Paul -v- The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12
The matter of secondary victims claiming psychiatric injury recently presented itself once more to the Court of Appeal in England and Wales in the clinical negligence matter of Paul -v- The Royal Wolverhampton NHS Trust [2022] which was conjoined with the cases of Polmear -v- Royal Cornwall Hospital NHS Trust and Purchase -v- Ahmed.
Plainly put, a secondary victim differs from a primary victim in that they are someone who suffers psychiatric injury as a result of witnessing death or injury being caused to others. In the case of Alcock -v- Chief Constable of South Yorkshire Police [1999] which arose out of the Hillsborough disaster, the Court established strict “control mechanisms” which secondary victims must establish to be successful in their claim:
- Reasonable foreseeability of the injury caused.
- A close tie of love and affection between the primary and secondary victims.
- Close proximity in time and space to the event or its immediate aftermath.
- Sudden shock.
- Perception.
Alcock control mechanisms are applicable to clinical negligence cases. The Paul case concerned two minors who witnessed their father having a heart attack which subsequently proved to be fatal. As it transpired, it was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis which a Wolverhampton hospital failed to diagnose some 14 ½ months prior when Mr Paul presented with chest pain. The hospital failed to conduct a coronary angiogram and Mr Paul was discharged.
The key question for consideration by the Court was whether Mr Paul’s death, 14 ½ months after the alleged negligent treatment, was capable of being the relevant “event” for deciding whether the close proximity requirement could be established.
On Appeal of a first instance strike out application, Mr Justice Chamberlain reinstated the secondary victim claims in Paul and permitted the Appeal. He deemed the “scene of the Tort” to be the date of Mr Paul’s subsequent heart attack. He found nothing to suggest that there would be any reason to deny recovery simply because the accident or event occurred months or years after the negligence which caused it. Furthermore, he stated that the 14 ½ month gap in time does not in and of itself preclude liability.
Royal Wolverhampton NHS Trust were given permission to Appeal in January of 2021. On Appeal, the Master of the Rolls handed down the overarching judgment in all three cases. It is evident that Taylor v A Novo (UK) Ltd [2013] remained the binding authority for cases in this area as it was held that, for a secondary victim to recover against a Defendant who caused the primary victim to sustain injury due to clinical negligence, the event cannot be a separate one that is removed in time from the negligent act or omission.
This area of law, specifically the law surrounding claims by secondary victims for psychiatric injury, was previously described by Lord Steyn as a “patchwork quilt” in White v Chief Constable of South Yorkshire Police [1998]. Whether another patch has been added to the quilt as a result of these three cases is yet to be determined. Whilst all three secondary victim claims were unsuccessful in the Court of Appeal, they live to fight another day as permission for Appeal to the Supreme Court has been granted.