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Articles, News | Wed 31st Jan, 2024
The Supreme Court decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 was eagerly anticipated because of the impact it was likely to have on claims arising in a clinical setting. What was not anticipated was that the Supreme Court would take the opportunity to look at how some of the other control mechanisms that apply in secondary victim claims have been interpreted and applied by the courts and consider whether those decisions were right.
As a result not only does the decision in Paul give an answer to a 30 year debate about whether secondary victim claims can be pursued in circumstances where the claimant has witnessed an event of injury or death caused by a failure by a medical professional to treat a loved one, but it also reviews and refines aspects of the control mechanisms more generally.
This article aims to answer the question: where are we now in relation to secondary victim claims, both in the clinical context and more generally? It provides an overview of the law relating to secondary victim claims and summarises the position now, providing practical advice about what claimants need to prove and the types of claim that survive the decision in Paul.
What is a secondary victim?
A primary victim is a person who is injured by the negligence of another. Most compensation claims are concerned with primary victims.
Secondary victim claims are an exception to the general rule that the common law does not recognise one person as having any legally compensable interest in the physical well-being of another. It is this rule that explains why a person who suffers a psychiatric illness as a result of the pressures of caring for their loved one who has been injured by a tortfeasor cannot themselves bring a claim against that tortfeasor. The only other exception is the statutory cause of action for bereavement contained in the Fatal Accidents Act 1976.
Over time the law has developed[1] to allow a class of claimants, known as secondary victims, to bring claims where they have been “no more than the passive and unwilling witness of injury caused to others”[2].
The secondary victim’s claim is not parasitic upon any claim by a primary victim. In fact it may be that there was no primary victim at all because no one was injured in the event that gives rise to the secondary victim claim. Witnessing imperilment of a loved one can suffice[3].
In order to establish a secondary victim claim the claimant must show that sufficient proximity exists between the claimant and the defendant such that a duty of care arises:
“that description [“secondary victim”] must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him – a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant.”[4]
In the early 1980s this area of law extended one step further, enabling those who had not witnessed the primary event but who had come upon its immediate aftermath, to bring a claim in certain circumstances. This is known as “the immediate aftermath extension” and its principles are set out in McLoughlin v O’Brian [1983] 1 AC 410. In that case the issue was whether the claimant could recover damages when she was not present at the scene of a road accident but attended hospital shortly afterwards and witnessed injuries caused to family members. The House of Lords held unanimously that the claimant was entitled to recover compensation for her injuries, on the basis that it would be arbitrary and unjust to draw a line between a person who was present when their family were seriously injured in an accident, or in the claimant’s case immediately rushed to the scene and came upon its aftermath. In that case it was of relevance that when the claimant came upon her husband and surviving children (one having died in the accident) they were “in the same condition” as they would have been had she come upon them at the roadside “covered with oil and mud, and distraught with pain”[5].
What are the control mechanisms?
In order to understand Paul and its impact on the law of secondary victim claims it is necessary to consider briefly the authorities in which this type of claim developed, because it is an area of law that has been influenced by public policy and, as a result, does not follow the familiar gateways of the law of negligence. In particular it is important to understand how the courts have decided secondary victims must show proximity in the relationship with the defendant in order to establish a duty of care. This issue is governed by rules established in the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, derived from the development of earlier authority.
In McLoughlin Lord Wilberforce identified three elements in any claim which had to be considered to keep the liability of defendants within reasonable bounds: (1) the class of persons whose claims should be recognised; (2) the proximity of those persons to the accident and (3) the means by which the injury was caused.
Alcockwas decided 9 years after McLoughlin. The claims arose from the Hillsborough disaster in 1989 when 97 Liverpool football fans died, and others were seriously injured at the Hillsborough football stadium in Sheffield. Two of the claimants had been present at the ground and witnessed the crush, others saw the disaster unfold on the television, and three of the claimants identified the body of their relative at the mortuary. The House of Lords held that none of the claimants were entitled to succeed. Four of five members of the appellate committee gave reasoned speeches and there is no clear lead speech, but it is that of Lord Oliver that has attracted the greatest focus in cases that have followed.
Lord Oliver’s speech is the origin of the distinction between primary and secondary victims, identifying a broad category of cases where the claimant “was involved, either mediately or immediately, as a participant” – primary victims – and those where the claimant was “the passive and unwilling witness of injury caused to others” – secondary victims[6].
Lord Oliver emphasised that reasonable foreseeability of harm alone, while a necessary ingredient of the duty of care, is not in itself sufficient. There must be sufficient proximity between the parties to make it just to impose a duty. What is the law looking for in this regard? In answering this question judges often turn to the classic description of proximity contained in Donoghue v Stevenson [1932] AC 562, 580:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Lord Oliver went on to identify the common features of all previous reported cases where claims had succeeded[7]:
He said that it must be “from these elements that the essential requirement of proximity is to be deduced”[8]. These elements have come to be known as the “control mechanisms”.
Following Alcock, the issue of secondary victims was considered later in the same decade in a second case arising from the Hillsborough disaster: Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. The issue here was whether police officers who were present at the stadium, who suffered psychiatric illness as a result of their experience, could recover compensation. It was common ground that in order to do so they must satisfy the requirements for such claims set out in Alcock. Those requirements were summarised in several of the speeches, in particular”:
Lord Steyn stated them[9] as being:
“(i) that [the claimant] had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person.”
Lord Hoffmann summarised the requirements[10] in very similar terms as follows:
“(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else.”
The claimants in Frost were unsuccessful because they were unable to satisfy the requirement of having a close tie of love and affection with any of those killed or physically injured.
The development of secondary victim claims in the clinical context
Over time secondary victim claims have arisen in a medical negligence context: where a failure to diagnose and therefore treat a condition has led to the deterioration of the patient, witnessed unwillingly by a loved one. The Supreme Court in Paul considered several authorities in some detail.
Of importance at all stages of the argument in Paul was a High Court first instance decision by Auld J in Taylor v Somerset Health Authority [1993] PIQR P262 that the NHS placed great weight on in its arguments. The case was in fact concerned with the immediate aftermath extension, the claimant having seen her husband’s body in the mortuary soon after his death from a heart attack at work. The defendant admitted that the death was caused by its failure to diagnose or treat his serious heart disease many months earlier. It was also accepted that there was a causal link between what the claimant had witnessed and her psychiatric injury. Auld J held that the claim failed for two reasons. The first was that “the test required some external, traumatic, event in the nature of an accident or violent happening” (p 267), and there had not been such an event. Rather, Mr Taylor’s death was the culmination of the natural process of heart disease. The second reason was that, even if her husband’s death could be regarded as a qualifying event, the doctor’s communication of it to the claimant at the hospital and her subsequent sight of her husband’s body in the mortuary did not come within the “aftermath” extension recognised in McLoughlin as an exception to the general rule that the claimant must have perceived the event as it happened.
The Claimants in Paul placed weight on a well-known Court of Appeal decision: North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. The claimant witnessed her infant son have seizures over the course of two days and subsequently die. Ward LJ concluded that the claimant’s experience over a period of 36 hours was to be regarded as ‘one entire event’, also concluding that the claimant’s appreciation of this drawn-out event could be characterised as ‘sudden’, on the basis that an event can be made up of ‘one or more discreet events’, each of them sudden and unexpected. Although Walters considered what an event was in the context of the question of whether the drawn-out experience of the claimant in that case could qualify, the NHS did not challenge the issue that came to be decided in Paul: whether a medical event caused by earlier negligent failure to treat was sufficient to meet the requirements of the Alcock control mechanisms. On the facts of Walters the baby had become ill some weeks earlier as a result of a failure to diagnose and treat him with a kidney transplant. It was argued on behalf of the Claimants in Paul that in order for the Defendants to succeed in the strike out Walters had to have been wrongly decided. Ultimately the Supreme Court decided that it was.
In Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, the defendant hospital was negligent in the performance of a hysterectomy on 8 July 2008 when a suture was misplaced in the primary victim’s colon, in consequence of which she developed septicaemia and peritonitis. The primary victim deteriorated on 17 July 2008 and the claimant, the primary victim’s husband, attended hospital on 18 July 2008. It was in relation to his attendance on 18 July that his claim was founded. The primary victim suffered damage on 8 July when her colon was perforated by a suture but no issue was taken either by the parties or the Court of Appeal that the secondary victim was entitled to make a claim in relation to an event on 18 July i.e. after a delay and after the primary victim had first suffered symptoms due to the breach of duty on 8 July. The claim foundered because there was no sudden shock or an event which was horrifying by objective standards.
In Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB), the case arose out of a failure to detect a first subarachnoid haemorrhage on 5 May 2009; had D done so, the primary victim should have been urgently transferred to a neurosurgical centre for treatment. In fact, left untreated, she suffered a series of seizures and a catastrophic bleed on the night of 12 May 2009. The secondary victim’s claim, brought by the primary victim’s sister, was founded on what she discovered and witnessed on 12 May 2009. The claim failed for want of the sudden and direct appreciation of a ‘horrifying event’.
Paul: what was decided?
In essence: in order to bring a secondary victim claim the claimant must have witnessed an accident or its aftermath caused by the defendant’s negligence.
The Supreme Court decided that no analogy could reasonably be drawn between cases involving accidents and cases where the claimant does not witness an accident but suffers illness as a result of witnessing a death or medical crisis brought about by an untreated disease[11]. As a result the appeals all failed.
The Court gave a number of reasons why it considered that witnessing an accident was legally significant:
In contrast the court expressed the view that:
The court raised two further justifications for drawing the line at claims arising out of the witnessing of an accident:
The court then considered its conclusions made against the framework of the law on secondary victims in the context of cases that consider the circumstances in which a doctor owes a duty of care to third parties (i.e. someone other than their patient) concluding:
“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.”[21]
The subsequent paragraph[22] concludes: “such an experience [witnessing the death from disease of a close family member] is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition”. This may strike some as a harsh characterisation in circumstances where the allegation is that the medical practitioner has failed to prevent the injury or death in question due to negligence. It is difficult to see how this might appropriately be described as a “vicissitude of life”.
What defines an accident?
Given that the focus going forward will be on whether the claimant can prove his or her presence at the scene of an accident or its immediate aftermath, the Supreme Court has provided some guidance on what constitutes an accident. There are a number of references to its meaning, given in different contexts in the judgment.
What is the effect of this decision on earlier key authorities?
Taylor v A Novo (UK) Ltd [2014] QB 150
This case was relied upon by the defendants at all stages of argument and featured prominently in the Court of Appeal decision in Paul. It was a case brought by a woman whose mother had been injured when some racking collapsed on her at work. The mother appeared to be recovering well when, three weeks later, she collapsed and died from a pulmonary embolism resulting from a deep vein thrombosis which was itself due to injuries sustained in the accident. The claimant did not witness the accident, but she witnessed her mother’s death and as a result developed post- traumatic stress disorder.
The defendant accepted that the claimant was a secondary victim who met all but one of the requirements to succeed: that she was not present at the scene of the accident or its immediate aftermath. The judge held that the requirement of physical proximity was satisfied because Mrs Taylor’s collapse and death was a qualifying event at which her daughter was present. The Court of Appeal disagreed.
Taylor v A Novo was interpreted in different ways by the High Court in Paul and in the Court of Appeal. The Supreme Court disagreed with both of their interpretations, saying: “The reason why the claim in Novo failed was that, although there was an external, traumatic, event (ie “an accident”) which immediately caused injury to Mrs Taylor, the claimant did not witness that event and the event which she did witness and which caused her psychiatric illness was not an accident. The proximity (or lack of it) of the claimant to an accident was therefore critical to the court’s reasoning.”[27]
The Court said later: “In our opinion [Novo was correctly decided], for the reason given by Lord Dyson MR, namely, that the claim could not succeed because the claimant was not present at the scene of the accident or its immediate aftermath and the event which she witnessed was not an accident”[28]
Walters, Shorter, Sion and Ronayne
It follows from the above reasoning that the Supreme Court concluded that Walters was wrongly decided. “It also follows that Sion, Shorter and Ronayne, although correctly decided, were decided on a wrong basis and that the claims in those cases should have been dismissed for the simple reason that the claimant did not witness an accident (or its aftermath) caused by the defendant’s negligence.”[29]
The Supreme Court not only decided the main issue in Paul, but the court also took the opportunity to revisit how some of the control mechanisms that had not been in issue in the case were being applied by the lower courts and gave some very important clarification.
What else did the Supreme Court clarify in Paul?
Does the Claimant need to prove there was a sudden and unexpected shock to the nervous system?
The short answer is no. The Supreme Court reflected on the language used in Alcock, whether the injury must arise, “from the sudden and unexpected shock to the plaintiff’s nervous system”, or whether shock as Lord Ackner described it, “involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.”
The Supreme Court considered that this is an outdated description of psychiatric illness. It is a model which attributes psychiatric illness to an ‘assault on the nervous system’, which has long since been discredited[30]. The decision in Frost was therefore considered to be the most authoritative, as Lord Goff expressly stated that the very nature of PTSD demonstrates the need to abandon the requirement of nervous shock and to shift focus on whether the claimant has suffered from a recognised psychiatric illness.
The test that must be applied going forward is this:
“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.”[31]
Does the claimant need to prove that there was a ‘horrifying event by objective standards’?
Again, the answer is no. Lord Ackner’s description of shock in Alcock had given rise to the notion that the claimant needed to prove that the event perceived was ‘horrifying’. In Shorter, the test had been elevated further, where the Court was to decide whether the relevant event was ‘horrifying by objective standards.’ Further gloss was added in King v Royal United Hospitals Bath NHS Foundation Trust [2021] EWHC 1576 (QB) with the wording of ‘exceptional’, which had crept into the test, not as an addition to the legal test, but as an explanation that the shocking event must be outside ordinary human experience in the context in which occurs.
Firstly, the Supreme Court found that there is “no justification for super-imposing an additional separate requirement that the event witnessed by the claimant was ‘horrifying’”[32].
Secondly, there is now no need to consider whether an event was ‘objectively’ horrifying, as a ‘horrifying’ event perceived by the claimant would be unavoidably subjective. The Supreme Court held that to place an objective standard on such a test would create an invidious situation where Judges are invited to compare the facts of the case before them with the facts of other cases, and to engage in an exercise of deciding whether the facts of a case are similarly, or more or less ‘horrifying’ than another. This was not considered a proper basis on which to formulate findings of fact.
It is of course necessary for a claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause her injury. The Supreme Court gave the following example of a case that might not succeed: “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.”[33]
Does the claimant need to prove that what they witnessed was ‘one event’?
The Supreme Court was unsatisfied with the development, primarily in medical negligence cases, of a test: whether what the claimant witnessed should be regarded as one event or several separate events. In the absence of any coherent test of what counts as one event, parties and Judges had adopted phrases such as “in exorable progression” and “a seamless tale with an obvious beginning and an equally obvious end”, which the Supreme Court considered to be vague and unhelpful[34].
It was held that the medical negligence cases, where traumatic scenes which had been witnessed over a number of days were found to have comprised ‘an event’ founding liability, had led to an extension of the ‘aftermath’ of pure accident cases, far beyond what had been contemplated in McLoughlin.
The problem created by this is that Courts were having to grapple with when the triggering event stopped and the ‘aftermath’ started, rather than an emphasis on identifying the end point of the immediate aftermath of an accident.
The simple way forward is that practitioners need to focus on whether the claimant witnessed an accident, or the immediate aftermath.
Does the decision in Paul offer any guidance on what might be the end point of the ‘immediate aftermath’?
The Supreme Court considered the case of Galli-Atkinson v Seghal [2003] EWCA Civ 673, decided a few months after Walters, where the claimant’s daughter was killed in a road traffic accident. The claimant learned that there had been an accident and went to the scene, but she was not permitted through the police cordon, so did not see the crash site. The claimant had been told at the scene that her daughter was dead. The claimant then went to the mortuary and saw her daughter’s body. The claimant did not succeed at first instance, but on appeal Latham LJ, who gave the lead judgment held that the ‘immediate aftermath’ extended from the moment of the accident until the moment the claimant left the mortuary, which was an ‘uninterrupted sequence of events’.
The concept derived from Walters that an uninterrupted series of events can be considered as one event was relied on to extend the concept of the ‘immediate aftermath’ to include the claimant’s visit to the mortuary some two hours after the initial accident. Latham LJ had to distinguish Alcock, where mortuary visits by relatives within hours of the Hillsborough disaster were found not to within the scope of the aftermath.
The Supreme Court, criticised the reasoning in Galli-Atkinson saying: “we cannot regard the claimant’s perceived motivation for seeing her daughter’s body as a satisfactory criterion for determining the defendant’s liability”[35] (para 82).
It is likely therefore, going forward, that Courts are likely to apply a narrow focus on what is the immediate aftermath of an accident.
Does the ‘event’ have to be close in time to the negligent act or omission?
The answer to this is no. Whilst a claim cannot be brought in respect of psychiatric injury caused by a separate event removed in time and space from the ‘accident’, as this would not meet the proximity test. The Supreme Court found that the authorities in this area of jurisprudence do not 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 (para 95). Although typically in accident cases, the defendant’s negligent act or omission which caused the accident to occur, often happens at much the same time.
Conclusions
Whether one agrees with the reasoning in Paul or not, undeniably the judgment has simplified the analysis of secondary victim claims.
To bring a successful secondary victim claim the Claimant must bring themselves within the control mechanisms that the courts have decided are the method by which a secondary victims must show proximity in the relationship with the defendant in order to establish a duty of care.
Although the decision in Paul has substantially narrowed the category of claimants who might recover to those who have witnessed an accident, in other ways the court has made some aspects of satisfying the control mechanisms more straightforward.
The Claimant needs to prove:
What is left in the sphere of clinical negligence?
The analysis above demonstrates that the majority of secondary victim claims in the sphere of clinical negligence will fail because no accident has occurred in the sense given to the word by the Supreme Court: “an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means.” The vast majority of cases are similar to those in Paul, Purchase and Polmear, where the failure is to diagnose and treat a progressive underlying illness or disease.
It is difficult to see why true accidents that occur in a clinical setting should be treated any differently from other types of accident: for example dropping a newborn baby in front of its parents.
What is more problematic and unclear is how the courts should treat clinical events that could be characterised as accidents and, if so, how this interplays with the Supreme Court’s observations on the scope of a doctor’s duty of care.
During discussions in the Supreme Court hearing the NHS suggested that events caused by a doctor, such as injecting the wrong drug, might well fulfil the criteria for a secondary victim claim. The Court refers to this debate in the judgment but declines 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.”[36]
It is important to remember, as explained above, that when defining an accident the Supreme Court distinguished between the accident itself and the injury, saying expressly that the occurrence or first manifestation of injury “is not part of what defines an accident. An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event”. Some of the examples of clinical accidents that have been posited in discussion since Paul would founder on this point, because the underlying act by the clinician is innocuous and what is violent and dramatic is the patient’s reaction to it. This would not be sufficient to bring the claim within the definition of an accident.
It is hard to think of examples of a clinical mistake that would have the character of an accident as defined by the Supreme Court, but no doubt such cases will arise. When they do they will need to be considered on their own facts and a future court will have to decide what, if any, relevance arguments about the scope of a doctor’s duty of care have and whether such a claim that otherwise satisfies the Alcock criteria as now interpreted by the Supreme Court in Paul might succeed.
[1] Hambrook v Stokes Brothers [1925] 1 KB 141; Bourhill v Young [1943] AC 92; Hinz v Berry [1970] 2 QB 40
[2] Per Lord Oliverin Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407
[3] Per Lord Oliver in Alcock at 412A
[4] Per Lord Oliver in Alcock at 411A-B
[5] 419
[6] Alcock 407
[7] Alcock 411F-H
[8] Alcock 411H
[9] Frost 496D-E
[10] Frost 502G-H
[11] Paul 140-143
[12] Paul 108
[13] Paul 109
[14] Paul 110
[15] Paul 111
[16] Paul 112
[17] Paul 113
[18] Paul 114
[19] Paul 116
[20] Paul 117
[21] Paul 138
[22] Paul 139
[23] Paul 24
[24] Paul 52
[25] Paul 105
[26] Paul 108
[27] Paul 90
[28] Paul 104
[29] Paul 122
[30] Paul 72
[31] Paul 74
[32] Paul 75
[33] Paul 75
[34] Paul 80
[35] Paul 82
[36] Paul 123
Call: 2001 Silk: 2022
Call: 2018
