Farewell to Secondary Victim Claims?

Secondary Victim Claims: Supreme Court ruling in Paul v Royal Wolverhampton NHS Trust (and 2 conjoined cases) [2024] UKSC 1

The landmark judgment of the Supreme Court in the case of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 (also hearing the conjoined appeals of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed) significantly restricts the eligibility requirements for qualifying as a secondary victim in clinical negligence cases. Following the majority decision handed down on 11 January 2024, it will only be in rare circumstances that secondary victim claims arising from “medical mishaps” will succeed.

Secondary Victims

A secondary victim is someone who suffers psychiatric injury, not by being directly involved an incident, but by witnessing it and either:

• seeing injury being sustained by a primary victim, or
• fearing injury to a primary victim.

The law of England and Wales recognises the right of secondary victims to claim compensation from the negligent party, but only in limited cases.

The Requirements for Secondary Victim Claims

The law on secondary victim claims has been largely shaped by three decisions of the House of Lords: McLoughlin v O’Brian [1983] 1 AC 410, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. These cases established the following criteria for a successful claim by a secondary victim:

• The Claimant must have a sufficiently close tie of love and affection with the primary victim.
• The Claimant must have been either present at the scene of the accident or its immediate aftermath.
• The psychiatric injury suffered by the Claimant must have been caused by their direct perception (i.e., with their own senses, in-person) of the accident or its immediate aftermath.

Paul and another v Royal Wolverhampton NHS Trust

In the case of Paul, Mr Paul suffered a heart attack, collapsed, and tragically died when out shopping with his two daughters (the Claimants) in January 2014. The Claimants’ case was that the Defendant NHS Trust was negligent in failing to perform a coronary angiogram when he attended hospital back in November 2012 (some 14 ½ months prior to the incident) which would have revealed significant coronary artery disease which could and would have been treated successfully with coronary revascularization. It was the Claimants’ case that they suffered psychiatric injury as a result of witnessing their father die.

The Supreme Court’s Decision

In a lengthy judgment, the Supreme Court dismissed the appeal of the Claimants’ in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 (also in Polmear and Purchase) concluding, essentially

on policy grounds, that: “We are not able to accept that the responsibilities of a medical practitioner… 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… the nature and scope of their role.”

The Supreme Court reaffirmed that: “a claimant cannot recover damages for personal injury as a secondary victim unless the claimant witnessed an accident (or its immediate aftermath)”. It follows that witnessing the consequence of an illness which proper treatment would have prevented will not suffice for bringing a claim as a secondary victim.

Of interest to clinical negligence lawyers and personal injury practitioners, the Supreme Court provided welcome clarification in respect of the Alcock criteria, on the basis that “the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct”:

• ‘Sudden shock’: There is no requirement that the Claimant must experience a “sudden shock to the nervous system”.
• Causation: It is sufficient for the Claimant to do no more than prove conventional causation of psychiatric injury in secondary victim claims.
• ‘Horrifying event’: The Supreme Court rejected the idea that the accident in question needs to be a particularly “horrifying event”.
• Gap in time: The Supreme Court clarified that a gap in time between the breach of duty and the accident should not be a bar to recovery. The requirement is simply one of closeness in space and time to (and direct perception of) the accident.

The Practical Implications

Recovery for negligently caused psychiatric illness by secondary victims is now largely closed off in clinical negligence cases. Whether a secondary victim claim might arise in a medical setting where the underlying event could be described as an ‘accident’ remains to be seen. The Supreme Court refrained from addressing certain hypothetical situations which might potentially be said to amount to an ‘accident’ in a medical setting. The Supreme Court declined to go this far stating: “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.”

What is certain, however, is that secondary victim claims stemming from “medical mishaps” cannot be pursued where the event that has been witnessed is an illness or a death that could have been prevented by competent medical treatment.

If you are seeking free, confidential initial advice from experienced clinical negligence solicitors (on a ‘No Win, No Fee’ basis), contact Irvings Law on 0151 475 1999 or alternatively via email at Clin.Neg@IrvingsLaw.com.