Isabelle Mayhead, Paralegal, in our Serious Injuries team discusses the recent Supreme Court judgment.
On Thursday 11 January, the Supreme Court handed down judgment, dismissing the appeal of the claimants, in the case of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 and the conjoined cases of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed. This had been a long-fought case concerning the ability of secondary victims to claim for psychiatric injury in cases where they have witnessed the death or serious injury of a loved one as a result of clinical negligence.
The criteria in consideration was stringent from the outset, but unfortunately for secondary victims in these cases, the court ultimately decided that in most situations they cannot bring a claim. The criteria originated from the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (“Alcock”); a secondary claimant must have been present at the scene of the accident (or its immediate aftermath), they must have witnessed the accident, and they must have a close tie of love and affection with the primary claimant (the injured person).
The Supreme Court made it clear in the judgment that, as outlined in Alcock, the common law does not generally compensate for the mental anguish of losing a loved one, and as such, the law is opposed to compensating third parties for the impact of injuries to other people. Following this general policy, the court explained that “unless the exception defined by the Alcock line of authority is to become a general rule”, “a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds. Wherever the line is drawn some people who suffer what may be serious illness in connection with the death or injury of another person will be left uncompensated”.
The line is drawn here between secondary victims of clinical negligence claims and secondary victims of personal injury claims such as road traffic collisions or accidents at work. The court confirmed that established case law from Alcock still applies to those who witness the shocking injury of a loved one as a result of what is termed an ‘accident’. With regards to assistance to secondary victims in cases of personal injury, the court confirmed that the requirement of a claimant to experience “sudden shock” was an “unfortunate wrong turn which these appeals enable us to correct”.
The court further clarified that: “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.”
The term ‘accident’ is defined by the court as a term used “in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means”. Accordingly, a question remains over whether a secondary victim can claim where the clinical negligence can be defined as an ‘accident’, and the court has indicated that “the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.” In this context, the court provided an example of a scenario in which a doctor mistakenly injects a patient with a wrong dose or drug, resulting in an extreme adverse reaction witnessed by a close relative.
This clarification of the law relating to personal injury claims is a welcome simplification of strict existing requirements, which will make it easier to establish a secondary victim claim following a road traffic collision. The rejection of the additional restrictions imposed over the years to establish “sudden shock” or for the event to be sufficiently “horrifying” is welcome news to personal injury practitioners.
In contrast, it will be virtually impossible to successfully bring a secondary victim claim in a clinical negligence setting. The Supreme Court did not address certain hypothetical scenarios which might be described as an “accident” in a medical setting, rather leaving such issues to be considered as and when they factually arise. However, I suspect we might have a long wait ahead of us before the boundaries of what constitutes an “accident” in a clinical context is before the Court, especially when considered against the emphasis in the Supreme Court Judgment on policy considerations and the need to limit secondary victim claims in a clinical negligence setting.
