A recent decision in the Supreme Court restricts 'secondary victim' claims to those who witness an accident or serious injury but removes the requirements that a Claimant must witness a "sudden shock to the nervous system, caused by a "horrifying event".
Where claims from 'secondary victims' (relatives who either witness a loved one being seriously injured in a horrific accident or the aftermath following such an event) are concerned, the law has always been controversial.
Lord Oliver in the previously decided case of Alcock v Chief Constable of South Yorkshire Police [1992], identified factors which he opined must apply in secondary victim cases to allow recovery by the Claimant. These have come to be known as the 'control mechanisms' imposed by the common law to define the limits of liability in such cases. In summary, to succeed a secondary victim must establish:
- The close ties of love and affection between them and the primary victim
- That their injury arose from a sudden and unexpected shock
- That they were personally present at the scene or immediate aftermath
- That their injury arose from witnessing the death, extreme danger to, or injury of the primary victim
- That there must be "a close temporal connection between the event and the [secondary victim's] perception of it".
In a Judgment published on 11th January 2024, the Supreme Court has now dismissed the appeal of the Claimants in the case of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 and the cases of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed. This binding decision brings an end to decades of debate as to whether a person who witnesses the death or serious injury of a loved one (e.g. close relatives) due to medical negligence, can bring a claim as a secondary victim. This Judgment concludes that a Claimant in this position cannot bring a secondary victim claim and that the earlier case of North Glamorgan NHS Trust v Walters (2002) EWCA Civ 1792, [2003] PIQR P16 ("Walters") was wrongly decided.
The Facts
The Claimants in these recently decided cases were relatives of individuals who died several months after a medical professional had misdiagnosed them. In the Paul v Royal Wolverhampton NHS Trust [2024] case, Mr Paul suffered a heart attack and collapsed when out shopping with his daughters (the Claimants). The Claimants' case was that the Defendant Hospital was negligent in failing to perform a coronary angiography back in November 2012, which would have revealed the coronary artery disease that Mr Paul had, and which could and would have been successfully treated by a coronary revascularisation. It was Mr Paul's daughter's case that they suffered psychiatric injury as a result of watching their father die. The Claimants sued the defendant hospitals in negligence.
After the claim was brought, the Defendant applied to strike out the secondary victim claims on the basis that no duty of care was owed to the claimants. Their case was that the Claimants could not satisfy the criteria of "proximity of time and space relevant to the event", as set out in the earlier case of Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. The Claimants' claim was then struck out and the Claimants appealed.
The strike- out decision was then overturned on appeal. Chamberlain J in the High Court of Justice held that "the principle in Taylor v A. Novo is no bar to recovery in this case if it is shown that Mr Paul's collapse from a heart attack on 26 January 2014 was the first occasion on which the damage caused by the hospital's negligent failure to diagnose and treat his heart condition became manifest." He held that the heart attack and death was capable of constituting the relevant event. The Defendants then appealed to the Court of Appeal.
The Court of Appeal allowed the Defendant's appeal on the basis that they were bound by the earlier decision in Taylor v A Novo (UK) Ltd [2013] which found that for a secondary victim to succeed, the horrific event cannot be a separate event removed in time from the act of negligence. The Court of Appeal expressly stated the issues raised need consideration by the Supreme Court due to the significant consequences of this decision in preventing a class of claimants, from being able to make a secondary victim claim and be justly compensated for their injuries where there is a gap in time between the negligence and the horrifying event.
Supreme Court Decision and what this means for the law on secondary victim claims
In summary, the decision of the Supreme Court is that in order to satisfy the criteria for secondary victim claims set out in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 ("Alcock") and confirmed in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 ("Frost"), a Claimant must be present at the scene of an accident (or its immediate aftermath), have witnessed it and have a close tie of love and affection with the primary victim. The word "accident" is used by the Court as a "term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means". As a result, those who witness the consequences to their loved one caused by an illness, which proper treatment would have prevented, cannot satisfy these criteria. Secondary victim cases arising from medical negligence cases will most likely now fail as it is very common in such cases for there to be a gap in time between the negligence and the event. It remains to be seen whether there are still a small number of cases involving immediate harm caused by a negligent medical treatment could still satisfy the Alcock criteria.
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