Supreme Court Ruling on Secondary Victim Claims
Last week, the Supreme Court handed down its judgment in the appeal cases of Paul and another v Royal Wolverhampton NHS Trust (2) Polmear and Anor v Royal Cornwall Hospitals NHS Trust and (3) Purchase v Ahmed. This judgment concerns whether a Defendant can be held liable for psychiatric injury caused by witnessing the death of a close family member in distressing circumstances.
In each of the three conjoined cases there was an alleged failure by the Defendant, a doctor, to diagnose and treat a life-threatening condition which resulted in the death of their patient in shocking circumstances witnessed by family members.
This is not the first time the issue of secondary victims has come before the Courts. It remains a challenging subject for Judges to navigate, striking a balance between acknowledging the right of a secondary victim to bring a claim, whilst limiting the same right to avoid Defendants being exposed to multiple claims arising from one negligent act.
The Courts have often been criticised for what some believe to be an arbitrary approach. In the leading case of Alcock V Chief Constable of the South Yorkshire Police (1991) the Claimants brought a claim for psychiatric injuries suffered having witnessed the Hillsborough Disaster. The Claimants ranged from those that had been present in the stadium, to others who had watched the events unfold on live television or had heard about the events afterwards.
The House of Lords were tasked in establishing if those who suffer purely psychiatric harm from witnessing an event at which they are not physically present are sufficiently proximate for a duty of care to be owed to them. The Courts ultimately found in favour of the Defendants in the case of Alcock. Lord Oliver in his judgment, stated that a distinction must be drawn between ‘primary’ and ‘secondary’ victims. A primary victim was someone who was present at the event as a participant and the harm that they suffered was foreseeable. A secondary victim, by contrast, would only succeed if they fell within the following criteria:
- There must be a close tie of love and affection between the primary and secondary victim.
- The psychiatric injury must arise from a sudden and unexpected shock (as opposed to the gradual realisation over the course of time);
- They must have physical proximity and be either personally present at the scene or the immediate aftermath.
- The psychiatric injury to the secondary victim must arise from the death, extreme danger to, or injury of the primary victim; and
- There must be not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.
The ruling in Alcock, whilst pioneering in its approach to secondary victim claims, did not cover every potential scenario, and therefore further case-law has proceeded to fill in the gaps, for example, the case of Taylor v. A Novo 2013. Here a mother suffered an accident at work. Three weeks later, witnessed by her daughter, the mother collapsed and died. The Court ruled that the daughter was unable to recover damages for the psychiatric trauma she suffered, concluding that she was not able to show that she had a close temporal connection to the initial accident.
It is the Alcock fifth control mechanism which is the focus of this most recent Supreme Court judgment in Paul v Royal Wolverhampton and others. The Claimants argued that the traumatic event need not occur at the same time as the original negligence. However, the Court ultimately ruled in line with its previous decisions and the case was dismissed.
There is no denying that the circumstances of each of these cases are all exceptionally tragic, with secondary victims suffering injuries that were undoubtably linked to the alleged negligence of a Defendant. However, as the law currently stands, there are very limited circumstances in which secondary victims will be eligible to receive compensation.