Paul v The Royal Wolverhampton NHS Trust (Rev 1) [2019] EWHC 2893 (QB)
This article originally appeared in Issue 3 (November 2019).
This was an application for strike out and/or summary judgment heard by Master Cook in a secondary victim claim.
Background
Mr Paul had a significant medical history including diabetes, chronic kidney disease and cardiac symptoms. In November 2012 he attended hospital complaining of chest and jaw pain but no cardiac investigations were performed apart from an ECG.
In January 2014 Mr Paul was on a shopping trip with his two daughters when he collapsed. They managed to call for help, an ambulance arrived, and the girls witnessed their attempts at resuscitation. He was taken to hospital, but Mr Paul died soon after.
It was alleged that Mr Paul should have been offered coronary angiography in November 2012 and, if this procedure had been undertaken, it would have shown coronary artery disease, he would have been treated and he would likely have survived.
The arguments
The Defendant argued that Mr Paul’s daughters could not be secondary victims as there was no relevant event and no proximity.
Particular emphasis was placed on the case of Taylor v Somerset Health Authority [1993] 4 Med LR 34, a clinical negligence claim arising out of a failure to diagnose and treat the Claimant’s husband’s worsening heart condition, which months later led to him suffering a heart attack at work and dying in hospital. The Claimant attended the hospital and was told of her husband’s death within 20 minutes. Auld J held in that case at p267 that:
“There are two notions implicit in this exception cautiously introduced and cautiously continued by the House of Lords. They are of:
(i) an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death; and
(ii) a perception by the plaintiff of the event as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event as well as of its consequence is brought home to him.
There was no such event here other than the final consequence of Mr Taylor’s progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. In my judgment, his death at work and the subsequent transference of his body to the hospital where Mrs Taylor was informed of what had happened and where she saw the body do not constitute such an event.”
The Defendant pointed out that this had been approved by the Court of Appeal in Taylor v A Novo [2014] QB 150.
The Defendant further emphasised that in Taylor v A Novo the Court of Appeal clearly set out the two senses in which the Claimant must prove proximity – the legal sense (the overall legal test for whether there is a duty of care at all) but also the physical sense – i.e. whether the Claimant was physically proximate to the event.
The Claimant emphasised that the present case was challenging as it was a negligent ‘omission’ case as opposed to a negligent ‘act’ case. She went on to distinguish Taylor v Somerset by arguing that, in that case, Mrs Taylor did not witness the collapse or death of her husband, and the court’s conclusions were made on that premise.
The Claimant also referred to Sion v Hampstead Health Authority [1994] 5 Med LR 170 and W v Essex County Council [2001] 2 AC 592. In Sion, the claim was struck out as there was no evidence the Claimant had suffered nervous shock. But, obiter, Peter Gibson LJ stated:
“I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.”
In W v Essex the court noted that the categories of primary and secondary victims are not closed.
The Claimant placed particular emphasis on the decision in North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, which concerned a baby whose jaundice was not diagnosed. Three weeks later the baby suffered a seizure and deteriorated over the next 36 hours, eventually dying. The Court of Appeal found that the period of 36 hours was a single horrifying event causing nervous shock to the mother, who was present throughout.
The Claimant also referred to Galli-Atkinson v Seghal [2003] EWCA Civ 697 in which the court found that the aftermath of an event may constitute part of the overall event if it retains sufficient proximity to the event.
The Claimant argued that in Walters, the event was taken to start with the infliction of damage, i.e. the first clear manifestation of the breach of duty which had occurred earlier [27]. Taylor v A Novo was distinguished on the basis that the event in that case caused damage immediately, but the Claimant nevertheless tried to argue that the relevant ‘event’ was the death, several weeks later.
The Claimant finally argued that the application of the law on secondary victims to clinical negligence cases is unclear and militates in favour of allowing the case to go to trial.
The judgment
Master Cook acknowledged that the only issue in this application was whether the Claimants succeeded in establishing the control mechanism of ‘proximity’ – all of the other control mechanisms were satisfied [33].
He concluded that the case could not be sensibly distinguished from Taylor v Somerset Health Authority, and that the ratio of that case was clear – that “his death from a heart attack could not amount to a relevant event for the purpose of the proximity test.” [36].
As to Walters, Master Cook quoted from the decision in Taylor v A Novo, namely a passage in which the Court of Appeal explained that in Walters the court was able to hold that the ‘event’ was the period of 36 hours from the moment when the baby suffered a seizure, to the misdiagnosis, the correct diagnosis, and the baby’s death i.e. “the events from the misdiagnosis in Walters could be seen as one event connected in space and time.” [39].
Master Cook disagreed with the Claimant’s approach of focusing upon the death of Mr Paul as the first point at which the Defendant’s negligence manifested itself. He stated that:
“To do so overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event… It is this proximity which has been found to exist in all successful secondary victim claims including Walters and it is the lack of such proximity which explains why the claims in cases such as Taylor v Somerset Health Authority and Taylor v A Novo failed.” [40].
He ultimately concluded:
“Mr Paul’s tragic death 14 ½ months after the negligent incident, in circumstances separated in space and time from the negligence I must assume occurred in the hospital, cannot possibly be said to be the “relevant event” for deciding the proximity required to establish liability under the established control mechanisms.” [41].
