Three families claimed damages for psychiatric illness caused by witnessing relatives die from conditions negligently left undiagnosed by doctors. The Supreme Court held that secondary victim claims require witnessing an accident, not a medical crisis from disease, and dismissed all appeals by a 6-1 majority.
Background
Three conjoined appeals arose from claims by close relatives who witnessed the deaths of family members from medical conditions that should have been diagnosed and treated. In Paul, two daughters (aged 9 and 12) saw their father collapse and die from a cardiac arrest 14 months after negligent failure to arrange coronary angiography. In Polmear, parents witnessed the collapse and death of their seven-year-old daughter from pulmonary veno-occlusive disease that the defendant hospital admitted should have been diagnosed months earlier. In Purchase, a mother returned home to find her 20-year-old daughter dead from pneumonia three days after a negligent failure to diagnose her condition at an out-of-hours clinic. Each claimant suffered recognised psychiatric illness. The defendants applied to strike out the secondary victim claims. The Court of Appeal, considering itself bound by Taylor v A Novo (UK) Ltd [2014] QB 150, held that all three claims must fail, though it expressed reservations about the correctness of that earlier decision and granted permission to appeal to the Supreme Court.
The Issue(s)
The central question was whether a claim for damages by a ‘secondary victim’ — a close relative who suffers psychiatric illness from witnessing the death or injury of another person — can succeed where the triggering event is not an accident but a medical crisis resulting from negligent failure to diagnose and treat disease. This required the court to determine whether the rules governing secondary victim claims, developed in accident cases through McLoughlin v O’Brian [1983] 1 AC 410, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, applied or could be extended to medical negligence cases involving no accident.
The Court’s Reasoning
The majority judgment (Lord Leggatt and Lady Rose, with whom Lord Briggs, Lord Sales and Lord Richards agreed; Lord Carloway concurring)
The majority began by noting the general common law rule that the law does not recognise one person as having a legally compensable interest in the physical well-being of another:
Under the common law the rule was that ‘in a civil court, the death of a human being could not be complained of as an injury’ by another person.
After a thorough review of the evolution of secondary victim claims through McLoughlin, Alcock, and Frost, the court identified the established requirements: (1) a close tie of love and affection with the primary victim; (2) presence at the accident or its immediate aftermath; and (3) direct perception of the accident rather than hearing about it from a third party.
The majority rejected the claimants’ argument that the word ‘event’ in earlier authorities was broad enough to encompass medical crises. Lord Leggatt and Lady Rose observed:
The plain fact is that the question whether damages can in principle be recovered in a case where there is no accident did not arise in Alcock (or Frost) and was not considered by the House of Lords.
Rejection of alternative tests
The court rejected both alternative analyses proposed in the courts below. The ‘first manifestation of damage’ test advocated by the claimants in Paul was held to be unworkable and unprincipled. The Court of Appeal’s reading of Novo as based on temporal distance between the negligence and the event was also rejected. However, the court held that Novo was correctly decided because the claim failed due to the absence of an accident witnessed by the claimant.
Why an accident is legally significant
The majority identified three features making the occurrence of an accident integral to secondary victim claims: (1) an accident is a discrete event at a particular time and place, providing legal certainty; (2) witnessing an accident involving a close family member is inherently disturbing, making the line between compensable and non-compensable cases intelligible; and (3) in accident cases, it is often difficult to distinguish between primary and secondary victims, as the claimant may simultaneously fear for their own safety and that of a loved one.
None of these features applied in medical negligence cases involving no accident. The court noted:
Since witnessing injury sustained by another person is neither a necessary nor sufficient condition for a claim as a secondary victim in an accident case, no ready or obvious analogy can be drawn from such cases to cases where the claimant witnesses injury that has not been caused by any external accident.
Correction of erroneous developments
Importantly, the majority held that the requirements of a ‘sudden shock to the nervous system’ and a ‘horrifying event’, which had been engrafted onto the Alcock requirements in cases such as Walters, Shorter, and Ronayne, were wrong:
In engrafting onto those requirements additional requirements of needing to prove that the claimant’s injury was caused by the mechanism of a ‘sudden shock to the nervous system’ and was a sufficiently ‘horrifying event’, the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct.
The court held that North Glamorgan NHS Trust v Walters [2003] PIQR P16 was wrongly decided on its facts and should not be followed, and that the extension of the ‘aftermath’ concept in Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285 should also not be followed.
General principles of duty of care
The majority reinforced its conclusions by reference to the general principles governing a doctor’s duty of care. Applying the concept of assumption of responsibility and proximity, the court held:
We are not able 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 close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative.
The court considered that witnessing the death of a close family member from disease, however distressing, is not an insult to health from which the medical profession is expected to protect relatives, but rather a vicissitude of life which is part of the human condition.
The dissent of Lord Burrows
Lord Burrows dissented. He would have treated the death as the relevant event and held that, once so treated, all established proximity requirements were satisfied. He emphasised that the Government had explicitly left the development of this area to the courts and that Lord Steyn’s ‘thus far and no further’ approach in Frost was no longer justified. He argued that insisting on an accident would in practice close off recovery for secondary victims in almost all medical negligence cases and that Novo should be overruled. He stated:
It would be an unwarranted backward step to insist that there must be an accident (in the sense of an event external to the primary victim) in order for there to be recovery for negligently caused psychiatric illness by secondary victims.
Practical Significance
This decision is of major importance in clarifying and restricting the scope of secondary victim claims. It confirms that the established Alcock requirements apply only where there is an accident — an unexpected event causing injury by violent external means — and cannot be extended to medical crises arising from negligent failure to diagnose or treat disease. The decision effectively closes the door to secondary victim psychiatric injury claims in the vast majority of medical negligence cases.
The judgment also corrects what the court described as wrong turns in the law: the requirements that the claimant must have suffered a ‘sudden shock to the nervous system’ and that the event must have been ‘horrifying’ are not part of the established Alcock requirements and should not be applied. Walters is overruled and Galli-Atkinson should not be followed. The question of whether secondary victim claims could ever arise from a medical accident (such as injection of a wrong drug) was expressly left open for future determination.
The case also illustrates the tension between the judicial role in incremental development of the common law and the constraints of principled line-drawing in an area that is acknowledged to produce arbitrary results. Lord Burrows’ powerful dissent highlights that the Government has explicitly declined to legislate and has left development to the courts, making the majority’s restrictive approach a matter of ongoing debate.
Verdict: The appeals were dismissed by a majority of 6-1. The claims for damages for psychiatric illness by the secondary victims in all three cases (Paul, Polmear, and Purchase) were struck out. The Supreme Court held that secondary victim claims require the claimant to have witnessed an accident (or its immediate aftermath) and that witnessing a medical crisis caused by negligent failure to diagnose and treat disease does not give rise to such a claim. Lord Burrows dissented, holding that the appeals should have been allowed.
Source: Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1 (11 January 2024)
