Paul v The Royal Wolverhampton NHS Trust
by Phil Barnes
Shoosmiths Successfully Appeal Strike Out of Secondary Victim Claims The Honourable Mr Justice Chamberlain has today overturned Master Cook’s decision on 4 November 2019 to strike out the secondary victim claims brought by the children of Mr Paul, bringing some clarity on the application of the proximity test to secondary victim claims where there is a gap in time between the breach of duty, and the subsequent manifestation of the damage or injury caused by the negligence.
The Claim On 9 November 2012 Mr Paul was admitted to New Cross Hospital in Wolverhampton after complaining of chest and jaw pain. Mr Paul had Type II diabetes and was given treatment for acute coronary syndrome and save for echocardiography no cardiac investigations were performed. In September 2013 Mr Paul was referred to a cardiologist and was seen on 9 January 2014. An elective coronary angiography was recommended. On 26 January 2014 some 14 months after being admitted to hospital and before the angiography was performed, Mr Paul (aged 44 at this time) was out shopping with his daughters aged 9 and 12 when he suffered a heart attack causing him to collapse, fall backwards and strike his head on the floor. His daughters witnessed the collapse and the unsuccessful cardio pulmonary resuscitation by the paramedics. Mr Paul’s heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. If a coronary angiography had been performed on Mr Paul it would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation. These actions would have avoided the heart attack. A claim in negligence is being pursued against the defendant hospital (Defendant) on behalf Mr Paul’s estate under the Law Reform (Miscellaneous Provisions) Act 1934, and on behalf of Mr Paul’s dependants under the Fatal Accidents Act 1976. Secondary victim claims were also brought on behalf of the children (referred to as the Claimants in this article) for psychiatric injuries suffered from witnessing the collapse and death of their father.
endangerment of the primary victim. In this case Mr Paul was the primary victim and his children the secondary victims. A secondary victim will only recover damages for psychiatric injury if they can establish the control mechanisms, which are: • the psychiatric injury was reasonably foreseeable; • there is a close tie of love and affection to the primary victim; •
they were close in time andspace to the incident or to its immediate aftermath, referred to as proximity in time and space;
•
the incident was shocking ie a sudden and direct appreciation by sight or sound of a horrifying event. The ingredients necessary to establish the event was suitably shocking are that it must be (a) exceptional, and (b) sudden and (c) horrifying. This will be judged by objective standards by reference to persons of ordinary susceptibility. In a hospital setting one must expect to see things that one may not like to see;
• witnessing the incident caused the psychiatric illness. The psychiatric illness also must be a recognisable one. Some of these control mechanisms are notoriously complex and have not always been applied by the courts in a consistent way, making it difficult to assess whether a secondary victim claim is likely to be successful.
Strike out
Secondary victim claims
The Defendant represented by Browne Jacobson and Charles Bagot QC, applied to strike out the secondary victim claims on the basis that they failed the proximity test, ie they failed to establish they were in “close proximity in space and time to the relevant event or its immediate aftermath”.
Secondary victim claims are claims from someone who suffers psychiatric injury as a result of witnessing the injury or
The Defendant argued that the “relevant event” for the purposes of the proximity test was the alleged negligent omission
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to arrange a coronary angiography and instead discharging Mr Paul on 12 November 2012, not Mr Paul’s collapse from heart attack some 14.5 months later. “Some damage to Mr Paul was occasioned to him on [the day he was discharged] by the failure to improve or stabilise his condition, or, at the very least, to prevent him worsening” This meant that the heart attack was the later consequence of the infliction of damage and could not qualify as the relevant event. It also meant the Mr Paul’s children were absent from the “relevant event” and it would not have been considered a shocking event in law. The Defendant relied on the approach taken in the case of Taylor v Somerset Health Authority (1993) (Somerset) which they asserted was expressly approved by the Court of Appeal case of Taylor v A Novo (UK) Ltd (2013). In Taylor v Somerset, Mr Taylor suffered a heart attack at work, caused by the defendant’s negligent failure, many months before, to diagnose and treat his serious heart disease. He died shortly after being taken to hospital. Mr Taylor’s wife went to the hospital, where she was told of her husband’s death and identified his body. This occurred about an hour after her husband’s death. The question for the court was whether the wife’s involvement within about an hour after her husband’s death met the proximity test i.e., was it in close proximity in space and time to the relevant event or its immediate aftermath. The court held that that Mr Taylor’s death was the ‘final consequence of his progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. His death at work and the subsequent transference of his body to the hospital where the [wife] was informed what happened and where she saw the body did not constitute such an event’. The court were also of the opinion that even if the fatal heart attack could be considered an event to which the ‘immediate aftermath’ applied, the doctor’s communication to Mr Taylor’s wife of that fact would not come within the extension.
