The Court of Appeal has now handed down judgment in the conjoined appeals of Paul v Wolverhampton, Polmear v Cornwall and Purchase v Dr Ahmed. The appeals centre upon the ‘secondary victim’ criteria for psychiatric injury in Clinical Negligence claims, with the Court of Appeal finding itself bound by its decision in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194. Unfortunately, expectant medical practitioners wishing for greater clarity in the law will receive little clarity with the secondary victim claim saga likely to continue.
In joined cases, the court considered whether three Claimants, who had suffered psychiatric injury witnessing family members’ tragic, sudden deaths following medical treatment, could claim damages for psychiatric injury.
In Paul, two daughters aged 9 and 12 watched their father die from a heart attack following an alleged failure to provide treatment 14½ months earlier. In Polmear (our summary available here), two parents witnessed the collapse and death of their 7-year-old daughter following admitted failures in treatment 6 months earlier. Finally, in Purchase, a mother found her 20-year-old daughter minutes after her death from pneumonia, following allegedly negligent treatment 3 days earlier.
In both Paul and Polmear, previous decisions had been made in favour of the Claimants, holding that the deaths could constitute a relevant ‘event’ such that the Claimants could succeed in their damages claims. Permission to appeal was granted to both Defendants. In Purchase, the first instance judge had found for the Defendant, stating it was bound by Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, authority for the proposition that no claim can be brought for psychiatric injury caused by a separate horrific event removed in time from the original negligence.
The principal issue for determination was whether the injury to the Claimant was sufficiently proximate to the breach of duty.
Counsel for the Defendants submitted that the deaths were separated in space and time from the negligence and, therefore, could not be said to be “the relevant event for deciding the proximity required to establish liability under the established control mechanisms” (para 7). It was further submitted that the court was bound by its decision in Novo, which decided that a secondary victim cannot claim for psychiatric injury sustained from witnessing any horrific event once actionable damage has already been sustained by the primary victim on an earlier occasion.
Conversely, counsel for the Paul Claimants submitted that Chamberlain J was right to distinguish Taylor v. Somerset Health Authority [1993] 4 Med LR 34 and Novo, arguing that the relevant event had to be a single event “that was the damage that it was the duty of the Defendant to protect the primary victim against when the damage first becomes manifest” (para 8). Alternatively, counsel for Polmear and Purchase submitted that any horrific event caused by a breach of duty to the primary victim was sufficient to give rise to legal proximity and liability to a secondary victim satisfying Lord Oliver’s five elements, whether or not damage to the primary victim had manifested at an earlier time (para 9).
Sir Geoffrey Vos, Master of the Rolls, allowed the appeals in Paul and Polmear but dismissed the appeal in Purchase.
In determination of the issue, The Master of the Rolls initially identified three distinct situations. The first are accident cases, such as McLoughlin and Alcock, where the negligence and the injury to the primary victim occur creating the horrific event occur in proximity. The second class contain cases such as these where the negligence occurs earlier than the horrific event caused by that negligence. The final type are cases like Novo where negligence causes two distinct potentially horrific events separated in time (para 77).
How did the five elements apply to the second situation?
The Master of the Rolls then moved to consider legal proximity through the five elements laid down in Alcock, which apply as much to clinical negligence cases as they do to accident cases (para 96). The problematic element concerned how reconciling the third requirement for “the claimant to be personally present at the scene of the accident, in the immediate vicinity, or to witness the aftermath shortly afterwards” in the context of clinical negligence cases.
The Master of the Rolls said that if these requirements were to be applied simply to “the clinical negligence situation” then despite the horrific event taking place later than the Defendant’s misdiagnosis:
The Master of the Rolls noted that if the negligence and horrific event were part of a continuum, as they were in North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, sufficient proximity would be found. Nonetheless, the Court of Appeal in Novo held the question of whether the injuries and the death were separate events had not arisen in Walters as such it was not bound by the decision.
Do subsequent authorities prevent the court from concluding that the five elements are satisfied in the second situation (negligence and horrific event separated in time)?
Finally, the Master of the Rolls noted that the decision in Walters does not sit easily with Somerset and Novo. He found the decision in Novo to be binding, precluding liability in the circumstances of these cases (paras 93, 97). Consequently, the five Alcock elements “could not be extended to allow a secondary victim to recover damages for psychiatric illness if the horrific event occurred months, and possibly years, after the accident” (para 92).
Lord Justice Underhill and Lady Justice Nicole Davies agreed with the reasoning of the Master of the Rolls. However Lord Justice Underhill added that in his provisional view the “issues raised [by the claims] merit consideration by the Supreme Court” (para 106).
Tom Gibson, a barrister in our Clinical Negligence team commented on the case as follows:
Medical negligence practitioners everywhere might have been hoping that the Court of Appeal’s decision would bring some finality and clarity to this technically difficult and emotionally charged area of law. However, it now looks as though the secondary victim claims saga will continue to run.
The Court of Appeal’s decision in the Defendants’ favour was lukewarm at best. The Master of the Rolls said that, if it were not for the Court of Appeal’s decision in Taylor v A Novo, he would have decided the appeal in the Claimants’ favour [paragraphs 87-88 and 93]. Lord Justice Underhill (the Vice-President of the Court of Appeal) also said that “if the point were free from authority, I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover” [paragraph 103].
As a result, the Master of the Rolls said that “Subject to hearing further argument, therefore, I would be prepared to grant permission to the Claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case” [paragraph 99]. Underhill LJ agreed, saying “My strong provisional view, like his [the MR’s], is that the issues raised by them merit consideration by the Supreme Court”. And Nicola Davies LJ agreed with both judgments.
Practitioners may therefore have to wait for a Supreme Court decision: on precisely what circumstances secondary victim claims for psychiatric injury, in a medical negligence setting, can be brought in.
