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Cases of note: Paul v. Royal Wolverhampton NHS Trust; Polmear v. Royal Cornwall Hospital NHS Trust; Purchase v. Ahmed (Court of Appeal 13 January 2022)

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These three cases were heard together by the court. All involved “secondary victims”, in other words people who were not directly subject to the alleged negligence, but either witnessed a shocking event or came upon it in its immediate aftermath. Those directly affected are known as primary victims. The question the court had to consider was whether these secondary victims, in the circumstances of each case, might be able in law to recover damages for psychiatric trauma. This ruling was not about whether the clinicians involved had been negligent.

Mr. Paul, who suffered from type 2 diabetes, was admitted to hospital on 9 November 2012 complaining of chest and jaw pain. He was treated for acute coronary symptoms and discharged on 12 November. On 26 January 2014, some 14 months later, he had a heart attack whilst shopping with his family and died shortly afterwards. His young daughters witnessed his collapse and suffered psychiatric trauma. It was alleged that Mr. Paul should have been given a coronary angiogram by the hospital in November 2012, which would have revealed coronary artery disease.

Esmee Polmear, aged 7, was referred by her GP to the trust following episodes of not being able to breathe and turning blue. The reviewing paediatrician concluded in January 2015 that her symptoms were likely to be related to exertion, with nothing to suggest an underlying heart problem. However on 1 July 2015, over five months later, Esmee felt unwell on a school trip. Her parents agreed to bring her back but when they reached her she was lying on the ground with a staff member giving mouth-to-mouth resuscitation. She was not breathing and died shortly afterwards. Both parents suffered post-traumatic stress disorder. The trust admitted negligence by failing to diagnose Esmee’s underlying condition.

Ms. Purchase visited her GP in January 2013 with acute sinusitis. Afterwards she continued to feel unwell and by 4 April she was weak, dizzy and had difficulty breathing. Her mother took her to an out-of-hours GP, Dr. Ahmed, who made a diagnosis of respiratory tract infection with pleuritic pain, oral thrush and depression. He prescribed antibiotics and antidepressants. However, her condition remained unaltered. At 04.50 on 7 April, three days later, her mother returned home from a pre-planned family event in London. She found Ms. Purchase lying motionless on her bed, staring at the ceiling, although she looked alive. She was then joined by her other daughter and ex-husband. A 999 operator advised the family to give cardio-pulmonary resuscitation pending arrival of an ambulance. This proved unsuccessful, and paramedics could not achieve any improvement. Ms. Purchase died. On checking her mobile phone, her mother noted she had missed a call – it had been from her daughter and contained the sound of her dying breaths. Mother sustained post-traumatic stress disorder, severe chronic anxiety and ongoing depression. She alleged that Dr. Ahmed had failed properly to assess and treat her daughter’s symptoms.

The law in respect of secondary victims was reviewed by the House of Lords in Alcock v. Chief Constable of South Yorkshire (1992), a group of claims from people who witnessed the Hillsborough disaster from different places, including by television. The House laid down five rules for recoverability, including the need for there to be proximity in both time and space to the “event”. However, that ruling did not cover every conceivable type of secondary victim situation, and case-law developed subsequently to fill the gaps.

The court reviewed a selection of the other most important rulings on secondary victims and concluded that the five elements required for recovery applied equally to clinical negligence cases as to other types of claim. It had been argued on behalf of the claimants that the “event” need not occur at the same time as the original negligence. However, the court concluded that it was bound by its own previous decision in a non-clinical negligence case named Taylor v. A. Novo (2013), where a mother suffered an accident at work when shelving fell onto her. Three weeks later she collapsed and died at home, witnessed by her daughter, who was held unable to recover damages from her mother’s employers for psychiatric trauma.

The Master of the Rolls, giving the lead judgment in these three cases, held that for a secondary victim to recover against a defendant whose clinical negligence had caused the primary victim injury, the horrific event cannot be a separate event removed in time from the negligence. Consequently, these claims could not succeed; but the court gave permission for an appeal to the Supreme Court.

Comment

These are all deeply tragic cases, and everyone will feel huge sympathy for the secondary victims. However, as the House of Lords made clear in Alcock, there must be boundaries to recoverability by secondary victims. Without such boundaries, defendants would potentially be exposed to large numbers of claims arising from one act of negligence. The difficulty for judges is to determine where those boundaries should be set. Whilst it might well be foreseeable that failure to diagnose a heart condition might lead to the patient collapsing and dying, witnessed by family members who suffer psychiatric trauma as a result, that does not necessarily mean that the witnesses can recover damages. The Court of Appeal expressed the view that these “delayed trauma” cases are appropriate for consideration by the Supreme Court, and we must therefore anticipate a definitive ruling, in perhaps another year or so. Whichever way it goes, there will be important implications for both relatives and the NHS.