Lines drawn in secondary victim claims linked to medical negligence following Supreme Court review

Posted: 12/01/2024

There are many claimants who have suffered psychiatric injury as a consequence of witnessing the horrifying death or injury of a loved one. Such claimants are not the primary victims of negligence but are known as ‘secondary victims’. 

The starting position in law is that a person (who is not the primary victim of negligence) cannot pursue compensation for their injuries. There are exceptions to this general rule, however, one of which permits, in limited circumstances, secondary victims to claim compensation for the psychiatric injury that they have suffered. 

Typically, secondary victim claims tend to be pursued by claimants who have witnessed an accident (such as a road traffic accident) causing an injury to their family members or loved ones, and which has caused them a psychiatric injury. Less commonly, secondary victim claims are pursued by claimants who have suffered psychiatric injury after witnessing a medical crisis, which has been caused by negligence in the primary victim’s medical treatment. It has been assumed that both class of claimants (those who witness an accident and those who witness a medical crisis) fall within the exception to the general rule that a claim for compensation cannot be pursued by a person who is not the primary victim. 

Secondary victim claims arising from medical negligence had been on hold for several months while the Supreme Court considered and handed down judgment in three conjoined cases, Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent), Polmear and another (Appellants) v Royal Cornwall Hospitals NHS Trust (Respondent) and Purchase (Appellant) v Ahmed (Respondent), which updates the law in relation to whether and to what extent secondary victim claims arising from medical negligence are able to succeed. 

Judgment was handed down by Lord Leggatt on 11 January 2024. From a claimant perspective, it is a hugely disappointing judgment and significantly narrows the scope of when a secondary victim claim may succeed. Arguably, the judgment spells the end for secondary victim claims arising out of medical negligence completely.  

The law as it was

The general rule that a person (who is not the primary victim of negligence) cannot pursue compensation for their injuries was considered to be unreasonable in certain situations and, via three key House of Lords decisions in the 1980s and 1990s, the law developed to permit secondary victims to claim compensation in limited circumstances. 

The most well known case, and which is often referenced as the main authority in relation to secondary victim claims, is the case of Alcock v Chief Constable of South Yorkshire. This case related to the Hillsborough Disaster in which 97 people were crushed and killed and 400 more sustained injuries as a result of severe overcrowding in the Hillsborough football stadium. In that case, 10 claimants, none of whom were the primary victims of the incident but had witnessed the events that killed or harmed their family members and loved ones and caused them to suffer psychiatric injuries, presented claims. 

The court, in that case, determined the criteria that should be satisfied for a claim by a secondary victim to succeed (known as the control mechanisms). These are that:

• there must be a close tie of love and affection between the claimant and the primary victim;
• the secondary victim must have been present at the scene of the accident or its immediate aftermath;
• the secondary victim must have perceived the incident with their own senses (rather than hearing about it from a third person);
• there must be physical and temporal proximity to the incident. 

Of the 10 claims that were presented, none succeeded. Two claimants were present at the stadium and witnessed the death of their siblings, but could not establish a close tie of love and affection. Three claimants saw the bodies of their deceased loved ones in the mortuary after the disaster, but the court held that that did not fall within the ‘immediate aftermath’, even though it will have been traumatic. The other claimants witnessed the event on television, but their claims failed because they did not witness the unfolding tragedy with their own senses. 

Secondary victim claims and medical negligence

Since then, there have been several secondary victim claims heard in the courts. Most claims typically arise from a bystander witnessing an accident (such as a road traffic accident).  

Medical negligence claims do not follow the same pattern, because typically there is no ‘accident’; the act or omission of a doctor often does not manifest itself until the patient (the primary victim) develops a significant and untreatable disease, which manifests in their death or injury. Accordingly, there have been relatively few secondary victim claims arising out of medical negligence and none of the cases that have come before the courts previously had reached the highest court to consider. 

That was the case, until 2023. The Supreme Court has considered the overarching case law and concluded that a line must be drawn somewhere to keep the liability of negligence for secondary harm within reasonable bounds. 

Paul, Polmear and Purchase

The Supreme Court has now heard from three secondary victim claimants; the family of Parminder Singh Paul, Esmee Polmear and Evelyn Purchase. In each of the cases, there had been negligence in the primary victim’s care; a failure by the treating doctor/health authority had resulted in a missed opportunity to treat the primary victim’s disease, manifesting in their death at a later point. Each claimant sought compensation for their psychiatric injuries brought about by witnessing the horrific death or aftermath of death of their loved ones. 

When the cases were heard in the lower Court of Appeal, they were dismissed on the basis that the court was bound by a previous Court of Appeal decision in another secondary victim claim (Taylor v A Novo). That case had held that the control mechanism of proximity meant that a secondary victim must witness a ‘relevant event’ which is neither separate in time nor space from a negligent act or omission, which causes psychiatric injury. The court held that the ‘relevant event’ was not the manifestation of the injury and, on the basis that each of the claimants’ injuries arose from witnessing the manifestation of the injury, rather than the ‘relevant event’, the claims were dismissed. 

Sir Geoffrey Vos, Master of the Rolls, commented in his judgment that, had it not been for the decision in Novo, he may have decided these cases differently and gave permission to each of the claimants to appeal to the Supreme Court. 

The judgment

The issues the Supreme Court was asked to consider were:

• can witnessing a negligently caused medical crisis (or its aftermath) in principle found a claim for damages by a secondary victim, or does such a claim only apply where the triggering event is an accident;
• whether the rules that determine proximity in the case of a secondary victim apply in cases of medical negligence where there is no accident;
• whether a doctor who owes a duty of care to a patient also owes a duty of care to members of the patient’s close family. Is there a duty to take care to protect family members against the risk of illness as a result of witnessing a medical crisis of their relative arising from the doctor’s negligence.

In reaching its conclusion, the court assessed the issues of duty of care, proximity and the legal significance of an accident.

Duty of care

The court felt it to be essential to consider whether a duty of care is owed to secondary victims in line with the general principles applicable to medical negligence claims. The court explained that in the case of a primary victim, there is a clear assumption of responsibility giving rise to a duty of care. In the case of a primary victim, responsibility is assumed where a person (A) provides a service to another person (B) who reasonably relies on the service-provider’s expertise. The service-provider assumes a responsibility to perform the service with reasonable care and skill, giving rise to a duty of care.

The court felt that this applies in a medical context and forms the basis of the doctor-patient relationship. However, it determined that it would be far-fetched to assert that a doctor entering into a doctor-patient relationship with a patient, also enters a relationship to assume responsibility for the health of other members of the patient’s family. 

The court considered that to impose such a duty would likely give rise to unacceptable and unfair differences in treatment between different categories of claimant. It considered that it would also lead to undesirable behaviour and decision-making in respect of end-of-life care. The court foresaw that imposing a broader duty of care on a doctor could impact and alter end-of-life care if the hospital or doctor felt that allowing a family member to witness a death would expose them to a potential legal liability. 

The court ultimately determined that it was not the responsibility of the doctor to shield family members from death.

Proximity to the accident

The court considered the legal significance of a secondary victim witnessing an accident in close proximity. It identified three ways in which the occurrence of an accident is integral both to the reasons for recognising the category of claims by secondary victims and in defining the limits of this category:

• an accident is a discrete event. Identifying someone’s presence is often a clear and straightforward answer and therefore has the merit of providing legal certainty;
• witnessing the accident involving a close family member draws the line clearly between those who suffered the ordeal of actually witnessing the accident and those that did not;
• the nature of an accident means that a secondary victim is often close enough in physical proximity to the accident to experience a threat of immediate personal injury to oneself or bodily integrity.

By contrast, in the case of medical negligence:

• the length of time for which symptoms of injury or disease last before a person recovers or dies is entirely variable, which gives rise to legal uncertainty; and
• the extent of the traumatic experience of witnessing an illness or injury is entirely variable, again introducing uncertainty.

The law now

The court ultimately maintained that the general legal principle and starting point when considering such claims is that the law does not grant remedies to third parties for the effects of injuries to other people. The small exception that has been carved out by Alcock (set out above), truly is an exception, which the court considered to be too well established to be called into question. However, without a duty of care being owed by a doctor to a patient’s family members, there can be no liability in relation to injuries caused to those family members brought on by witnessing injury or death because of the doctor’s negligence. 

Accordingly, there is now very little, if any, scope for a secondary victim claim in the context of pure medical negligence and such claims are now reserved for personal injury claims arising from a distinct accident witnessed in close proximity by certain close family members.

The intention of the lines now drawn by the court is to offer clarity and certainty to this area of law which has been subject to much debate. The court has sought to restrict the class of eligible claimants to those who are most closely and directly connected to the accident (not the primary victim) which was negligently caused by a defendant. The restrictions are intended to be straightforward, certain and comprehensible to the ordinary person.

The court acknowledged the shocking nature of the claims and the tragic events giving rise to the cases before them. However, it concluded that the law cannot impose duty and liability based on sympathy and ultimately found that none of the cases satisfy the legal requirements for the recovery of damages by secondary victims who suffer injury as a result of the death of another person.

The court also felt it necessary to address the case of Walters, the only previous successful secondary victim claim in a medical negligence context. It considered that Walters was wrongly decided on its facts and should not be followed. Similarly, the authority of Galli-Atkinson which found that a mother who did not see the accident which killed her daughter but attended the mortuary to identify her body hours later, should not be followed and the case of McLoughlin sets the limit for the ‘immediate aftermath’ test.

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