New UK Supreme Court Ruling regarding Secondary Victims in Clinical Negligence Cases

Jodi Newton

The Supreme Court has today, on the 11^th January 2024, upheld the Court of Appeal’s order to dismiss the claims of secondary victims in Clinical Negligence cases in the matter known as Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1. Secondary victims are considered to be those who are not subject directly to potentially negligent medical treatment but are witnesses to family members suffering injury or death as a consequence of it. In the three cases at issue before the Supreme Court, all claims were by family members for psychiatric illness caused by experiencing such events.

The Law Previously

Historically, in this area it has been the case that a person is unable to make a claim for any effect that the death or injury of another person has had on them. That said, case law has developed such that witnesses to an accident resulting from negligence have been permitted to make a claim for personal injury. The landmark case in this area is Alcock v Chief Constable of South Yorkshire [1991] UKHL 5, [1992] 1 AC 310, which arose from the Hillsborough disaster and specified five ‘control mechanisms’ – the criteria to be met for a successful claim by a secondary victim. Importantly, material to the Supreme Court’s decision today is the requirement for both physical and temporal proximity to the accident.

To date, the question of whether this principle extends to cases of medical negligence has neither been addressed in legislation nor by the Supreme Court. Master of the Rolls, Sir Geoffrey Vos, in the Court of Appeal stated that, whilst he “can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury”, he was bound by the previous decision in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194. In that case it was held that, for such a claim by a secondary victim to succeed, the event and the negligence cannot be separate in time. It is this dichotomy that prompted the Master of the Rolls to leave the decision as to whether to depart from previous case law to the Supreme Court.

The Outcome

By a majority of six to one, the Supreme Court held that medical professionals owe a duty of care to their patients only and that witnessing the death of a close family member is not something doctors can be expected to prevent. Additionally, it was deemed that the claimant’s loved ones had not died in an ‘accident’. The Court gave varying definitions of the term but it can be encapsulated as 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”. It was further clarified that an accident is distinct from “medical crisis” such as occurred in these cases.

In effect, this ruling signifies an end to potential claims for psychiatric illness by secondary victims in clinical negligence cases. While this may bring clarity to the legal landscape, it also raises questions regarding the broader implications for victims of clinical negligence and their families. It could be argued that limiting the scope for secondary victims to claim compensation could hinder access to justice and overlook the profound emotional toll these incidents can have on the families involved.

The Wider Effect

While the decision has a restrictive impact on secondary victims in matters of clinical negligence, the scope for secondary victims of other accidents, such as a Road Traffic Accident, has potentially increased. The Court held that secondary victims in such circumstances no longer need to show that the incident was ‘objectively horrifying’, or that the injury suffered by the secondary victim need be caused by ‘sudden shock’. This leaves the requirements to be met as follows; presence at the time of the accident or its aftermath, witnessing the accident or its aftermath, and a close tie of love and affection with the primary victim.

In light of this development, should you continue to have queries regarding your potential claim as a secondary victim or are uncertain as to how this precedent may be applicable to you, please contact us.