Clinical Negligence and the Secondary Victim – A call to Defendants to be prepared

The case of Paul v Royal Wolverhampton NHS Trust finds that loved ones of a primary victim can bring a successful secondary victim claim, over a year after the period of alleged clinical negligence. We consider below how Defendants can anticipate and be prepared for a secondary victim claim.

A ‘secondary victim’ is someone who suffers psychiatric injury by witnessing an incident involving a primary victim. This involves the secondary victim either seeing the injury being sustained by the primary victim or fearing an injury happening to the primary victim.

In summary, in order for a secondary victim claim to be successful, the following must be satisfied:

• There must be a close tie of love and affection to the primary victim;
• Proximity to the event (in time and space) or its immediate aftermath;
• Direct perception of the event or its immediate aftermath;
• Reasonable fortitude (reasonably foreseeable);
• Sudden shock (there must be a sudden shock to the nervous system).

It has long been an uphill battle for secondary victims to bring a successful claim in clinical negligence cases and claims are often unsuccessful unless they fulfil the secondary victim criteria.

Paul v Royal Wolverhampton NHS Trust

The courts take a strict approach in analysing whether the secondary victim criteria has been fulfilled and up until now medical professionals and / or organisations in clinical negligence cases have, more often than not, been found to owe a duty of care only to their patients and not to a patient’s ‘close ties of love and affection’. However, the recent case of Paul v Royal Wolverhampton NHS Trust shows how the tides have begun to turn.

The case involved two daughters (the Claimants) who were out walking with their father when he suddenly collapsed and suffered a heart attack. The event took place 14 months after the period of alleged negligence, when it was alleged that had their father been diagnosed with heart disease and atherosclerosis 14 months earlier it would have prevented his heart attack. The daughters claimed to have suffered psychiatric injury when witnessing their father’s collapse and subsequently brought claims as secondary victims. The judge held that the ‘relevant event’ was the collapse of the father and this was an ‘external traumatic event’ by itself and the ‘relevant event’ was not the failure to diagnose the father’s condition 14 months earlier. The judge therefore overturned the decision to strike out the secondary victim claims.

Before Paul v Royal Wolverhampton NHS Trust

In the previous case of Taylor v A Novo (UK) Ltd (2013), the Claimant was the daughter of the victim who was involved in a serious accident and although she did not witness her mother in the accident, she did witness her mother’s death three weeks later. The Court of Appeal found that as the Claimant was not close to the relevant event, her claim as a secondary victim would be unsuccessful. Later, the case of Wild v Southend University Hospital NHS FT (2014) pointed out that even if the Claimant is close to the relevant event by being present the same day, this is still not enough. This case involved the Claimant who was in hospital with his wife at the time, who was due to give birth, when it was discovered that the baby had died in the womb. Although the hospital admitted negligence, the Claimant’s claim failed as it could not satisfy the test of witnessing a horrific event, leading to or surrounding serious injury or death.

When reviewing the previous case of Taylor, in which the proximity to the relevant event was only 3 weeks as opposed to 14 months in the current case, it is difficult to understand why the current case of Paul was successful. However, the judge in the case of Paul looked at the case as relating to only one event, which was the collapse of the father from a heart attack. In the case of Taylor, the Court of Appeal found that the accident was the event which resulted in injury to the primary victim and therefore a secondary victim could make a claim only where it was caused by witnessing that event rather than a subsequent, discrete event which was the consequence of the first event, however shocking or sudden the subsequent event may be. Whereas Taylor was seen as a subsequent event to the “relevant” event, Paul was by itself a “relevant” event despite it happening 14 months after the period of alleged negligence.

A call to Defendants to be prepared

When quantifying a potential clinical negligence claim, as a Defendant, one must review the whole sequence of events. For example, where there is alleged clinical negligence which has resulted in the patient’s death, it is essential that Defendants do not skim over these details. It is essential to ask: who, what, where and when, in relation to the death of the patient. Who was there? What exactly happened? Where was the secondary victim in relation to the primary victim? And When did the death occur in relation to the alleged negligence? Once you have this information, it is also essential to identify if the death of the patient was a subsequent event which followed from the relevant event or was it, on its own, a relevant event.

Once the above has been analysed, if there is a possibility of a secondary victim claim this needs to be factored in when quantifying a claim, even if the Claimant has not yet proposed that there is also a secondary victim claim, there is a possibility that this could still arise later and so it is better to be prepared.

Further Reading

Paul (a child, by her mother and litigation friend) and another v Royal Wolverhampton NHS Trust (2020) EWHC 1415 (QB).

Taylor v A Novo (UK) Ltd (2013) EWCA Civ 194 [2013] All ER.

Wild v Southend Hospital NHS Trust (2014) EWHC 4053 (QB).