Secondary victim claims head for the Court of Appeal
Two secondary victim claims are due to be heard at the Court of Appeal later in the year; both of which are clinical negligence claims.
Both claims are testing the legal control mechanisms on claims for psychiatric harm by secondary victims.
Current Law
The current mechanisms in place were developed following the Hillsborough Stadium disaster litigation in 1989, and the mechanisms were as follows (Alcock v Chief Constable of South Yorkshire [1992]):-
- A close tie of love and affection to a primary victim;
- Appreciation of the event with their own unaided senses;
- Proximity to the event or its immediate aftermath;
- The psychiatric harm must be caused by a sufficiently shocking event.
How to define the event has been considered in two recent decisions by the Court.
In some situations, it would be easy to define that the event is the accident; for example a road traffic accident. However, this can be more difficult in some cases, such as when there is a delay between the negligence act and the perception of a horrifying incident. In this instance we must consider what the event would be; the negligent act or the horrifying incident? If the Court considers that the event is the negligent act then the claim would fail.
Paul v Royal Wolverhampton NHS Trust
The Defendant Trust were negligent in diagnosing the Deceased’s heart condition. This led to him sadly suffering a fatal heart attack, witnessed by his young children, 14 months later.
Chamberlain J considered the event, and held that in regard to a secondary victim claim, the perception of the consequences of prior negligence would not be a bar to recovery,
“… there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack … it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul’s death. The event would have been horrifying to any close family member who witnessed it, and especially so to children … that the event occurred 14½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an ‘accident’ in the ordinary sense of the word, but rather an event internal to the primary victim … where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete [the case law] does not preclude liability.”
The key point seems to be “the first occasion on which damage is caused”. This distinguishes this case from Taylor v Novo, a previous Court of Appeal decision. Following an accident at work, the primary victim died three weeks later, witnessed by her daughter. The Court of Appeal considered the actual accident at work was “the first occasion on which damage is caused”.
Permission to Appeal this decision was granted in January 2021.
Polmear v Royal Cornwall Hospitals NHS Trust
The Claimant’s daughter Esmee was treated by the Defendant Trust in December 2014- January 2015 when she was 6 years old. The Hospital negligently failed to diagnose Pulmonary Veno- Occlusive Disease.
During early 2015, Esmee continued to suffer very severe episodes of breathlessness and vomiting. She was re-referred to hospital in April 2015, however before she was seen, she tragically collapsed and died on 1 July 2015. Both Esmee’s parents witnessed her death.
The preliminary issue requiring consideration in this case was “whether the Claimants have a reasonably arguable case that the relevant event required to satisfy the control mechanism of proximity was the collapse and death of their daughter?”. The Judge considered that he was bound by the decision in Paul, and on this basis he was satisfied that these Claimants did have a reasonable case.
Permission to appeal was granted and it was ordered that the appeal should be transferred directly to the Court of Appeal. The Judge considered that an important principle needed considering, how a Secondary Victim can satisfy the proximity control test “when the negligence complained of preceded the sudden shocking event giving rise to the psychiatric injury for which compensation is sought, and what constitutes the relevant event for the purposes of establishing proximity.”
Further comments were made on why the matter should be transferred to the Court of Appeal:
- The lack of clarity in the present law;
- The similar facts in the case of Paul;
- Many Secondary Victim claims had been stayed pending the decision in Paul.
Conclusion
Although the hearing on Paul had initially been listed for November, it has recently been confirmed that both cases have been listed in the same window in mid-December and will be heard together by the same Bench. A decision is therefore likely in early 2022.
In the meantime, any cases with similar issues are likely to be stayed pending the outcome of these cases.
If you have any questions regarding these cases and their implications then please do get in touch with the team.