The Law before Paul: Unravelling the Legal Tapestry of Secondary Victims

In anticipation of tomorrow’s Supreme Court judgment in the case of Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent), clinical negligence pupil William Plant offers an analysis of historic secondary victim cases and a summary of the Paul case thus far. Following the delivery of the judgment, clinical negligence expert barristers Helen Mulholland KC and Victoria Heyworth will dissect the case on a new episode of our Kings Chambers Debrief podcast. Click here to listen!

Early Cases

• The law on Secondary Victims and so-called ‘nervous shock’ cases has developed in a piecemeal fashion. The starting point is typically Bourhill -v- Young [1943] A.C. 92, the first case of its kind to be considered by the House of Lords. In this case, a pregnant woman was alighting from a tram when she heard a collision between a motorcycle and a car, which had occurred between 45 – 50 feet away. Whilst the Claimant did not directly witness the accident, she alleged that the nervous shock of hearing the impact caused her to prematurely give birth to a stillborn. The House of Lords rejected her claim on the ground that the negligent motorcyclist could not have foreseen that his actions might cause injury to the Claimant. Therefore, following the decision in Bourhill, cases of nervous shock to Secondary Victims were to be decided on a basis of reasonable foreseeability.

• Whilst the importance of reasonable foreseeability remained a key feature of the early decisions, Lord Wilberforce in McLoughlin -v- O’Brian [1983] A.C. 410 voiced his concerns that policy considerations required a stricter approach to the recoverability of damages for nervous shock by Secondary Victims. To that end, Lord Wilberforce suggested implementing restrictions on the nature of the relationship between the Claimant and the Primary Victim, upon the degree of proximity to the accident, and upon the mechanism by which the shock is caused. These were to become the pre-cursers to the seminal Alcock control mechanisms.

Alcock Control Mechanisms

• The case of Alcock -v- Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 was the next significant development in this area. It was brought by the relatives and friends of those fans who had been involved in the Hillsborough Disaster. They were claiming for psychiatric illness they had suffered as a result of what they had seen and heard either on the TV or from others. The House of Lords rejected all the claims and implemented a series of ‘control mechanisms’, similar to those that had been recommended by Lord Wilberforce in McLoughlin. In summary, Lord Oliver considered that each Claimant had to prove:

1. A close relationship of love and affection between the Claimant and Primary Victim;
2. A sufficient degree of proximity in both space and time to the accident or its immediate aftermath; and
3. The psychiatric illness must have been caused by direct perception and caused a sudden and unexpected shock;

Application of Alcock in Clinical Negligence

• Whilst the Alcock control mechanisms remain of universal application, their formulation and strict requirements have caused significant problems for Secondary Victims seeking compensation for psychiatric illness arising from clinical negligence claims. The decision which has attracted the most attention recently was that in Taylor -v- Novo [2013] PIQR P15. This case concerned a woman who had been injured in an accident at work when she was struck by collapsing shelves. Whilst she had ostensibly made a good recovery, 20 days after the accident she collapsed at home and died. Her collapse and death were witnessed by her daughter, who subsequently developed PTSD. The Court of Appeal rejected the daughter’s claim and held that there was not sufficient proximity between the Defendant’s negligence and the Claimant’s psychiatric illness; the Court of Appeal focused on the time that had elapsed between the accident and the collapse. The decision in Novo attracted criticism for its failure to appropriately deal with the seemingly conflicting authority of Walters.

• In Walters -v- North Glamorgan NHS Trust [2002] EWCA Civ 1792, the Defendant had failed to diagnose the Claimant’s son’s acute hepatitis. As a result, the child deteriorated rapidly and over the course of a 36-hour period, ultimately dying in the Claimant’s arms. The Claimant brought a claim against the trust for his pathological grief. The Court of Appeal adopted what they considered to be a realistic view being taken on a case-by-case basis and determined that the entire 36-hour ordeal ought to be considered as one, long horrifying event, thereby allowing them to bridge the temporal gap between the negligence and the death.

• In Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 the Defendant had misplaced a suture into the Claimant’s wife’s colon during a hysterectomy operation. The Claimant’s wife deteriorated at home during the recouperation period and was readmitted to hospital thereafter undergoing further surgery. The Claimant described two distinct episodes which he found particularly distressing (1) shortly before further surgery when she was hooked up to drains and monitor and (2) in her post operative condition, unconscious and connected to a ventilator. It was considered that the Judge at first instance had been wrong to treat this as one event, with the period of about 36 hours beginning with the sight of his wife before surgery, through to the moment when he saw her in her post-operative, swollen state. It was not considered to be a seamless tale. Further, the necessary suddenness was not considered to exist as the Claimant had been warned in advance that his wife’s condition was “deadly serious”. It was also concluded that the two occasions were not horrifying by objective standards given his wife appeared as would ordinarily be expected of a person in hospital in such circumstances.

• These past cases prove that the case law in this area is confusing and, at times, conflicting, especially when the courts are applying the Alcock control mechanisms to cases arising out of clinical negligence, in particular in cases of a misdiagnosis or failure to diagnose where the consequence of the negligence only manifests at a much later date. Those practising in this area will be hopeful that the case of Paul and another -v- The Royal Wolverhampton NHS Trust may provide some much-needed clarity.

Paul and another -v- The Royal Wolverhampton NHS Trust

• Paul is a conjoined appeal of three cases (Polmear -v- Royal Cornwall Hospital NHS Trust and Purchase -v- Dr Mahmud Ahmed) each of which involves a failure to diagnose a life-threatening condition, which, sometime later, caused the Primary Victim to suffer a traumatic death. Therefore, the Supreme Court is forced to address the question of whether the necessary legal proximity existed between the Defendant and the Secondary Victim.

Arguments before the Court of Appeal

• Before the Court of Appeal, the Defendants (who ran a joint defence) argued that the deaths in each of these cases were separated in space and time from the negligence that occurred in the hospital or primary care setting and, as such, cannot constitute a relevant event for deciding the proximity required to establish liability under the established control mechanisms. The Defendants further argued that the Court of Appeal is bound by its decision in Novo and endorsed the view that the gap in time between the negligence and the deaths could not reasonably be bridged for the purposes of a psychiatric illness claim.

• Unlike the Defendants, the Claimants decided to each run their claims separately and adopted different approaches with regards to this issue of proximity. The Claimant in Paul argued that the relevant event was the point at which the damage that it was the Defendant’s duty to protect the primary victim against first becomes manifest or evident (i.e. the death). The Claimant’s in Polmear and Purchase submitted that any horrific event caused by a breach of duty to the primary victim was sufficient to give rise to legal proximity, whether or not damage to the primary victim occurred or manifested itself at an earlier time. This latter argument is similar to that which was successfully advanced in Walters; if the negligence and the horrific event can be considered as part of a single continuum, then proximity can be established.

Decision of the Court of Appeal

• Despite a clear judicial desire to depart from precedent, the Court of Appeal felt bound by their decision in Novo and, in doing so, dismissed the Claimants’ claims as Sir Geoffrey Vos MR (giving the leading judgment) considered that Novo “does preclude liability in the circumstances of these cases, even where a horrific event is the first occasion on which any damage is caused to the primary victim” [97].

• Notwithstanding that the claims were dismissed, Sir Vos MR seemed to signal that applying the Alcock control mechanisms would allow recovery by a Secondary Victim even when the negligence and the horrific events are removed in time [93]. Sir Vos MR noted the conflicting precedents and similar criticisms of the proximity requirements were also raised by Underhill LJ in his concurring judgment, who identified a scenario whereby a doctor who negligently prescribes a fatal medicine would only be liable to the secondary victim if the patient takes it, and dies straightaway, but not if they do so only a few days or weeks later [102].

• Both Sir Vos MR and Underhill LJ make clear in their respective judgments that, if unconstrained by previous authorities, they would have no difficulties in finding that the Claimants were entitled to recover. The matter now rests with the Supreme Court as to whether they decide to depart from the constraints of Novo.