Secondary Victim Claims – Opportunity for Reform

26 February 2021

How does the law deal with the situation where an individual receives negligent medical treatment, the consequences of which manifest in a traumatic death many months later and that death is witnessed by members of the deceased’s family? This question has vexed the Courts for decades.  Master Cook in the recent case of Polmear -v- Royal Cornwall Hospitals NHS Trust had to grapple with this very issue.

Claims for psychiatric injury sustained by secondary victims are subject to a number of control mechanisms.  The mechanisms were created by the House of Lords when dealing with claims arising from the Hillsborough disaster.  The control mechanisms are:

  1. The Claimant’s injury must be reasonably foreseeable;
  2. The Claimant must be a close relative of, and had a close emotional relationship with, the primary victim;
  3. The Claimant must have suffered a recognised psychiatric injury;
  4. The injury must have been caused by the negligent actions of the Defendant;
  5. The Claimant must have been present at the scene of the incident which caused the death or must have been involved in its immediate aftermath (proximity between the event and the outcome), and
  6. The Claimant must have perceived the death or risk of injury with their own senses.

Over the years the Courts have grappled with each of the control mechanisms.  Two recent cases have fallen to Master Cook to decide in respect of the proximity control mechanism.  The first case was Paul -v- The Royal Wolverhampton NHS Trust (2020) and the second Polmear -v- Royal Cornwall Hospitals NHS Trust (2021).  Both cases involved a claim for clinical negligence where the Defendant had applied to strike out the case on the basis there were no reasonable grounds for bringing the claim.  The disputes focused around whether there was proximity between the negligent act and the consequences of that act (death of the primary victim many months later).

In Paul, the Defendant NHS Trust were negligent in diagnosing the Deceased’s heart condition which culminated in him suffering a fatal heart attack, witnessed by his young children, some 14½ months later.  In Polmear there was a failure on the part of the Defendant NHS Trust to diagnose that the Claimants’ daughter had pulmonary veno-occulsive disease.  Tragically their daughter’s condition continued to present symptoms which culminated in her suffering a cardiac arrest requiring mouth to mouth resuscitation while at school.  The attempts to revive her at the school, in the ambulance and at hospital were unsuccessful and witnessed by her parents (the Claimants).  The parents went on to develop PTSD and major depression.  The facts of Polmear are similar to Paul save for an additional factor, the symptoms of the underlying heart condition continued to present during the period when the condition should have been diagnosed and the traumatic event occurring.  This was a distinguishing feature to the facts in the Paul case.

Master Cook refused to strike out the case stating that the law governing secondary victim clams does not mandate the shocking event to coincide with, or immediately precede, the first actionable damage sustained to the primary victim.  The Master granted the Defendant permission to appeal to the Court of Appeal.  In doing so, he noted that in his experience there has been an increasing number of secondary victim claims made in the context of clinical negligence cases.  In many of those claims applications to strike out are made by the Defendant and invariably involve complex legal arguments which take up considerable Court time and add significantly to the cost of litigation.

Master Cook was satisfied that the appeal, like the pending appeal to be heard by the Court of Appeal in Paul, raises an important point of principle - what constitutes the relevant event for the purposes of establishing the proximity limb of the control mechanisms.

The Polmear decision highlights the difficulties medical negligence practitioners face when navigating the complex legal issues surrounding the control mechanisms relevant to secondary victim claims.  The purpose of the control mechanisms, introduced in 1991, were to impose a ‘floodgate’ against a potential influx of secondary victim claims.  The House of Lords decision rests heavily on public policy considerations.  The law, and societal values, have moved on since the early 90s, and the increasing frequency with which the Court is asked to adjudicate on secondary victim claims within the context of medical negligence highlights the need for a wholesale review.

Part of the problem is that the Courts are required to apply a set of control mechanisms that arose from a case involving an accident. The text of proximity causes little difficultly when faced with a factual scenario surrounding an accident. For example, a negligently driven car mounts the pavement striking a number of pedestrians.  The negligent act and the consequences of that act are in close proximity.  The same does not always apply when dealing with medical negligence.  The negligent act or omission, in the medical context, does not always cause injury or death immediately.  It take can take many months for the outcome to manifest and cause the shocking event.  Just as occurred in Paul and Polmear.  Herein lies the problem, by following the control mechanisms rigidly in a medical negligence claim the Court is faced with complex legal arguments which on occasion cause perverse and unfair results.  To use the example above, the mother who witnesses her daughter being struck and killed by the negligently driven vehicle would meet the proximity criteria;  whereas the mother who witnesses her daughter suffer a fatal cardiac arrest which could have been prevented with non-negligent medical treatment is unlikely to meet the criteria

The Court of Appeal now has a unique opportunity whereby two cases dealing with the proximity limb of the control mechanisms are to be heard.  There is an argument that these cases should be heard together to allow a general overview of the control mechanisms and their application within the medical negligence context.  This is an opportunity for the Court of Appeal to be interventionist and provide much needed judicial guidance on this complex area of law.  Judicial guidance is needed not only to enable lawyers to advise their clients, but also minimise the cost of satellite litigation as alluded to by Master Cook in his judgment in Polmear.  All eyes now turn to the Court of Appeal.

Further Information

If you would like any further information or advice about the topic discussed in this blog, please contact Richard Lodge our Medical Negligence and Personal Injury team.


About The Author

Richard Lodge is a Partner in the Medical Negligence and Personal Injury practice and has been recognised within the field of clinical/medical negligence within the Chambers UK and Legal 500 directories.  He is an individually ranked lawyer for clinical negligence within Chambers UK, A Client’s Guide to the UK Legal Profession.


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