Secondary Victims – A New Era

In Brief

With the judgment of the Supreme Court in the case known as Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1 (also deciding Polmear & Anor v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed) comes the dawning of a new era in secondary victim claims. Secondary victims of clinical negligence are left with little if any remedy; secondary victims of traditional accidents face fewer obstacles and arguably more scope for recovery of compensation than ever before.

The claims in the appeals all arose out of the admitted or alleged negligence of doctors, which resulted – days or months later – in the shocking and unexpected death of the claimants’ loved ones: a young daughter, an adult daughter, a father - before their eyes. All claimants were left traumatised to the point of psychiatric illness by what they witnessed.

The Supreme Court (by a majority, Lord Burrows dissenting) held that the claimants were not entitled to compensation for that psychiatric injury as their loved ones had not died in an “accident” as such, and because doctors in these circumstances did not assume responsibility for their patients’ loved ones.

In doing so, the Supreme Court confirmed the entitlement to compensation of those who witness their loved one die, injured or imperilled in classic accidents – and took the opportunity to remove some of the restrictions which had been thought to apply in these cases: requirements for the incident to be “objectively horrifying” and for the psychiatric illness to be caused by “shock” – whilst also clarifying the scope of the so-called “aftermath exception”.

The Supreme Court clarified that the requirements for entitlement to compensation as a secondary victim are now simply:

-????????? presence at the scene of the accident (or the immediate aftermath)

-????????? witnessing the accident (or the immediate aftermath)

-????????? a close tie of love and affection with the primary victim

So what is an “accident”? It is not a term used with significance elsewhere in tort law.? The Supreme Court described it variously as:

“an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims” (para 52)

“an external event which causes, or has the potential to cause, injury; it is not the injury, if there is one, caused by that event.” (para 105)

“a discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place, in a particular way” (para 108)

The majority distinguished this from the events in the cases in question, which were described as “medical crises”: the suffering or death of a relative from illness.

They confirmed that it is irrelevant when the breach of duty took place as compared to the accident: in the Court of Appeal the defendants had argued that a lapse of time between breach and “event” was fatal to a secondary victim claim. This argument was not pursued before the Supreme Court and was explicitly rejected by the Panel.

Also rejected was the concept that the secondary victim’s illness must be caused by “nervous shock”, terminology which is obviously outdated and does not reflect modern thinking about psychiatric illness. It is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) to show that there is a causal connection between witnessing the event and the illness suffered. It is not necessary to demonstrate the neurological or psychological mechanism by which the illness was induced.

Bound up with this requirement was the idea, crystallised in Ronayne, that the event in question must be “horrifying by objective standards”. This has led to invidious conversations with clients who have had to be told that their experience of witnessing their loved one’s death was not sufficiently horrifying to feel confident of recovering compensation. No longer. The majority described this as “an unfortunate wrong turn which these appeals enable us to correct” and confirmed there was no such requirement. It of course is necessary to show that injury to the secondary victim was reasonably foreseeable – a minor accident in which the loved one suffers no more than (and was in danger of no more than) cuts and bruises may not fulfil this criteria – but it seems unlikely that this will be a battleground in many cases.

The leading judgment also clarified the scope of “the aftermath exception” – the principle that means that witnessing the aftermath of an accident, rather than the accident itself, can be the basis for a secondary victim claim.? They commented that there had been an extension of the “immediate aftermath” to a period far beyond that contemplated in McLoughlin (in which the aftermath exception was established), and determined that the aftermath exception be returned to the confines set out in McLoughlin, inviting lawyers to heed that the facts in McLoughlin – seeing one’s family members at the hospital two hours after the accident but, importantly, in the same condition as they would have been at the roadside - was at the margin of recoverability.

So what is left for the loved ones of victims of clinical negligence? The leading judgment left open the possibility that an “accident” could arise in a medical setting and mentioned an example mooted in submissions as a possible example of this: a doctor injecting a patient with a wrong drug, inducing an acute adverse reaction. However they stopped short of holding that any such claim could succeed, as the question did not arise in the appeals under consideration. The writers consider there is very limited scope for medical incidents to be properly characterised as “accidents” – an unexpected and unintended event causing injury (or risk thereof) by violent external means. The common delays in diagnoses, missed diagnoses, failures to properly consent will be impossible to characterise as such “accidents”.? One potential example which comes to mind is the classic shoulder dystocia case where the midwife or obstetrician exerts excessive force on the baby’s head, in the presence of the delivering mother’s birth partner. ?It is difficult to think of many more. Whilst surgery involves the infliction of an external force, it will rarely if ever be witnessed by a loved one, taking place in theatre. Injections, intubations, cannulas can all go wrong and potentially in a way that one would naturally characterise as an “accident” but the writers would query whether this could properly be deemed “violent”. Cases involving clinical negligence will need to be considered on their facts but there will be very few where a secondary victim claim can be satisfactorily presented.

And this is not the only difficulty for the loved ones of victims of medical negligence. Whilst recognising that there are some circumstances in which the duty of care owed by a medical practitioner may extend beyond the health of the patient to other people, the majority said “we are not able to accept that the responsibilities of a medical practitioner… extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative.” They considered the death of a close family member from disease to be a vicissitude of life which is part of the human condition.? It is not clear from the judgment whether these comments can be reconciled with the possibility of a claim for compensation arising out of witnessing a “medical accident” as opposed to a “medical crisis”.

In Detail

The law on secondary victims has changed significantly. Novo has been approved, Walters overturned, and the appeals in Paul, Polmear, and Purchase dismissed with those claims standing struck out.

The Supreme Court has used these appeals as an opportunity to resume the search for principle in secondary victim claims ?58, in rejection of Lord Hoffman’s famous lament in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, at 511B.

The law as it now stands is set out in the lead judgment of Lord Leggatt and Lady Rose, with whom Lord Briggs, Lord Sales, and Lord Richards agreed. The decision was agreed with by Lord Carloway in his judgment, with whom Lord Sales also agreed. Lord Carloway differed from the lead judgment only in that he clarified the application of the decision to Scots law. Lord Burrows dissented.

Two reasons were given: (1) a secondary victim claim requires a claimant to witness an accident, as opposed to witnessing the occurrence of injury; and (2) doctors do not owe a duty to protect family members from injury caused by exposure to the traumatic experience of witnessing death or manifestation of disease or injury in a relative.

Background

Secondary victim claims arise from the scenario where someone witnesses the death, injury or imperilment of a loved one, and develops psychiatric injury as a result.

The starting point is that no person can recover damages in English law from injury or death caused to another. (Note, the same cannot be said of Scots law 252-256). Instances of non-recoverability of psychiatric injury are reflective of this starting point, not of any distinction in the recoverability of damages between psychiatric harm and physical injury 48.

However it has long been recognised that there is an exception to this where injury is caused by witnessing the death, injury or imperilment of a loved one, delineated by what have become known as “control mechanisms”.? ?In such cases, compensation for injury can be claimed by both primary and secondary victims. A primary victim is directly injured in the accident and claims compensation for the same. A secondary victim suffers compensable (usually psychiatric) injury where it is induced by fear of physical injury to the other (who may themselves be a primary victim, or may instead have escaped injury), with whom they have a close tie of love and affection.? (Where a person suffers injury (usually psychiatric) caused by fear of physical injury to themselves rather than to another, they are a primary rather than secondary victim.)

The usual example is where a family member witnesses an accident in which a loved one is injured or killed, and develops psychiatric illness as a result. Following the Hillsborough disaster, the House of Lords in Alcock ruled upon the claims of various relatives of victims of the disaster and provided some clarification of the law relating to secondary victims, whilst leaving plenty of scope for debate amongst lawyers. The application of that law to secondary victims of clinical negligence remained opaque, with a series of High Court and Court of Appeal decisions which were difficult to reconcile.

These appeals provided the first opportunity for the Supreme Court to consider the relevant law in the context of clinical negligence. The various defendants had applied for strike out of the claims, on a variety of bases. The cases were consolidated by the Court of Appeal, which went on to find that such claims could not succeed in light of the decision in Taylor v Novo, whilst expressing doubt as to whether that case had been correctly decided and indicating that were the issue free from binding authority they would have taken the contrary view.

The Law as determined by the Supreme Court

In the appeals to the Supreme Court, the defendants argued that in order to qualify for compensation a secondary victim had to witness “an external, traumatic event, in the nature of an accident or violent happening” or alternatively an event encompassing both the breach of duty and its consequence; and (initially at least) that a lapse of time between breach and consequence defeated any secondary victim claim.

The Court itself, shortly before the hearing, raised a concern as to the scope of a doctor’s duty of care toward a secondary victim, based on an assumption of responsibility to a patient.

In its judgment the Court favoured the need for an “accident”, and remained concerned about extending a doctor’s duty of care beyond the health of a patient.

A secondary victim claim may now arise where:

• an accident was caused by D’s breach of duty;
• said accident caused the death, injury or imperilment of a ‘primary victim’ (B);
• the potential ‘secondary victim’ claimant (C) has a relationship of proximity to the tortfeasor (D), such that D owes a duty of care to C – this being established by satisfaction of the three key requirements ?141:

o?? C is present at the scene of an accident or its immediate aftermath;

o?? C witnesses the accident or its immediate aftermath;

o?? C has a close tie of love and affection with B;

• C suffers a recognised psychiatric injury as a result of what they witnessed;
• C’s psychiatric injury falls within the scope of the duty of care owed by D; and
• it was reasonably foreseeable that witnessing the accident (or its immediate aftermath) would cause injury – psychiatric or physical - to C.

It is not required that:

• the accident is close in time to the negligent act or omission that caused it ??94-96;
• B suffered any injury in the accident;
• A’s injury was caused by a ‘sudden shock to the nervous system’ ??71-74;

or

• the accident was ‘horrifying’ ?75-78.

An “accident” is “an unexpected and unintended event which cause injury (or a risk of injury) by violent external means to one or more primary victims” ?52. It is “an external event which causes, or has the potential to cause, injury” ?105 and “a discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place, in a particular way” ?107.

It is insufficient for A to witness injury alone - they must witness the accident itself: “An accident is an external event which causes, or has the potential to cause, injury; it is not the injury, if there is one, caused by that event.” ?105.

Lord Leggatt and Lady Rose justified this distinction on the bases that:

(1)?? attaching liability to an accident as such lends certainty to the law as an accident is a discrete event: whether a claimant “was present at the scene and whether they directly perceived an accident are in most cases questions which admit of a clear and straightforward answer” ?108;

(2)?? witnessing an accident involving a loved one is likely to be disturbing and upsetting, notwithstanding whether the loved one is injured. If a line is to be drawn between non-compensable injury consequent on bereavement, and compensable injury, it is intelligible to justify that line between those who witness an accident and those who do not ?109;

(3)?? it avoids the need to distinguish between primary and secondary victims in accidents where it is unclear whether a claimant’s injury was caused by fear for their own safety or fear for the safety of a loved one ?110;

(4)?? recovery of compensation for witnessing injury alone cannot be justified on this same basis, as it is not possible, in the absence of an accident, for a claimant to suffer harm through fear for their own safety or bodily integrity ?114.

(5)?? it avoids the need to pinpoint the moment that constitutes an “event” where an injury or disease caused by negligence leads to symptoms that are suffered over a period of time ?112;

(6)?? it avoids the need to determine the degree of the severity of symptoms that are sufficient to give rise to a secondary victim claim ?113.

The majority approved the decision in Taylor v Novo (involving an accident at work which caused immediate but modest injury to the claimant’s mother, followed by her sudden and unexpected death 3 weeks later witnessed by the claimant daughter. The claim was dismissed on appeal to the Court of Appeal), finding that the basis for that decision was simply that the claimant had not witnessed the accident.

They clarified that any lapse of time between breach of duty and accident was irrelevant to a secondary victim claim. ?96

There need not be the actual death of or injury to the loved one – imperilment in an accident is enough. It is unclear whether it is sufficient for a claimant to reasonably believe that their loved one has suffered death, injury, or imperilment where that person has not in fact been put in danger. The reasoning in Hambrook v Stokes [1925] 1KB 141 was approved in broad terms ?110, but the issue of falsely (but reasonably) believing a loved one is imperilled was not expressly considered.

The “immediate aftermath” exception survives this judgment, but was expressly tightened. Lord Wilberforce’s description in McLoughlin was approved:

“McLoughlin (a) was “upon the margin of what the process of logical progression would allow” (p 419G) and (b) depended critically on the evidence that, when the claimant came upon the members of her family, “they were in the same condition [as they had been at the roadside], covered with oil and mud, and distraught with pain” (p 419F).” ?108.

It follows that any attempt to argue for a generous interpretation of the “immediate aftermath” looks doomed to fail.

Two further significant changes arise as corrections to the law’s previous “unfortunate wrong turn[s]” ?78.

The Supreme Court rejected the requirement for a claimant to prove that their injury was caused by ‘a sudden shock to the nervous system’ ??71-74.

“With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.” ?74.

Nor is a claimant now required to prove that the accident in question was ‘horrifying’ ??75-78.

“It is of course necessary for a claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause her injury. If, for example, a claimant with a history of psychiatric illness develops such an illness after witnessing a minor accident in which his wife sustains some cuts and bruises, his claim might fail that test. But we can see no justification for super-imposing an additional, separate requirement that the event witnessed by the claimant was “horrifying”.” ?75.

The Law as Applied to Clinical Negligence

The majority held that a death, injury or imperilment of a loved one resulting from clinical negligence is not analogous to the same resulting from an accident.

They concluded upon reviewing the authorities that in no other case was explicit consideration given to the question as to whether the same principles apply where there is no accident.

The considerations above, justifying recovery of compensation in the circumstances of an accident, do not apply to a medical crisis ?115.

Further, the Court recognised a policy consideration in that where a primary victim has suffered life-threatening injury, patients and their families will likely wish to spend the patient’s last moments together. Decisions about end-of-life care ought not to be complicated by whether such moments could give rise to a cause of action for the family members, i.e. if the patient’s death was caused by negligence and witnessing their family member’s passing led to a person suffering psychiatric injury ?117.

The Court left open the possibility of a successful secondary victim in the event of an “accident” in a medical setting – potentially infecting a patient with the wrong drug, inducing an acute adverse reaction witnessed by a close relative – but declined to rule on whether such a claim could succeed.? ?123

Earlier Authorities

The majority held that Walters – the one reported decision of a higher court in which a claim by a secondary victim of clinical negligence succeeded, involving a mother by her baby son’s bedside while he deteriorated over 36 hours - was wrongly decided and should not be followed: it did not involve an “accident” and had this defence been raised the claim should have failed. ?120-121

Equally, Sion, Shorter and Ronayne should have been dismissed on this basis, and Galli-Atkinson, with its interpretation of the “aftermath” (extending to a visit to the mortuary) should not be followed. ?122

A Doctor’s Duty of Care

The majority then went on to “test” their conclusions against general principles governing the existence and scope of duties of care owed by medical practitioners.

They noted the essentiality of establishing a duty of care owed by the defendant directly to the claimant: there may be no “primary victim”; it is not the case that the duty owed to a secondary victim is in some way parasitic upon the duty owed to the primary victim.?

The duty of care between service providers and their clients (including doctors and their patients) is often characterised as arising from an ‘assumption of responsibility’: the client (patient) relies on the expertise of the service provider (doctor), who assumes a responsibility to perform the services with reasonable care and skill. ??131-132.

The scope of the duty owed depends on the purpose for which the service is provided, ?133 (following Meadows v Khan [2021] UKSC 21, [2022] AC 852).

Doctors generally do not assume responsibility for the health of those who are not their patients. There are limited circumstances in which doctors will owe a duty of care to non-patients. Such a duty may arise from statute, or for the protection of public health in cases concerning infectious disease ??134-135.

However, the majority held that no such duty was owed to one witnessing a loved one’s medical crisis:

“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. 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 nature and scope of their role.” ?138

The possibility of a doctor owing a direct duty of care to a member of a patient’s family in the event of a medical accident, such as to entitle them to compensation as a secondary victim, has not been ruled out entirely. Whether a sufficient relationship of proximity exists depends on the facts of the case. The likelihood of the presence of the patients’ family member at the moment of the patient suffering injury was put forward as an example of a relevant fact. Distinction was drawn between Paul (injury outside of hospital some months after the negligence) and Purchase (claimant mother present at allegedly negligent medical consultation; injury days later), the latter being an example where the harm suffered by the claimant was a more direct and obviously foreseeable consequence of the defendant’s alleged negligence.

Other relevant factors include: “the extent of the control which a doctor may be seen as having over the risk of injury to members of the patient’s family and the directness of the causal link between the doctor’s negligence and the materialisation of that risk” ?137.

They concluded,

“We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of injury in their relative. 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 nature and scope of their role.” ?138

Lord Burrows Dissenting

Lord Burrows respectfully disagreed with the majority.

He was the Law Commissioner in charge of the 1998 Law Commission report which recommended substantive changes to the law on secondary victims, to significantly loosen the restrictions. He noted that those recommendations were not accepted by the Government, who preferred to leave the courts to develop the law.? These appeals were the first coming before the highest court since then. ?145-148

He preferred the submissions of Henry Pitchers KC and David Tyack KC above those on behalf of the other parties, and noted that the Court of Appeal seemed to share his view. ?177, 198

He considered that the death (or serious illness) of the primary victim should be treated as the relevant event, and on this basis the various control factors for secondary victims were satisfied. ?199

He felt that this was simply applying the existing law to new facts; but if this was in fact an incremental development of the law then he felt this was justified. ?201-202

He recognised that to insist on an “accident” as such is to block off medical negligence as an area where, subject to “possible rare exceptions”, there can be no liability for secondary victims, and felt this was not an attractive approach. ?207, 249

He considered that secondary victim claims are, in some respects, derivative of primary victim claims – for example the standard of care owed to the secondary victim will be the same as the standard of care owed to the primary victim – and that the secondary victim should be able to derivatively rely on the assumption of responsibility by the doctor towards their patient. ?220

He agreed with the majority that a lapse of time between the breach of duty and the accident, injury or death was not a bar to recovering compensation. ?228

He was critical of the decision in Novo and considered that it should be overruled. ?242

He agreed that the requirements for what is witnessed to be “horrific” or shocking” are unwarranted and unnecessary – whilst acknowledging that the point did not arise in the appeals under consideration and no submissions had been heard on the point. ?248

Lord Carloway and Scots Law

Lord Carloway noted some differences between Scots law and that of England and Wales but agreed with the leading judgment, noting that if Scots law had been applied the same result would have been reached. ?253

Conclusion of the Appeals

The events that gave rise to the injuries suffered by the claimants in the present cases were determined to be the witnessing of “medical crises” rather than accidents (albeit with the express intention that the same not be relied upon as a term of art ?53). Accordingly their claims could not succeed. Further, it was determined that no duty of care was owed by the various defendants (two NHS Trusts and one GP) to the respective claimants, such that the claims were also bound to fail on this basis.

The three appeals were dismissed, and strike out of the claims consequently upheld.

There is little, if any, scope for secondary victims of clinical negligence to recovery compensation – difficult news for those on the claimant side but welcome news for doctors. For secondary victims of accidents, on the other hand, the law has been significantly simplified and clarified – helpful to everyone practising in this area.

No5’s Esther Gamble and Oliver May will presenting a short webinar to discuss the outcome of the Judgment on Friday 12th January from 9:00am – 9:30am. To register click here.

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