The Dekagram: 23rd March 2026

Dominique Smith joins us fresh from the PEOPIL RTA and NLG groups’ conference in Bucharest, a roaring success as always (both the conference and Dominique). She wasn’t too busy attending presentations on issues such as positive lawyering and vicarious trauma to consider a decision which demonstrates that the law on secondary victims continues to evolve, and not in a way favourable to claimants. The facts of the case are tragic and the outcome perhaps inevitable following the decision in Paul, and your editor wonders whether the law of England and Wales strikes the right balance in this area – if not, surely further evolution will follow.

Secondary Victim Claims: the Law Evolves

As many of our readers may remember, the Supreme Court delivered its judgment in Paul v Wolverhampton NHS Trust [2024] UKSC 1 last year, which gave much needed clarity to practitioners in relation to secondary victim claims (albeit such claims are now likely to be very difficult to bring in a clinical negligence context). 

Recently, the High Court was tasked with considering the Paul case and its implications in MIM v Sheffield Teaching Hospitals NHS Foundation Trust [2026] EWHC 562 (KB), where the Claimant was bringing a secondary victim claim in a clinical negligence context.

Background

MIM’s wife was admitted to the Defendant’s hospital on 30^th May 2020 for the induction of labour. Syntocinon was given on the evening of 31^st May 2020, with labour progressing through the night into the early hours of 1^st June. At 0650, MIM’s wife wanted to start pushing. The CTG trace deteriorated (on the Claimant’s case) from 0810 onwards. MIM’s son was born by spontaneous vaginal delivery at 0947 in a poor condition. He required resuscitation and subsequent therapeutic cooling in the NICU. As a result of witnessing the labour and birth, MIM developed an adjustment disorder.

The Defendant admitted the labour was managed negligently in that there was a deteriorating CTG trace; MIM’s son should have been delivered at 0930, and delivery by 0941 would have avoided all injury.

MIM proceeded to issue proceedings against the Defendant. His pleaded case in the Particulars of Claim was that what he witnessed amounted to an “external, traumatic event which immediately caused injury to his son” and that he “directly perceived the event and its immediate aftermath”.

In its Defence, the Defendant pleaded that nothing in the account pleaded in the Particulars of Claim was capable of constituting an ‘accident’ as required by Paul. In particular, the Defendant pleaded that the requirement of the injury having been caused by violent external means and/or being external to the primary victim was not met, and this was a medical crisis or medical mishap rather than an accident.

The Claimant proceeded to produce a Reply to Defence. Within that Reply, the Claimant pleaded that the episodes he witnessed and experienced did amount to an accident, and in the alternative, that it was not only an ‘accident’ that could give rise to a claim from a secondary victim.

The Defendant thereafter made an application to strike out the claim on the basis that the Particulars disclosed no reasonable grounds for bringing the claim, and in the alternative, for summary judgment, which came before HHJ Evans.

The Claimant’s submissions

In oral submissions, the Claimant identified the ‘accident’ that was witnessed by MIM as a continuum during which he feared the worst and eventually the worst happened. It was submitted that the accident ran from the time when MIM observed that the midwives did not appear to know what was going on, and the alarm kept sounding, and culminated in the delivery of his son. An analogy was drawn by the Claimant in relation to the difficulty of pinpointing the happening of the accident giving rise to the liability to the secondary victim to the Hillsborough claims, where it was postulated that one could ask whether the accident was the opening of the gates, or people flowing through the gates, or witnessing the crush.

The Claimant further submitted that an ‘accident’ may permit of activities on the ward that could not be characterised as violent and/or external, noting that the word ‘violent’ was not used every time that the word ‘accident’ was defined in Paul. The Claimant considered that where the accident was an external event that had the potential to cause injury, rather than actually causing any injury, it could not be said to be a violent event.

A distinction was drawn between this case and the Paul case, in that there was a separation in Paul and the conjoined cases between the medical negligence and the injury: the negligence was remote in time and place to the injury and was not witnessed by the claimants. In this case, however, it was submitted that MIM saw everything that went wrong in a relatively short period of time. A distinction was further drawn with the Walters case, in that MIM was very closely involved in the observing of the monitors.

Finally, the Claimant referred to paragraph 123 of Paul, which stated as follows:

“The question was raised in argument of whether the rules governing claims by secondary victims arising from accidents could ever apply in a medical setting. The question does not arise in the present cases, as none of them involves an accident in the relevant sense. Various hypothetical examples were, however, posed in argument such as a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. 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.”

The Claimant submitted that this paragraph did not limit the type of event that could give rise to a claim.

The judgment

At the outset of her judgment, HHJ Evans considered that in order to succeed, a secondary victim must have witnessed an accident which caused (or had the capacity to cause) injury to the primary victim.

Turning to whether the definition of an accident was met, HHJ Evans considered that an ordinary person, when viewing the facts of this case, would not say that what happened was MIM witnessing an accident which caused injury to his son. Rather, they would say that MIM witnessed the process of labour and the birth of his son in an injured condition such that he required resuscitation – a description of a negligently caused medical crisis. She referred to the reasoning in Paul, noting that an accident can indeed be pinpointed, such that the test for whether someone could recover as a secondary victim had clarity and legal certainty. HHJ Evans was of the view that the Hillsborough comparison conflated the accident with the breach of duty. Consequently, she did not consider that the matters pleaded in the Particulars of Claim constituted an accident.

HHJ Evans further did not consider that there was any unexpected and unintended event which caused injury to MIM’s son by external means. In relation to the close temporal connection issue, she did not consider this distinction could be drawn in light of the Supreme Court’s finding in Paul that there need not be such a connection in order for a secondary victim to recover damages.

The claim was subsequently struck out under CPR 3.4(2)(a), with HHJ Evans noting that the facts as pleaded did not disclose any legally recognisable claim against the Defendant.

Comment

As this judgment indicates, it remains incredibly difficult following the decision in Paul to succeed in a secondary victim claim arising out of clinical negligence. Meeting the requirements of the definition of an ‘accident’ is likely to continue to pose a barrier for most claimants in this particular context of case, with only rare cases succeeding.

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.