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Secondary victim claims – what is the impact of the time lapse between negligence and injury?

Posted: 12/06/2020

Secondary victim claims – where an individual suffers a psychiatric injury as a result of witnessing events or injury to another caused by negligence - have long been contentious in clinical negligence and personal injury claims. 

Case law has continued to evolve over the years and the latest case is that of Paul & Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) in which two boys witnessed the death of their father from a heart attack. Previous cases in the clinical negligence field have tended to focus on whether what the claimant witnessed was a “sudden shocking event”.

However, another area of contention is that of how close in time the effects of the negligence need to materialise for the claimant to meet the secondary victim test. For example, if the negligence led to the death of a family member witnessed by a claimant some weeks after the negligence, would that meet the criteria required for the claimant to be considered as a secondary victim?

The key case usually argued is that of Taylor v A Novo UK Ltd [2014] QB 150, a personal injury claim 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 Court of Appeal held that the collapse and death were later consequences of the original accident and the “event” in question - ie the incident resulting in the head injury - was what needed to be considered. Rather than the event resulting in the shock and psychiatric injury suffered by the claimant, it was the later consequences.

The Paul & Paul case is unusual in its origins. It is not a ruling at trial but one arising out of a series of applications. In this case, the defendant hospital trust disputed the basis of the two claimants’ claim and went as far as applying to strike out the secondary victim claim on the grounds of having no real prospect of success. The application was opposed and the matter came before Master Cook who heard both parties and ruled in favour of the defendant to strike out the claimants’ case. The claimants then proceeded to appeal Master Cook’s judgment.

The original case related to a fatal heart attack suffered by the primary victim. He had two children who witnessed his heart attack and its consequences and it was on their behalf that the secondary victims’ claims were brought. 

The basis of the original claim was that the defendant trust had negligently failed to diagnose the primary victim’s coronary artery disease and that its failure ultimately led to his death. If the trust had made the diagnosis at the appropriate time, the coronary artery disease would have been successfully treated and the heart attack and death avoided. Clearly, in those circumstances, the two children would never have witnessed their father’s heart attack and its consequences.   

The parties were in dispute about the issue of the time lapse between the negligence - the failure to diagnose and treat the coronary artery disease - and the shock suffered by the claimants at the time of the heart attack 14 months later and whether the two were linked closely enough for the claimants to recover damages. 

Not surprisingly, the defendants argued that the injury and event was the negligence and the missed diagnosis and that this in itself did not cause any shock or injury to the claimants. Citing the Taylor case, the defendants said it was the later consequences that caused the ‘shock’.  

The trust also cited another Taylor case - Taylor v Somerset Health Authority [1993] PIQR 262. In this case, some of the facts such as a missed heart condition and heart attack were similar. This case failed on the basis that it was held that the sequence of events was a gradual progression of a heart condition which had not been stopped by the defendant rather than that the primary victim suffered a specific sudden injury as a result of the negligence.

The claimants focused on case law which concluded that a sudden shocking event can occur over a period of time as long as it is one single event, citing the case of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. However, the helpful cases mainly involved relatively short timescales of hours or days rather than months.

The judgment included a thorough review of the existing case law surrounding secondary victim claims and finally found in favour of the two claimants. The court held that the claimants’ factual case was that the “injury” caused by the negligence was the heart attack suffered by the primary victim. This was what the claimants witnessed and allegedly caused their psychiatric injuries. Although this was consistent with the necessary criteria to make a secondary victim claim, the claimants would need to establish that the heart attack was the negligently-caused injury to recover damages.

In giving judgment, the court considered what should be regarded as the “event” to which the shock needs to be related for such a claim to succeed and concluded that this was the point at which damage or injury becomes “manifest”. 

The court’s analysis was that, in a case such as the first Taylor case, an injury was apparent from the outset but there were later consequences. The claimant did not succeed in her claim because she did not suffer psychiatric injury as a result of the original injury sustained by her mother, the primary claimant.

However, in the case of Paul & Paul, the injury was not apparent until it manifested as the heart attack. On that basis, the heart attack was the “sudden and shocking event” that resulted from the defendant’s negligence and, if witnessing this was the cause of the claimants’ psychiatric injury, then there was a basis for the claim and it should not have been struck out.

It will be interesting to see how significant this case turns out to be. Although it is a finding at an appeal hearing from an application rather than at trial or in a higher court, it contains a detailed analysis and clear reasoning on this point. Many negligence cases do involve the manifestation of the consequences of negligence happening some time afterwards and so events resulting in psychiatric injury to loved ones that occur some time after the negligence are not uncommon.

The law on secondary victims continues to have some grey areas but it does appear that, over time, the relevant issues are being tested and findings made that should help to assess the circumstances in which such claims should be pursued and what tests need to be met to succeed.

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