Can secondary victims claim for psychiatric injury in clinical negligence claims? A review of the decision in Paul v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 - Rochelle Powell, Temple Garden Chambers
26/01/22. The cases of Paul v The Royal Wolverhampton NHS Trust (“Paul”); Polmear v The Cornwall Hospital NHS Trust (“Polmear”); and, Purchase v Ahmed (“Purchase”) were heard as conjoined appeals. The question for the Court of Appeal was whether and in what circumstances a defendant to a clinical negligence claim could be held liable for the psychiatric injury caused to a close relative of the primary victim of that negligence. In all three cases, the defendants were alleged to have failed to diagnose the primary victim’s life-threatening condition and sometime after that negligent omission, the primary victim suffered a traumatic death. In Paul and Polmear, the death of the primary victim occurred in the presence of close relatives, causing them psychiatric injury. In Purchase, a close relative came upon the primary victim immediately after her death. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative.
Relevant Authorities
The Master of the Rolls reviewed the relevant authorities. The question of legal proximity was considered in Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (“Alcock”). In that case, Lord Oliver identified the following five elements from which the essential requirement of proximity had to be deduced:
“First, that in each case there was a marital or parental relationship between the Plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the Plaintiff’s nervous system; thirdly, that the Plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injuries suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly… a close temporal connection between the event and the Plaintiff’s perception of it combined with a close relationship of affection between the Plaintiff and the primary victim”.
Of particular relevance was the judgment of Lord Dyson in CrystalTaylor v A. Novo (UK) Ltd [2013] EWCA Civ 194 (“Novo”). Novo was also an accident case, where the Claimant’s mother had suffered a minor injury at work. The injuries the mother sustained caused deep vein thrombosis and consequent pulmonary emboli from which she died 3 weeks later, in the presence of her daughter. The claimant suffered significant post-traumatic stress disorder. However, Lord Dyson found that, because the claimant was not present when the accident occurred, the necessary element of temporal proximity was lacking.
Decision
The Court of Appeal held that the five elements required to establish legal proximity set out in Alcock, applied as much to clinical negligence cases as they do to accident cases. Therefore, the Court was bound by the decision in Novo, so that “no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event”. It followed that all three claims failed and the claimants were not entitled to damages as secondary victims.
However, in its judgment, the Court of Appeal expressed reservations about whether Novo is a correct interpretation of the limitations on liability to secondary victims. The Master of the Rolls indicated that he would be prepared to grant permission to appeal to the Supreme Court, if sought. The Vice President agreed, stating that the issues merited consideration by the higher court.
The claimants have already applied for permission to appeal. Given the indication of both the Master of the Rolls and the Vice-President, it seems likely that the case will proceed to the Supreme Court.
Image ©iStockphoto.com/nikkormat42
