To: Samantha Barnes, Supervisor, PICN Department From: Trainee Solicitor Date: 24 May 2024 Subject: The Law on Secondary Victim Claims following Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1
1. Introduction
This report provides an overview of the law concerning secondary victim claims for psychiatric injury, focusing on the significant changes following the Supreme Court's judgment in Paul and others v Royal Wolverhampton NHS Trust [2024]. It will outline the law as it stood, analyse the decision in Paul, assess its impact on our Personal Injury and Clinical Negligence (PICN) practice, and recommend practical steps for the department. The aim is to prepare the department for its contribution to the firm's upcoming annual conference.
2. The Law on Secondary Victim Claims Prior to Paul
The law has historically been restrictive in allowing compensation for psychiatric harm suffered by individuals who witness injury to others, known as ‘secondary victims’. This is distinct from ‘primary victims’, who are directly involved in an incident and within the zone of foreseeable physical danger (Page v Smith [1996] AC 155). The courts have sought to limit the potential for indeterminate liability through a series of control mechanisms.
The foundational authority is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, which arose from the Hillsborough disaster. In Alcock, the House of Lords established a set of stringent tests that a secondary victim must satisfy to establish a duty of care. These are:
- A Close Tie of Love and Affection: The claimant must have a close emotional bond with the primary victim. This is presumed for spouses and parents/children but must be proven in other relationships.
- Proximity to the "Event": The claimant must have been present at the scene of the accident or its immediate aftermath.
- Means of Perception: The psychiatric injury must be caused by a "sudden and shocking" event perceived directly by the claimant through their own senses. Witnessing events on television, for example, was deemed insufficient.
These criteria worked, albeit with some difficulty, for accident-based scenarios. However, their application to clinical negligence claims was problematic. In clinical negligence, there is often a time lag between the negligent act (e.g., a misdiagnosis) and the horrifying event it causes (e.g., a fatal heart attack).
The case of Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 created a significant hurdle. The Court of Appeal held that the secondary victim needed to be proximate to the tortious event itself (the accident at work), not its later consequence (the victim's death three weeks later). This made it very difficult for claimants in clinical negligence cases to succeed, as the "event" they witnessed (the medical crisis) was often far removed from the original negligence.
However, some cases suggested a more flexible approach. In North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, the court treated a 36-hour period from a baby’s seizure to his death as a single, horrifying event, allowing the mother’s claim. This created uncertainty, with courts attempting to stretch the Alcock criteria to fit the facts of deserving cases, leading to inconsistent and sometimes conflicting judgments. It was against this uncertain background that the Supreme Court heard the appeals in Paul.
3. Analysis of the Judgment in Paul v Royal Wolverhampton NHS Trust [2024]
The Supreme Court heard three conjoined appeals (Paul, Polmear, and Purchase). Each case involved a claimant who had suffered psychiatric injury after witnessing the death of a close family member. The deaths were caused by a medical condition which, it was alleged, the defendant hospital had negligently failed to diagnose and treat at an earlier stage. The Court of Appeal had dismissed the claims, applying the reasoning in Taylor v A Novo.
The Supreme Court unanimously dismissed the appeals, bringing much-needed, if unwelcome for claimants, clarity to this area. The Court’s central reason was that the duty of care owed by a medical professional is to their patient. This duty does not extend to protecting members of the patient’s family from the emotional distress of witnessing the patient’s death or medical crisis that results from their illness (Paul, at [107]).
Lords Leggatt and Burrows, giving the lead judgment, distinguished scenarios involving medical negligence from "accident" cases, for which the Alcock controls were designed. They reasoned that an "accident" is a discrete event which causes injury. In such cases, it is foreseeable that third parties might be present and suffer psychiatric harm. By contrast, a practitioner’s failure to treat a disease is an omission, and the subsequent death is a result of the progression of that disease, not an "accident" in the legal sense. The court stated that it is not part of a doctor’s role to save family members from the distress of witnessing the death of a loved one from an illness (Paul, at [132]).
The Court effectively ruled that to qualify, a claimant must witness an accident caused by the defendant's negligence. As a result, secondary victim claims in the clinical negligence context will now fail unless the horrifying event is part of the negligent treatment itself (for example, witnessing a catastrophic error during a surgical procedure). The Court disapproved of the reasoning in Walters, stating that it was based on an "unprincipled" extension of the "immediate aftermath" concept (Paul, at [98]).
4. The Impact on PICN Practitioners
The judgment in Paul will have a profound and immediate impact on our department.
- For Claimant Work: The decision represents a near-total bar to secondary victim claims arising from clinical negligence, other than in the most exceptional circumstances. A significant stream of potential work for the department has been cut off. Many of our current secondary victim files are now likely to be unwinnable. This will lead to a reduction in caseload and future fee income from this type of work.
- For Defendant Work: For our defendant clients, particularly NHS Resolution, the judgment is a major victory. It provides certainty and a robust defence to a whole category of claims. It will reduce the NHS's overall liability for clinical negligence and allow defendant firms to have many existing claims struck out, saving significant legal costs.
This creates a serious commercial challenge for firms like ours that have a mixed claimant and defendant practice. The balance of work will likely shift, and we must adapt accordingly.
5. Practical Proposals for the Department
In light of the judgment, the PICN Department should consider the following practical steps to manage the impact and ensure its continued success:
- Immediate File Review: We must conduct an urgent audit of all existing secondary victim claims on our books. Each case must be assessed against the Paul criteria. For those that are no longer viable, we will need to have difficult but necessary conversations with our clients about withdrawing the claim.
- Revised Case Acceptance Criteria: Our criteria for taking on new secondary victim claims must be updated immediately to reflect the new legal reality. Fee earners must be instructed not to accept cases where the claim arises from witnessing the consequences of a pre-existing illness, even if negligently treated.
- Departmental Training: A mandatory training session should be rolled out for all fee-earners, from paralegals to partners, on the implications of Paul. This will ensure advice is consistent and that firm resources are not wasted on pursuing claims with no prospect of success.
- Strategic Business Development: We must proactively identify and develop alternative growth areas within PICN to compensate for the loss of this workstream. This could include focusing on more complex primary victim claims, such as those involving catastrophic birth injuries or surgical negligence, or expanding our expertise in related areas like inquests or professional discipline.
6. Conclusion and Evaluation
The decision in Paul v Royal Wolverhampton NHS Trust has decisively reshaped the landscape for secondary victim claims. By drawing a clear line between "accident" cases and clinical negligence cases involving the progression of illness, the Supreme Court has prioritised legal certainty over the extension of liability to a wider class of claimants.
From the perspective of a defendant practitioner, this decision is logical and welcome. It halts the unprincipled and unpredictable development of the law, which Lord Steyn once described as "a patchwork quilt of distinctions which are difficult to justify" (White v Chief Constable of South Yorkshire Police [1999] 2 AC 455). It provides a clear rule that is easy to apply and which contains liability within what the court considered to be manageable bounds.
From a claimant perspective, however, the judgment appears harsh and arbitrary. The psychiatric harm suffered by a mother who watches her child die from a negligently undiagnosed condition is no less real or severe than that of a mother who witnesses her child die in a road traffic accident. The court’s distinction between an "accident" and the culmination of an illness can seem artificial to those who have suffered in this way.
While the emotional force of the claimants’ position is undeniable, I believe the Supreme Court’s decision was correct as a matter of legal policy. The law of tort cannot provide a remedy for every form of harm. The previous law on secondary victims in clinical negligence was becoming incoherent, with outcomes depending on fine and often unconvincing distinctions. By restricting claims to the "accident" model envisioned in Alcock, the court has introduced a necessary degree of certainty and control, even if this comes at the cost of denying compensation in some distressing cases. This difficult choice was, arguably, necessary to maintain the coherence of the law of negligence.
References
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792.
Page v Smith [1996] AC 155.
Paul and others v Royal Wolverhampton NHS Trust [2024] UKSC 1.
Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194.
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.
