This blog is written by Cressida Mawdesley-Thomas.
Summary
The majority of the Supreme Court (Lord Burrows dissenting) has refined “the control mechanisms” in Alcock for bringing a secondary victim claim (that is, claimants who are “the passive and unwilling witness of injury caused to others”). To succeed as a secondary victim, the law now requires that the claimant witness an accident or its immediate aftermath. The bounds of what constitutes “the aftermath” are limited to McLoughlin.
However, it is no longer a requirement that the claimant sustains a “sudden shock to the nervous system” caused by a “horrifying” event. Further, it is of no consequence that the breach of duty is separate in time and space from the accident. This will be important in future personal injury claims and, potentially, in claims involving defective medical devices brought on behalf of secondary victims.
Background
In Paul, the claimants sought compensation for psychiatric injuries after witnessing the death of close family members following the negligent failure of the defendants to treat or diagnose life-threatening medical conditions. The claims failed at first instance. These decisions were appealed and eventually reached to the Supreme Court, where the appeals were all dismissed. The court held that a negligent failure to treat or diagnose an illness did not constitute an “accident”.
Accidents in a medical setting?
The court defined an “accident” as “an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims, and observed that:
“In medical negligence cases the event (or its aftermath) witnessed by the secondary victim is generally not an accident; it is the suffering or death of their relative from illness. As a shorthand and without intending it to be a term of art, we will refer to such an event as a “medical crisis”.”
The majority decision means that in virtually all circumstances of medical negligence it will not be possible for loved ones to bring a secondary victim claim for psychiatric injury. For example, unless there is an “accident”, a father who watches his new-born baby die before him because of the negligent mismanagement of the birth and suffers PTSD as a result will not have a claim; unless it can be said that somehow the death was a result of an accident.
However, the court did not rule out that it might be possible to have an accident in a medical context. It was noted that:
“Various hypothetical examples were, however, posed in argument such as a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.”
The requirement for “an accident”
The requirement that there be an accident was justified on the basis that accidents are discrete events with clear bounds in time and space. It is usually easy to determine whether someone was present at the scene of and directly perceived an accident.
It is also justified because “witnessing an accident involving a close family member is itself likely to be a disturbing and upsetting … When drawing lines between those who can and can’t recover for injury consequential on bereavement between claimants who suffered the ordeal of actually witnessing the accident in which a close relative was killed and those who did not is an intelligible place to draw it.” It also avoids arbitrary distinctions between injury caused by fear for one’s own safety and fear for the safety of a close family member.
The requirement for an accident was also supported by the earlier Court of Appeal decision in Taylor v A Novo, as analysed by the Supreme Court. A Novo featured prominently in the reasoning of the courts below. In that matter, the claimant’s mother sustained injuries in an accident at work. Three weeks later she unexpectedly collapsed and died at home. The claimant witnessed this and developed PTSD. The claim succeeded at trial but was dismissed on appeal. The Supreme Court held that A Novo was correctly decided because the claimant was not present at the scene of the accident or its immediate aftermath and the event which she witnessed was not an accident.
The Supreme Court disagreed with both Chamberlain J and the Court of Appeal’s analysis of Taylor v A Novo. They held:
“In our view, the analyses of both courts below share the common flaw that they treat Novo simply as a case in which there were two events, separated in time […] This ignores the insistence in the judgment of Lord Dyson MR that what mattered was not the number of “events” but the fact that there had been an accident […] We agree with the Court of Appeal that Novo is authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate event removed in time from the accident. But we do not agree with the suggestion in paras 12 and 96 of the judgment that Novo decided anything about distance in time between the event which caused psychiatric injury and the original negligence.”
Proximity: Negligence & Accident
There is no requirement for the accident or event be close in time to the negligent act or omission. The Supreme Court gave the example of a mother who suffered psychiatric injury after seeing masonry fall on her child’s head bringing a claim against the negligent architect: “her ability to make a claim cannot rationally depend on the length of time between the negligence and the accident.”
This also accords with Alcock, as “nothing was said by any of the law lords (or the lower courts) to suggest that the claims of either relatives or police officers would be affected if the operative negligence lay in decisions on crowd control or police deployment taken in the days before the match.”
The Aftermath
A secondary victim can recover if they were present when the accident occurred or if they came upon its immediate aftermath. The Supreme Court held that this should be restricted to the aftermath as it was in McLoughlin and observed:
“a reasonably clear line can be drawn if heed is paid to the observations of Lord Wilberforce that allowing the claim in McLoughlin (a) was “upon the margin of what the process of logical progression would allow” (p 419G) and (b) depended critically on the evidence that, when the claimant came upon the members of her family, “they were in the same condition [as they had been at the roadside], covered with oil and mud, and distraught with pain” (p 419F).”
The court also held that the Galli-Atkinson interpretation of “aftermath” should not be followed. In that case, the Claimant learnt that there had been a road traffic accident and went to the scene about an hour later where she was told of her daughter’s death. Subsequently she went to the mortuary and saw her daughter’s body and brought a claim for psychiatric injury. On appeal the case was successful as it was held that “an uninterrupted sequence of events” is capable of being characterised as one entire event was relied on to extend the concept of the “aftermath”.
Causation
The court held that there was no need for “a sudden shock” and that the conventional basis of causation applied:
“it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.”
This reflects modern understandings of psychiatric illness which recognises that it is not caused by an “assault on the nervous system”.
No “horror” requirement
The court observed that there was no need for a “horrifying” event, there being no Richter scale of “horror” and such a requirement would place judges in an invidious position. Instead, it is:
“necessary for a claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause her injury. If, for example, a claimant with a history of psychiatric illness develops such an illness after witnessing a minor accident in which his wife sustains some cuts and bruises, his claim might fail that test. But we can see no justification for super-imposing an additional, separate requirement that the event witnessed by the claimant was “horrifying”.”
Policy
The court started from the general position under the common law which is that a person cannot claim compensation for the effect on them, however severe, for the death or injury of another person. Damages for secondary victims is an exception to this general rule.
The judgment emphasised the importance of certainty and not creating a test for the recovery of damages in secondary victim claims which would be unprincipled or unworkable. It rejected the lead Claimants in Paul’s “first manifestation of damage” test as being the qualifying event, not least because it would mean that the Claimants in Paul would succeed but those in Polmear and Purchase would not.
The Supreme Court’s interpretation of the Alcock criteria was focussed on producing results which were “straightforward, certain and comprehensible to the ordinary person” when drawing a line between those who can and cannot recover for what may be serious illness in connection with the death or injury of another person. It was held:
“The mother who learns in a telephone call that her child has been killed in a road accident may suffer an illness no less severe than a mother who was present at the scene and saw the accident. But there is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused.”
Comment
The decision in Paul provides clarity for legal representatives. For example, to succeed as a secondary victim by saying you came upon primary victims in the “aftermath” you are likely to need to show that the primary victims were “in the same condition” as they were at the scene of the accident. Further, whilst the law has been retracted in terms of the scope of secondary victim claims in the context of clinical negligence (outside of claims relating to defective medical devices), it is likely to now expand in cases involving rail, road and industrial accidents or other disasters not in a clinical negligence context as there is no longer a requirement to prove the accident was “horrifying” or caused a sudden shock to the claimant.
Clinical Negligence Law 
As a parent who has achieved a settlement for her child damaged at birth and who now supports many other families going through claims. What is the implication of this for families who currently have no personal claim for these life-changing events that impact their own careers and finances as a result of negligence to their child at birth? Do we still not have a claim as secondary victims for the loss of our own careers and pensions etc? Instead, are we still only carers with a notional past care payment?
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