Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence

James Marwick

Case Note on Paul & Anr v Royal Wolverhampton NHS trust [2020] EWHC 1415 (QB)

In November 2019 Master Cook had struck out the secondary victim claims brought by the Claimants as a result of witnessing the heart attack and subsequent death of their father some 14 ½ months after the alleged negligent omission of the Defendant Trust.   This was on the basis that the claims were bound to fail on a strict application of binding authorities including Taylor -v- A. Novo [2014] QB 150 because the shocking event in question was not proximate in time to the breach of duty. In Taylor v A. Novo the Court of Appeal had dismissed a secondary victim claim where the claimant’s mother had been injured by a falling stack of boards due to the negligence of a colleague at work and had subsequently collapsed and died at home as result of deep vein thrombosis secondary to the accident. The claimant witnessed her mother collapsing at home but not the accident itself.  Her claim failed on proximity because the death of the claimant’s mother was not the relevant shocking “event”, which was the accident itself, and so the control mechanisms were not satisfied.

Mr. Justice Chamberlain has allowed the appeal against the strike out of the claims in a judgment handed down today.  It is an important decision.  This is not least because a number of cases had been stayed pending its outcome but, subject to any appeal (and this case may well receive further judicial attention), it represents an incremental extension of the recognised categories of claimants who can succeed as a secondary victim under the existing control mechanisms especially in a clinical negligence context.  It will be welcome news to claimants albeit that the Claimants in Paul will still need to establish that their father’s heart attack was the first time the damage caused by the Defendant Trust’s negligence was manifest and the Judge emphasized that relaxation of the secondary victim control mechanisms in a broader sense will require Parliamentary intervention or consideration by the Supreme Court.

The Judge concluded that on a proper reading of Taylor v A. Novo, its ratio was that where a defendant’s negligence resulted in an “event” giving rise to injury in a primary victim, a secondary victim could only claim for a psychiatric injury caused by witnessing that event rather than a consequential discrete event but that there was nothing to suggest that there would be any reason to deny recovery simply because the accident or event occurred months or years after the negligence which caused it.

Accident cases were paradigm cases where the event was the “accident” and not a later consequence of it (as on the facts of Taylor v A Novo) but the authorities supported a finding that an “event” which was internal to a primary victim (such as a heart attack) but external to a secondary victim was capable of meeting the definition of a shocking “event”:

“Here, unlike in Taylor v A. Novo, there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack on 26 January 2014. On the facts pleaded, it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul’s death. The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and 9. The fact that the event occurred 14 ½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an “accident” in the ordinary sense of the word, but rather an event internal to the primary victim. In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete, Taylor v A. Novo does not preclude liability.”

A claimant would still need to establish that the alleged “event” was the first occasion on which damage caused by the index negligence had become manifest:

“I would therefore hold that the principle in Taylor v A. Novo is no bar to recovery in this case if it is shown that Mr Paul’s collapse from a heart attack on 26 January 2014 was the first occasion on which the damage caused by the hospital’s negligent failure to diagnose and treat his heart condition became manifest.”

The Judge in allowing the appeal ended his judgment by reinforcing the fact that it will not always be straightforward for a claimant to establish that the “event” in question  was sudden, unexpected and shocking (citing cases such as Ronayne) and that any modification of the existing control mechanisms would be a matter for Parliament or the Higher Courts.  For now though this will be welcome news to claimants.  It remains to be seen whether this case will see further consideration from the appellate courts.  The law on secondary victims, and where the line is drawn between primary and secondary victims, is overdue for a detailed review given it is well recognised that there is a plethora of irreconcilable decisions which often give rise to arbitrary outcomes.

James is currently engaged in several secondary victim cases for both Claimants and Defendants in personal injury and clinical negligence contexts, including cases which are pushing against the limits of the existing law.  Please do not hesitate to contact him for any further information.