THE UK SUPREME COURT IN A THREE WAY DECISION HAS REFINED THE DEFINITION OF 'SECONDARY VICTIMS' NO LONGER REQUIRING AN 'OBJECTIVELY HORRIFYING EVENT' BUT 'AN ACCIDENT.'
This article will firstly address the legal definition of a 'Secondary Victim', the decision of the Supreme Court and lastly; its foreseeable repercussions.
SUMMARY
Pursuant to their Lordships judgement, the test to establish a cause of action for damages as a Secondary Victim now has ‘key 3 requirements’ being that the Claimant:
Was present at the scene of the accident OR, in its immediate aftermath. AND;
Thereby witnessed the accident or its immediate aftermath. AND
Enjoyed a close tie of love and affection to the Primary Victim.
While the simplification of the legal test is welcome, the longer-term legal repercussions of the judgement will evolve around what is considered ‘an accident?’ An analysis of which follows at the end of the article.
WHAT ARE ‘SECONDARY VICTIMS?’ – The Law as it Was.
The civil law in the tort arena of Personal Injury, Occupational Health and more importantly, Clinical Negligence draws a distinction between the ‘Primary Victim’ of an accident and a ‘Secondary Victim’:
Primary Victim: An individual whom has suffered a reasonably foreseeable loss in the form of Pain, Suffering and Loss of Amenities or even death; caused by the negligence of another.
Secondary Victim: An individual with close personal connections to the Primary Vitim whom has suffered:
There was a recognized psychiatric injury and not merely grief;
This resulted from shock i.e. the sudden and direct appreciation by sight or sound of a horrifying event or events;
There was propinquity in time or space from the causative event or its immediate aftermath;
The injury was reasonably foreseeable;
The relationship between the claimant and defendant was sufficiently proximate.
An example of how such a test worked in practice can be found in the High Court case of:
RE & OTHERS -v- CALDERDALE AND HUDDERSFIELD NHS FT (Secondary Victims). This was a hypoxic birth injury claim by a baby, her mother and grandmother the latter being present when the act of negligence occurred whilst RE was in the birth canal. The mother was the primary victim and the grandmother claimed as the secondary victim. It was not in dispute that mother and grandmother each had a close tie of love and affection with RE’ that they perceived the event directly’ and that they were sufficiently close to the event in space and time. The only issue was whether the event was sufficiently sudden, shocking and objectively horrifying. The court decided that it was and therefore, compensation for negligence was recovered by the grandmother as well as the mother and child.
PAUL & ANOR v ROYAL WOLVERHAMPTIN NHS TRUST [2024] UKSC 1 (also deciding Polmear & Anor -v- Royal Cornwall Hospitals NHS Trust and Purchase -v- Ahmed). –
These claims in the appeals all concerned clinical negligence that resulted before the very eyes of the Claimants in the shocking an unexpected deaths of their loved ones: a father and two daughters, 1 a minor. As a result of the mental trauma, the Claimants developed psychiatric illness and brought claims for compensation.
The Supreme Court by a majority however, (Lord Burrows dissenting) dismissed the appeals. In their judgement, the Claimant’s were not entitled to compensation as their loved ones had not died in an “accident” per se, and the treating physicians in these particular circumstances had not assumed responsibility for their patients’ loved ones. In dismissing the appeals, their Lordships were careful to reaffirm the legal entitlement to claim damages for those to whom witness their loves ones die, or are injured or otherwise imperiled in classic “accidents.”
Furthermore, the Supreme Court took the opportunity to simplify the test by removing the requirement for an incident to be “objectively horrifying” and the psychiatric illness to be caused by “sudden shock.” The requirements are now that the Claimant:
Was present at the scene of the accident OR, in its immediate aftermath. AND;
Thereby witnessed the accident or its immediate aftermath. AND
Enjoyed a close tie of love and affection to the Primary Victim.
Consequently, the Supreme Court has determined that the case of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16 (“Walters”) was wrongly decided on its facts.
WHAT IS AN ACCIDENT?
While this updated test on its face may seem straightforward, the crux has moved from the abject level of sudden horror to the open ended question of ‘what is an accident?’ Well, the Supreme Court described this insightfully as:
“An unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims” [para 52].
“An external event which causes, or has the potential to cause injury; it is not the injury, if there is one, caused by that event.” [105].
“A discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place, in a particular way” [108].
What is surprising to many legal practitioners, is that the concept of ‘Primary’ and ‘Secondary’ victims exists almost entirely within the realm of clinical negligence but notably, their Lordships were careful to distinguish the definition of ‘an accident’ from “medical crises” i.e. the suffering or death of a relative from illness.
AND THE AFTERMATH?
Clarity was also provided as to the ‘aftermath exception’ i.e. when claimants witness the aftermath of the accident as opposed to the event itself. In their judgement, lawyers and lower courts had successively extended this definition from its original meaning in McLoughlin . i.e. – seeing one’s family members at the hospital 2 hours after the accident but, most importantly, in the same condition as they would have been at the roadside.
ANALYSIS
The Court itself, shortly before the hearing, raised a concern as to the scope of the medical professions duty of care towards a secondary victim by assuming responsibility for patients. Specifically, insofar as there is no duty to protect them from psychological illness stemming from a negligent diagnosis regardless as to whether or not it ultimately leads to the death of the patient. It is on that basis that the Supreme Court decided upon the need for ‘an accident’.
The sole dissenting judgement was that of Lord Burrows. In his view, instead of the majority’s emphasis on an ‘accident’, the relevant event was in fact, the death of the loved one. In relation to the duty of care owed by the medical profession to ‘secondary victims’ there was:
“no need to give up on the incremental development of the common law in this area.” [204].
COMMENT
These were judgements that could arguably be said to have been motivated by policy considerations over justice to the ‘Secondary’ Victims. However, as the highest court in the land this an accusation that can be said to be levelled against their Lordships whenever they are asked to decide a dispute and it is right that they give almost clairvoyant consideration as to the consequences of their actions.
In our view however, the fear of extending the scope of the duty of care of treating surgeons to secondary victims was a phantom that distracted from the reality of the issues before the court This area of law has been long established since 1991 (and arguably before) and there was no suggestion that it would open the floodgates to further claims against the NHS.
Indeed, we suspect that in trying to prevent such a nightmare scenario, their Lordships may have accidentally moved the goals from the Clinical Negligence arena into the more generalised Personal Injury field.
We have acted for both Claimants, private medical professionals and NHS trusts in a variety of matters arising from alleged clinical negligence. Should you require legal advice in this field then please contact us today. (NB: All claimants should seek medical advice before consulting a lawyer).
Comments