17 January 2022

Who Can Claim? The Court of Appeal Reviews the Law Relating to Secondary Victims in Paul v Royal Wolverhampton NHS Trust

The question of who can claim for “nervous shock” is upon us again. The issue is one which has periodically ventured as far as the House of Lords, since the decision in Bourhill v Young [1943] AC 92 and, following the decision of the Court of Appeal in the conjoined cases of Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospital NHS Trust; Purchase v Ahmed [2022] EWCA Civ 12 (collectively referred to herein as “Paul”), it can be confidently predicted that the Supreme Court is going to address the issue again.

Historically the highest court in the land has addressed claims by secondary victims in the context of accident cases. Bourhill followed a road traffic accident, as did McLoughlin v O’Brian [1983] 1 AC 410 and Page v Smith [1996] 1 AC 155. The leading case of Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 arose from the Hillsborough disaster. From these decisions emerged various control mechanisms intended to limit the class of person who could seek damages for psychiatric injury where they were not, themselves, the victims, but only witnessed the accident or, as in McLoughlin, its immediate aftermath. Common to these cases was the determination that there had not only to be an element of physical proximity to the event, but of close temporal connection between it and the Claimant’s perception of it, combined with a close relationship of affection between the Claimant and the primary victim (cf. Lord Oliver in Alcock).

This created a difficulty where, for instance, the subsequent death was itself distressing but did not occur immediately. Whilst this situation could present itself in relation to an accident case, as indeed it did in Taylor v A. Novo (UK) Ltd [2014] QB 150 ("Novo"), such a situation more commonly arose in clinical negligence cases, where, particularly, negligent failure to diagnose a condition might lead to traumatic consequences after the passage of a period of time. This, in fact, was the situation in each of the cases before the Court of Appeal in Paul. Each concerned a death of a close relative which occurred some months after a failure to diagnose an underlying condition on the part of the Defendant. The questions were whether the established control mechanisms for secondary victim claims applied to clinical negligence claims and, if they did, whether or not the delay in onset of symptoms prevented the Claimants showing the necessary temporal proximity between the event and their perception of it. This latter question also required consideration of what it was that constituted the “event” – the negligent act or a subsequent consequence of it.

We have analysed the decision in more detail on the Ropewalk Clinical Negligence Blog, where the full article can be accessed here.

For those not wishing to wade through the detail of that extended article, the headline points are as follows:

(i) No distinction is to be drawn with clinical negligence cases in relation to secondary victim claims. The principles are of general application.

(ii) Whilst, if coming to the issue afresh, the Court of Appeal would have concluded that the gap between the misdiagnosis and the “horrific event” was not material, particularly because the fact and consequence of the Defendants’ negligence (the subsequent collapse) was itself close in time and space to the moment when the secondary victim suffered psychiatric injury, the Court of Appeal was bound by its own earlier decision in Novo.

(iii) The effect of Novo was to prohibit recovery for anything that occurred beyond the immediate aftermath of an accident. In particular, Lord Dyson's approval of the reasoning of Auld J in Taylor v Somerset Health Authority [1993] PIQR 262 meant that there was no qualifying “horrific event” where injury or death followed months after the alleged negligence.

(iv) Nonetheless, the issue was of sufficient importance to justify consideration by the Supreme Court, for which permission would be granted if applied for.

The consequence, accordingly, is that little can be said to have been resolved and interested persons will have to await the Supreme Court’s next venture into this area of jurisprudence before resolution.  As ever, we will be reporting on developments as soon as they happen.

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Katie McFarlane

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