Kate Lumbers considers the landmark decision of the Supreme Court on Secondary Victim claims

In clinical negligence cases, it is very common for a misdiagnosis to occur at one time and for the death or serious injury to the patient caused by that misdiagnosis to occur much later. If, at the later date, the death or serious injury is witnessed by a close relative, causing psychiatric injury, is the Defendant liable to that secondary victim? This question has long troubled the courts, producing seemingly inconsistent results.

On 11 January 2024, the Supreme Court handed down judgment in the conjoined appeals of Paul and Another (Appellants) v Royal Wolverhampton NHS Trust (Respondent), Polmear and Another (Appellants) v Royal Cornwall Hospitals NHS Trust, Purchase (Appellant) v Ahmed (Respondent) [2024] UKSC 1, giving much-needed and long-awaited clarity.

In each of the cases, the defendant is alleged to have failed to diagnose the primary victim’s life-threatening condition. Some time after that negligent omission, the primary victim suffered a traumatic death. In two of the cases (Paul and Polmear), the shocking death occurred in the presence of the close relatives, causing them psychiatric injury. In the case of Purchase, the close relative came upon the primary victim immediately after her death, again causing her (the mother in that case) psychiatric injury.

On 13 January 2022, the Court of Appeal, with Sir Geoffrey Vos, Master of the Rolls giving judgment, concluded that he was bound by the Court of Appeal in Novo, where Dyson LJ, having considered all the authorities, concluded that where the negligence and the horrifying event were distinct in time, the defendant was not liable. However, both he and Underhill LJ expressed reservations as to whether Novo correctly determined the limitation on liability to secondary victims and permission was given to appeal to the Supreme Court to consider these issues.

The Judgment of the Supreme Court

Lord Leggatt and Lady Rose gave judgment, dismissing each of the appeals, by a majority of six to one, with Lord Burrows dissenting.

It was argued by Simeon Maskrey KC of 7BR, on behalf of the Respondents, and accepted by the Supreme Court, that the secondary victim had to witness an accident or a traumatic event external to the primary victim, in order for there to be recoverability. In the words of Lord Carloway:

“the key feature of these exceptional cases, in which recovery is permitted, is that the claimant is present at the scene of an accident or its immediate aftermath. There must be an accident to be witnessed”.

The Court considered that the requirement for an accident had the advantage. Firstly, it was normally a discrete event in the ordinary sense of the word: ‘Whether someone was present at the scene and whether they directly perceived an accident are in most cases questions which admit of a clear and straightforward answer. These criteria for determining whether a person is eligible to claim compensation as a secondary victim therefore have the great merit of providing legal certainty.’ Secondly, witnessing an accident involving a close family member is likely to be disturbing and upsetting. Thirdly, it is difficult or arbitrary to distinguish between the primary and secondary victims in such circumstances.

The Court concluded that secondary victim claims are an exception to the rule that the law opposes granting remedies to third parties for the effect of injuries to other people, but, ‘there is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused and to apply restrictions which are reasonably straightforward, certain and comprehensible to the ordinary person.’

Whilst, at paragraph 123, it did not entirely close the door to secondary victims in clinical negligence claims, it left the question of when they might occur on the facts to those cases.

Conclusion

• The close relative must have been present at the scene of an accident or its immediate aftermath and witnessed the traumatic event external to the primary victim, in order to succeed.
• The circumstances in which secondary victims’ claims in clinical negligence are likely to succeed are now very limited.
• This judgment, whilst disappointing for claimants and their lawyers, brings some much-needed clarity to the law as it applies to clinical negligence claims, which has been unclear since Walters.
• Whilst the door has not entirely closed to secondary victim claims, it has been pushed quite close-to. It is clear that an accident in a clinical setting cannot be an omission, it must be a commission, and the accident or its immediate aftermath must be witnessed. There may be some limited circumstances where a relative witnesses such an accident: perhaps a fall from a hospital bed, or the repeated erroneous application of forceps in the context of a traumatic delivery, which might give rise to liability, but these cases are likely to be rare.

The full judgment is available here.

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