Can I claim for psychiatric injury caused by witnessing the death of a close family member in distressing circumstances?
The Supreme Court, in its recent judgment in the conjoined cases of Paul, Polmear and Purchase and another v Royal Wolverhampton NHS Trust [2024] have now clarified this position.
For many years, Judges have had the challenging task of addressing claims made by secondary victims for psychiatric injury after witnessing the serious injury or death of a loved one, and balancing this with preventing the flood gates opening by potentially exposing Defendants to multiple claims arising from one negligent act.
The leading case of Alcock V Chief Constable of the South Yorkshire Police (1991) deemed that secondary victim claims can only arise where there is a close tie of love and affection between the primary and secondary victim, and the secondary victim has suffered psychiatric injury arising from the sudden and unexpected shock of the injury to, or death of the primary victim. The secondary victim must have physical proximity and be personally present at the scene or immediate aftermath.
The case of Alcock V Chief Constable of the South Yorkshire Police (1991) followed the Hillsborough Disaster in 1989. Several Claimants brought claims for psychiatric injuries having witnessed the disaster, whether that be in the stadium, on live television, or listening to the event on the radio. The Claimants were not successful in their claims, as the House of Lords found in favour of the Defendants, stating that a duty of care is not owed where a Claimant is not physically present or sufficiently proximate to the event in question. Further case law in 2013 (Taylor v A Novo) filled in the gaps Alcock failed to address, when a daughter was unable to claim for psychiatric injury having witnessed her mother die three weeks after an incident at work, as she did not have a close temporal connection to the initial incident.
The recent Supreme Court Judgement of Paul, Polmear and Purchase and another v Royal Wolverhampton NHS Trust [2024] UKSC, addressed secondary victim claims following clinical negligence. The three conjoined cases concerned an alleged failure by the Defendant to diagnose and treat the Claimant’s life-threatening condition which resulted in their death, in shocking circumstances, witnessed by family members.
The claims initially failed at the Court of Appeal, as it was bound by the test in Alcock (as above). The shocking event that gave rise to the psychiatric injuries was removed in time and space from the negligence that gave rise to it, as the Claimant’s deaths arose some years, months, and days after the negligence. Permission was granted to appeal to the Supreme Court.
The Supreme Court’s judgment clarified a number of aspects of the test applied, as well as suggesting that many previous cases have been wrongly decided. The judgment confirmed that the witnessing of an accident, or the immediate aftermath, is of the utmost importance to a secondary victim claim, and that the Court of Appeal has previously failed to consider the occurrence of an accident as material. The Supreme Court deemed an accident to be “an external event which causes, or has the potential to cause, injury”.
Secondary victim claims have historically had an insufficient focus on the question of whether doctors owe a duty of care to the family of patients. The Supreme Court provided clarity here, and stated that a doctor treating a patient has entered into a doctor-patient relationship, and this therefore does not cover a duty of care to the patient’s family and their health. Should it be the position that doctors were to be responsible for the patient’s family’s health, this would go beyond the role of hospitals and doctors today.
In conclusion, the Supreme Court deemed that a successful secondary victim claim can only arise from the secondary victim being ‘present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim’.
The Court did not expressly state a view in respect of accidents arising, and secondary victim claims being brought, in a clinical negligence context. However, the Court’s finding that doctors do not owe a duty of care to a patient’s family significantly limits the ability for successful secondary victim claims to be brought following events of clinical negligence.
Successful claimants will now need to prove not only physical proximity, but an assumption of duty of care by the doctor, to the family.
The Supreme Court’s judgment has effectively overturned previous clinical negligence claims, and as the law now currently stands, it is extremely unlikely that a secondary victim would be eligible to receive compensation following clinical negligence.
If you would like to discuss this article further or need help with any clinical negligence matter, please contact our clinical negligence specialists contact us today by calling 01484 821 500, email us at info@ramsdens.co.uk or fill out our online enquiry form and a member of the team will be in touch at a convenient time for you.
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.