Secondary victim claims: proximity between the alleged negligence and relevant event
(1) Saffron Paul (a child, by her mother and litigation friend Balbir Kaur Paul) (2) Mya Paul (a child by her mother and litigation friend Balbir Kaur Paul) v The Royal Wolverhampton NHS Trust [04.06.20]
In this appeal the court considered the law relating to secondary victims who suffer psychiatric injury as a result of witnessing a shocking event. The court was asked to consider whether a claim could be made even when there was not apparent proximity between the negligent act and the event which occurred.
In November 2012 Mr Paul was admitted to New Cross Hospital after complaining of chest and jaw pain. He was discharged the same day after various tests and investigations. More than 14 months later in January 2014 while shopping with his daughters he collapsed and died from a heart attack.
It was alleged there was a failure by the hospital in November 2012 to diagnose ischaemic heart disease and occlusive coronary artery atherosclerosis. Had a diagnosis been made, it was alleged that Mr Paul would have been successfully treated by coronary revascularisation and would not have suffered the cardiac event in January 2014.
‘Secondary victim’ claims brought by Mr Paul’s two daughters were dismissed at first instance by Master Cook, due to the absence in “proximity in space and time” between witnessing his death and the alleged breach of duty.
The appeal was successful. Mr Justice Chamberlain held that “the Master was wrong to conclude the claims were bound to fail on the facts pleaded”. Further, Mr Justice Chamberlain added that the collapse from a heart attack in January 2014:
"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 of 9 and 12. The fact the event occurred 14½ months after the negligent omission which caused it does not, in and of itself, preclude liability."
The judge found that the key point was when the consequences of the negligence first became manifest and whether Mr Paul’s collapse from a heart attack in January 2014 was the first occasion on which the damage caused by the negligent failure of the hospital to diagnose and treat his heart condition was apparent. Thus the heart attack was the start of the relevant event and not any earlier episode.
In the penultimate paragraph of the judgment, Mr Justice Chamberlain stated:
Even though defendants are in principle liable to secondary parties for psychiatric damage caused by witnessing an event in the primary victim caused by clinical negligence, it will still be necessary to establish that the event in question was sudden, unexpected and shocking in the relevant sense.
Mr Justice Chamberlain added that “even if there is a qualifying shocking event, it will remain necessary to show that it was that event, and not some later discrete consequence of it, that caused the psychiatric injury. These are stringent limits on recovery for psychiatric damage by secondary victims”
It is clear therefore that, whilst the appeal was allowed in the circumstances of this particular case, and the claim was allowed to proceed, through the control mechanisms that are in place there continues to be a very high threshold to be satisfied in secondary victim claims.
It remains to be seen whether this case will be appealed further following Mr Justice Chamberlain’s judgment and indeed whether the boundaries on secondary victim claims will be tried further.
Related item: Healthcare Brief: latest decisions December 2019