Supreme Court invited to consider secondary victim claims
20 January 2022
The Court of Appeal dismissed a set of claims for psychiatric injury on the basis of prior binding authority, but indicated that the issue is suitable for consideration by the Supreme Court.
The judgment concerns three linked appeals regarding the circumstances in which relative(s) of somebody injured or killed by alleged clinical negligence (the secondary victim(s)) can claim damages in respect of a psychiatric disorder caused by having witnessed the death or suffering of their loved one (the primary victim).
For a defendant to be liable for a secondary victim’s psychiatric illness, the claimant needs to show the necessary legal proximity between themselves and the defendant. In Alcock v Chief Constable of the South Yorkshire Police  1 AC 310, Lord Oliver identified five elements which form the essential requirements of such a relationship:
- the secondary victim is in a marital/parental relationship with the primary victim;
- the psychiatric illness for which damages are claimed arises from a sudden and unexpected shock to the secondary victim’s nervous system;
- the secondary victim was personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
- the psychiatric illness arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
- there was not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.
These elements were applied in Crystal Taylor v A. Novo (UK) Ltd  EWCA Civ 194. The secondary victim claim of a daughter who witnessed her mother’s death three weeks after an accident at work in which negligently stacked racking boards fell on her failed despite her death having been caused by the accident. The Court of Appeal held that as she was not present at the accident, she lacked the necessary legal proximity.
Paul v Royal Wolverhampton
Mr Paul suffered a heart attack when shopping with his daughters. His daughters witnessed him fall, hit his head and start to bleed. An ambulance crew attended and performed chest compressions. Shortly afterwards Mr Paul died.
Mr Paul’s heart attack was caused by coronary atherosclerosis. 14 months previously he had been admitted to hospital with chest pain. The Claimants’ case is that he should have undergone angiography at this time and that if he had, he would have avoided the heart attack. As a result of witnessing the events around his death, his daughters developed psychiatric illness.
The daughters’ claim as secondary victims was initially struck out as being bound to fail. The decision was reversed. The Defendant made a second appeal.
Polmear v Royal Cornwall
Esmee Polmear, 7, was referred to a paediatrician suffering from episodes during which she could not breathe and turned blue. The paediatrician concluded that her symptoms were physiological. In fact, she should have been diagnosed with pulmonary veno-occlusive disease.
Six months later Esmee collapsed. Her parents both witnessed and helped to perform resuscitation. Attempts to revive Esmee were unsuccessful. Both parents developed post-traumatic stress disorder and major depression. Her mother developed addictive behaviour.
The Defendant applied to have their claims as secondary victims struck out. The case was heard by the same Master whose decision had been reversed in Paul. He followed that decision and so allowed the claim to proceed. The Defendant appealed.
Purchase v Ahmed
Evelyn Purchase had been unwell for several months. Her mother took her to the out-of-hours clinic where a diagnosis of respiratory tract infection, oral thrush and depression was made. She was given antibiotics, an antidepressant and advice to contact her GP if things did not resolve. The Claimant’s case is that Evelyn had severe pneumonia and that there was a failure to properly assess and treat her.
Two days later her mother returned home to find her daughter lying motionless with the house telephone in her hand. The family was advised by 999 to give Evelyn CPR. Paramedics attended but their efforts were unsuccessful.
Her mother then realised she had a missed call from Evelyn on her mobile phone and a voice message. This recorded Evelyn’s final minutes. She has subsequently developed post-traumatic stress disorder, severe chronic anxiety and depression.
The Defendant applied to have the mother’s claim struck out. The application succeeded on the basis the claim was doomed to fail. The Claimant appealed.
Determination of the Court of Appeal
The Court noted that Alcock and Novo were accident cases. The question was how these authorities applied to clinical negligence cases in which there is a delay between the negligent act, such as a misdiagnosis, and the horrifying event which then befalls the primary victim.
Applying Lord Oliver’s five elements from Alcock to the facts of the cases before it, the Court made the following observations:
- in each, the requirement for a marital or parental relationship was satisfied;
- the second element requiring that psychiatric injury arise from a sudden and unexpected shock to the Claimants’ nervous system could be assumed;
- the fourth requirement, namely for psychiatric injury to arise from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim, was not the source of dispute;
- the fifth element is to be read as requiring both physical proximity and a close temporal connection between the event of injury to the primary victim and the claimant’s perception of that injury and, on these facts, this too was not in dispute;
- that the heart of the confusion was how to read the third requirement, that the claimant be personally present at the scene of the accident or be more or less in the vicinity and witness the aftermath shortly afterwards, in the context of clinical negligence cases.
The Court’s view was that despite the lengthy time between the misdiagnosis and the horrific events, applying the facts to the cases it was possible to conclude that:
- the fact and consequence of the Defendant’s negligence was close in time and space to the moment when the Claimants were caused psychiatric injury; and
- the secondary victim was either personally present at the scene of the horrific event or witnessed the aftermath shortly afterwards.
The question which arose was whether Novo prevented the cases from succeeding on the basis of those conclusions.
The Court identified that in Novo, the Defendant’s case was that proximity was lacking because the Claimant was not present at the scene when the racking boards fell on the Claimant’s mother, nor the immediate aftermath. The Defendant’s negligence had two consequences separated by three weeks, namely the initial accident and her later death.
The Court held that Novo is binding authority for the proposition that no claim can be brought by a secondary victim in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or first horrific event. Therefore, the Claimants’ claims must fail.
To the Supreme Court…
It does not however seem that the Court was entirely comfortable with that conclusion. In the concluding paragraph of his judgment, Sir Geoffrey Vos, MR stated:
I have … reservations about whether Novo correctly interprets the limitations on liability to secondary victims contained in the five elements emerging from the House of Lords authorities… I would be prepared to grant permission to the claimants to appeal to the Supreme Court …
In addition, Underhill LJ wrote a short judgment which noted that in the House of Lords authorities, the nature of the facts meant that the question of whether a secondary victim lacks sufficient proximity due to the passage of time between the breach of duty and the shocking event did not arise. In his view, there was no reason why such a delay should impact on proximity:
why should the doctor who negligently prescribes a fatal medicine be liable to the secondary victim if the patient takes it, and dies (in the requisite shocking circumstances) straightaway, but not if they do so only a few days or weeks later… 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 …
The chief question is whether Lord Oliver’s references to “physical and temporal propinquity” in Alcock are directed to the relationship between the breach of duty and the shocking event, or the need for the claimant to be close in space and time to the shocking event. The view of the Court of Appeal is that it is the latter.
Notwithstanding that, the ratio of Novo was that the presence of an interval of time between the breach of duty and the shocking event caused the claims to fail. It seems it will now be for the Supreme Court to consider whether Novo was correctly decided.
Thomas Hayes is a pupil barrister at 1 Crown Office Row.