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In this post, Isabel Emerson, Senior Associate, and Anna Walsh, Partner, in the Clinical Risk and Medical Advisory and Professional Discipline and Regulatory team at CMS preview the decision awaited from the Supreme Court in Paul and another v Royal Wolverhampton NHS Trust (2) Polmear and Anor v Royal Cornwall Hospitals NHS Trust and (3) Purchase v Ahmed

These three conjoined appeals were heard by the Supreme Court on 16 – 18 May 2023.

These are three deeply tragic cases, each relating to a claim by a close relative (a secondary victim) for psychiatric injury caused by witnessing, or attending shortly after, the death of a loved one (the primary victim), where the death was allegedly caused by the defendant’s earlier clinical negligence.

The issue for the Supreme Court to determine is whether the necessary legal proximity exists between a defendant and a secondary victim where the alleged clinical breach of duty occurs days, months or even years before the horrifying event of injury.

 

The Facts

The brief facts of the cases are as follows:

Paul and another v Royal Wolverhampton NHS Trust (‘Paul’)

Mr Harminder Singh Paul collapsed and died from a heart attack on 26 January 2014 whilst shopping with his daughters (aged 12 and 9). His daughters suffered psychiatric injury as a result of witnessing their father’s collapse, its traumatic aftermath, and his death.

It was subsequently alleged that his death had occurred as a result of a negligent failure by the Royal Wolverhampton NHS Trust to diagnose and treat his coronary artery disease 14 and a half months earlier.

 

Polmear and Anor v Royal Cornwall Hospitals NHS Trust (‘Polmear’)

Esmee Polmear, aged 7, collapsed and died on 1 July 2015 after a school trip to the beach. Esmee’s collapse, unsuccessful attempts at resuscitation, and her death, were witnessed by her mother and father, both of whom suffered post-traumatic stress disorder (‘PTSD’) and major depression as a result.

Esmee’s cause of death was pulmonary veno-occlusive disease. She had been seen by a paediatrician on 1 December 2014 due to strange episodes in which she could not breathe, appeared pale and turned blue. A cardiac cause for these symptoms was ruled out. The Royal Cornwall Hospitals Trust admitted that there was a failure to diagnose the condition in mid-January 2015.

 

Purchase v Ahmed (‘Purchase’)

Evelyn Purchase, aged 20, died on 7 April 2013. The cause of her death was extensive bilateral pneumonia with pulmonary abscesses.

Evelyn was found by her mother at home motionless in bed with the house telephone in her hand. Her mother’s attempts at CPR failed. It was determined that she had died about five minutes before being found. Her final moments were recorded in a voicemail left on her mother’s mobile phone. Her mother developed PTSD, severe chronic anxiety and depression.

It was alleged that Evelyn had presented to her GP with symptoms of severe pneumonia on 4 April 2013 and that there was a negligent failure to assess and treat her, as a result of which she died.

 

The Law

The law relating to secondary victim claims is notoriously controversial.

To date the courts have tried to find a balance between recognising the right of a secondary victim to bring a claim, whilst also setting limits to recoverability for secondary victims, without which a defendant could potentially be exposed to multiple claims arising from one act of negligence. This has resulted in an area of law which seems rather arbitrary and difficult to navigate.

The leading authority for legal proximity is Alcock v Chief Constable of the South Yorkshire Police  [1992] 1 AC 310 (‘Alcock’). This was a group of claims brought by people who had witnessed the Hillsborough disaster (some in person, some watching events play out on television). In his judgment Lord Oliver set out 5 rules of recoverability which have become to be known as the five ‘control mechanisms’, which a secondary victim must prove in order to recover damages. These are:

  1. There must be a close tie of love and affection between the primary and secondary victim. (This is usually a marital or parental relationship);
  2. The psychiatric injury must arise from a sudden and unexpected shock to the secondary victim’s nervous system (i.e., as a result of a shocking event rather than gradual realisation over the course of time);
  3. The secondary victim must be personally present at the scene or immediate aftermath (physical proximity);
  4. The injury to the secondary victim must arise from the death, extreme danger to, or injury of the primary victim; and
  5. Lastly, there must be not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it combined with a close relationship of affection between the claimant and the primary victim [our emphasis].

It is the fifth control mechanism which is the focus of debate in Paul, Polmear and Purchase.

Since Alcock the courts have sought to interpret Lord Oliver’s ‘control mechanisms’ and apply them to different circumstances. Many of the leading authorities relate to accident rather than clinical negligence cases.

Of most significance to these appeals is the Court of Appeal decision in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194) (‘Novo’) Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 (18 March 2013) (bailii.org). In Novo the claimant’s mother was injured at work when a stack of racking boards fell on her. Her employer admitted negligence. Three weeks later, after seemingly making a good recovery, she collapsed and died in the presence of her daughter who suffered PTSD as a result of witnessing her mother’s death and brought a claim as a secondary victim. The Court of Appeal found in favour of the defendant. In Lord Dyson’s judgment he said that proximity was lacking because the claimant was not present at the scene of the accident (when the racking boards fell on her mother) and was not involved in its immediate aftermath. As such, the necessary element of temporal proximity was lacking.

 

Decisions of the courts below

Following existing case law, notably Novo, Paul and Purchase were dismissed by the High Court and County Court respectively, with permission given to appeal. Following Paul, an application to dismiss the claim in Polmear was also rejected, with permission given to appeal.

 

Court of Appeal and issues for the Supreme Court

Paul, Polmear and Purchase were conjoined and heard together before the Court of Appeal [2022] EWCA Civ 12. Somewhat reluctantly, the Court of Appeal found for the defendants in each case, on the basis that they too were bound by the existing Court of Appeal authority of Novo, which precluded liability even where the horrific event is the first occasion on which any damage is caused to the primary victim.

Sir Geoffrey Vos, Master of the Rolls, expressed his reluctance in his lead judgment, making clear that he had reservations about whether Novo had correctly interpreted the Alcock ‘control mechanisms’ and the House of Lords’ subsequent authorities:

“Looking at the matter without regard to the authorities, it is hard to see why the gap in time (short or long) between the negligence (whether misdiagnosis or poor design) and the horrific event caused by it should affect the defendant’s liability to a close relative witnessing the primary victim’s death or injury that it caused…If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case”.

LJ Underhill agreed that these issues warranted consideration by the Supreme Court. His view was that:

“It follows that if the point were free from authority I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover.   I do not think that recognising the necessary proximity in such cases would be contrary to the “thus far and no further” approach taken in ‘White’.  It would not involve going beyond the elements established in Alcock: rather, it would represent their application in a different factual situation”.

He went on to say:

“I find it hard to see a principled reason why there should be the requisite proximity in the one kind of case but not the other. The arbitrariness of the distinction is illustrated by the example given by Peter Gibson LJ in Sion: why should the doctor who negligently prescribes a fatal medicine be liable to the secondary victim if the patient takes it, and dies (in the requisite shocking circumstances) straightaway, but not if they do so only a few days or weeks later?”

Lady Justice Nicola Davies agreed and permission was granted to the claimants to appeal to the Supreme Court. The Supreme Court decision is eagerly anticipated by secondary victims, defendants and their insurers alike.