CLINICAL NEGLIGENCE UPDATE FEBRUARY 2022
Ian Huffer considers the recent Court of Appeal decision in Paul in relation secondary victims claiming damages for psychiatric injury resulting from clinical negligence.
Whilst there will be disappointment amongst Claimant clinical negligence practitioners at the outcome of the conjoined Court of Appeal decisions in Paul v Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall NHS Trust, and Purchase v Ahmed, the anticipated further appeal to the Supreme court should enable a much needed definitive judgment to clarify an area where conflicting authorities have created an area of uncertainty for litigants for some time.
The decision of the Court of Appeal in which the leading judgment was delivered by Master of Rolls, Sir Geoffrey Vos on 13th January 2022 contains a complete review and consideration of case law in this area, including the leading Court of Appeal authority of Taylor A.Novo (UK) Ltd[2013] EWCA Civ 194 as well as those cases where the issue had been considered in the context of a claim for clinical negligence (Taylor v Somerset Health Authority [1993] PIQR 262, Sion v Hampstead Health Authority [1994] 5 Med LR 170, Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 , Ronayne v Liverpool Women’s Hospital [2015] EWCA Civ 588). As those cases, familiar to practitioners in this field, are considered in some detail in the judgments and will be very likely reviewed again by the Supreme Court, I propose merely to set out the decision of the Court of Appeal itself.
The common feature of all three cases was a medical failure to diagnose and treat life threatening conditions that subsequently resulted in the deaths of the primary victims in traumatic circumstances. In Paul the deceased’s young daughters witnessed their father’s collapse and death from a heart attack, in Polmear the 7 month old child died in the presence of her parents, and in Purchase, the Claimant’s mother came upon her 20 year old daughter immediately after she had died and was involved in attempted resuscitation.
In respect of each Claimant the Court of Appeal accepted that they satisfied the category of persons meeting the criteria of secondary victims as required by Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C.310. There was a close familiar relationship in each case between the Claimant and primary victim (the first element of test). The court was prepared to accept that the psychiatric injury to each of the Claimants resulted from a sudden and unexpected shock to them (the second element).
The appeal was in the context of a clinical negligence claim where the negligence and the horrific event were separated in time and it was the application of the third, fourth and fifth elements of the test that the court had to wrestle with. These were (iii) that the claimant was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards, (iv) that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim and (v) that there was not only an element of physical proximity to the event but a close temporal connection between the event and the claimants’ perception of it. If in each case the “relevant event” was the death of the primary victim or its immediate aftermath, the event had occurred sometime later than the date of alleged negligence.
The Master of Rolls summarised the arguments that the court had to consider – “we have to decide whether a claimant, who sustains psychiatric injury as a result of witnessing the death or other horrific event suffered by a close relative as a result of earlier clinical negligence, can claim damages for that psychiatric injury. The question turns on the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant. The parties have put forward three possible answers. They suggest that, as a matter of law, a defendant to a claim for damages for clinical negligence can be liable to a secondary victim who has suffered psychiatric injury by witnessing the death or other horrific event affecting the primary victim and caused by the negligence: (a) only when that horrific event is the damage completing the primary victim’s cause of action in negligence, or (b) only when that horrific event is the first manifestation of damage to the primary victim caused by the negligence, or (c) whenever that horrific event occurs. The defendants say that the answer is (a). The Paul claimants say that the answer is (b). The Polmear and Purchase claimants say that the answer is (c)”
Those acting for the Claimants in the appeals sought, unsuccessfully, to distinguish Novo as an accident case as opposed to a clinical negligence claim. The Court of Appeal felt itself bound by its decision in Novo where the Claimant did not witness the negligent action (a stack of racking falling on her late mother at work) but was present to witness her death from pulmonary embolism that resulted from deep vein thrombosis caused by the accident three weeks later. The Court of Appeal held that proximity in these circumstances was not established as the trauma of witnessing the death was a separate event. The Claimants failed to satisfy the fifth element of the test in Alcock which required an element of physical proximity to the event of injury of the primary victim and a close temporal connection between the event of injury to the primary victim and the claimant’s perception of it.
The Court of Appeal held that Novo did not permit the relevant event to be removed and separated in time from the negligence. The only exception that they were prepared to countenance was one where there was a continuum as in the case of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 (an entire seamless horrifying event drawn out over 36 hours).
Commentary
- Whilst the decision of the Court of Appeal was that all claims were struck out, it is clear from the judgments, particularly of the Master of the Rolls that the Court, was uncomfortable with the decision based upon the binding authority of Novo, being unable, as a matter of logic, to say why the proximity in clinical negligence cases arises at the time of the initial cause of action. “I accept that, although there is no logical reason for these rules, they are the way Auld J in Taylor v Somerset and the Court of Appeal in Novobuilt upon the five elements and adapted them to the clinical negligence context. If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case”
- Whilst the view of the Supreme Court cannot be predicted, Sir Geoffrey Vos’ reservation and the readiness to grant permission to appeal, has been interpreted by some, I suspect mistakenly, as indication that the Claimants’ arguments as to what was ‘the relevant event’ might prevail before the highest court. The Defendants will certainly be arguing that to break out from the considered limitations set by Alcock to admit such secondary victim claims in a clinical negligence setting would have the potential to significantly increase the number of such claims.
- One point for practitioners to note is that whilst Ronayne v Liverpool Women’s Hospital [2015] EWCA Civ 588 was referred to in the judgments, it is not a case in relation to what was the relevant event but whether the event was of a nature that was ‘horrifying’ to a person of ordinary susceptibility (i.e., it was to be judged by objective standards) as to be capable of founding a secondary victim claim. This, in my experience, can often be a difficult test to meet in many potential secondary victims claims. The Master of the Rolls gave some support in his judgment that Ronayne gave insight ‘as to the kind of event that is necessary to found a claim by a secondary victim in a clinical negligence context’.
- The earlier authorities of the House of Lords (McLoughlin v O’Brian [1982] AC 410, Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C.310) were all cases where the horrific events witnessed were caused by accidents rather than clinical negligence. In these cases, the death of the primary victim, which (or the immediate aftermath of which) was the shocking event witnessed by the secondary victim, was broadly contemporaneous with the breach of duty and it was unnecessary to consider what the position would be if it had occurred later. The Supreme Court now has the opportunity to consider the issue in the context of a clinical negligence claim and hopefully provide practitioners and potential litigants with much needed clarity and certainty.
