Supreme Court clarifies the law on secondary victims in a healthcare setting, UK-wide

On 11 January 2024, by a majority of 6 to 1, the UK Supreme Court (UKSC) dismissed the claimant’s appeals in the conjoined cases of Paul, Polmear and Purchase.

In doing so, UKSC has, essentially, left the law on secondary victims unchanged albeit that certain aspects have been clarified. A link to the UKSC judgment is here.  

The reason why the claimants have failed in these cases is because the scenes witnessed did not amount to an “accident” or the immediate aftermath of an “accident". In one of the cases, 14 months elapsed between alleged clinical negligence and the (former) patient suffering a heart attack that was witnessed by the claimant relatives. In the second case, 5-7 months elapsed between alleged clinical negligence and the (former) patient collapsing and dying in the presence of the claimant relatives. In the third case, 2-3 days elapsed between alleged clinical negligence and a mother finding her daughter, the (former) patient, deceased in bed.  
 
The majority UKSC conclusion is that “a claimant cannot recover damages for personal injury as a secondary victim unless the claimant witnessed an accident (or its immediate aftermath)”. “Accident” may be taken here as shorthand for an external event negligently caused and involving force or some other external factor acting upon the primary victim(s). The passage of time between the alleged negligence and the scenes witnessed is not, of itself, of the essence so long as an “accident”, or its immediate aftermath, is witnessed. So, for example, if a mother witnesses masonry falling on her child’s head caused by earlier negligence in building or design, the mother could claim as a secondary victim if this caused her to suffer a recognised psychiatric injury. It is difficult to see this “earlier negligence, later accident” situation arising in a healthcare context so, overall, the UKSC majority judgment means that secondary victim claims will seldom succeed in a clinical negligence context.
 
So, the law on secondary victims remains essentially as it was, with these three, now clarified, criteria, all of which must be met for a person to qualify as a secondary victim where that person has sustained a recognised psychiatric injury that was reasonably foreseeable -

• There is, or was, a sufficiently close tie of love and affection between them and the person or persons suffering physical injury,
• They were present at an "accident" or its immediate aftermath, with accident having the meaning described above, and
• The psychiatric injury suffered was caused by their direct perception (i.e., with their own senses, in-person) of the "accident" or its immediate aftermath.

A reformulation of the “event-related” criteria suggested by the claimants was that the “first manifestation of injury” should count as an “event” for these purposes. This was rejected by the majority as unworkable because of the complexities that it would bring and in giving rise to more questions than answers. 
 
In the context of doctors and hospitals, UKSC also conclude, essentially on policy grounds, 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 family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”
 
In the sole dissenting judgment, Lord Burrows opines, on the argument of an increased “burden of legal liability on the NHS” should the claimants succeed that “That is not the type of socio-economic policy argument that the courts are well-equipped to assess and, at least as presented, it cannot outweigh the reasons of principle and legal policy that I have set out for allowing these appeals.” Put short, Lord Burrows’ view is that the law could and should simply recognise the deaths as qualifying “events” in these cases for secondary victim purposes and that “in future, and subject to possible rare exceptions, the approach of (the majority) will mean that recovery for negligently caused psychiatric illness by secondary victims will be closed off in medical negligence cases.”
 
The Scottish Lord President, Lord Carloway, was one of the six justices in the majority in these cases. He adds a short judgment, explaining his view that “had Scots law been applied, the same result in relation to the present claimants would have been reached”.
 
The claimants all relied on North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 (referred to as “Walters” in the UKSC judgment) where the mother was sleeping in the same room as her infant son when he suffered a major epileptic seizure leading to coma and irreparable brain damage. Appropriate treatment was delayed by a misdiagnosis with death approximately 36 hours after the seizure. The 36 hours was regarded as one horrifying event at first instance and at the Court of Appeal. Walters has been distinguished in other Court of Appeal decisions albeit it remained binding law on its facts.  UKSC has taken this opportunity to confirm that Walters was wrongly decided on its facts - “It is clear that on the facts of Walters the brain damage and death of Mrs Walters’ baby were not caused by an accident. It follows from our conclusion that a claimant cannot recover damages for personal injury as a secondary victim unless the claimant witnessed an accident (or its immediate aftermath) that, had this defence been raised in Walters, the claim should have failed.” 
 
As the UKSC was focussed on the issue of proximity, there will still need to be a case-by-case analysis of the events and whether they can be described as an “accident” rather than an illness or “medical mishap”.  The door is still open for close relatives present when medical treatment is given where there is a discrete event akin to witnessing an accident, but the floodgates argument remains and “a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds.  Wherever the line is drawn some people who suffer what may be serious illness in connection with the death or injury of another person will be left uncompensated … But there is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused and to apply restrictions which are reasonably straightforward, certain and comprehensible to the ordinary person”.