Secondary Victim Claims: Paul V Royal Wolverhampton NHST

• Published date: 30 June 2020
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Anthony Gold
• Author: Mr Samuel David

A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing (or fearing) injury to a primary victim. The courts have laid down strict control mechanisms with the aim of limiting numbers of claims that could arise from one single incident.

The lead case on secondary victims is Alcock v Chief Constable of South Yorkshire Police sets out the control mechanisms. The claimant needs to prove that:

1. It was reasonably foreseeable that a person of "normal fortitude" or "ordinary phlegm" might suffer psychiatric injury by shock. There must also be a recognised psychiatric injury suffered.
2. There was a close tie of love and affection to the primary victim.
3. The claimant was in close proximity to the event or its immediate aftermath (in time and space).
4. The psychiatric injury must be caused by, and result from, a "sudden and unexpected shock". It must be caused by seeing or hearing the relevant incident or its immediate aftermath

In respect of proximity, this can be difficult in a clinical setting where there is a separation between the negligence and the eventual consequences. A case usually relied upon by those defending such claims is Taylor v A Novo UK Ltd [2014], in which the Court of Appeal held that a secondary victim claim could not succeed where the claimant had witnessed her mother's collapse and death three weeks after her mother had sustained a head injury at work due to negligence.

The recent appeal decision in Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) is welcome news to claimants in secondary victims claims arising out of clinical acts or omissions.

The Case

In overturning Master Cook's previous decision, the Court held that daughters who suffered psychiatric injury after witnessing the fatal heart attack of their father may bring secondary victim claims even though the "sudden and shocking event" occurred months after the defendant's negligence.

The judgement will make it difficult for defendants now to rely on Taylor v A Novo (UK) Ltd to defeat secondary victim claims in clinical negligence cases where the negligence and the consequences of the negligence are not proximate in time.

On appeal Chamberlain J concluded that the Master was wrong to strike out the claims and they should therefore proceed to trial. Chamberlain J identified the central issue as being 'whether Mr Paul's collapse from a heart attack, 14 and a half months after the allegedly negligent treatment, is...