Thus far and no further? Or bridging the gap in space and time?

On 13 January 2022, the Court of Appeal handed down judgment in the conjoined secondary victim cases of Paul v Royal Wolverhampton NHS Trust; Polmear and Polmear v Royal Wolverhampton NHS Trust; and Purchase v Ahmed [2022] EWCA Civ 12.

The unanimous judgment is interesting not only as another exploration of how the concept of secondary victims applies in a clinical negligence context, but also as a line in the sand for where the law has been, and where it may go in the future.

For the uninitiated or rusty, a secondary victim was described in the important case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 as one who is “no more than the passive and unwilling witness of injury caused to others”; in that case, it was the individuals who witnessed the horrendous (and, for 97 people, fatal) crushing injuries at Hillsborough stadium on 15 April 1989 and, as a result, went on to develop some form of psychiatric illness. It is important to remember that secondary victims are those who are not at risk of physical harm; if one is at risk of harm, he or she falls within the defendant’s duty of care and is therefore a primary victim.

Alcock determined that not every “passive and unwilling witness” can recover damages as a secondary victim. A claimant must satisfy four conditions, which came to be known as the Alcock criteria or control mechanisms:

1. The claimant had a close tie of love and affection with the person who was killed, injured, or otherwise in the vicinity of serious physical harm (the primary victim);
2. The claimant was proximate to the incident in time and space;
3. The claimant perceived the incident (or the incident’s immediate aftermath) directly, rather than hearing about it via a third party, for example;
4. The claimant’s psychiatric illness was a result of a sudden “shocking” event.

In the thirty years since the Alcock decision, a number of appellate cases have elaborated on or refined the Alcock criteria. This post is not the place to explore every twist and turn in this area, but an important forerunner to Paul is the Court of Appeal case of Taylor v A Novo (UK) Limited [2013] EWCA Civ 194, which raised the question of which “incident” the claimant had to witness in order to recover damages as a secondary victim. Taylor’s mother was injured in a workplace accident. Taylor did not witness this accident, but did witness her mother’s death, which occurred three weeks later as a result of DVT caused by the accident. The Court of Appeal held that there was only one event (the workplace accident), and that the death of Taylor’s mother was a separate consequence of the accident, rather than a separate shocking event (or indeed the same shocking event, occurring over the course of three weeks). The Court held that secondary victims could not recover for witnessing consequences which were distanced in space and time from the shocking event.

This interval in space and time is more likely to present itself in the context of clinical negligence claims, where serious injury or death can occur weeks, months, or even years later. That said, it is still possible for the shocking consequences of clinical negligence to present themselves in such a short space of time that they amount to a continuum of the negligent event/incident. This was the case in North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, which involved a 36 hour period between a baby having an epileptic fit and subsequently dying in his mother’s arms as a result of his misdiagnosis. The Court noted “the inexorable progression” from the baby’s seizure through to his death, and that his mother’s sudden shock was a result of being told simultaneously about the misdiagnosis and the recommendation to switch off the baby’s life support machine.

The three deaths in the Paul cases occurred some time after the alleged clinical negligence:

• Mr Paul was admitted to hospital and treated for acute coronary symptoms in November 2012. He suffered a heart attack on 26 January 2014. The claimants allege that there was a negligent failure to perform coronary angiography in November 2012, which would have revealed (and led to the treatment of) Mr Paul’s coronary artery disease;
• Miss Polmear, a child, attended her GP in August 2014 and September 2014 with complaints of episodes during which she could not breathe. She was seen by a paediatrician in December 2014 and January 2015, who concluded there was no abnormality with her cardiac rhythm. In April 2015 she was re-referred to the paediatrician, but died of pulmonary veno-occlusive disease on 1 July 2015. The defendant admitted that her condition should have been diagnosed in January 2015;
• Ms Purchase visited her GP in January 2013 with acute sinusitis. Her symptoms deteriorated (including loss of appetite, a cough, and mouth ulcers) and she visited her GP again in March 2013, where she was treated for oral thrush and a skin infection. She visited an out of hours clinic on 4 April 2013 to complain of weakness and feeling unwell, including dizziness and difficulty breathing. She was diagnosed with respiratory tract infection, oral thrush, and depression. She was discharged with medication. She died on 7 April 2013 of extensive pneumonia, and the claimant alleges there was a negligent failure to assess and treat Ms Purchase’s symptoms.

Sir Geoffrey Vos, giving the leading judgment in the three Paul cases, conducted an examination of the authorities on secondary victim claims and reluctantly came to the conclusion that the Court was bound by the decision in Taylor v A Novo, i.e. that claimants cannot recover for psychiatric harm caused by witnessing a horrific event which is removed in time from the original negligence, accident, or first horrific event. Sir Geoffrey was of the view that the length of time between the negligence and the horrific event caused by it should not affect the defendant’s liability, and that if he were “starting with a clean sheet” he would find proximity and thus allow recovery of damages (paragraphs 12, 80). He also rejected that the horrific event should be the first manifestation of damage or the event that completes the primary victim’s negligence claim (paragraph 82), which would seemingly pave the way for any number of horrific events to be possible grounds for a secondary victim claim.

The Court of Appeal recommended that the issue be given consideration by the Supreme Court, and permission to appeal has since been granted.

Those familiar with the case of White v Chief Constable of the South Yorkshire Police [1999] 2 A.C. 455 (which concerned the secondary victim claims unsuccessfully brought by police officers on duty at the Hillsborough disaster) will recall Lord Steyn’s remark that recovery for secondary victims should go “thus far and no further” without parliamentary intervention. Lord Justice Underhill’s short concurring judgment in Paul opined that finding proximity in the three Paul cases would not be contrary to that principle, as it would simply represent the application of the Alcock control mechanisms to “a different factual situation” (paragraph 103). He also expressed the view that “Lord Oliver’s references in Alcock to the need for “physical and temporal propinquity” are not directed to the relationship between the breach of duty and the shocking event but rather to the need for the claimant to be close in space and time to the shocking event.” (paragraph 102).

In deciding whether to permit recovery across a gap of space and time, and potentially for more than one horrific event, the Supreme Court will need to consider why it is that the law permits secondary victims to recover damages; it is only by this yardstick that the logic of the Alcock control mechanisms can be properly determined.

In Taylor v A Novo, Lord Dyson remarked that an expansion of the category of secondary victims should be a matter for Parliament (paragraph 25). In that context, it is instructive to recall the provisions of the Fatal Accidents Act 1976 s.1A, recently amended by Parliament in 2020, which makes provision for the bereaved relatives of those killed as a result of another’s negligence or wrongful act. Certain categories of close relatives will be awarded a bereavement award (currently fixed at £15,120). There is no scope for enhancement of that award if a claimant can establish that they have developed psychiatric injury beyond the scope of so-called ‘normal’ grief and bereavement. The Supreme Court will need to identify why it is that secondary victims are excepted from that general rule, which will be a starting point in determining the path ahead.

An expansion of the recoverability of secondary victim damages could be of particular importance in the context of mental health treatment. A violent self-inflicted death or suicide attempt prefaced by a failure to adequately diagnose or treat mental health afflictions could justify a secondary victim claim by those who witness that death, or find their loved ones shortly thereafter. The well-known resourcing troubles in the mental health arena unfortunately make this possibility a very real one.

One thing is clear: the Supreme Court’s ruling will have significant implications for this area of law. A removal of the Taylor v A Novo restriction (that the death or serious injury witnessed cannot be removed in space and time) would enable a large number of secondary victim claims to be advanced in any number of contexts, and would have ramifications well beyond clinical negligence litigation.

Keep an eye out for an upcoming episode of Civil Law Cast in which Emily Formby QC and Scarlett Milligan provide a deep dive into the Court of Appeal’s ruling on Paul v Royal Wolverhampton NHS Trust and the broader landscape of secondary victim claims.