Secondary victims in clinical negligence: Where is it going?
February 21, 2022
On 13 January 2022, the Court of Appeal handed down judgment in Paul v Royal Wolverhampton NHS Trust  EWCA Civ 12. Clinical negligence barrister Paul Kirtley and pupil Jack Scott assess the case and its implications.
This is a clinical negligence claim. In January 2014, Mr Paul suffered a heart attack and died whilst shopping with his daughters, aged 9 and 12. They witnessed his heart attack and death and are now the Claimants in this matter.
The Claimants’ case is that the defendant was negligent in that it failed to undertake a coronary angiography in 2012. They say this simple investigation would have revealed the extent of Mr Paul’s coronary artery disease, which could then have been successfully treated. The Claimants seek damages as secondary victims.
The Defendants denied any duty of care was owed to the Claimants and sought to strike out the secondary victim claims.
In order to establish liability for a secondary victim, the claim must satisfy the “control mechanisms” that were established in Alcock v Chief Constable of South Yorkshire Police  AC 310 in the wake of the Hillsborough disaster. They are applied to all types of secondary victim claim, even though in clinical negligence there is very often a substantial gap in time between the negligence and the event that causes the psychological injury.
In this case, the Defendant stated that the Claimants failed to have proximity in time and space to the “relevant event”. The Defendant’s case cited Taylor v Somerset Health Authority  PIQR 26 and stated that the “relevant event” for tort purposes was the failure to undertake the coronary angiography and associated treatment, rather than the heart attack itself.
The Defendant further relied upon Taylor v A Novo (UK) Ltd  EWCA Civ 194, which held that Claimants must have physical proximity in time and space to the initial incident that results from the Defendant’s negligence, not merely the consequences of that incident. As such, the Defendant denied a duty of care to the Claimants.
The Claimants rejected the relevance of Novo, as it was an accident case rather than one founded in clinical negligence. Instead, they asserted that Mr Paul’s heart attack and death were the first damage (and so first event) caused by the Defendant’s negligent failure to diagnose his heart disease.
Strike Out and Appeal
In  EWHC 2893 (QB), Master Cook concurred with the Defendant’s submission and struck out the Claimant’s secondary victim claims. The Claimants appealed to the High Court. Chamberlain J overturned the original decision, finding 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.”
The Defendant then appealed to the Court of Appeal.
Court of Appeal
The appeal was heard in December 2021 alongside Purchase v Ahmed and Polmear v Royal Cornwall Hospital NHS Trust. All three heart rending cases concerned appeals against striking out, where clinical negligence had created secondary victims.
Vos MR gave the lead judgment. He stated that the main issue to be determined by the Court was: “How the authorities are to be applied to clinical negligence cases where there is a delay between the negligent act or omission and a horrifying event caused to the primary victim by that negligent act or omission.”
The Court of Appeal applied the authorities and found, somewhat reluctantly, for the three Defendants. Vos MR found that Novo was “binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event.”
Vos MR conceded “there is no logical reason for these rules’” and stated that but for the authorities of Taylor and Novo “I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the Defendants to be allowed to recover damages for their psychiatric injury”.
Lord Justice Underhill agreed with Vos, adding: “It follows that if the point were free from authority, I would be minded to hold that on the pleaded facts the claimants in all three cases should be entitled to recover. I do not think that recognising the necessary proximity in such cases would be contrary to the “thus far and no further” approach taken in White. It would not involve going beyond the elements established in Alcock: rather, it would represent their application in a different factual situation.”
Judicial opinion is clearly turning against a narrow Alcock interpretation. Unusually, the Court of Appeal expressly stated that the matter deserved consideration of the Supreme Court with Vos MR stating: “Subject to hearing further argument, therefore, I would be prepared to grant permission to the Claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case”. The Claimants have indicated they will seek this permission, which is opposed by the Defendant.
Claimants who are secondary victims can draw little immediate comfort from this tragic case. For the moment, secondary victim claims that are rooted in clinical negligence cases will likely continue to fail where there a pause between the clinical failing and its consequences. In the short-term, Defendants in such cases have a further authority upon which to rely and will no doubt feel emboldened as a result.
However, it increasingly seems that the writing is on the wall for the current particular interpretation of this Alcock control mechanism. Whilst it remains an appropriate and useful test in cases of tragic and sudden accidents, it offers neither clarity nor justice in secondary victim cases that arise from clinical negligence.
At the moment, there is a manifestly perverse situation whereby a clinician who negligently prescribes a deadly medicine owes a duty of care to a secondary victim if the patient takes the medicine and dies immediately and shockingly, but not if the patient takes the same medicine a few days or weeks later and then dies in equally shocking circumstances.
Although the Court of Appeal decision seemingly represents a victory for the Defendant, it has also created a route for the Supreme Court to revisit the entire approach. The recalibration from the Supreme Court will hopefully cast a clarifying light on this particularly knotty problem.