Supreme Court declines to extend secondary victim claims

In its first judgment of 2024, the UK Supreme Court dismissed the claimants’ appeals in the conjoined cases of Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed and declined to extend the class of secondary victims.

What is a secondary victim?

A primary victim is someone directly involved as a participant in an incident/exposure who suffers injury. A secondary victim suffers psychiatric injury not by being directly involved in an incident but by witnessing an injury being sustained by a primary victim or fearing injury to a primary victim.

Even before this decision, the courts had limited the situations in which a duty of care is owed by a defendant to a secondary victim. In order to qualify as a secondary victim, there had to be sufficient ‘proximity’ between the primary and secondary victims in that there had to be :

• a close tie of love and affection between them
• proximity in time and space to the accident or its immediate aftermath and
• the psychiatric injury suffered must have been caused by the secondary victim’s direct perception of the event or its immediate aftermath.

Background to the appeals in Paul, Polmear and Purchase

Mr Paul suffered a fatal heart attack in front of his 2 daughters whilst out shopping. It was agreed that this had been caused by atherosclerosis which had not been detected when Mr Paul had been admitted to the Defendant hospital 14 months earlier. The fatal event was the first indication of his significant coronary heart disease.

Six year old Esmee Polmear died in July 2015 in front of her parents, having been taken unwell on a school trip. She had been showing symptoms for some time and it was her parents’ case that, had she been correctly diagnosed with pulmonary veno-occulsive disease in mid-January 2015, she would not have died when she did.

Evelyn Purchase died in April 2013 from severe pneumonia, aged 20. Her GP had failed to diagnose her condition 3 days earlier. Her mother found her lying motionless in bed holding a telephone and was unable to resuscitate her.

All three cases were unsuccessful at first instance and in the Court of Appeal.

The key issue in the appeals to the Supreme Court was whether the category of secondary victims should be extended to include cases where the claimant’s injury is caused by witnessing the injury/death of a close relative, not in an accident but from a medical condition which the defendant had negligently failed to diagnose and/or treat.

The Supreme Court decision

Whilst recognising the tragedy and shocking circumstances surrounding the deaths of Parminder Singh Paul, Esmee Polmear and Evelyn Purchase, the Supreme Court concluded that ‘in the perception of the ordinary reasonable person, such an experience is not an insult to health from which we should expect doctors to take care to protect us, but a vicissitude of life and part of the human condition’. By a majority of 6 to 1, Supreme Court declined to extend the category of secondary victims, concluding that “a claimant cannot recover damages for personal injury as a secondary victim unless the claimant witnessed an accident (or its immediate aftermath)”.

The use of the word “accident” is somewhat grating and it appears the Supreme Court means an ‘incident’ or ‘event’ caused by negligence. Witnessing the event is pivotal for a secondary victim claim to succeed. The Supreme Court saw no justification for the accident to be ‘horrifying’ but it must be sudden or unexpected and must, by objective standards, be shocking enough to cause a psychiatric condition such as post-traumatic stress disorder.

The Supreme Court also held that the time period (short or long) between the negligence and the witnessed event caused by it does not affect the defendant’s liability. By way of illustration, the court held that, if a mother sees masonry fall onto her child’s head due to an architect’s negligence in building or design, the mother could claim as a secondary victim if she suffers a recognised psychiatric injury as a result. It is difficult to envisage such a situation arising in a medical negligence or occupational disease context.

The decision not to extend the category of secondary victims in the context of medical negligence was made for policy reasons. The Supreme Court was not prepared to extend a medical practitioner’s duty of care to a patient’s family who witness a medical crisis –‘To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the scope and nature of their role.’

Are secondary victim claims arising from an accident ever possible in a medical setting or in occupational disease claims ?

In most medical negligence cases, there is no accident/event and the circumstances of the negligence are occult. By extension, the same can be said of occupational disease claims caused by negligent exposure to a noxious agent. The Supreme Court made clear in its judgment that this question did not arise in the appeals before them (as none of them involved an accident) and is best left to be addressed in a case where an accident has arisen on the facts . Circumstances in which liability might be established are likely to be limited and it appears the Supreme Court has opted for rough justice but which provides clarity.

The full judgment may be accessed here.

How can we help?

If you would like any further information on the judgment, please contact Donna Makin.