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Paul v Royal Wolverhampton NHS Trust [2024]

Articles, News | Thu 11th Jan, 2024

Supreme Court restricts secondary victim claims to those who witness an accident but removes the requirements that a claimant must witness a “sudden shock to the nervous system” caused by a “horrifying” event

In a majority decision (with Lord Burrows dissenting) the Supreme Court has dismissed the appeal of the Claimants in the case of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 and the conjoined cases of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed.  Laura Johnson KC, instructed by Phil Barnes of Shoosmiths LLP and led by Robert Weir KC, represented the Claimants in the lead case of Paul. 

This decision brings to an end 30 years of debate about whether a person who witnesses the death of or serious injury to a loved one as a result of an illness that proper medical treatment would have prevented can bring a claim as a secondary victim.  The Supreme Court has concluded that a claimant in this position cannot bring a claim and that the case of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16 (“Walters”) was wrongly decided on its facts.

In summary, the decision of the Supreme Court is that in order to satisfy the criteria for secondary victim claims set out in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (“Alcock”) and confirmed in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 (“Frost”) a claimant must be present at the scene of an accident (or its immediate aftermath), have witnessed it and have a close tie of love and affection with the primary victim.  The word “accident” is used by the Court as a “term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means”.  As a result those who witness the consequence to their loved one caused by an illness, which proper treatment would have prevented, cannot satisfy these criteria. 

In reaching this decision the Supreme Court started with the general rule that the common law does not recognise one person as having a legally compensable interest in the wellbeing of others and therefore that the general policy of the law is opposed to granting remedies to third parties for the effects of injuries to other people. 

With that in mind the court considered that “unless the exception defined by the Alcock line of authority is to become a general rule”, “a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds.  Wherever the line is drawn some people who suffer what may be serious illness in connection with the death or injury of another person will be left uncompensated”. 

The court placed emphasis on the value of certainty and considered that its interpretation of the Alcock criteria, restricting recovery to those who“were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim” has “a rough and ready logic” and was 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.”

The court then considered its interpretation of Alcock in the context of the general legal principles which govern the scope of the duty of care owed by a doctor and the persons to whom such a duty is owed, saying: “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.”

Of interest to personal injury practitioners as well as clinical negligence lawyers, the Supreme Court made a number of important observations about aspects of the Alcock criteria that are important for those secondary victim cases that might be pursued notwithstanding the decision in Paul

In particular the Supreme Court concluded that “in engrafting onto [the criteria set out in Alcock and confirmed in Frost] additional requirements of needing to prove that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event”, the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct.”

The court rejected the suggestion that a claimant must experience “a sudden shock” in favour of a claimant needing to do no more than prove conventional causation of psychiatric injury in secondary victim claims.  The court considered the judgments of Lord Oliver and Lord Ackner which used this language and concluded that they reflected the understanding of the causation of psychiatric injury at the time, but that “crude mechanical model which attributes psychiatric illness in such cases to an “assault on the nervous system” has, however, long since been discredited”.   As a result:

“With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.”

The Supreme Court also rejected the idea that the accident that gave rise to the secondary victim’s claim needs to be a particularly “horrifying event”.   “It is of course necessary for a claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause her injury. If, for example, a claimant with a history of psychiatric illness develops such an illness after witnessing a minor accident in which his wife sustains some cuts and bruises, his claim might fail that test. But we can see no justification for super-imposing an additional, separate requirement that the event witnessed by the claimant was “horrifying”.”

Finally, the Supreme Court clarified that a gap in time between the breach of duty and the accident on which a secondary victim claim might be premised is not, and should not be, a bar to recovery.  So if an accident occurs as a result of a breach of duty months, or indeed years before (for example in the case of negligent design or construction of a building that collapses many years later) “there is nothing in any of the House of Lords authorities to suggest that the right to recover damages for personal injury caused by witnessing a person’s death or injury in an accident is affected by the length of time between the negligent act or omission and the accident.”  The requirement is simply one of closeness in space and time to, and direct perception of, the accident. 

Comment:

Deka Chambers will provide a more detailed analysis of secondary victim claims, the decision in Paul and where the law now stands in due course. 

What is clear though is that claims for “medical mishaps” (as the Supreme Court described them) cannot be pursued where the event that has been witnessed is serious injury or a death that could have been prevented by competent treatment. 

Whether a claim might arise in a medical setting where the underlying event could be described as an accident (as defined by the Supreme Court in Paul) remains to be seen.  This issue was addressed before the Court in argument, with scenarios being given such as a doctor injecting a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative.  In oral submissions the Respondents suggested that such an incident might well be capable of giving rise to a claim.  The Supreme Court declined to go this far saying: “In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.”

This decision is one that will be welcomed by the medical profession and provides the benefit of clarity in an area where uncertainty has dominated for many years making it difficult to advise clients on both sides about the merits of claims.  There is some solace for claimants in accident cases however in the removal of the additional requirements of needing to prove that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event”.  This clarification will make it easier for lawyers acting for both sides to advise on the merits of claims because these terms lacked precision and gave rise to much argument in cases about what they meant and whether they were satisfied on the particular facts. 

You can read the judgment here.

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