When am I a secondary victim?
The Supreme Court handed down judgement in the three cases as a conjoined appeal known as Paul Anor v Royal Wolverhampton NHS Trust. They concerned an alleged failure by the defendant arising from alleged clinical negligence and failure to diagnose a life-threatening condition. The Secondary victims in this claim (close relatives) were individuals and claimed compensation for psychiatric injuries suffered as a consequence of witnessing the collapse of their loved ones.
As a brief background to the tragic circumstances, the primary claimant hit his head on a pavement in January 2014 after collapsing whilst out shopping with his daughters. He had previously been treated in hospital for acute coronary symptoms in 2012 but was later discharged. Despite the best efforts of the ambulance crew, he unfortunately died. Claiming psychiatric illness as a result of witnessing the event; his daughters argued that had the claimant’s chest pain been properly investigated at the time, he would not have suffered the heart attack.
The courts have limited the extent to which Defendants can be held liable for psychiatric injuries suffered by close relatives. The leading case of Alcock (Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310) sets out the requirements to establish proximity:
- A close tie of love and affection to a primary victim
- Knowledge of the event with their own unaided senses
- Proximity to the event or its immediate aftermath
- A sufficiently shocking event must cause the psychiatric harm
- A close temporal connection between the event and the secondary victim’s perception of it.
The key issues brought to the Supreme Court were whether Novo (Crystal Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194) correctly interpretated limitations on liability to secondary victims. In this case, 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. The issue here was in particular “whether this exceptional category of case includes – or can and should be extended to include – cases where the claimant’s injury is caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant has negligently failed to diagnose and treat”. Paragraph 5 of the Judgement.
In paragraph 115 of the judgment, after considering the key 5 elements, the Court by contrast of clinical negligence cases with non-accident cases, found significant difficulty in following the same path “we do not consider that an analogy can reasonably be drawn…where the claimant does not witness an accident but suffers illness as a result of witnessing such a person suffering a medical crisis”.
In addition, in para 116, they had agreed with Novo, to “extend the scope of allowable claims by secondary victims to situations where the claimant witnesses the death or illness of a relative from disease would give rise to unacceptable and unfair differences in treatment between different categories of claimant”.
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. 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. The test for secondary victim was not met and the claims did not succeed; this was crucial.
Returning to this matter, the decision means that a claimant does not have to prove that the ‘event’ is when the negligence or damage occurred; the event can be when the negligence becomes evident. This is especially important for clinical negligence cases where the negligence may be due to a failure to do something as opposed to accident cases where the event is usually the accident.
In clinical negligence cases however, there is nearly always a period of time from the care to the consequences. The Court considered that witnessing a medical event is variable and an adequate test has not been identified.
This Judgement looks at the claims brought by family members as it provides a little clarity of the duty a practitioner has to their patient. The judgment looks solely at claims brought by family members and 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.
Jason Green, Legal Costs Negotiator
18.04.2024