Clinical negligence claims, Secondary Victims and “proximity in time and space”: Polmear and Anor v Royal Cornwall Hospitals NHS Trust

The tightly drawn “Alcock control mechanisms” for secondary victims who can recover damages for “nervous shock”, combined with the reality of clinical negligence and its often-delayed outcomes have provided fertile territory over the past few decades for appellate litigation and strike out applications.

Stuart Brady of Farrar’s Building reviews the decision of Master Cook in Polmear v Royal Cornwall Hospitals NHS Trust on secondary victims in clinical negligence claims.  The case is now headed to the Court of Appeal where its outcome will be eagerly anticipated by clinical negligence practitioners.  The judgment is available here.

Before I get into the interesting decision of Master Cook in Polmear, I would strongly suggest you watch the excellent recent webinar presented by my colleague Michael Dougherty available here. Michael’s webinar really is on-point for the matters in issue in Polmear and provides a very elegant and timely elucidation of the cases and principles relevant to this type of secondary victim claim.

The facts in Polmear and another v Royal Cornwall Hospitals NHS Trust

The Claimants were the mother and father of a young girl who died of veno occlusive disease.  In the two years prior to her death their daughter had experienced quite regular episodes that could last up to 30 minutes several times per week, where her breathing became shallow and rapid causing her lips to turn blue. 

On 1^st July 2015 the Claimants were called to their daughter’s school where she had collapsed, they were then present during efforts to revive her and then at her death.  They brought a claim on the basis that they had suffered psychiatric shock and illness from witnessing the sudden and horrifying events surrounding their daughter’s collapse and death. 

The Defendant NHS Trust admitted a negligent failure to diagnose their daughter’s condition by mid-January 2015 but applied to strike out the parents’ claim relying on the control mechanisms governing recovery by secondary victims. 

The matter in issue in this strike out application was whether it was reasonably arguable that the collapse and death of their daughter could qualify as a “sudden and shocking event” resulting from the Defendant’s negligent omission such as to provide the requisite “physical and temporal proximity” to allow the parents claim under the Alcock control mechanisms.

The decision of Master Cook

Master Cook was asked by the Defendant to apply the Court of Appeal judgment in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 to find that the Claimants could not satisfy the proximity test. Taylor v Novo was a case involving an accident at work with the alleged secondary victim sustaining PTSD from witnessing her mother’s death from the resulting injuries 21 days after the accident.  In that case the Court of Appeal found that the relevant “event” for the determination of the secondary victim status was the original accident not the death 21 days later.

However, in response to this submission Master Cook felt bound by the interpretation of Taylor v Novo set out by Chamberlain J in Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB): a High Court appeal against a decision of the same Master Cook to strike out the claim for lack of “proximity in time and space”.  The facts of Paul were that the “sudden and shocking event”, was a heart attack occurring 14 months after an allegedly negligent failure to conduct proper investigations.

In making his determination, Master Cook cites Paragraphs 73 to 75 of Chamberlain J’s judgment in Paul in which he interprets the law as set down by Taylor v Novo as recognising “an event which is external to the secondary victim, but internal to the primary victim, could in principle qualify if it is sufficiently sudden and horrifying and leads immediately or seamlessly to death or injury in the primary victim”.  This is the case even if there is a significant delay between omission and that sudden and horrifying event.

Master Cook was also asked by the Defendants to find that the Claimant’s daughter’s episodes between mid-January 2015 (the negligent omission) and the collapse and death on 1^st July 2015 constituted actionable damage, and that the occurrence of prior actionable damage meant that the “sudden and shocking” events of 1^st July 2015 could not be “an event” providing the required proximity of time and space to the secondary victims. He dealt with this by observing that in the case of North Glamorgan NHS Trust v Walters [2002] EWCA 1792, where the Court of Appeal had found that the Claimant could be a secondary victim, actionable harm had been present in the days running up to the seizure that constituted the “sudden and shocking events”. 

In so doing, Master Cook observed that the law as it currently stands only required the identification of a qualifying “shocking event” and that this need not coincide with the first actionable damage to the primary victim.

Master Cook gave permission to appeal his judgment and provided for a “leap-frog” appeal to the Court of Appeal where it seems likely that this case will be heard alongside a second appeal in Paul v The Royal Wolverhampton NHS Trust. 

Given that the Court of Appeal’s approach in Walters exposes ambiguity in the Alcock control mechanisms for the purposes of adjudication of secondary victim status in “omission” cases in the clinical negligence domain, there is every chance that these appeals could end up before the Supreme Court.

Stuart Brady is a member of the Clinical Negligence and Personal Injury teams at Farrar’s Building.  Stuart acts for claimants and defendants in his courtroom and extensive paperwork practice.  Stuart also has a specialism in industrial disease.

For further information, please contact our Clerks.

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