In a recent decision, the Supreme Court explored the complex topic of secondary victim claims related to medical negligence. The combined cases of Paul, Polmear, and Purchase v Royal Wolverhampton NHS Trust [2024] UKSC 1 have significant implications, changing how legal considerations are viewed in claims involving medical negligence.
Traditionally, the common law set very restricted limits around a legal right to compensation for someone's financial or personal well-being[1]. The recent case of Paul, Polmear, and Purchase explored secondary victim claims, specifically whether witnessing a negligently caused "medical crisis" could lead to recovering damages for consequential psychiatric injury.
The court, with the exception of Lord Burrows, decided that this special category should not cover cases where the claimant's harm comes from seeing a close relative's death or injury due to a negligently undiagnosed and untreated medical condition. The main reason being that it would not be fair to make a doctor responsible for the health of a patient's family just because they have a doctor–patient relationship.
In the case of Mr Paul, his initial hospital visit for chest pain was followed by a heart attack a year later during which he fell and hit his head, suffered a brain bleed and died. This resulted in his daughters suffering psychiatric injuries caused by witnessing their father’s death.
Esme, a six-year-old in the Polmear case, was misdiagnosed, leading to her collapse six months later. Her parents witnessed the event, attempted CPR, and, as a result, suffered PTSD and depression.
Miss Purchase was misdiagnosed with a respiratory tract infection as opposed to pneumonia; her mother discovered her unconscious three days later and attempted unsuccessfully to resuscitate her, resulting in psychiatric injuries.
To grasp the decision in Paul, Polmear, and Purchase, it is crucial to consider the legal history. In McLoughlin1, damages were granted to a person who suffered "nervous shock" from witnessing a fatal accident caused by negligence. However, Alcock v Chief Constable of South Yorkshire Police [1991] imposed stricter conditions for such claims.
According to Alcock, for a claim to succeed, the claimant must: i) personally witness a "shocking event" or its immediate aftermath; ii) experience "sudden" shock; iii) have a close relationship with the injured or deceased person; iv) show that a person of normal strength would foreseeably suffer psychiatric damage from witnessing the event.
As legal precedents developed, claims based on clinical negligence leading to the ‘shocking event’ faced dismissal for various reasons, such as considering the negligence itself as the witnessed event, proximity issues, or the absence of shocking elements. In Taylor v A Novo (UK) Ltd [2013], the Court of Appeal questioned the claimant's proximity to the initial negligence, despite witnessing traumatic consequences later.
This scepticism towards proximity was reiterated in Wild v Southend Hospital NHS Trust [2014], where witnessing the shocking outcome of negligence, like a stillbirth, was deemed insufficient for a claim[2]. The strict controls on secondary victim claims, especially in clinical negligence, pose a significant challenge for claimants, as courts often take what seems to be an unsympathetic stance.
In the Paul, Polmear, and Purchase cases, the claimants were initially unsuccessful in lower courts and the Court of Appeal, which considered itself bound by the precedent set in Taylor v A Novo. Despite acknowledging the potential for secondary victim claims, the Court of Appeal applied the Alcock test, leading to the rejection of claims where the shocking event was separated from the initial negligence.
The Supreme Court had to address whether a doctor has a duty of care to a patient's close family to protect them from potential harm if they witness the patient's injury or death due to negligence. To rule in favour of the claimants, the court essentially had to decide that Taylor v A Novo was wrong in its assessment of proximity in secondary victim claims.
In a significant judgment, the Supreme Court clarified aspects of secondary victim claims and expressed dissatisfaction with the reasoning in some previous cases.
The Supreme Court supported some of the existing criteria from Alcock, stressing the importance of the need for the claimant to prove a strong emotional connection, being close in time and space to the incident, and personally witnessing the events. Importantly, the court added an additional element, that there needed to have been an accident, and qualified another, that there did not need to be a shocking or horrifying event. The definition of the immediate aftermath was narrowed and criticised for its broad interpretation, and the court acknowledged the difficulty in distinguishing between the main event and its aftermath.
The Supreme Court clarified that for secondary victim claims, it is crucial that the person witnesses an accident or its immediate aftermath. They defined an accident as an external event that causes or could potentially cause harm, underscoring the significance of the claimant seeing the accident or its immediate aftermath.
The court raised questions about the focus on whether doctors owe a duty of care to the families of patients in secondary victim claims.
The majority held that a doctor treating a patient does not enter into a doctor–patient relationship with the patient's family, and responsibility for their health is not assumed.
The court concluded that the class of claimants whose claims might succeed should be restricted to those more closely and directly connected to the accident caused by the defendant.
To succeed, secondary victims must have been present at the scene, witnessed the accident, and have a close tie of love and affection with the primary victim.
None of the claimants in Paul, Polmear, and Purchase succeeded principally because there was no accident, rather the care-giver’s negligence led to a natural progression of illness.
This reflects a recent trend in the Supreme Court towards a more traditional and less expansive legal approach, signalling a departure from paternalistic principles in clinical negligence and personal injury claims.
The Supreme Court's decision in Paul, Polmear, and Purchase has major implications for secondary victim claims in clinical negligence. It might prompt defendants to strengthen their defence by challenging the idea of owing a duty of care to family members. Disputes over the definitions of 'accident' and the 'immediate aftermath' are likely, and the scope of claims is expected to narrow. Removing the requirement for a ‘shocking event’ is likely to cause difficulties in the medical evidence, which often finds it difficult to distinguish between hurt feelings and a diagnosable (and treatable) psychiatric injury.
As the legal landscape changes, it is crucial for legal professionals, healthcare practitioners and policymakers to navigate the details of this landmark ruling.
Lucy Steele, Solicitor – Healthcare & Sport
Email: lsteele@keoghs.co.uk
[1] McLoughlin v O'Brian [1983] 1 AC 410 and Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
[2] Albeit the mother of a child during childbirth suffering psychiatric harm is a primary victim, as the medical team owe a duty of care to both mother and baby.
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