Secondary Victims – A Corner Turned?

Henry Charles summarises the Court of Appeal’s judgment from last week in the cases of Paul v Wolverhampton, Polmear v Royal Cornwall and Purchase v Ahmed, which concerns secondary victim claims arising from events that occurred some time after the alleged negligence.

The Law

The courts have long been concerned about the potential for secondary victim claims to lead to a deluge of psychiatric claims. To that end, Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 laid down the following “control mechanisms” to limit the opening of the floodgates: 

1. A marital or parental relationship between the claimant and the primary victim;
2. The secondary victim’s claim must arise from sudden and unexpected shock to the claimant’s nervous system;
3. The secondary victim claimant must have been either personally present at the scene of the accident or in the more or less immediate vicinity and witnessed the aftermath shortly afterwards;
4. The injury suffered by the secondary victim must have arisen from witnessing the death of or extreme danger to, or injury and discomfort suffered by, the primary victim; and
5. There must not only be an element of physical proximity to the event, but a close temporal connection between the event and the claimant’s perception of it, combined with a close relationship of love and affection between the secondary victim claimant and the primary victim.

Lord Oliver added in Alcock that reasonable foreseeability was necessary from the perspective of the defendant: that, in the combination of the five control elements, there was a real risk of injury of the type sustained by the secondary victim claimant as a result of his or her concern for the primary victim.

The law, or rather interpretation of what the law meant, developed perhaps a little haphazardly.  Then came Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, a roadblock to claims involving delay between the negligence, the damage caused by it, and the horrific event that ultimately caused the psychiatric injury to the secondary victim claimant. In Taylor v A Novo, the claimant had been shocked by the traumatic death of the primary victim three weeks after her injury in the accident. Lord Dyson fully reviewed the authorities and held that proximity was lacking because the claimant was not present at the scene of the accident or at its immediate aftermath. The claimant’s contention that the relevant control event was the subsequent collapse and death, not the original accident, was rejected. Lord Dyson justified this approach on the basis that (a) the daughter would have been able to claim months and possibly years post-accident, stretching the concept of proximity too far, and (b) to allow liability to be established would extend the scope of liability to secondary victims considerably further than had been allowed by the courts thus far, which instead would be a job for Parliament. Lord Dyson explained that he was approaching this from the perspective of an ordinary, reasonable person.

The cases of Paul, Polmear and Purchase

It was not disputed in the Paul group of cases that clinical negligence cases can give rise to secondary victim claims.

The issue was the effect at law of there being a time delay between the clinical negligence, the damage caused by it and the horrific event that ultimately caused the psychiatric injury to the secondary victim claimant. 

Mr Paul’s case encapsulated these issues. He suffered a heart attack on 26^th January 2014, falling backwards hitting his head. His two young daughters saw this. His 12-year-old daughter’s attempts to phone her mother and the ambulance service failed, and the 9-year-old contacted her mother but could not be understood due to her distress. Their mother did get to the scene, but it is suffice to record that the events would be plainly have been harrowing. Mr Paul was taken to hospital following resuscitation attempts and was declared dead at hospital. The heart attack was caused by ischaemic coronary artery atherosclerosis. The Claimants’ case was that there was a negligent failure to undertake coronary angiography in 2012, and that, had it been performed, it would have disclosed coronary artery disease, which would have been successfully treated. 

The facts of the Polmear and Purchase cases – also harrowing – need not be looked at here; the same issues at law were engaged.

On appeal from Master Cook, Chamberlain J distinguished Paul from Taylor v A Novo on the basis that there was only one pleaded event – Mr Paul’s collapse on 26^th January 2014.

In the Court of Appeal, the Master of the Rolls noted:

1. It is commonplace in clinical negligence cases for death or serious injury to occur long after the clinical negligence giving rise to the death or serious injury [79];
2. It is hard to see why the gap in time (short or long) between the negligence and the horrific event should affect the defendant’s liability to a close relative witnessing the primary victim’s death or injury that it caused [80];
3. Nuanced approaches, such as limiting claims to the first manifestation of negligence-related damage to the primary victim, or limiting claims to instances where the horrific event is the damage that would complete the primary victim’s cause of action in negligence, would affect liability in particular cases, but are distinctions without difference with the potential to cause unprincipled and complex factual disputes [82];
4. It is illogical to make the liability of a defendant for psychiatric injury caused to a secondary victim depend upon whether the primary victim’s cause of action is complete, or whether the primary victim had sustained manifest damage before the horrific event caused by the defendant’s negligence: even more so when actual injury or damage to the primary victim is not even necessary to found liability to the secondary victim [83];
5. The question devolves to the requirement for the secondary victim claimant to be personally present, or more or less in the immediate vicinity of the accident, or to witness the aftermath shortly afterwards, a requirement stemming at least in part from McLoughlin v O’Brian [1983] 1 AC 410, the progenitor of secondary victim claims [86];
6. Considering the core control mechanisms in a clinical negligence context, the Master of the Rolls felt that despite the fact that the horrific event took place later than the defendant’s misdiagnosis, (a) the fact and consequence of the defendant’s negligence (i.e. the event or accident causing the horrific event) was close in time and space to the moment when the secondary victim was caused the psychiatric injury, and (b) the secondary victim was personally present at the scene of the horrific event/accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards [87];
7. However, the core of Taylor v A Novo was that if the horrific event occurred months or years after the accident, indeed if anything occurred beyond the aftermath of the accident, a claim would not succeed [92]; and
8. The Court of Appeal was bound by Taylor v A Novo [93].

The Master of the Rolls stated that, subject to further argument, he would be prepared to grant permission to appeal to the Supreme Court.

Lord Justice Underhill agreed with the Master of the Rolls. He noted the arbitrariness of a doctor who negligently prescribes a fatal medicine being liable to a secondary victim if the patient takes the medication and dies in requisite shocking circumstances straightaway, but not if that occurs a few days or few weeks later. But for Taylor v A Novo, he would have found in favour of all three claimants. His provisional view was that the issues merit consideration by the Supreme Court.

Comment

The effect of Taylor v A Novo is that if the horrific event occurred months or years after the accident, indeed if anything occurred beyond the aftermath of the accident, a claim would not succeed. That gives rise to evidently arbitrary and unsatisfactory outcomes: a doctor who negligently prescribes a fatal medicine would be liable to a secondary victim if the patient takes the medication and dies in requisite shocking circumstances straightaway, but not if that occurs a few days or few weeks later. 

This is clearly a matter for the Supreme Court.

Whether the solution is a relatively straightforward reversal of Taylor v A Novo, or whether removal of the Taylor v A Novo roadblock would uncover further issues, what public policy issues are engaged, and why, are matters for further discussion, to which this blog will return in the near future.