Report for ULaw LLP Annual Conference: Secondary Victim Claims

To: Samantha Barnes, Supervisor, PICN Department From: [Trainee Solicitor] Date: 24 May 2024 Subject: Analysis of the Supreme Court Judgment in Paul v Royal Wolverhampton NHS Trust [2024] and its Impact on Practice

1. Introduction

This report has been prepared for the firm’s upcoming annual conference. Its purpose is to provide an overview of the significant changes to the law on secondary victim claims in clinical negligence following the recent Supreme Court judgment in Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1.

The report will first analyse the judgment, explaining how it has altered the legal landscape. It will then assess the practical impact of this decision on the work of our Personal Injury and Clinical Negligence (PICN) department, considering the perspectives of both claimant and defendant representatives. Finally, it will recommend a series of practical proposals for the department to adapt to these changes. The report concludes with my view on whether the Supreme Court reached the correct decision.

2. Critical Analysis of the Judgment in Paul v Royal Wolverhampton NHS Trust [2024]

2.1 The Law Before Paul

The right of a 'secondary victim' to claim compensation for psychiatric injury caused by witnessing the death or injury of another person (the 'primary victim') has long been restricted by the courts. The key control mechanisms were established in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, a case arising from the Hillsborough disaster. To succeed, a claimant had to demonstrate:

1. A close tie of love and affection with the primary victim.
2. Proximity in time and space to the 'relevant event' or its immediate aftermath.
3. That they perceived the event directly with their own unaided senses.
4. That their psychiatric injury was caused by a 'sudden and shocking' event.

In the context of clinical negligence, this framework proved difficult to apply. The negligence (e.g., a failure to diagnose a condition) often occurs at a different time and place from the traumatic event witnessed by the claimant (e.g., a fatal heart attack). This led to inconsistent Court of Appeal decisions. For instance, in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, the court held that the claimant had to be proximate to the accident, not its later consequence. However, in cases like Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792, the court allowed a claim where a mother witnessed the deterioration and death of her baby over 36 hours, treating it as a single, horrifying event. This created uncertainty for practitioners.

2.2 The Supreme Court's Decision in Paul

The Supreme Court heard three conjoined appeals (Paul, Polmear, and Purchase). In each case, a close relative of the primary victim suffered psychiatric injury after witnessing their death from a medical condition which, it was alleged, the defendant hospital had negligently failed to diagnose or treat months or years earlier.

The Supreme Court, in a landmark judgment, dismissed the appeals. The majority, led by Lord Leggatt and Lady Rose, held that a doctor's duty of care is to their patient. This duty does not extend to protecting the patient’s family members from the emotional distress of witnessing the patient's death or illness, even if it results from medical negligence.

The key takeaway from the judgment is that secondary victim claims in clinical negligence will now almost certainly fail unless the claimant witnesses a traumatic accident. The court clarified that the ‘relevant event’ for the Alcock proximity test must be the accident which causes the injury to the primary victim. A later medical crisis, such as a heart attack, which is the result of an earlier failure to treat, is not considered an ‘accident’ in this sense. The court reasoned that accidents are, by their nature, discrete events, making it possible to fairly limit the class of people who can claim for witnessing them. By contrast, an illness is a process, and it would be unprincipled and an unwarranted extension of the law to impose liability on doctors for the trauma experienced by family members who witness its progression.

The court also dispensed with the 'sudden shock' requirement as a separate test, stating it was an unhelpful and sometimes cruel distraction. The focus should instead be on whether the claimant witnessed a horrifying event (i.e., an accident).

3. The Impact on Practitioners

The judgment in Paul provides clarity but significantly narrows the scope for a particular type of claim.

For Claimant Practitioners: This decision is a major blow. Many potential secondary victim claims arising from clinical negligence, particularly those involving a gap in time between the negligent act and the resulting trauma, are no longer viable. For a claim to have any prospect of success now, the negligence and the horrifying event must be the same incident. An example might be witnessing a surgeon negligently severing an artery during an operation, causing a catastrophic bleed. However, witnessing a patient die from a heart condition that should have been diagnosed a year earlier will no longer found a claim. This will force us to turn away many deserving clients who have suffered genuine psychiatric harm.

For Defendant Practitioners: For defendant bodies like NHS Resolution, the judgment is a welcome development. It provides legal certainty and a clear, defensible line against a category of claims that was previously complex and unpredictable. It will likely lead to a substantial reduction in claims and associated legal costs, allowing resources to be focused elsewhere. Defendants can now confidently strike out claims where the secondary victim did not witness the initial negligent accident, but rather a later, tragic consequence.

4. Recommended Practical Proposals

In light of the judgment, the PICN Department should consider implementing the following proposals to adapt and maintain commercial viability:

1. Urgent Department-Wide Training: All fee-earners, from paralegals to partners, must be trained on the new legal position established by Paul. The training should focus on identifying which cases are now non-starters and which may still have merit.

1. Revised Case Assessment Protocol: We must update our initial client questionnaires and risk assessment procedures for secondary victim claims. A new, robust triage process is needed to quickly identify and filter out claims that are bound to fail post-Paul. Key questions must include:

• What exactly was the event witnessed by the claimant?
• Can this event be legally defined as an 'accident' caused by negligence?
• Was there a time gap between the defendant's negligent act/omission and the event witnessed?

1. Enhanced Client Communication Strategy: We will need to manage the expectations of prospective clients carefully and sensitively. We should prepare template letters and guidance notes for fee-earners to explain, in clear and empathetic terms, why a claim cannot proceed due to the change in the law. This is crucial for maintaining the firm’s reputation.

1. Review of Marketing and Business Development: The department should review its marketing materials to ensure we are not attracting enquiries for claims that we can no longer pursue. We may need to shift our business development focus towards other areas of PICN work that are unaffected by this judgment.

5. Conclusion: Do I Agree with the Decision?

The Supreme Court’s decision in Paul is undoubtedly a harsh one for the claimants in these specific cases and for many who will suffer in the future. From a human perspective, it is difficult to see a moral distinction between the trauma of witnessing a loved one die in a car crash and the trauma of witnessing them die from a medical condition that a doctor negligently failed to prevent.

However, from a legal policy perspective, I believe the Supreme Court’s decision is the correct one. The law on secondary victims has, for thirty years, been described by judges and academics as a 'patchwork quilt of distinctions which are difficult to justify' (Lord Steyn in White v Chief Constable of South Yorkshire [1999] 2 AC 455). The attempt to apply the Alcock criteria to clinical negligence cases, where the 'event' is often a seamless and drawn-out process, had created an incoherent and unpredictable body of case law.

The Supreme Court has now drawn a clear, albeit bright, line. By insisting on proximity to a qualifying 'accident', the court has returned the law to a more certain and restrictive footing, preventing what it saw as an unprincipled and potentially limitless expansion of liability for doctors. While this may seem arbitrary, it provides the legal certainty that practitioners on both sides require to advise their clients effectively. For that reason, I agree with the court's decision as a necessary, if difficult, clarification of the law.

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References

Cases

• Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
• Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1
• Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194
• Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792
• White v Chief Constable of South Yorkshire [1999] 2 AC 455

Secondary Sources

• Recovering, S. (2024) <a href="https://ukscblog.com/case-comment-paul-v-royal-wolverhampton-nhs-trust-2024-uksc-1/">Case Comment: Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1</a>. UK Supreme Court Blog, 12 January.