Secondary Victims - Judgment handed down by the Court of Appeal in the case of Paul v Royal Wolverhampton NHS Foundation Trust

Published: February 8th, 2022

7 min read

Judgment has recently been handed down by the Court of Appeal in the case of Paul v Royal Wolverhampton NHS Foundation Trust.

The case centred solely around liability to secondary victims, and dealt with the difficult question as to when a defendant in a clinical negligence case, could or should be held liable for psychiatric injuries caused to secondary victims, who witness the unfortunate and shocking aftermath of injuries caused to primary victims as a result of the Defendants negligence.

This case, and the two other linked cases of Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed, looked closely at the key question of :

Could the necessary legal proximity exist between primary and secondary victims, when there is a gap in time between the negligent treatment occurring and the traumatic events of the injury in the aftermath?

Legal Proximity Test

The question of legal proximity was dealt with authoritatively in the case of Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310 , where Lord Oliver described five elements as being an essential requirement of proximity;

  1. Was there a marital or parental relationship between the primary and secondary victims?
  2. Did the injury arise directly from the sudden and unexpected shock of the negligence?
  3. Was the victim personally present at the scene or did they witness the aftermath shortly afterwards?
  4. Did the injury arise from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim?

In summary, there has to be, not only physical proximity to the event, but a close temporal connection between the event and the victims perception of it, combined with a close relationship of affection between the victims. These five elements have come to be known as the "control mechanisms" for limiting liability for psychiatric injury.

The Court of Appeal found for the Defendant in each of the 3 appeals, striking out the Claimants claims on the basis that they were bound by the underlying principles in the case of Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310

Although Counsel for the defendants accepted that claims by secondary victims for psychiatric injury are available in clinical negligence cases, the deaths in each of these cases were separated significantly in space and time from the negligence that had occurred in a hospital or primary care setting. They argued that they could not therefore be said to be "the relevant event" for deciding the proximity required to establish liability under the established "control mechanisms". In essence, they submitted that the court was bound by its own previous decision above, which had decided that a secondary victim cannot claim in respect of psychiatric injury sustained by witnessing any horrific event once actionable damage has already been sustained by the primary victim on an earlier occasion.

That said, it was accepted by the Judge that he could see why secondary victims in these cases could be considered to be seen as being "sufficiently proximate" to the defendants, and therefore should be allowed to recover damages for their psychiatric injury, but that it was now for the Supreme Court to decide whether to depart from the existing law

Vos MR concluded

"I would be prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case".

This view was echoed by Underhill LJ stating:

"If the point were free from previous authority I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover. My strong provisional view is that the issues raised by them merit consideration by the Supreme Court".

The Claimants in all three cases have applied to the Court of Appeal for permission to appeal to the Supreme Court.

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