Paul, Lord Leggatt and Lady Rose giving the leading judgment said, “The key issue raised by these appeals is whether this exceptional category of case includes - or can and should 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.” This includes circumstances where the primary victim does not actually suffer death or injury but the secondary victim reasonably fears they might.

Strand 1 of the Paul Decision

The majority in the Supreme Court upheld the reasoning of Lord Dyson in Taylor v Novo that a secondary victim claimant must be present at the scene of the primary victim’s accident or its immediate aftermath.  It is the accident that is the pivotal event, not any consequence that follows, however horrifying that may be. Paragraphs 71 and 105 of the judgment describe this in more detail: the manifestation of injury to the primary victim is not what defines an accident.  The accident is an external event.

The majority considered that witnessing the accident is legally significant for three main reasons (1) it makes the category of secondary victims legally certain (§108)
(2) witnessing an accident involving a close family member is an intelligible place to draw the line on recovery of damages for illness consequent on bereavement (§109), and (3) it can be difficult or arbitrary in accident cases to distinguish between primary and secondary victims, and no reasonable distinction could be drawn between injury caused by fear for one’s own safety versus for the safety of a close family member (§110). Atkin LJ in Hambrook v Stokes Brothers [1925] 1 KB 141 was quoted with approval where he said, 

“It would result in a state of the law in which a mother, shocked by fright for herself, would recover, while a mother shocked by her child being killed before her eyes, could not, and in which a mother traversing the highway with a child in her arms could recover if shocked by fright for herself, while if she could be cross-examined into an admission that the fright was really [only]  for her child, she could not. In my opinion such distinctions would be discreditable to any system of jurisprudence in which they formed part.”.

It is important to be clear that the Court has underlined that the time between the defendant’s breach of duty (their negligent act or omission) and the accident as the completion of the tort and manifestation of injury to the primary victim (or as perceived by the secondary victim) is irrelevant.  A short example: a rolled steel joist could be left out of a wall in breach of a builder’s duty of care, but it could take many years for the wall to weaken and fall. If, on so doing, it struck someone – that would be the completion of the tort.  So too in Taylor: the shelves which fell on Mrs Taylor were stacked in breach of duty, but the time between the stacking of the shelves in such a way as to be a breach of duty of care, and their falling on Mrs Taylor is irrelevant, whether it be days, weeks, months or years. However, at the point of the accident occurring to the primary victim – the completion of the tort with regard to the Mother - the secondary victim (in that case, Mrs Taylor’s daughter) would need to be proximate in time and space so as to witness this incident or its immediate aftermath so as to have the necessary proximity to enable her to bring a secondary victim claim.  

Medical Duty of Care

So, how does this analysis fit within the broader law of negligence? The Supreme Court’s judgment makes clear that the general principles of negligence cannot be ignored and that the application of those principles, which are designed to establish whether sufficient proximity exists between the tortfeasor and the secondary victim, is a question of interpersonal justice: one cannot always recover for injury or damage caused by the actions of another, regardless of how the injury or damage is  caused nor how far removed the victim is  from the tortfeasor’s actions. As their Lordships said (at §141 of the majority judgment): “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, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather 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.”

While this is relatively clear, it is hard to understand how, for example, a critical stillbirth watched by the expectant father does not fit these limited criteria and so warrant him able to recovery of damages as a secondary victim if this witness caused him a recognized psychiatric injury. It is hard also to see how such a restriction will be comprehensible to the ordinary person. This is clearly an “accident” by way of a sudden and instant unfolding event to which the father is proximal in time and space and involving someone for whom he has a close tie of love and affection. Just as it is described as being illogical for a mother not to recover for injury if her principal fear is for the child she carries in her arms during an accident (in contrast to her ability to recover if her principal fear is for her own safety), so it is hard to see why a father is excluded in the example of witnessing a stillbirth. It is possible to suggest that the distinction between the two examples is that the father could never be at risk of harm himself in this instance, but that is not a control on a secondary claim articulated to date (in McLoughlin, for example, the claimant mother was not present at the accident so could never have perceived herself at risk).

In essence, the Supreme Court’s rejection of clinical negligence claims is based on a belief articulated at §138 of the leading judgment that “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…”

The Court continued at §142: “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.”

While the emphasis is on caring for the patient and not worrying about the wider context or those who might be affected, it is hard to see why, in contrast, a defendant driver should be shouldered with a duty of care for those who might be proximate to a collision or even come upon the aftermath of a collision as well as those involved in the collision, or what the innate difference between these two tortfeasors may be.

However, at present, and despite the dissenting judgment of Lord Burrows, the law is fixed – and the result is that it is hard to see a potential clinical negligence secondary victim claim succeeding.  A small door was left open at §123 of the majority judgment for the possibility of a relevant medical accident occurring (an example being given of an injection being negligently given with immediate and lethal effect) but their Lordships declined to speculate as to whether or not a claim brought by a secondary victim could succeed in those circumstances, preferring instead to await potential factual cases coming before a court for consideration.

Other Important Points to Take from the Judgment

The Supreme Court’s judgment has determined that the requirement for the accident or incident to be assessed by a court as being sufficiently “horrific” to justify a secondary victim claim should no longer apply: there is no subjective assessment of whether something is sufficiently “horrific” to allow success.

Similarly, the requirement for psychological harm to be suffered by way of “nervous shock” or “sudden shock” is removed, with the Court recognising that such a requirement reflected outdated medical knowledge as to the causation of psychiatric illness. It is not sufficient for the psychiatric illness to be both caused by witnessing the accident and fearing for a loved one, and reasonably foreseeable. Expert evidence will be the determinant of a recognisable psychiatric illness.  Whilst a diagnosis of PTSD – often but not always the primary condition alleged to have been caused in secondary victim cases - requires an element of shock, that is a specific diagnostic requirement of that particular illness (which will therefore be determined by medical experts, rather than the court), and shock per se is no longer a legal hurdle to be cleared.

Conclusion

Overall, while this decision may not be welcomed by some practitioners, and while it reduces the scope of potential claims, it does seek to simplify the law and make this confusing area easier to understand and determine. It does, however, remain to be seen whether the application of the simplified legal test will simply generate new legal battlegrounds as to the definition of an accident (as opposed to a medical crisis) and its immediate aftermath. There will doubtless be exploration of the §123 potential loopholes.

We consider it likely that, in addition to clinical negligence, secondary victim claims may be unlikely to succeed in other “long cause” claims such as historic abuse, asbestosis and other forms of latent damage where witnessing the “accident” element of the primary victims’ injury or imperilment may be difficult to establish.

Further Materials and Discussion

Emily, Charlie and Scarlett delivered a webinar discussion on this case on 15 January 2024, which you can watch [here].

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