Paul v The Royal Wolverhampton NHS Trust: a new hope for secondary victim claims?

Secondary victim claims have long been considered controversial. Lord Dyson MR described the law as ‘arbitrary and unsatisfactory’ in the decision of Taylor v A Novo [2013] EWCA Civ 194. Despite strict judicial control of this area (especially at appellate level) there is a continuing sense that the law does not reflect society’s change in attitude to psychiatric illnesses generally. Arguments in this area almost exclusively focus on interpretation of case law; comparatively little time is spent considering whether the claimant’s condition justifies recovery. 

It is against this backdrop that the decision in Paul was handed down. There is no doubt that claimants will perceive the case as a major step forward. Of interest is whether the decision of Chamberlain J does herald a new hope or whether the decision is merely a more accurate restatement of the law. 

The facts of Paul

The Claimants’ father suffered a sudden cardiac arrest whilst out with his two young children (aged 12 and 9). It was alleged that the Defendant provided negligent treatment to the father 14 months prior to his death by failing to provide a coronary angiography. There was nobody immediately around to provide help to the two Claimants. Eventually another lady appeared and called an ambulance. The Claimants were moved away from their father into a church. The Claimants’ mother arrived at the scene and they heard her screaming their father’s name. The paramedics were unable to resuscitate the claimants’ father and they saw the final moments of his life. 

The Claimants brought an action for psychiatric injury. The Defendant applied to strike out that aspect of the claim. The matter was heard at first instance by Master Cook who agreed with the Defendant and struck out the matter. The Master held that the case could not be distinguished from Taylor v Somerset Health Authority [1993] PIQR 262, approved by the Court of Appeal in Taylor v A Novo, which considered the heart attack could not amount to a relevant event for the proximity test. Master Cook added that it was wrong to focus on the death of the Claimants’ father as being the first point at which the consequences of the negligence became apparent. By focusing on the death, it overlooked the need for a ‘proximate connection between the initial negligence and shocking event’.

On appeal, Chamberlain J overturned the decision of Master Cook and held that the matter should proceed to trial. As part of his reasoning, Chamberlain J provided a comprehensive analysis of the authorities and what is to be considered ‘an event’. 

A shocking event

The underlying principles dictating when an individual can recover damages as a secondary victim are contained in the House of Lords decision of Mcloughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. In short, it is necessary to show a close tie of love and affection, proximity to the incident, and a sudden and traumatic event. 

The key question for Chamberlain J was whether the heart attack could be considered ‘an event’. If it did satisfy that criterion then a duty of care was owed. The question posed was whether the collapse from a heart attack 14 months after the alleged negligence could constitute an event?

The court identified three possible reasons why the heart attack did not constitute an event. First, the event had to be synchronous, or approximately synchronous, with the negligence. Second, that liability depends upon a negligent act and not an omission. Third, that the Claimants were absent from the scene of the tort. Chamberlain J rejected all three concerns. 

The Defendant focused its submissions on the third objection. This is a common argument in clinical negligence cases where the consequences (damage) of negligence can occur many months later.  One of the leading authorities on this question is North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. The case concerned a 36 hour period between the Claimant’s child fitting and dying. Ward LJ concluded that there was a ‘seamless tale’ which played out over 36 hours. In contrast, the Court of Appeal held in Taylor v A Novo that an instance where the individual collapsed and died three weeks after the negligence did not satisfy the test of event. Lord Dyson distinguished Walters by reference to the seamless tale and concluding it was not present. Lord Dyson considered the death of the Claimant’s mother to be a subsequent event albeit inter-related. 

Addressing this point, Chamberlain J explained:

‘In “accident” cases, like McLoughlin , Alcock and Taylor v A. Novo , where the breach of the duty and the damage caused are coincident in time and place, the “scene of the tort” is also the scene of the negligence. When the negligence and the damage are separated, and assuming that there is no requirement for the negligence and the damage to be synchronous, the “scene of the tort” can only mean “the scene where damage first occurred”. In the context of the tort of negligence, this is the point when the tort becomes actionable or complete.’

The fact of Paul gave rise to an argument over whether the Defendant’s negligence caused actionable damage prior to the collapse. This was a question of fact that had to be resolved with expert evidence. If the Claimants’ submission that the cause of action accrued upon the collapse (and not before) was correct then they were present at the scene. It is therefore capable of being an event.

Chamberlain J sought to reconcile the outcome with the Court of Appeal decision in Taylor v A Novo by contrasting between primary and secondary victims. If a primary victim suffers an event which is witnessed by a secondary victim that will suffice. Chamberlain J concluded that that was the ratio in Taylor which in turn allowed him to bridge the gap between the negligence and damage. Chamberlain J has sought to restate the law and how it should be interpreted. He has not sought to implement radical change. 

On the facts of Paul, this interpretation allowed Chamberlain J to find that there had in fact been only one event: the heart attack. That event was clearly shocking to those who witnessed it and that it happened 14 months after the negligent omission did not prelude liability. Chamberlain J was clear that the decision in Taylor v A Novo allowed the Claimants’ claim. In doing this, Chamberlain J has merely sought to provide greater clarity. 

Concluding thoughts

Secondary victim claims in clinical negligence cases will continue to test the boundaries of existing case law. The decision in Paul v The Royal Wolverhampton NHS Trust will serve as encouragement to claimants. It does not herald a new hope akin to Obi Wan Kenobi finding Luke Skywalker and teaching him the ways of the force. The decision is an example of the appellate judiciary using common sense to bridge the gap between alleged negligence and subsequent damage within a fairly ridged set of guidelines. 

The decision will have benefits for both claimants and defendants. Claimants will use it to advance cases where there is a perceived lack of proximity between negligence and damage. Defendants will be reassured that in cases of delay between negligence and damage, the negligence must result in an event that is capable of giving rise to injury in a primary victim. In turn, a secondary victim can only claim where injury is caused by witnessing that sudden and traumatic event as opposed to a subsequent, discrete, event. Where the dividing line falls is a question that will keep the courts busy for the foreseeable future.