Supreme Court rules on right of secondary victims to recover damages for psychiatric injury

In its judgment of 11 January 2024, the Supreme Court has given its decision in the conjoined appeal of Paul and Another v Royal Wolverhampton NHS Trust; Polmear and Another v Royal Cornwall Hospitals NHS Trust; and Purchase v Ahmed [2022] EWCA Civ 12 concerning recovery for psychiatric injury by secondary victims arising from cases of clinical negligence. In all three cases, there was a death of a close family member in distressing circumstances.

By a majority of six to one, the Supreme Court dismissed the appeals. The claimants argued that an exception had arisen in common law to allow claims for personal injury caused by witnessing an accident brought about by the defendant’s negligence, in which a close family member is killed or injured. The claimants sought to persuade the Court that this exception extended to cases of clinical negligence where a person dies or manifests injury from a disease that proper treatment would have prevented.

The leading judgment provided by Lord Leggatt and Lady Rose, with whom all agreed with the exception of Lord Burrows, rejects that the exception extends to clinical negligence where an accident is not involved. An accident in this context is an unexpected and unintended event in which injury (or the risk of injury) is caused by means external to the primary victim.

In considering the duty of care owed by doctors, the Court found this did not extend to shielding those with close ties to the primary victim from witnessing their death or risk of serious injury. Lord Carloway concurred that the same result would be reached under Scots law.

The majority judgment agreed that no claim can be brought in respect of psychiatric injury caused by a separate event removed in time from the accident. The majority overruled the first manifestation of the damage test, that being that the relevant event must be the first manifestation of damage to the primary victim. Though it was compatible with Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, it was inconsistent with the reasoning in that case. The court said there is no precedent for applying such a test in any authority cited to us, nor could they see a good reason to introduce it.

The majority judgment affirmed that a secondary victim needs to witness an accident or its immediate aftermath for recovery to be possible for psychiatric injury. The Court held that North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 was wrongly decided because the brain damage and death of Mrs Walter’s baby were not caused by an accident.

Similarly, the Court said that Sion v Hampstead Health Authority [1994] 5 Med LR 170, Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 288, although correctly decided, were decided on the wrong basis and that they should all have been dismissed because the claimants’ did not witness an accident.

The court refused to rule on whether the rules governing claims by secondary victims arising from accidents could ever apply in medical settings, stating that such examples are best left to be addressed in a case where they actually arise. Thus, the door remains open to secondary victims who witness, for example, the wrong drug or dose being administered to their close relatives, resulting in an acute and potentially fatal reaction.

Lord Burrows dissented on account that the relevant event should be viewed as the death of the primary victim, and applying existing proximity and control factors, it follows that a relevant duty of care was owed to the relatives in all three cases. On that approach, there is no need for an accident, and the exception can be extended to cases involving clinical negligence.

 

With thanks to Dan Jacklin, a Pupil at Farrar’s Building, under the supervision of James Pretsell. For further information or to instruct any of our Members, please contact our Clerking Team.

 

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