Court Of Appeal Judgment In Paul V Royal Wolverhampton NHS Foundation Trust

• Published date: 14 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Ms Laura Johnson

The Court of Appeal judgment has been handed down this morning in the important secondary victim case of Paul v Royal Wolverhampton NHS Foundation Trust and the two linked cases of Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed. Laura Johnson of 1 Chancery Lane acts for the Claimants in Paul, led in the Court of Appeal by Rob Weir QC and instructed by Phil Barnes of Shoosmiths LLP. All three cases are concerned with the longstanding difficult question of when a defendant to a clinical negligence case can be held liable for psychiatric injury caused to a close relative of a patient (primary victim) who witnesses a shocking and horrifying event to the primary victim as a result of that negligence. The key question in the appeals was whether the necessary legal proximity existed between the defendant and the close relative (secondary victim) where a gap in time exists between the negligent treatment and the horrifying event of injury.

The Court of Appeal has found for the Defendant in each appeal striking out the claims on the basis that they are bound by an existing Court of Appeal authority (Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194) that is fatal to the claims. However, in a lead judgment by Vos MR with additional reasons by Underhill LJ the Court of Appeal recognised that the decision in Taylor developed the underlying principles described by Lord Oliver in Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310 and questioned whether the interpretation of those principles in Novo was correct.

With that observation in mind Vos MR went on to say "If I were starting with a clean sheet, 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. Since, however, this court is bound by Novo, it is for the Supreme Court to...