The Supreme Court Rules On Claims Of Secondary Victims In Medical Negligence Cases

• Published date: 12 February 2024
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Giambrone & Partners
• Author: Alessandra Paduano

A Supreme Court decision in the cases of Paul & Anor v Royal Wolverhampton NHS Trust and the connected case of Polmear & Anor v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed, after some considerable years of debate, it has clarified the question as to whether a person who witnesses the death or serious injury of a loved one related to serious harm or death due to medical negligence that could have been prevented by timely competent medical treatment, can claim to be a secondary victim and receive an award in compensation.

The Supreme Court not only settled the debate on whether secondary victim claims can be pursued when medical negligence is witnessed but also clarified the requirements needed to be satisfied by a secondary victim,

The authority on this point is Alcock v Chief Constable of South Yorkshire Police, where the Court established that to be successful a secondary claimant must:

• Have a close tie of love between the claimant and the primary victim;
• That the injury for which damages are sought arose from "sudden and unexpected shock to the Claimant's nervous system";
• Be present at the scene of the accident or the aftermath shortly afterwards;

Based on the above, to be successful a secondary victim must show there was not only a physical proximity to the event but a close temporal connection.

A claim to be a secondary victim in a case involving medical negligence cannot meet the criteria, in that there is nearly always a period of time from when the provision of inappropriate medical care was administered to when the adverse consequences manifested themselves on the patient. Furthermore, the Supreme Court felt that common law does not recognise or compensate third parties for the consequences of injuries to other people.

In the instance of medical negligence, the term "accident" refers to a 'discrete event', an unforeseen unintentional event which causes injury (or a risk of injury) to a victim by violent external means. Further, the Court stated that it is difficult to identify a 'discrete event' in a "medical crisis".

The Court also considered that witnessing an injury or illness in a medical crisis is variable and an adequate test has not been identified.

It was also considered the generally accepted duty of care owed by medical staff and the Court found that "We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient's close...