ARTICLE

Secondary Victims and the impact of the Supreme Court decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC1

I have worked for over 20 years as a specialist claimant clinical negligence solicitor, helping those who have been seriously injured to obtain the compensation they deserve and need, to try to rebuild their lives. These individuals are known as primary victims. If they can show that they have been injured by a third party’s negligence, they are entitled to claim compensation for their injuries and consequence financial losses.

However, we know from our clients that serious injury does not just impact the injured individual. It can have a significant and devastating effect on their family as well.

As a general rule, the law only allows the injured person to recover compensation, and not their loved ones, even though they have also been affected by the negligence. Family members cannot claim compensation for the distress and upset caused by seeing their relative suffer, even if the stress of having to care for their relative leads to them developing a mental illness themselves. Neither can a family member claim for loss of earnings due to having to take time off work to care for their relative. (There are other ways that the latter can be compensated through the injured person’s claim, but the relative cannot bring a claim in their own right).

There are though a few very narrow exceptions to this rule. The first is the statutory right to a bereavement award and a claim for loss of dependency through the Fatal Accidents Act 1976. This applies to a defined and discreet class of family members.

The second is the ability (or otherwise), to claim for psychiatric injury caused by the trauma of witnessing serious injury (or threat of serious injury) or the death of a loved one. This is known as a secondary victim claim.

What is a Secondary Victim?

A secondary victim is someone who is not injured themselves, but witnesses injury (or threat of serious injury) to someone else (in this context as a consequence of a third party’s negligence). To bring a claim they must be able to establish that the negligent third party owed them a direct duty of care, as well as the injured party. This duty of care is established by showing both foreseeability of psychiatric harm and a proximity between the secondary victim and the defendant.

Secondary victim claims were traditionally brought by close family members (such as parents) in the wake of accidents causing sudden death or serious injury. The tests for secondary victim claims have been the subject of much judicial debate over the past 40 years or so.

The Case Law pre Paul

Following the Hillsborough disaster in 1989, there were a number of cases brought by different groups of people, which resulted in what became known as the Alcock Criteria, which were to be applied to secondary victim claims. In order to be able to bring a successful claim, the individual had to show:

1. They had close ties of love and affection with the primary victim;

2. They were close to the incident in time and space (present at the event or involved in the immediate aftermath)

3. They had perceived the death/injury/immediate aftermath with their own senses.

4. They had suffered a recognisable psychiatric injury, caused by the Defendant’s negligence

5. The psychiatric injury was caused by nervous shock as a result of a sudden perception of the death of, or risk of injury to, the primary victim.

6. It was reasonably foreseeable that they would suffer a psychiatric injury

In Alcock v Chief Constable of South Yorkshire Police, several family members of people killed in the crush tried to bring claims for injuries to their mental health as a result of seeing their loved ones in the morgue or seeing the crush on television, knowing their loved ones were there. This case failed because they had not perceived the death/injury/immediate aftermath with their own senses. In Frost v Chief Constable of South Yorkshire Police, a number of police officers who were present at the stadium, sought to recover compensation for the psychiatric illness they suffered as a result. This claim also failed because they were unable to satisfy the requirement of having a close tie of love and affection to any of those killed or physically injured.

Since then, the law on secondary victim claims has developed incrementally. Issues have arisen in relation to what counts as the “immediate aftermath”, whether the psychiatric injury was caused by “nervous shock” or as a result of a “sudden perception” of the death of, or risk of injury to, a loved one and indeed, what the “event” or accident should refer to if the negligence occurred some time before the injury was caused.

Secondary victims in a medical setting

In my field of work as a clinical negligence lawyer, I have considered and pursued secondary victim claims in a medical negligence context. This has arisen where a failure to diagnose or correctly treat a patient, has led to their unexpected deterioration, and sometimes death, and been witnessed by a close family member. That family member then goes on to suffer from PTSD for example, as a consequence of the events that they have witnessed.

The case law in a medical negligence setting has however been less clear, with what might be considered similar circumstances resulting in different outcomes. Two examples are given below.

In Taylor v Somerset Health Authority, the claimant’s husband suffered a heart attack at work as a result of the Health Authority’s failure to diagnose and treat serious heart disease. The Claimant was taken to see her husband’s body in the morgue shortly after and developed psychiatric illness. The claimant lost because the failure to diagnose and subsequent progression of heart disease did not meet the requirement for “some external traumatic, event in the nature of an accident

or violent happening” and that in any event, the sight of her husband’s body in the morgue, was not the “immediate aftermath”.

In North Glamorgan NHS Trust v Walters, the Claimant’s son was misdiagnosed. As a result he became acutely unwell a few weeks later and the Claimant witnessed him suffer a number of seizures and progressive deteriorations over the course of two days leading to his death. The Claimant suffered psychiatric illness as a consequence. The claim succeeded and the court found that the Claimant’s drawn out experience of a number of unexpected and shocking scenarios could be characterised as a sudden and shocking event.

A tragically common example of secondary victim claims in a clinical negligence setting that I have dealt with, is in the case of the unexpected death of a newborn baby on the neonatal unit, as a consequence of negligent medical treatment. In these circumstances often both parents are present and exposed to the trauma of the whole situation and it is sadly not unusual for them to develop psychiatric conditions such as PTSD, anxiety or depression, as a direct consequence. Until very recently, we would have robustly pursued secondary victim claims for both parents and expected to succeed in recovering compensation for their injuries.

However, much more recently, the Defendants to clinical negligence claims have declined to admit liability for secondary victim claims in a medical negligence context, pending the outcome of the Supreme Court ruling in the case of Paul v Royal Wolverhampton NHS Trust. The Judgement was handed down on 11 January 2024.

Paul v Royal Wolverhampton NHS Trust

The judgement in Paul actually considers three separate secondary victim claims brought in a clinical negligence context. The Supreme Court took the opportunity to review the law on secondary victims more widely and gave a ruling pertaining not only to claims made in a medical negligence setting, but on the control mechanisms and criteria that should be applied more generally.

The three cases considered in the Paul judgment all involved relatives of people who had illnesses that were negligently missed by their treating doctors, which caused their deaths. In Paul, two young daughters saw their father die of a heart attack in the street. In Polmear, the parents of a little girl witnessed her collapse and unsuccessful attempts to resuscitate her. In Purchase, the mother of a young woman found her daughter lying on her bed, still warm but not breathing and staring at the ceiling. She tried to resuscitate her, but this wasn’t successful. She found a voicemail of her daughter’s dying breaths on her phone, made 5 minutes earlier.

All three cases failed. The Supreme Court went through the previous case law in some considerable detail. They concluded that an essential feature of a secondary victim claim, was that the Claimant had to be able to show that they were present at an “accident” (or immediate aftermath) in the traditional meaning of the word. An “accident” is defined as being an unexpected and unintended event which causes injury (or a risk of injury) by violent external means to one or more primary victims. The court found that a misdiagnosis or failure to provide the correct treatment for a pre-existing medical condition, could not fulfil this requirement and that the claims therefore could not succeed. The case of Walters (above) was found to be wrongly decided on this basis.

The Supreme Court also clarified a number of additional points arising from secondary victim claims in the wider personal injury claim context. In order to successfully pursue a claim, the Claimant will have to show:

1. There was an accident which caused injury or risk of injury by violent external means to one or more primary victims

2. The accident was due to the Defendant’s negligence (the negligence may be some time earlier)

3. They had close ties of love and affection with the primary victim;

4. They were close to the accident in time and space (present at the event or involved in the immediate aftermath)

5. They had perceived the death/injury/immediate aftermath with their own senses.

6. They have suffered a recognisable psychiatric injury

7. Their psychiatric injury was caused by witnessing the accident (or immediate aftermath) and the injury/threat of serious injury/death suffered by the primary victim

8. It was reasonably foreseeable that they would suffer a psychiatric injury as a result of witnessing the accident and injury of the primary victim.

In the context of medical negligence claims, the Supreme Court indicated that it was difficult to conceive of a scenario in a clinical treatment setting, which would fulfil the need for there to be an “accident”. It then went further to give a view on the circumstances in which a doctor owes a duty of care to third parties who are not their patient as follows:

“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

The Supreme Court’s decision is binding on all other courts, and it overrides a lot of previous decisions that were more helpful to claimants. The upshot is that bringing a true secondary victim claim in a medical negligence setting is going to be extremely difficult, and claimants are going to find it extremely difficult to find a lawyer who is willing to take the case forward on a Conditional Fee basis.

The immediate impact of Paul and beyond

We have already had to inform a number of clients, largely fathers in the context of a neonatal death claim, that their claim should be discontinued as a result of the ruling in Paul. In cases where the baby has died because of negligence during the labour itself, there is an argument that the mother is a primary victim and should therefore be able to claim for all of her physical and psychological injuries on a standard basis. Trying to explain to a grieving family how this is a fair and just application of the law is difficult to say the very least.

Furthermore, if the baby has died because of poor neonatal care, the ruling in Paul means that it is unlikely that either parent can bring a claim for their genuine psychiatric injuries. Yet further uncertainties exist if the baby required specialist neonatal care because of mistakes made during the labour, and then further mistakes were made in the neonatal unit which lead to the baby’s death. I would argue that this is all a continuation of the consequences of the mistakes made during labour, but it is an issue ripe for satellite litigation.

Despite trying to simplify the criteria for when a secondary victim claim can be brought and when it cannot, the decision in Paul may well in fact lead to further court cases. I foresee future litigation seeking to define what constitutes an ‘accident’ in a medical setting, and where the limits of “primary” and “secondary” victim lie, particularly in a maternity setting. 

By Kym Provan

Enable Law