A judgment was handed down on 11 January 2024 in the matter of Paul (and others) v Wolverhampton NHS Trust which has changed the way the law now applies to secondary victim claims. This impacts on many claims, including those that arise in clinical negligence.

The position pre judgment

The case of Alcock -v- Chief Constable of South Yorkshire Police [1992] was one of the initial significant developments for case law in respect of secondary victim claims. It was brought by the relatives and friends of the fans who had been involved in the Hillsborough disaster. The individuals were claiming for psychiatric illness that they had suffered as a result of what they had seen or heard about the incident. In this matter the House of Lords rejected the claims and implemented a series of ‘control mechanisms’ to assist in determining how damages for psychiatric injury are awarded to secondary victims:

• there must be a close relationship between the claimant and primary victim
• there must be a sufficient degree of proximity in both space and time to the accident or its immediate aftermath; and
• the psychiatric illness must have been caused by direct perception and caused a sudden and unexpected shock. This is known as the ‘nervous shock’ element.

Case law in this area can be confusing and conflicting especially when applying the control mechanisms to cases arising out of clinical negligence, such as a misdiagnosis or failure to diagnose where the consequence of the negligence only manifests at a much later date. This caused a 30-year debate whilst waiting for the much-anticipated judgment in Paul v Wolverhampton.

What is the judgment?

The judgment in the matter of Paul (and others) v Wolverhampton NHS Trust impacts on many claims, including those that arise in clinical negligence.  A secondary victim claim arising from clinical negligence will now not succeed for a number of reasons:

• the responsibility of a medical practitioner should not extend to protecting members of the patient’s close family from exposure to a traumatic experience and to impose such a responsibility on hospitals and doctors, goes beyond what is reasonably regarded as the nature of their role.
• whilst a doctor owes a duty of care to protect the health of their patients, this duty no longer extends to protecting the patient’s close family members from the risk of injury (including physical and/or psychiatric injury).
• an accident or its immediate aftermath has been defined as “an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by the event.” The majority of the Supreme Court however – applying its definition of “accident”- accepted that there will hardly ever be a situation where a failure to treat a patient can be described as an ‘accident’ in the sense required for a secondary victim claim to succeed.
• the Supreme Court defined an ‘accident’ as “an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means”
• as to whether there may be any exceptions to the new rules, the Supreme Court thought it is possible but the circumstances where this might be so will be very limited.

 What does this mean for secondary victim claims arising from clinical negligence going forward?

The Supreme Court decision in the case of Paul now means that the vast majority, if not all, secondary victim cases resulting from clinical negligence will no longer succeed because:

• it cannot now be argued that a doctor owes a duty of care to close family members of a patient; and
• many clinical negligence claims are not ‘accidents’ in the way expressed by the Supreme Court – unexpected or unintended events where the injury was caused by violent external means.

We were already in a position prior to this judgment where it took an exceptional case to be awarded damages due to nervous shock. It is unknown why the change has been made but it is purely a principal solution; it may be seen out of human touch to make such a decision.

Paragraph 117 of the judgment reads: “It is undesirable for decisions about end-of-life care to be complicated by the risk that, if it is said that the death ought to have been prevented, the hospital will be exposed to potential legal liability to family members as a result of them seeing and remaining with the patient.”

Who is to say that a family should not take comfort in having those remaining moments with a loved one that they are losing due to the negligent act of the healthcare provider? These are valid human feelings, and the reality is that people are suffering for no fault of their own other than the NHS. They deserve more from those that they put their trust in and should not suffer further from an already traumatic event of losing a loved one. From review of the literature, it seems that typically there is no scope to claim for psychiatric injury in a disease case such as a delay in diagnosing or treating. The judgment is as such that doctors do not owe a duty of care to a patient's close family to protect them from illness after the death or medical crisis of a relative. It becomes a question as to when an ‘accident’ will occur in hospital and the line is not distinct on this. It is assumed the law would rely on cases such as a wrong drug being administered which has had an adverse reaction.

Others may interpret the judgment as a manoeuvre to save money. With the rising publicity of failures by healthcare providers it may seem favourable to set a limit on those who can claim as a secondary victim. This is only an assumption, but it does make you wonder why such an arbitrary policy has been introduced that shows absolutely no empathy for others who are affected by the negligent act of healthcare providers. 

 The recent law is a completely new way of working for all legal professionals and it will take a lot of work to fully understand the effects this will have on our existing and future clients.

At Switalskis we are now working to gather as much information about the judgment as we can to best support those clients whose secondary victim claims will no longer succeed following the recent judgment. We understand the impact this will have on many of our clients, and we are keen to support them as best as we can.

For anyone who has been affected by the recent judgment and wish to speak to us, please get in touch our specialist medical negligence lawyers on 0800 138 0458 or email: help@switalskis.com