Secondary Victim Claims

Nicholas Leahy

Secondary victim claims after Paul v Royal Wolverhampton

On 11 January 2024 the Supreme Court gave its decision in the cases of Paul v Royal Wolverhampton NHS Foundation Trust and the two linked cases of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed. All three are secondary victim cases in a clinical negligence context. The Supreme Court dismissed the appeals, so the claims failed.

The Court of Appeal decision

In 2022 the Court of Appeal found for the defendants in each case because it was bound by its earlier decision in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194. Vos MR said that, starting with a clean sheet, he could see why secondary victims in these cases ought to be seen as sufficiently proximate to the defendants to recover damages for their psychiatric injury.

What the Supreme Court decided

The Supreme Court held that Taylor v A Novo was correctly decided. It said the traditional rules for secondary victim claims, set out in Alcock, do not extend to a claimant who witnesses a medical crisis caused by negligent treatment, as opposed to an accident. It also rejected extra requirements that some courts had applied, including that the claimant must have witnessed a sudden shock or a horrifying event.

To claim as a secondary victim, a claimant must still show, among other things:

• a close tie of love and affection with the person who was injured or killed
• proximity to the accident or its immediate aftermath
• direct perception of it

Lord Burrows dissented. He would have found the defendants liable in all three cases.

What this means for families

A relative who witnesses a medical crisis caused by negligent treatment will generally not be able to claim as a secondary victim. That does not necessarily mean there is no claim arising from what happened. Which claims are available depends on the circumstances, so it is worth speaking to a specialist clinical negligence solicitor.

How we can help

The Clinical Negligence team at Osbornes Law can advise on potential secondary victim claims.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811