The case of Polmear is the latest in a series of cases in which the limits of the application of the Alcock control mechanisms are being considered in the clinical negligence context. The Defendant’s attempted strike out of the Claimants’ secondary victim psychiatric injury claims failed – but an appeal is being heard, along with Paul v Royal Wolverhampton and Purchase v Dr Ahmed, by the Court of Appeal in June 2021.
The Claimants’ daughter Esmee was treated by the Defendant’s hospital in December 2014 – January 2015, when she was 6 years old. The hospital failed – negligently – to diagnose Esmee’s Pulmonary Veno-Occlusive Disease.
Esmee continued to suffer several “very concerning episodes” of breathlessness and vomiting during spring 2015. Her GP re-referred her to the hospital in April 2015. However, before Esmee was seen again at the hospital, she collapsed and died on 1 July 2015.
Esmee’s parents claimed damages for psychiatric injury, as secondary victims, “as a result of witnessing the sudden and horrifying events” surrounding Esmee’s death on 1 July 2015.
The Defendant applied to strike out their claims, on the basis that Esmee’s parents could not qualify, at law, as secondary victims – because they could not satisfy the “proximity” control mechanism from Alcock v Chief Constable of South Yorkshire Police  1 AC 310.
The parties agreed that “the issue to be determined is whether the Claimants have a reasonably arguable case that the relevant “event” required to satisfy the control mechanism of proximity was the collapse and death of Esmee on 1 July 2015” [para 29].
The Defendant argued that Paul v Royal Wolverhampton NHS Trust  EWHC 1415 (QB) – another secondary victim case where Chamberlain J overturned Master Cook’s initial strike out – was not binding, and was being appealed to the Court of Appeal .
The Defendant also argued that even if Paul was correctly decided, the Claimants’ claims should be struck out “because actionable damage had occurred prior to Esmee’s collapse and death” .
The Claimant argued that “the point at which the Defendant’s failure to diagnose and treat Esmee’s underlying condition became manifest and therefore the point at which damage became evident, was 1 July 2015” . Therefore, following Chamberlain J’s decision in Paul, Esmee’s collapse and death in July 2015 (and not her treatment 6 months earlier) could qualify as the relevant “event” to fulfil the proximity control mechanism.
The Defendant also argued that Esmee’s earlier symptoms were “transient symptoms” which did not constitute D’s negligence “becoming ‘manifest’ within the meaning of Paul” .
Master Cook declined to strike out the claim as he was “unable to say it is bound to fail” .
Master Cook said that it was not “an easy task” to decide whether Esmee had “suffered actionable damage prior to her collapse and death”, to be “the stopping point” [37-38]. He disagreed with the Claimants’ submission that Esmee’s symptoms in spring 2015 were only “transient” – and described the Defendant’s submissions as being “persuasive and logical”.
However, following Paul, Master Cook’s judgment was:
“it is not necessary to identify a stopping point as it is possible to identify a qualifying shocking event and that shocking event need not coincide with or immediately precede the first actionable damage to the primary victim. I must therefore reject [the Defendant’s] submission that prior actionable damage is a bar to recovery in this case” .
Additionally: “why should the fact that Esmee had suffered non-fatal episodes on previous occasions rule out the secondary victim claims of her parents”, since “Esmee’s final episode can be appropriately described as a fact and consequence of the Defendant’s negligence” .
Master Cook granted the Defendant permission to appeal to the Court of Appeal.
This was because the Defendant’s appeal would have “reasonable prospects of success” – and because the appeal “does raise an important point of principle, namely the circumstances in which the control mechanism of proximity can be satisfied” .
Tom Gibson, a clinical negligence barrister at Outer Temple commented on the case:
Polmear is the latest chapter in the saga of secondary victim claims for psychiatric injury in a clinical negligence setting. In June 2021 the Court of Appeal will hear joint appeals from three of these cases: Polmear v Royal Cornwall, Purchase v Dr Ahmed (6 May 2020, Birmingham County Court, DJ Lumb) , and Paul v Royal Wolverhampton NHS Trust  EWHC 1415 (QB) .
All three of these cases address the difficult question of how the “proximity” control mechanism, from Alcock v Chief Constable of South Yorkshire Police should be applied in a clinical negligence context. In particular, what do claimants have to show “proximity” to? Is the “event” the defendant’s negligent medical treatment – or is the “event” the collapse and death of their loved one, some time later?
From a claimant’s perspective, it seems unfair for bereaved relatives to have to show “proximity” to the “event” of the defendant’s negligent medical treatment – since a GP or hospital consultation is very unlikely to be “horrifying” enough to cause psychiatric injury. However, from a defendant’s perspective, it seems unfair that the “event” triggering psychiatric injury can be many months or even years after the defendant’s own treatment, especially if the patient has had further illness and symptoms in the meantime.
These legal questions – and the circumstances of the parties in Polmear, Purchase and Paul – will all be addressed by the Court of Appeal in June.
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