Secondary victim conjoined appeal moves the goalposts for claims
New case law has changed the scope for successful claims for secondary victims. It’s an unwelcome step for many, but does clarify some grey areas and could open the doors to different types of secondary victim claims. Here I look at the criteria for secondary victims.
What is a secondary victim?
A secondary victim is an individual who suffers psychiatric harm not by being directly involved in an incident but by witnessing an incident and either seeing injury being sustained by a primary victim or fearing injury to a primary victim.
The law
The landmark case of Alcock v Chief Constable of South Yorkshire Police [1992] which followed after the Hillsborough football stadium disaster established certain criteria for secondary victim claims including:
- A close tie of love and affection with the immediate victim.
- Proximity to the incident or its immediate aftermath in both time and space.
- Direct perception of the incident or its immediate aftermath (rather than hearing about it from a third person).
- The psychiatric injury must arise from a sudden shock to the nervous system.
By using this criteria, many victims have brought successful claims in recognition of their psychiatric injuries which are determined to have been caused by the direct witnessing of injury to their loved one.
However, in another case – Taylor v Novo (UK) Ltd [2013] the claimant’s mother had been injured at work because of her employer’s negligence, and then unexpectedly died three weeks later in front of her daughter. Her daughter suffered psychiatric harm. But the Court of Appeal concluded that because the daughter was not present at the workplace accident or its immediate aftermath, she could not bring a claim.
Whilst this reasoning around proximity can be applied neatly to claims arising from primary events like road traffic collisions for example, what about in the context of medical negligence claims where the secondary victim is not present when the medical negligence takes place, but only later when witnessing the horrific consequences?
Recent developments
In January 2024, there was a significant development in secondary victim claims following the Supreme Court’s long-awaited judgment in three conjoined appeals (referred to collectively as “Paul” in this blog).
These cases all related to psychiatric illness caused by witnessing the tragic death of a loved one where the victim’s death was allegedly caused by the defendant’s earlier clinical negligence.
In Paul v Royal Wolverhampton NHS Trust, the claimants were daughters who witnessed the death of their father who suffered a cardiac arrest and died.
In Polmear v Royal Cornwall Hospitals NHS Trust, the claimants were parents who witnessed their daughter’s health gradually deteriorate and ultimately die.
In Purchase v Ahmed, the claimant was a mother who returned home and found her daughter dead in bed. The claimant later found voicemails from her daughter left moments before she arrived home, which consisted of the sounds of her dying breaths.
All three claimants lost their original cases, with the Court of Appeal citing the Novo workplace accident case I mentioned above.
The crux of the ‘Paul’ judgment was that claims for psychiatric harm can’t be brought when they didn’t happen at the time of the original negligence, accident or horrific event.
The claimants were given permission to appeal this decision at the Supreme Court. Essentially, the issue for the Supreme Court to consider was whether an individual can make a claim for psychiatric injury caused by witnessing the death of a loved one which was as a result of earlier clinical negligence.
The Supreme Court upheld the Court of Appeal’s decision by a majority of 6 to 1 with the main conclusions being:
- Whilst medical professionals owe a duty of care to their patients, that duty does not extend to protecting members of a patient’s family from witnessing their death, injury or ‘medical crisis’ caused by a condition they negligently failed to diagnose or treat.
- A claimant in a secondary victim claim must witness an accident. Suffering illness because of witnessing a death or medical crisis brought about by an untreated condition does not constitute an ‘accident’. It is the accident itself and not the injury that caused the accident which must be witnessed.
- An accident is likely to be a ‘discrete event’, “which happens at a particular time, at a particular place, in a particular way”.
In practice
The Supreme Court’s decision means bringing a successful secondary victim claim in the medical negligence context is now exceptionally difficult. They did not provide hypothetical examples of situations which constitute an ‘accident’ sufficient for a secondary victim claim in a medical context, saying it would be better to address points in the context of a live case when they arise.
Examples of secondary victims that Bolt Burdon Kemp LLP have represented include:
- A father who witnessed the death of his son following his negligent delivery
- A mother whose son’s negligent delivery caused him to suffer a severe brain injury and subsequently die five days later.
- A husband whose wife died after undiagnosed cardiac issues which should have been identified.
- A mother whose newborn son had to have his hand amputated due to negligent treatment he received.
- A father who witnessed the shocking events immediately surrounding his son’s birth in which he suffered sudden and unexpected catastrophic brain injury.
None one of the claimants above would now be able to bring a successful secondary victim claim following the Paul judgment.
Despite being unwelcome news to secondary victims in clinical negligence claims, the judgment considers case law which has followed Alcock and provides some clarity. It will no longer be necessary for claimants to prove their injury was caused by “sudden shock to the nervous system” and was a sufficiently “horrifying event”. This clarification of the Alcock criteria may open doors to more secondary victim claims in other circumstances, such as personal injury.
Read my colleague Olivia Boschat’s opinion on this in the Law Gazette, here.
