Case of note: Paul v. Royal Wolverhampton NHS Trust; Polmear v. Royal Cornwall Hospitals NHS Trust; Purchase v. Dr. Ahmed (Supreme Court – 11 January 2024)

Date published:

Introduction

These three cases were dealt with as a group by the Supreme Court because they all involved claims from secondary victims arising from instances of alleged clinical negligence.  Secondary victims are not people who received the treatment which was said to have been negligent, but rather individuals who watched its effects on the patient or who came upon the consequences shortly afterwards and suffered mental trauma as a result. The court’s recent ruling changed significantly the law on recoverability of damages in such cases.

Detail

All three patients died in tragic circumstances.  For example, Mr. Paul had been treated in hospital for acute coronary symptoms in November 2012 and was discharged.  In January 2014, whilst out shopping with his two daughters, he suffered a cardiac arrest in the street and collapsed, hitting his head on the pavement.  He died shortly afterwards despite the intervention of an ambulance crew.  His daughters both claimed for psychiatric illness caused by witnessing this event, maintaining that the trust should have arranged coronary angiography during their father’s attendance, which would have revealed significant coronary artery disease that would have been successfully treated by re-vascularisation.

In each case there was a significant delay between the alleged negligence and the secondary victim’s trauma.  All three defendants applied to strike out the claims as demonstrating no cause of action in law.

The leading judgment was delivered jointly by Lord Leggatt and Lady Rose.  They observed that generally, the common law does not recognise one person as having any entitlement to compensation when another is harmed, as demonstrated by the NHS Resolution case of D v. East Berkshire Community Health NHS Trust (2005), where the parents of various children who were suspected by NHS doctors of having been abused were unable to recover damages for harm to their reputation and psychological trauma when the suspicions were discovered to be unfounded.   There are however exceptions to this general rule introduced by statute, for example under the various Fatal Accident Acts where certain dependants can sue for loss of dependency on the deceased.

There followed a detailed analysis of case-law concerning incidents where non-participants sought damages.  In the road traffic accident case of McLoughlin v. O’Brian (1983), the House of Lords decided that a woman was able to recover damages for psychiatric trauma from the negligent motorist when, not having witnessed the crash herself, she came upon her husband and children in hospital, injured and covered with dirt and oil, an hour or so later.  In a group of claims arising from the Hillsborough disaster, various individuals who watched the horror unfold from the other end of the ground, or on television, were held by the House of Lords in 1993 not to be able to recover damages, the judges laying down a number of criteria for recoverability in such cases including the need to have a close tie of love and affection with the primary victim, and to have been physically present at the accident or its immediate aftermath.  This decision – Alcock v. Chief Constable of South Yorkshire – remains the leading case on secondary victims.

Considerable attention was also paid to Taylor v. A. Novo (UK) Ltd., a decision of the Court of Appeal in 2013.  The claimant’s mother had suffered an accident at work in which racking boards had fallen onto her.  Three weeks later, whilst at home, she collapsed and died as a result of her injuries, witnessed by her daughter.  The daughter was unable to secure compensation because she had not witnessed the initial accident.

Turning to the present cases, the court decided that it was necessary to distinguish accidents from clinical negligence claims.  The law in relation to the former was reasonably clear.  An accident is readily definable because there is an “event”, such as a vehicle collision, which might be witnessed by others or people might come upon its immediate aftermath (like Mrs. McLoughlin).  With clinical negligence, there is usually no “accident” to observe, but rather the patient, or primary victim, at some point following the alleged negligence suffers a medical crisis which may be witnessed by others.  This was a key differentiation.

The Justices refused to speculate on whether relatives of a patient could ever recover damages in a medical setting on the basis that an accident had occurred.  They decided that as this question did not arise in the present cases, such issues were best left to be addressed by judges in relevant individual claims.

Overall, the court concluded that these three claims must fail.  They were unable 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 family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury to their relative.  They held that “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.”

Comment

This is an extremely important ruling which overturns much established thinking on the subject.  It means that secondary victims cannot now recover damages in a clinical negligence case unless, possibly, they are able to demonstrate that an accident has occurred and they fall within the criteria in Alcock.

The law had fallen into a state of uncertainty concerning how secondary victims might secure damages in clinical negligence cases, with seemingly conflicting decisions of the lower courts and an absence of top-level authority on medical claims.  It was therefore important for NHS Resolution to run these cases to the Supreme Court, to obtain clarification of the law.  That has undoubtedly now occurred, and this ruling is likely to be definitive for many years to come, even though there was one dissenting Justice (out of seven).

Nothing in the above observations detracts in any way from the truly tragic nature of each of these three cases.  All involved relatives who were traumatised by the manner of their loved one’s death, and we recognise that they suffered considerably.  The court reached its decision on purely legal grounds, concluding that clinicians do not owe a duty of care to relatives to prevent them from suffering harm in such circumstances.