Mind the Gap – Secondary Victims Claims Considered by the Court of Appeal

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

For readers hoping that 2022 would bring more clarity on the scope of secondary victim status in clinical negligence claims, the message from the Court of Appeal is… wait a little longer.

The Court of Appeal has handed down judgment in the jointly heard appeals Paul v Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospital Trust and Purchase v Ahmed. Each case involves an allegedly negligent delay in diagnosis of a life-threatening condition, which eventually led to the sudden death of the primary victim. The gaps in time between breach of duty and death range from three days to 14 months. In Paul and Polmear, family members witnessed the death of their relative and in Purchase, the victim’s family found her very shortly afterwards. Relatives who saw these horrifying events brought claims for their own psychiatric injuries (the secondary victim claims).*

While the facts differ, the legal question was the same in each case: what is the relevance of any gaps in time between the negligence, the damage caused to the primary victim, and the horrific event which causes injury to the secondary victim?

The requirements for establishing legal liability in secondary victim claims can be fairly shortly stated, per Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907:

1. Close familial relationship between primary victim and claimant
2. Injury which arises from sudden and unexpected shock
3. Claimant either personally present at the scene of the injury, or in the immediate vicinity and witness to the aftermath
4. Injury to secondary victim is caused by witnessing death of or extreme danger to primary victim
5. A close temporal connection between the event and the claimant’s perception of it.

The decisions of the House of Lords (and of the Court of Appeal in Taylor v A Novo (UK) Ltd [2013] PIQR P15) which established the principles the Court of Appeal grappled with, all concerned horrific accidents rather than clinical negligence. At [12] however, the Master of the Rolls concluded that the five elements set out above apply equally to clinical negligence claims.

Taking a first principles approach to the five elements in the clinical negligence context, the Master of the Rolls observed at [87]:

“If one were simply considering these requirements and applying them to the clinical negligence situation, I think one would say that, despite the fact that the horrific event took place later than the defendant’s misdiagnosis: (a) the fact and consequence of the defendant’s negligence (i.e. the event or accident causing the horrific event) was close in time and space to the moment when the secondary victim was caused the psychiatric injury, and (b) the secondary victim was either personally present at the scene of the horrific event or accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards.”

The judgment leaves no real doubt that were this the test, all three Claimants would have succeeded.

The sticking point, however, was the 2013 Court of Appeal decision Taylor v A Novo. In that case, the claimant’s mother was injured at work, appeared to recover, and then suddenly died three weeks later in front of her daughter, who developed PTSD. Lord Dyson held that the mother’s death was not the relevant incident for the purposes of the claim, as the death was removed in time from the negligence and its first consequence, the accident at work. The requirement of proximity was not met as the daughter did not witness the accident. While there were two separate ‘consequences’ of the negligence (the initial injury at work and later, death at home) the central reasoning in Novo appears to turn on the gap in time between the breach of duty and the eventual shocking event. It therefore precludes any claim where there is such a gap and is not limited to facts like Novo where there were two separate injuries or consequences of the negligence (see the analysis of Lord Justice Underhill, at [104] of Paul)

The Master of the Rolls noted that “there is no logical reason for these rules” [12], and that it is hard to see why a gap in time between an act of negligence and its horrifying result should affect liability [80]. Nevertheless, the Court of Appeal held that it was bound by Novo, meaning no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or first horrific event [12], [96].

However, the Master of the Rolls expressed reservations about whether Novo correctly interpreted the requirements of the five elements established by the House of Lords and indicated he would be minded to allow permission to appeal to the Supreme Court. 

Lord Justice Underhill and Lady Justice Nicola Davies agreed. Like the Master of the Rolls, Lord Justice Underhill considered that absent Novo, the claims fell within the five requirements established by the House of Lords, albeit in a different context [103], and provisionally agreed that the issues merit consideration by the Supreme Court.

No-one will be surprised to hear that the Claimants applied for permission to appeal which has now been granted by the Court of Appeal. As the Supreme Court will not be bound by Novo, the Claimants may well submit that the simple formulation proposed by the Master of the Rolls at [87] (cited above) should be adopted, putting to bed the difficulties of interpreting Novo in clinical negligence claims.

Until then, the complexities illuminated by these joined appeals remain. Practitioners with ongoing secondary victim claims will eagerly await news from the Supreme Court.

Jessica Elliott considered the first instance decision in Polmear here, and the case of Paul was analysed by Rajkiran Barhey (in respect of the application for strike out/summary judgment) here and Gideon Barth (appeal from that decision) here.