Secondary victim claims: Paul v Royal Wolverhampton NHST

A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing (or fearing) injury to a primary victim. The courts have laid down strict control mechanisms with the aim of limiting numbers of claims that could arise from one single incident.

The lead case on secondary victims is Alcock v Chief Constable of South Yorkshire Police sets out the control mechanisms. The claimant needs to prove that:

1. It was reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock. There must also be a recognised psychiatric injury suffered.
2. There was a close tie of love and affection to the primary victim.
3. The claimant was in close proximity to the event or its immediate aftermath (in time and space).
4. The psychiatric injury must be caused by, and result from, a “sudden and unexpected shock”. It must be caused by seeing or hearing the relevant incident or its immediate aftermath

In respect of proximity, this can be difficult in a clinical setting where there is a separation between the negligence and the eventual consequences. A case usually relied upon by those defending such claims is Taylor v A Novo UK Ltd [2014], in which the Court of Appeal held that a secondary victim claim could not succeed where the claimant had witnessed her mother’s collapse and death three weeks after her mother had sustained a head injury at work due to negligence.

The recent appeal decision in Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) is welcome news to claimants in secondary victims claims arising out of clinical acts or omissions.

The Case

In overturning Master Cook’s previous decision, the Court held that daughters who suffered psychiatric injury after witnessing the fatal heart attack of their father may bring secondary victim claims even though the “sudden and shocking event” occurred months after the defendant’s negligence.

The judgement will make it difficult for defendants now to rely on Taylor v A Novo (UK) Ltd to defeat secondary victim claims in clinical negligence cases where the negligence and the consequences of the negligence are not proximate in time.

On appeal Chamberlain J concluded that the Master was wrong to strike out the claims and they should therefore proceed to trial. Chamberlain J identified the central issue as being ‘whether Mr Paul’s collapse from a heart attack, 14 and a half months after the allegedly negligent treatment, is capable of constituting a relevant ‘event’” (para [63]).

In discussing proximity and the “relevant event” Chamberlain J stated at [65]:

“When the negligence and the damage are separated, and assuming there is no requirement for the negligence and the damage to be synchronous, the ‘scene of the tort’ can only mean ‘the scene where damage first occurred’. In the context of the tort of negligence, this is the point when the tort becomes actionable or complete”.

Whilst the defendant raised several further arguments as to why the circumstances of this case did not give rise to liability, these were, in turn, rejected by Chamberlain J. At para [75] he concluded:

“I would hold that the Master was wrong to conclude that these claims are bound to fail on the facts pleaded. Here, unlike in Taylor v A. Novo, there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack on 26 January 2014. On the facts pleaded, it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul’s death. The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and 9. The fact that the event occurred 14½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an ‘accident’ in the ordinary sense of the word, but rather an event internal to the primary victim. In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete, Taylor v A. Novo does not preclude liability. As I have explained, for the purposes of this strike-out application, I must assume that the present is such a case.”

Chamberlain J considered that on a proper reading of Taylor v A. Novo, its ratio was that where a defendant’s negligence resulted in an “event” giving rise to injury in a primary victim, a secondary victim could only claim for a psychiatric injury caused by witnessing that event rather than a consequential discrete event but that there was nothing to suggest that there would be any reason to deny recovery simply because the accident or event occurred months or years after the negligence which caused it.