• GL
Choose your location?
  • Global Global
  • Australian flag Australia
  • French flag France
  • German flag Germany
  • Irish flag Ireland
  • Italian flag Italy
  • Polish flag Poland
  • Qatar flag Qatar
  • Spanish flag Spain
  • UAE flag UAE
  • UK flag UK

Door closes for secondary victims in clinical negligence claims

11 January 2024
Vicki Swanton considers the implications of today's important Supreme Court decision in Paul and Another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) + co-joined appeals

What duty is owed by a healthcare practitioner?

The context

In Paul [2024] UKSC 1 the Supreme Court considered whether the rules governing claims by secondary victims arising from negligent "accidents" could ever apply in a medical setting. Their conclusion was essentially no, but read on!

The Background to Nervous Shock or Bystander Claims

To reference the principles that the Supreme Court were considering please see our earlier article:

Setting the scene for secondary victim or bystander claims

The Facts

The 3 cases considered by the Supreme Court today involved patients who died as a result of clinical negligence where their death (or immediate aftermath) was 'witnessed' by their loved ones who claimed psychiatric injury as a result of  that shocking event. Their claims in the lower courts were unsuccessful and many expected that the Supreme Court would be sympathetic and find a route to award them damages.

In fact, the Supreme Court dismissed all 3 appeals

The conclusion reached was that not only could the claimants in the 3 cases before the Supreme Court not recover damages but from this point onwards, nor could any claimant where the primary victim was the subject of negligent clinical care. The approach taken was to go back to basics and consider the duty of care owed by clinicians and the extent of it.

In summary, the scope of a doctor's duty was identified as (save for in very limited circumstances) being restricted to providing an appropriate standard of care to their patient. It was not appropriate to expand that duty to members of the patient's close family who could be psychologically affected by witnessing the effects upon their loved one, of a disease that the doctor should have diagnosed.

The message from the Supreme Court is therefore; A healthcare practitioner's primary duty is to their patient. Where they fail in that duty (subject to establishing such failure caused an injury compensatable via damages) the patient will be entitled to damages. The line of authorities that previously allowed a 'bystander' or secondary victim to recover damages should not have been applied to clinical events but restricted only to incidents where there has been an accident. 

This decision means

The Supreme Court has shut the door for secondary victims to recover damages where the negligence to the primary victim has occurred in a clinical context.

  • Claimants will need to revisit what they can now realistically allege
  • Defendants should review reserves, offers and issue invitations to withdraw allegations.
  • The door is potentially ajar in situations where a medical error could be classed as an accident or indeed if the care provided was not truly 'clincial/medical' in nature.

For further information, please contact Vicki Swanton

For further reading see our recent update Setting the scene for secondary victim or bystander claims


Further Reading