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16/01/2024
In its first judgment of the year, the Supreme Court delivered a landmark judgment in the conjoined appeals of Paul and another v Royal Wolverhampton NHS Trust, Polmear and another v Royal Cornwall Hospitals NHS Trust, and Purchase v Ahmed.[1] By a majority of six to one, the Supreme Court found in favour of the defendants and dismissed the claimants’ appeals. Kriti Upadhyay and pupil Jon Wong consider the decision.
Background
While under the common law, it has long been established that medical professionals responsible for providing medical care to a patient owe that patient a duty to exercise reasonable skill and care “to protect the patient’s life and health,” and are liable to compensate the patient (or his estate) for any physical or psychiatric injury of a kind which the exercise of such care should have prevented, the Supreme Court in Paul, Polmear and Purchase considered the less straightforward question of claims brought by close relatives of the patient, for harm that they have suffered as a result of witnessing the patient’s death, or its immediate aftermath. In its long-awaited decision, the Supreme Court appears to have almost completely shut the door to such claims in the clinical negligence context.
Readers will be aware that these so-called ‘secondary victim’ claims have developed in a piecemeal manner over the decades. The necessary elements for such claims were first developed in the context of road accidents[2]. The House of Lords was heavily concerned by policy considerations, to limit the recoverability of damages for ‘nervous shock’ in such claims, with Lord Wilberforce in McLoughlin noting that there were four key arguments against a wider extension of claims for ‘nervous shock’: (1) the risk of a proliferation of claims, including fraudulent claims; (2) the imposition of a burden on defendants out of proportion to the negligent conduct complained of; (3) greatly increased evidentiary difficulties which would lengthen litigation; and (4) that an extension of liability ought only to be made by the legislature, after careful research.
Subsequently, in the wake of the Hillsborough disaster, the House of Lords in Alcock v Chief Constable of South Yorkshire formulated various ‘control mechanisms’ to restrict when such claims could succeed:
“[F]irst, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff’s perception of it combined with a close relationship of affection between the plaintiff and the primary victim.”[3]
In the context of medical negligence claims, there have been a number of decisions that considered claims by secondary victims. The majority of these were unsuccessful. In Taylor v Somerset Health Authority[4], it was admitted by the defendant that it had negligently caused the claimant’s husband’s death, by failing, several months previously, to diagnose or treat his serious heart disease. The defendant also admitted that the claimant had developed a recognised psychiatric illness, which was caused by what she witnessed. The claim nevertheless failed because firstly, the claimant had failed to establish “some external, traumatic, event in the nature of an accident or violent happening,” and there had not been such an event. Instead, the claimant’s husband’s death was the culmination of the natural process of heart disease. Secondly, the claimant’s experience at the hospital in being informed of her husband’s death and her sight of his body in the mortuary, was held not to come within the ‘aftermath’ of the event.
The only significant medical negligence decision in which a claimant has succeeded as a secondary victim, is North Glamorgan NHS Trust v Walters[5]. The claimant’s infant son died following two days of illness, which she witnessed. His treatment was delayed by a misdiagnosis, and he died approximately 36 hours after a major epileptic seizure leading to coma and irreparable brain damage. The defendant admitted that the baby’s death was as a result of its negligence, and that the claimant had developed a recognised psychiatric illness. The Court of Appeal confirmed the decision of the trial judge that the claimant was a secondary victim, and that the events that caused the claimant’s illness constituted “a sudden appreciation by sight or sound of a horrifying event,” as the entire 36-hour period could be regarded as one horrifying event for this purpose, and the claimant’s appreciation of the event was ‘sudden’ within that temporal context. Ward LJ noted, at paragraph 35, that (emphasis added):
“…on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital… It is a seamless tale with an obvious beginning and an equally obvious end…It was played out over a period of 36 hours, which for her…was undoubtedly one drawn-out experience.”
As is evident from the paucity of successful secondary victim claims arising from clinical negligence, these cases have posed significant hurdles to secondary victims in satisfying the necessary elements. Against this background, the Supreme Court was asked to consider the appeals in Paul, Polmear, and Purchase.
Facts
The claimants in Paul witnessed their father’s heart attack and collapse some 14 months after the alleged negligent failure by the defendant Trust to perform coronary angiography which would have revealed their father’s coronary artery disease.
The claimants in Polmear witnessed their daughter’s collapse, unsuccessful resuscitation, and death, some 5.5 months after the admitted failure by the defendant Trust to diagnose their daughter’s pulmonary veno-occlusive disease.
The claimant in Purchase found her daughter lying motionless and was subsequently unsuccessful in her attempts at resuscitating her daughter some 3 days after the alleged negligent failure by the defendant GP to properly assess and treat her daughter’s symptoms of severe pneumonia.
Each of the claimants in Paul, Polmear, and Purchase brought claims for damages for psychiatric injury, as secondary victims. The claims in Paul and Purchase were initially struck out, whilst the defendant’s application to strike out in Polmear was refused.
Court of Appeal
The Court of Appeal heard and decided appeals in all three cases together.[6] It concluded that the five Alcock criteria required to establish legal proximity in secondary victim cases applied equally to clinical negligence cases, as they did to accident cases, and that these criteria had not been met. Sir Geoffrey Vos noted at paragraph 12:
“The question of what is a relevant horrific event is not dependent either on the completion of the primary victim’s cause of action for negligence or the first manifestation of injury to the primary victim. For a secondary victim to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary victim injury, the horrific event cannot be a separate event removed in time from the negligence… I accept that, although there is no logical reason for these rules, they are the way Auld J in Somerset and the Court of Appeal in Novo built upon the five elements and adapted them to the clinical negligence context. If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury…”
The Court of Appeal considered itself to be bound by the previous Court of Appeal decision in Crystal Taylor v. A. Novo (UK) Ltd[7], concluding that Novo precluded liability in these circumstances, and no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event.
The claimants appealed to the Supreme Court.
The Supreme Court’s decision
In a lengthy judgment, the Supreme Court went through the development of this area of law in some detail, before summarising what it considers to be the key principles. Helpfully, the Supreme Court provided welcome clarification in respect of the Alcock criteria, rejecting additional requirements that have been implied by the courts in subsequent cases, on the basis that “the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct[8]”:
Instead, the court’s analysis focused on two key requirements, and explained why the witnessing of an ‘accident’ is legally significant, noting that these criteria are also likely to provide greater certainty to parties:
Having thus helpfully summarised and clarified the law, the Supreme Court then went on to consider the substantive appeals before them. In doing so, it went back to basics, focusing on the existence and scope of the duties of care owed by medical practitioners. As Lord Oliver noted in Alcock at paragraph [411A-B], the description in such cases of claimants as a ‘secondary’ victim:
“…must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him – a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant.”
As the Supreme Court reminded itself, this is of course essentially a restatement of one the very fundamental principles at the heart of the law of negligence, the well-known dictum of Lord Atkin in Donoghue v Stevenson that there is a general duty to take reasonable care to avoid foreseeable injury to a ‘neighbour’, who he defined as “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.[17]” Reasonable foreseeability of harm is not by itself enough to give rise to a duty of care, without the necessary ‘proximity’ of relationship between the claimant and tortfeasor, such as to make it ‘just’ to impose such a duty[18].
The Supreme Court in Paul therefore identified that the key question it needed to decide was whether the rules that determine when the necessary proximity exists to give rise to a duty of care owed to a secondary victim in an accident case also apply in cases of medical negligence where there is no accident. The core principle that underlies the relationship between a doctor and a patient is that the doctor (A) is providing a service to the patient (B), who then reasonably relies on A’s expertise in performing the service. Therefore A assumes a responsibility to B to perform that service with reasonable care and skill[19]. This creates the necessary proximity between A and B. The scope of this duty will vary with the circumstances and will depend upon the purpose for which the service is provided, and consideration of this purpose “is equally important in determining whether or when a duty of care is owed by a doctor to someone other than their patient.”[20]
While the court noted that there may be circumstances in which the duty of care owed by a medical practitioner extends beyond the health of their patient to include other people, such as doctors’ public health responsibilities and statutory obligations, it rejected the argument that this duty of care extends also to the kind of claim brought by the claimants in Paul:
“We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.
… we would not accept that our society has yet reached a point where the experience of witnessing the death of a close family member from disease is something from which a person can reasonably expect to be shielded by the medical profession…
…in the perception of the ordinary reasonable person, such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition.” [21]
The majority in the Supreme Court concluded with a reminder that generally, the policy of the law is opposed to granting remedies to third parties who have essentially suffered ‘secondary harm’ as a consequence of injuries to other people. The Alcock criteria were intended as control mechanisms to establish an exception to this principle in a narrow category of cases, and “Unless the exception defined by the Alcock line of authority is to become the general rule, however, a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds,”[22] even if this resulted in some people being left uncompensated for serious illness suffered in connection with the death or injury of another.
The Supreme Court concluded that the category of cases where secondary victims sustain illness as a result of witnessing a death or manifestation of injury “which is not caused by an external, traumatic event in the nature of an accident but is the result of a pre-existing injury or disease[23],” is not analogous to the accident cases recognised by the House of Lords in Alcock. When treating a patient, doctors are not reasonably expected to have in contemplation members of his or her close family who might be psychologically affected by witnessing the effects of a disease which the clinician ought to have diagnosed and treated. Such claims must fail due to the lack of proximity in the relationship between the parties.
The appeals were dismissed.
While the decision has been seen as unexpected in many quarters, it is likely to provide more clarity to the law both in personal injury and clinical negligence claims. Claimants in personal injury cases bringing ‘secondary’ victim claims may welcome the Supreme Court’s rejection of some of the additional restrictions that have been added by the courts over the years: no longer will they need to establish the outdated diagnosis of ‘a sudden shock’ or argue over whether a particular accident is sufficiently ‘horrifying’.
Defendants in clinical negligence cases are also likely to welcome the greater degree of certainty that this judgment brings, at least in the short term.
The Supreme Court has not however closed all possible doors to claimants in clinical negligence cases wishing to bring such secondary victim claims. It refused to address certain hypothetical situations which might potentially be said to amount to an ‘accident’ even in a medical setting, such as the doctor who injects a patient with a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative,[24]: the court noted that these issues are best left to be addressed in a case where they actually arise on the facts. However, given the court’s emphasis on policy considerations in its judgment and the need to limit such claims, as well as its robust views on the scope of a clinician’s duty, it may be some time before we see such a test case to challenge the boundaries of what constitutes such an ‘accident’ in the clinical context.
[1] [2024] UKSC 1
[2] McLoughlin v. O’Brian [1983] 1 AC 410
[3] [1992] 1 AC 310, at [411]
[4] [1993] PIQR P262
[5] [2002] EWCA Civ 1792
[6] [2022] EWCA Civ 12
[7] [2013] EWCA Civ 194
[8] [2024] UKSC 1, at [78]
[9] [2024] UKSC 1, at [72-73]]
[10] Ibid, at [74]
[11] Ibid, at [75-78]
[12] Ibid, at [79-82]
[13] Ibid, at [94-96]
[14] [2024] UKSC 1, at [105]
[15] Ibid, at [108]
[16] Ibid, at [105]
[17] [1932] AC 562, at 580
[18] [2024] UKSC 1, at [129]
[19] Ibid, at [131-132]
[20] Ibid, at [133]
[21] Ibid, at [138-139]
[22] Ibid, at [141]
[23] Ibid, at [142]
[24] [123]
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