Court of Appeal ruling: secondary victim claims and clinical negligence
(1) Paul v Royal Wolverhampton NHS Trust; (2) Polmear v Royal Cornwall Hospitals NHS Trust; and (3) Purchase v Ahmed [13.01.2022] EWCA Civ 12
This article was co-authored by Amber Banerjee, Trainee Solicitor, Cambridge.
On 13 January 2022, the Court of Appeal handed down the latest judgment considering whether a defendant can be held liable for psychiatric injury suffered by a close relative of a primary victim of clinical negligence.
The judgment concerns three conjoined appeals namely: (1) Paul v Royal Wolverhampton NHS Trust; (2) Polmear v Royal Cornwall Hospitals NHS Trust; and (3) Purchase v Ahmed [13.01.2022].
Each of these concern an alleged failure by the defendant to diagnose the primary victim’s life threatening condition resulting in their close relatives witnessing the primary victim’s death causing psychiatric injury.
The central question for the court was the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant.
On appeal in Paul, Mr Justice Chamberlain had previously found in favour of the claimant on the basis that the secondary victim witnessed the ‘relevant event’- this being the collapse immediately prior to death which was the first manifestation of the defendant’s negligence.
Court of Appeal decision
The Court of Appeal held that the five elements required to establish legal proximity in accordance with the House of Lords decision in Alcock v Chief Constable of the South Yorkshire Police  “apply as much to clinical negligence cases as they do to accident cases”. A claimant must therefore initially satisfy the Alcock test to proceed with a claim.
The Court of Appeal confirmed that the existing case law of Taylor v A. Novo (UK) Ltd  remains binding and therefore the defendants succeeded in their appeal. The ‘relevant event’ would be the accident/negligent act itself, as opposed to any later consequences. On this basis, the secondary victim failed to establish the necessary proximity as she witnessed a later consequence of the original accident (the deceased collapsing) as opposed to the original negligent action (an accident in the work place).
Sir Geoffrey Vos, Master of the Rolls, conceded that Novo did preclude liability and the court remained bound by this in terms of a claim brought in respect of psychiatric injury caused by a second event separate in time from the negligence. He did, however, express his reservations about the case law and whether this interpretation of Novo would be compatible with Alcock. At paragraph 12 of the judgment Vos MR observed as follows:
I accept that, although there is no logical reason for these rules, they are the way Auld J in Somerset and the Court of Appeal in Novo built upon the five elements and adapted them to the clinical negligence context.
If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case.
Although there was judicial discontent expressed in the judgment, the decision clarifies the present state of the law. A claimant can only succeed in pursuing a secondary victim claim if they have witnessed by sight or sound an horrific event which has taken place at the same time as the negligence or within the same continuum. This continuum has to be over a short period as set out in North Glamorgan NHS Trust v Walters  which referred to events 36 hours apart. Although the claimants have applied for permission to appeal to the Supreme Court, the judgment is clear and current ongoing cases with these issues should now be capable of resolution.