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Setting the scene for secondary victim or bystander claims

10 January 2024

We summarise the current position prior to the Supreme Court decision in Paul v Royal Wolverhampton NHS Trust to be handed down on 11 January 2024.

Whilst the law recognises claims for psychiatric illness resulting from a physical injury, the extent of liability for shock-induced psychiatric only injury is not so clear cut. Such claims, where psychiatric injury is caused by witnessing the death of another person or horrifying event involving a close relative are referred to as "secondary victim" or "bystander" claims. 

Current legal position

Secondary victim claims were considered in the House of Lords (HL) case of Alcock –v- Chief Constable of South Yorkshire Police . The case was brought by 10 individuals whose loved ones were involved in the Hillsborough disaster. In determining the claimants' claims, the HL considered a number of requirements or 'control factors' before damages could be recovered which included:

1. Reasonable foreseeability: that a person of normal fortitude would suffer mental injury due to the shocking event. 

2. Proximity to the shocking event: in terms of both time and space, the secondary victim must see or hear the shocking event or witness its 'immediate' aftermath. As to where the time line is drawn, the earliest of the identification of bodies cases in the Hillsborough disaster was 8 hours after the incident. This was held not to be part of the immediate aftermath. Likewise hearing/seeing the events via a radio/TV broadcast was not close enough to be entitled to recover damages. 

3. Relationship: the secondary victim must be able to demonstrate a close relationship of 'love and affection' to the primary victim.

4. Trigger of the injury: the stimulus for the secondary victim's mental injury needs to be a 'sudden and unexpected' shock. 

The above principles were applied in Taylor v Somerset Health Authority . In that case, the primary victim suffered a heart attack following clinical negligence (doctors failed to diagnose heart disease). The secondary victim claim, brought by his wife, failed as she was not present when her husband died, and learned of his death a short while after attending hospital by being informed by a doctor. 

The 'event' that the secondary victim needs to be present at/close by to was explored further in Taylor v A Novo (UK) Ltd , where the primary victim collapsed and died three weeks after an accident at work. Despite being present when her mother died, the daughter was unsuccessful in her claim as a secondary victim as she had not been present when her mother had her accident at work.

The decisions awaited from the Supreme Court

There are 3 Supreme Court cases awaiting judgment:  Paul v Royal Wolverhampton NHS Trust , Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed.

All three are clinical negligence cases involving patients who died following misdiagnosis. 

In Paul, the primary victim was the claimants' father. He suffered a heart attack and died in January 2014, while out shopping. It was alleged that, had the defendant Trust performed a coronary angiography 14 months previously (in November 2012), it would have revealed coronary artery disease which would have been treated and the subsequent heart attack avoided. The claimants' bring secondary victim claims after suffering psychiatric injury as a result of witnessing their father's death. 

As the claimants were not present at the misdiagnosis appointments and 'only' at their father's death, to date, their claims have failed. 

The SC is due to hand down Judgment on 11 January 2024.  Will they change the law in this area? 

Watch this space!

Further Reading