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Articles | Thu 13th Jan, 2022
The Court of Appeal judgment has been handed down this morning in the important secondary victim case of Paul v Royal Wolverhampton NHS Foundation Trust and the two linked cases of Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed. Laura Johnson of 1 Chancery Lane acts for the Claimants in Paul, led in the Court of Appeal by Rob Weir QC and instructed by Phil Barnes of Shoosmiths LLP. All three cases are concerned with the longstanding difficult question of when a defendant to a clinical negligence case can be held liable for psychiatric injury caused to a close relative of a patient (primary victim) who witnesses a shocking and horrifying event to the primary victim as a result of that negligence. The key question in the appeals was whether the necessary legal proximity existed between the defendant and the close relative (secondary victim) where a gap in time exists between the negligent treatment and the horrifying event of injury.
The Court of Appeal has found for the Defendant in each appeal striking out the claims on the basis that they are bound by an existing Court of Appeal authority (Taylor v. A. Novo (UK) Ltd  EWCA Civ 194) that is fatal to the claims. However, in a lead judgment by Vos MR with additional reasons by Underhill LJ the Court of Appeal recognised that the decision in Taylor developed the underlying principles described by Lord Oliver in Alcock v. Chief Constable of the South Yorkshire Police  1 AC 310 and questioned whether the interpretation of those principles in Novo was correct.
With that observation in mind Vos MR went on to say “If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case”. Importantly, Vos MR concluded “I have, as I have already said, reservations about whether Novo correctly interprets the limitations on liability to secondary victims contained in the five elements emerging from the House of Lords authorities. Subject to hearing further argument, therefore, I would be prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case”. This view was echoed by Underhill LJ: “It follows that if the point were free from authority I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover. I do not think that recognising the necessary proximity in such cases would be contrary to the “thus far and no further” approach taken in White. It would not involve going beyond the elements established in Alcock: rather, it would represent their application in a different factual situation”. He went on to say “My strong provisional view, like [Vos MR], is that the issues raised by them merit consideration by the Supreme Court”.
The Claimants in all three cases have applied to the Court of Appeal for permission to appeal to the Supreme Court. The application is opposed by the Defendants.
Download the judgment here.