On 13 January 2022, the Court of Appeal dismissed three secondary victim claims based on a binding authority which limits the scope for establishing Proximity between the Breach of Duty and the ‘shocking event.’ Dissatisfied with this, the Master of the Rolls has granted permission for the matter to be heard by the Supreme Court.
A conjoined appeal regarding the cases of Paul v The Royal Wolverhamptom NHS Trust (‘Paul’); Polmear v The Cornwall Hospital NHS Trust (‘Polmear’); and Purchase v Ahmed (‘Purchase’) was brought before the Court of Appeal to determine whether there was sufficient Proximity between the victims and the ‘relevant event’ which had occurred sometime after the date of alleged negligence.
In the case of Paul, Mr Paul’s daughters suffered psychiatric injuries after witnessing him suffer a heart attack. Mr Paul fell, hitting his head and causing a bleed. The paramedics were unable to resuscitate Mr Paul who tragically died. A year prior, Mr Paul had attended hospital with chest pain.
The Claimant’s argued that had Mr Paul’s chest pain been properly investigated at the time, he would not have suffered the heart attack.
In Polmear, Miss Polmear was misdiagnosed and as a result collapsed six months later. Her parents witnessed this and attempted CPR which was unsuccessful. The parents suffered PTSD and depression.
In Purchase, Ms Purchase was misdiagnosed with a Respiratory Tract Infection as opposed to Pnuemonia. Two days later, her mother found her unconscious with her phone in her hand. Efforts to resuscitate were unsuccessful.
Her mother discovered she had a voicemail from her daughter which recorded her last minutes. This caused her to suffer PTSD, anxiety and depression.
To establish liability for secondary victim claims, it must be proven that there was legal proximity between the secondary victim and the Defendant. The leading case of Alcock (Alcock v Chief Constable of the South Yorkshire Police  1 AC 310) sets out the requirements to establish proximity:
- The secondary victim had a close tie of love and affection with the person killed, injured or endangered;
- The psychiatric illness for which damages are claimed arises from a sudden and unexpected shock to the secondary victim’s nervous system;
- The secondary victim was personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
- The psychiatric illness arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
- There was not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.
This was applied in Novo (Crystal Taylor v A. Novo (UK) Ltd  EWCA Civ 194). It was held that the Claimant lacked legal proximity because she was not present at the time of the accident (which caused the death) that had occurred some 3 weeks prior.
Consideration by the Court of Appeal
The task for the Court of Appeal was how to apply Alcock and Novo (accident cases) to clinical negligence claims where a delay exists between the negligent act and the shocking event.
It was agreed that all requirements set out in Alcock were satisfied save for how to interpret the third element; namely the victim being personally present at the scene of the accident.
The Court of Appeal held that the current binding authority of Novo did not allow the shocking event to be removed in time and space from the accident/negligence. As a result, all three claims were struck out on the basis that the passage of time between the negligence and the shocking event precluded the Court from establishing legal proximity.
Appeal to the Supreme Court
From his judgment, Sir Geoffery Vos appears uncomfortable with this application of Novo and in his concluding paragraph opines:
“I have … reservations about whether Novo correctly interprets the limitations on liability to secondary victims contained in the five elements emerging from the House of Lords authorities… I would be prepared to grant permission to the claimants to appeal to the Supreme Court …”
It is anticipated that the appeal to the Supreme Court will be heard later this year which will hopefully provide some clarity over the application of the Alcock requirements to secondary victim clinical negligence claims.
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Our team are very experienced in acting for Claimants who have suffered psychiatric harm as a secondary victim. If you think you may have a claim, please do not hesitate to contact us for a free consultation. The team can be contacted on 01273 249200.