Paul v The Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospital NHS Trust; Purchase v Ahmed [2022] EWCA Civ 12

Summary

In each of these appeals, the primary victim died following clinical negligence on the part of the Defendant. The question for the Court of Appeal was whether the Defendant could be held liable for psychiatric injury to a close relative of the primary victim. The court found that it was bound by Crystal Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194 (Novo). Novo provides that psychiatric injury caused by a “separate horrific event removed in time from the original negligence, accident or a first horrific event” [1] cannot give rise to a claim. Accordingly, the appeals in Paul and Polmear were allowed and the appeal in Purchase was dismissed. The Judge questioned whether constraints on liability to secondary victims, as formulated through the “five elements” defined by the House of Lords authorities, had been correctly construed in Novo and gave permission for the Claimants to appeal in order to seek clarification on this point. For further background to the appeals please click here to read an earlier article by Stuart Brady. You may also find Michael Dougherty‘s webinar on secondary victims of interest.

 

Facts

These three appeals were brought by the Defendants in Paul and Polmear and the Claimant in Purchase respectively. They each involved failure, on the part of the Defendant, to diagnose the primary victim’s life-threatening condition. In each case, the primary victim suffered a traumatic death (“horrific event”) at some point following the negligent failure to diagnose. In both Paul and Polmear the close relatives witnessed the death. In Purchase, the close relative happened upon the primary victim immediately following death. In each case, the close relatives suffered psychiatric injury thereafter.

Sir Geoffrey Vos, Master of the Rolls, reiterated the five essential elements required in order to satisfy the legal proximity necessary for establishing liability for psychiatric injury, as defined by Lord Oliver in Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (Alcock). These are as follows:

1. The existence of a marital or parental relationship between the plaintiff and the primary victim;
2. The injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system;
3. The plaintiff was either personally present at the scene of the accident or in the immediate vicinity and witnessed the immediate aftermath;
4. The injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
5. There was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff’s perception of it.[2]

Further, the Master of the Rolls noted the additional requisite to establishing liability for psychiatric injury, that of reasonable foreseeability; a real risk of injury of the type sustained by the claimant, as a result of the claimant’s concern for the primary victim, would have to have been reasonably foreseeable to the Defendant.

The key issue for the court was whether damages for psychiatric injury could be awarded in the context of claimants being witness to a horrific event, suffered by a close relative, due to an earlier clinical negligence. Time intervals between the clinical negligence occurring and the horrific event causing psychiatric injury, and the bearing these would have on establishing liability, were in issue in each case. The Defendants argued that damages can only be claimed where the horrific event is the “damage completing the primary victim’s cause of action in negligence.” The Claimant in Paul argued that the damages can only be claimed where the horrific event is “the first manifestation of damage to the primary victim caused by the clinical negligence.” Finally, the Claimants in Polmear and Purchase argued that liability would arise “whenever that horrific event occurs.”[3]

 

Outcome

The Master of the Rolls determined that the five elements required to establish legal proximity for psychiatric injury to secondary victims were as applicable to clinical negligence cases as they were to accident cases.[4]

The Master of the Rolls determined that it was not necessary to demonstrate that the horrific event was the damage completing the primary victim’s cause of action. Nor was it necessary for the claimant to show that the event was the first manifestation of damage caused by the clinical negligence.[5] However, the Master of the Roles did note that the horrific event itself, that caused the secondary victim’s psychiatric injury, was important.[6]

The Master of the Rolls addressed how the third requirement of the five elements, namely the presence of the secondary victim at the scene or immediate aftermath, could be construed in the context of clinical negligence.[7] In this respect, he made the following observations: despite the horrific event witnessed by the secondary victim taking place after the Defendant’s misdiagnosis, “the fact and consequence of the Defendant’s negligence (i.e. the event or accident causing the horrific event)” did take place close in time and space to the “moment when the secondary victim was caused the psychiatric injury”.[8] Further, the secondary victim was either present at the scene of the horrific event or “was in the more or less immediate vicinity” and witnessed its immediate aftermath.[9]

The Master of the Rolls determined that this conclusion was much in line with the argument put forward by the Claimants in Polmear and Paul.[10] However, he concluded that he was bound by Novo[11] which provides that psychiatric injury caused by a “separate horrific event removed in time from the original negligence, accident or a first horrific event” [12] cannot satisfy the five elements[13] and is therefore unable to give rise to a claim.[14] Accordingly, the appeals in Paul and Polmear were allowed and the appeal in Purchase was dismissed.

The Master of the Rolls made clear that while he did not necessarily think that Novo misinterpreted the House of Lords’ authorities,[15] he considered that there was a further interpretation of the five elements that would permit liability to a secondary victim in circumstances where the horrific event giving rise to the secondary victim’s psychiatric injury was separate in time from the Defendant’s negligence.[16] Accordingly, he gave permission to the Claimants to appeal to the Supreme Court.

Lord Justice Underhill, Vice-President of the Court of Appeal (Civil Division), and Lady Justice Nicola Davies were in agreement with the Master of the Rolls.

 

Comment

Lucie Danti, Pupil at Farrar’s Building and author of this article, comments that with permission to appeal granted it remains to be seen what the ultimate conclusion on this case will be. In the meantime, it will continue to attract much interest given the important implications it has for secondary victims of psychiatric injury.

 

[1] Paul v The Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospital NHS Trust; Purchase v Ahmed [2022] EWCA Civ 12 [96].

[2] Ibid [2].

[3] Ibid [10].

[4] Ibid [96].

[5] Ibid [94].

[6] Ibid [83].

[7] Ibid [86].

[8] Ibid [87].

[9] Ibid.

[10] Ibid [88].

[11] Ibid [93].

[12] Ibid [96].

[13] Ibid [92].

[14] Ibid [97].

[15] Ibid [93].

[16] Ibid.

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