The Taylor&Emmet Blog

A Victory for Secondary Victims in Claims for Clinical Negligence?

We are often approached by relatives of injured people who are seeking compensation for psychiatric injury caused by witnessing the injury or death of their family members which was caused by negligent medical care.

In clinical negligence claims, the law makes a distinction between ‘primary’ and ‘secondary’ victims. Essentially, only the patient will qualify as a primary victim. Secondary victims are defined as those who witness a medical accident, which results in their suffering of a psychiatric injury. For example, this may relate to a father bringing a claim for witnessing the traumatic and negligent labour and birth of his child which has caused him nervous shock (otherwise known as Post-Traumatic Stress Disorder).

Generally, the law has excluded recoverability of financial loss on the part of secondary victims witnessing negligence and this has long been an area of contention. This restriction has tended to be justified on the basis of policy, and not wanting to ‘open the floodgates’.

Until very recently, the strict control legal tests were found in the seminal cases of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, both relating to the Hillsborough disaster of 1989.

Under the existing case law, a Claimant (the secondary victim bringing a claim for psychiatric injury) had to satisfy stringent legal tests in order to be successful in their claim:

  1. They have to have a ‘close tie of love and affection’ with the person injured or killed;
  2. They have to be proximate to the incident in terms of time and space;
  3. They must have directly appreciated the event with their own senses; and
  4. Their psychiatric injury must have been caused by a ‘sudden, unexpected and shocking event’.

In Alcock and White, the claims of individuals who were present in the stadium at Hillsborough, who had witnessed the crush and suffered nervous shock as a result, failed in their claims as they had not been able to establish close ties of love and affection with those killed and injured. This is despite many having suffered psychiatric injuries as a result of witnessing a sudden, unexpected and shocking event. In addition, individuals who witnessed the event on television or who had identified their relatives in morgues failed, because they were unable to show sufficient proximity to the accident in terms of time and space.

Therefore, the Courts have been seen to restrict successful secondary victim claims on the basis that the Defendant (the person or entity committing the negligence) could not have foreseen that they were likely to have suffered psychiatric injuries as a result of the negligence committed against their relative.

In clinical negligence cases, the situation can be very difficult as there is often a separation of time between the negligence and the consequences caused as a result, meaning that secondary victims struggle to satisfy the test of proximity. In many cases, this has often completely barred relatives from recovering compensation for the psychiatric injuries they have suffered.

However, the judgment of Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) was handed down on 4 June 2020 and seems to represent a less restrictive view in this area than has previously been seen.

The two Claimants in Paul were Mr Paul’s 9- and 12-years old daughters who witnessed their father suffering a fatal heart attack on 26 January 2014 whilst out walking with him. Sadly, both of Mr Paul’s daughters suffered psychiatric injuries as a result of witnessing his collapse and subsequent death. It was successfully argued that Mr Paul’s heart attack and death would have been avoided but for the negligent failure to diagnose his heart disease in 2012.

The Defendant hospital Trust argued that Mr Paul’s daughters could not succeed in their respective claims because the consequences of the clinical negligence, namely Mr Paul’s death, occurred much later than the negligence itself, namely a failure to diagnose and treat his heart disease. Mr Paul’s daughters did not witness their father’s hospital admission in 2012 when the delay in diagnosis and treatment occurred, and it was unlikely that this would satisfy the ‘shocking event’ criterion under Alcock and White in any event.

However, the recent judgment may demonstrate a significant departure from the law as it stood under Alcock and White, and the very stringent tests which have precluded so many suffering family members from obtaining justice in the past.

The Judge held that even though there was a delay between the negligence (here, the failure to diagnose and treat Mr Paul’s heart disease) and the injury caused and witnessed (here, the collapse, heart attack and death), secondary victims may not be barred from recovering compensation where they have witnessed the sudden and shocking event which has caused them psychiatric harm.

Although the stringent legal hurdles must still be surpassed, the Courts are clearly making moves to make it easier for relatives of a person injured by clinical negligence to bring a claim where they have suffered psychiatric harm as a result.

It remains to be seen whether the Defendant Trust will appeal the judgment handed down in June 2020, but it seems that the law is slowly advancing and breaking down the barriers secondary victims have to surpass in order to bring successful clinical negligence claims.

Our Clinical Negligence team at Taylor&Emmet LLP have helped to reach settlements for secondary victims in a range of negligent medical care situations. If you would like to discuss a potential clinical negligence claim with one of our friendly and knowledgeable team, please feel free to email us at heretohelp@tayloremmet.co.uk or call us on 0114 218 4000.

Martha O'Toole

Martha secured her Training Contract in the penultimate year of her undergraduate degree and joined Taylor&Emmet LLP as a Trainee Solicitor in September 2019.

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