Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12

The Court of Appeal in England recently considered three related appeals regarding the position of secondary victims in the context of clinical negligence claims.

 

Secondary Victims
A secondary victim is a person who claims for psychiatric injury by having witnessed the death or suffering or a primary victim, usually a close relative. The criteria to successfully claim as a secondary victim was laid down in the case of Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, and the following must be shown:

1. Secondary victim must have a marital / parental relationship with primary victim;
2. Psychiatric injury must arise from a sudden and unexpected event;
3. The secondary victim must have been personally present or in the immediate vicinity of the event;
4. Psychiatric injury arose as a result of witnessing the event;
5. There was a close temporal proximity between the event and the secondary victim’s perception of it.

In Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12, the primary victim suffered a heart attack, which was witnessed by his daughters. The primary victim alleged that the treatment he received, over a year before his heart attack, was negligent, and that had he received adequate care he would not have suffered the heart attack.  One of the daughters sought to claim as a secondary victim as she had witnessed her father’s collapse and developed a psychiatric illness because of that.

 

Decision
The main issue before the Court was the third of the above criteria. The difficulty in claiming as a secondary victim in a clinical negligence setting is that, often, the negligent treatment will not cause any actual injury until a later date. Applying the rationale from a separate case, Crystal Taylor v A Novo UK Ltd [2013], the Court of Appeal found that no claim can be brought by a secondary victim in respect of psychiatric injury where the sudden and shocking event was removed in time from the original negligence.

 

To the Supreme Court?
However, that seems unlikely to be the end of the issue as one of the Judgements, from Sir Geoffrey Vos MR, made it clear that he would be prepared to grant permission for the claimants to appeal to the Supreme Court. It seems likely that they will. If the Supreme Court finds in favour of the claimants, should they appeal, this could significantly widen the scope for potential claims to be made by secondary victims in the clinical negligence context.

 

Kevin Hegarty is a Director in our Healthcare Team. Kevin can be contact via email kevin.hegarty@tughans.com.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.