Secondary victim claims Part 2: A differing view on Paul v Royal Wolverhampton NHS Trust

In this blog post, Rachit Buch writes in support of the recent decision made in the case of Paul v Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB).

I have decided to place myself comically out of my depth by arguing against Ronnie Walker Q.C.. Having caught wind of Ronnie’s (shall we say, negative) views of the decision in Paul v Royal Wolverhampton NHS Trust [click here to access the Ronnie Walker Q.C.’s analysis of the decision], I will attempt to make the case for Chamberlain J’s judgment on appeal.

This post summarises the decision and looks at the arguments for allowing the secondary victim claims of Saffron and Mya Paul, children of Parminder Singh Paul, to proceed.

Summary of the case

Mr Paul attended the defendant’s hospital on 9 November 2012 with chest and jaw pain. He was discharged three days later. 14 and a half months from then, in January 2014, he sadly collapsed whilst suffering a heart attack. The pleaded case included details of the two daughters seeing their father fall and hit his head, there being blood on the hands of a man holding Mr Paul’s head, and hearing their mother, Balbir Kaur Paul, scream Mr Paul’s name before an ambulance came and the crew placed a foil blanket over Mr Paul whilst doing chest compressions.

The defendant trust’s staff were alleged to have negligently failed to perform a coronary angiography and failed to have diagnosed the ischaemic heart disease and atherosclerosis that led to the heart attack.

Mrs Paul and her two daughters brought claims as secondary victims for psychiatric harm (as well as dependency claims). The defendant accepted it owed Mrs Paul a duty, but applied to strike out the claims of Saffron and Mya, an application which was granted by Master Cook.

On appeal from the decision of Master Cook, the Trust argued that there was no “external, traumatic event” (using the language of the Court of Appeal in Taylor v A Novo [2013] EWCA Civ 194); there was just the consequence of the alleged negligence (which, in this case, was the build up of disease process leading to a heart attack). The Trust argued that the claimants could not possibly have the required proximity, not having been present at the “scene of the tort”.

Chamberlain J allowed the appeal, holding that the reference to an external event was one external to the secondary victim; that at a strike out stage the claimant’s case that the heart attack was the first damage caused by the negligence is assumed; and that it could therefore constitute ‘the event’ from which the claimants could establish the necessary ingredients for secondary victim claims. The judge also held that, even if Mr Paul had suffered actionable damage from the alleged negligence before the heart attack, the claims could succeed.

Discussion

The principles of secondary victim claims are well established. The so-called ‘control mechanisms’ from McLoughlin v O’Brian [1983] 1 A.C. 410 and Alcock v Chief Constable South Yorkshire Police [1992] A.C. 310 are additional criteria keeping the gates to successful claims for secondary victims.

Claimants must establish close ties of love and affection with the primary victim; proximity in time and space to the negligence (directly witnessing the accident or event, or its immediate aftermath) and injury caused by ‘nervous shock’ that is foreseeable in a person of normal fortitude. Reasonable foreseeability of injury is not enough.

As in issue in this case, how does a claimant establish proximity in time and space?

The alleged negligence in Paul was treatment at the hospital (specifically, lack of testing and diagnosis). The claimants suffered injury over a year afterwards, far from the hospital. However, in Taylor v Somerset Health Authority [1993] PIQR 262, Auld J held that the claimant arriving at hospital around an hour after her husband’s heart attack at work, caused by the defendant’s failure to diagnose and treat heart disease many months before, could not succeed. There was no relevant event and the claimant was not in the ‘immediate aftermath’. Therefore, at first blush, it appears that Paul should have been struck out for the same reasons.

However, the reasoning in Taylor v Somerset did not turn on whether a heart attack (or any such event), months after negligence could ever constitute the relevant event. In Paul the pleaded ‘event’ would plainly be traumatic in a way beyond the arrest of a heart that occurred in Taylor v Somerset. This is not to say that there would be less sadness or grief – but that is exactly the sort of psychological effect for which damages are not recoverable.

It was not argued in Paul, rightly, that the claimants had to be present at the scene of the breach of duty. As Chamberlain J noted, there was nothing in the House of Lords authorities to suggest such a requirement, and, indeed the negligence leading to an event may have been months or years in advance. If the ‘relevant event’ in an accident case could be a year after the failure to assess risks and put in place preventative measures in respect of, say, a bridge collapsing, it seems reasonable to find that Mr Paul’s sudden collapse and death could be too. Further, Chamberlain J stated that there was no reason in principle why a secondary victim claimant should be required to know that the ‘relevant event’ was due to negligence, and whose negligence, in order to succeed in their claim.

The essential decision in the instant case that permits secondary victim claims arising from negligent acts or omissions several months earlier appears consistent with the first cases addressing so called ‘pure psychiatric harm’ – see Lord Wilberforce’s reference in McLoughlin to the ‘fact and consequence’ of the negligence, suggesting that the focus has been on psychiatric harm from witnessing the effects of negligence.

The requirement of proximity in time and space does, however, limit recovery in important respects. Secondary victim claimants do not have to be present at the scene of the breach, but must, if it occurs later, have proximity to the accident or damage caused by the breach. On the claimants’ case in Paul, the heart attack was the first such damage. I agree with the analysis that this means that the claims should not be struck out, by parity of reasoning with Taylor v Somerset, or otherwise.

However, one might think that even silent damage following the failure to diagnose the heart condition would in principle be actionable, following the determination on what constitutes actionable damage in Dryden v Johnson Mathey plc [2019] AC 403. In Paul, the judge found, obiter, that the claim could succeed despite this as “there was nothing that could naturally be described as an “event” before Mr Paul’s collapse” ([78] (unlike the situation in Taylor v A Novo). Therefore, such a case would turn on whether the ‘relevant event’ was the first time at which the damage became manifest in the primary victim.

This, I suggest, would mean that secondary victims could recover damages, provided that the event they witnessed was the first shocking event following a defendant’s negligence. This would be an extension of the well-known Alcock criteria that, whilst imperfect, have been reinforced many times to the point of being apparently impregnable.

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