Secondary victims: once again the Court declines to distinguish Paul
(1) BJS (By His Mother & Litigation Friend SXS) (2) SXS v (1) Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust (2) North Cumbria Integrated Care NHS Foundation Trust (unreported)
In BJS, a claim where a mother (the Second Claimant) witnessed her son (the First Claimant) suffer catastrophic injuries whilst an inpatient on a psychiatric ward, the High Court rejected an attempt to distinguish the Supreme Court’s decision in Paul v Royal Wolverhampton NHS Trust [2024] UK SC 1.
Background
The First Claimant, who was 16 years old, suffered catastrophic injuries after leaving the psychiatric ward on which he was a patient, climbing over a partition wall and falling from height onto the concrete floor below. This horrifying event was witnessed by his mother, the Second Claimant. It was alleged that he had been inadequately supervised by the Defendants who were responsible for his care. A compromise of 70% of liability was agreed on behalf of the First Claimant.
A hearing was held to determine whether the Second Claimant was entitled to bring a claim as a secondary victim for the significant psychiatric injuries she suffered as a result of witnessing her son’s fall. It was agreed that the relevant law was found in the Supreme Court’s judgment in Paul, a decision which held that that the event leading to the injury or death of the primary victim must constitute an ‘accident’.
The Second Claimant’s case was that it was sufficient for the Court to conclude that this was an event analogous to an accident. The Defendants emphasised the Supreme Court’s definition of accident as involving an external, unexpected or unintended event. The First Claimant had been behaving erratically and had previously jumped from a window. It was argued that there was no event external to him. Instead, he made a deliberate decision to jump, despite being profoundly unwell.
Decision
The Second Claimant’s claim to recover damages as a secondary victim was rejected. This follows the recent decision in MIM v Sheffield Teaching Hospitals NHS Foundation Trust [2026] EWHC 562 (KB) where a secondary victim’s claim arising from clinical negligence also failed.
HHJ Freedman (sitting as a High Court Judge) found that all of the criteria to satisfy the test for secondary victims – i.e. close ties of love and affection, witnessing a sudden or terrifying event or its aftermath, psychiatric injury caused by witnessing this event – were met by the Second Claimant. However, the key issue in the present case was whether the event resulting in the First Claimant’s injury was an accident rather than what the Supreme Court termed a ‘medical crisis’. Following Paul, witnessing a medical crisis would be insufficient to found liability.
HHJ Freedman concluded that, “In essence, as it seems to me, the Supreme Court was contrasting an accident with the situation where a person dies or manifests injury from an illness which proper treatment, in the broadest sense of the word, would have prevented.” He continued, “Underpinning the Supreme Court’s rejection of the proposition that witnessing a negligently caused medical crisis should be sufficient to found a claim in damages was, as it seems to me, their desire to restrict the ambit of the duty of care owed by a doctor.”
The Judge held that he was not permitted to depart from the Supreme Court’s definition of an accident, which necessarily involved an external event or trigger that was unexpected and unintended. He said that, “The central point, as it seems to be, is that he acted in a deliberate and intentional way, albeit that he was psychiatrically very unwell at the time. The vital element of the event, namely being external to the victim, is missing. To my mind, what occurred comes nowhere close to meeting the Supreme Court’s definition of an accident.”
Reference was also made to the dissenting judgment of Lord Burrows in the Supreme Court, noting that even in the examples of circumstances where a secondary victim should be allowed to recover, they all involved the actions of a third party, something extrinsic to the primary victim: “In my judgment, this tragic event was a manifestation of the first claimant’s severe mental disease. He was in a heightened state of paranoia. The actions which he took, attributable as they were to his mental state at the time, were nevertheless his own actions. There was no external involvement in the immediate circumstances surrounding the incident. Shocking though it was, it was not in any sense an accident.”
Commentary
Since the decision in Paul, lawyers have speculated as to what might constitute an accident in the context of a clinical negligence claim by a secondary victim. The circumstances of BJS might have been fairly high up the list of possible exceptions to the general rule that most claims in the clinical negligence context will fail to meet the test. Yet the Court in BJS said no. The core reasoning was that the First Claimant’s injuries were the result of a deliberate act by him, rather than the actions of a third party. As a result, this event could not amount to an accident within the Supreme Court’s definition.
Could a different Court have come to a different conclusion? Possibly. A number of questions spring to mind.
In circumstances where a patient lacks capacity due to severe psychiatric illness, can they truly be said to have taken a deliberate decision to act in a way that results in injury to themselves?
Does there have to be a positive external action to cause the accident, or should a negligent omission by a third party be sufficient to meet the test of an external event?
Is there not a tension between allowing a claim by a primary victim for injuries sustained as a result of their own actions whilst suffering from severe psychiatric illness, yet denying a claim by a secondary victim arising from the exact same events? If a secondary victim’s claim is to be denied because it is founded upon a deliberate act by the primary victim, does it not follow that the primary victim’s claim should fail for 100% contributory negligence? This will rarely be argued in the context of claims where there has been a failure to properly supervise a patient suffering from a psychiatric illness. So why is the same not true for secondary victims?
Ultimately the narrow definition of accident as described in Paul is a policy choice to limit the duty of care owed by a clinician. In BJS the judgment placed emphasis on the policy element of the Supreme Court’s reasoning. Whilst there have not yet been a large number of cases where the Courts have considered limiting the scope of the Supreme Court’s judgment, the trend appears to be towards concluding that medical professionals should not be held liable for injuries suffered by non-patients.
No doubt there will be further attempts to get around the limitations imposed by Paul. But it seems that BJS closes the door a little tighter to claims by secondary victims in the context of clinical negligence, in particular where there is a failure to provide appropriate care in a psychiatric setting.
The Second Claimant was represented by John Whitting KC of 1 Crown Office Row. He was not involved in the writing of this article.
