Thomas Wood provides his initial view on Paul and Anor v Royal Wolverhampton NHS Trust, Polmear and Anor v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed [2024] UKSC 1

A brief initial view by Thomas Wood...

The Supreme Court has (by a majority of 6:1) significantly restricted secondary victim claims in clinical negligence cases.  In fact, one can almost go so far as to say that they are now wholly impossible to bring.

The decision is a major blow to Claimants. Whilst all potential secondary victims lose out, one must feel, in particular, for fathers in obstetric negligence cases.  They have traditionally formed a large proportion of potential secondary victims in medical negligence cases.  The mother will be a primary victim (providing that the infant was unborn at the time of the negligence) whereas the father, who witnesses the horror unfold of real or perceived danger to the life of his partner and/or unborn child will go uncompensated.  The Supreme Court was not asked to reconsider the position of primary victims (see YAH v Medway NHS Trust and Zeromska-Smith v United Lincolnshire Hospitals NHS Trust) and so there is no change to the settled position of the mother being able to claim as a primary victim in these circumstances.

As their Lordships overturned North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 (see paragraph 121 of the judgment) there has been a significant step backwards in the number of Claimants that will successfully be able to bring claims.

There is the possibility of course that in the future the Supreme Court may return to the question and reconsider the dissenting judgment of Lord Burrows, but this will not be any time soon. Until then the clear and unambiguous judgments of the majority prevent virtually all claims.  I say virtually, as the only cases in which a secondary victim may claim are those in which they witness an accident:

“105. ... We think it relevant to note first that the occurrence or manifestation of injury is not part of what defines an accident. An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event. In the many cases which have involved accidents, the right to claim damages has depended on whether the claimant was present at and directly perceived the accident (or its immediate aftermath). Witnessing injury caused by the accident has not been treated as either necessary or sufficient.”

“123. The question was raised in argument of whether the rules governing claims by secondary victims arising from accidents could ever apply in a medical setting. The question does not arise in the present cases, as none of them involves an accident in the relevant sense. Various hypothetical examples were, however, posed in argument such as a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.”

Taking these paragraphs together, the successful secondary victim would need to see a medical accident, but that witnessing the injury is neither necessary nor sufficient, provided the event can be characterised as an” accident”. Therefore, I am not certain that witnessing the adverse reaction to the drug injection would be necessary (see the example in paragraph 123), but I imagine that this was included as otherwise it would be difficult to classify the giving of an injection as an accident. Herein lies the difficulty for Claimants: the injury is the thing that causes the ‘nervous shock’. The accident (the giving of an injection) would not at the time be shocking as this would be an expected part of treatment - it would only be the negative reaction thereafter that would change the perception from one of an ordinary routine medical treatment into a shocking event and cause the injury.  Thus, even in cases of a witnessed one-off event, I suspect that bringing a successful secondary victim claim will be difficult.

Therefore, sadly, I regard the potential for secondary victim claims in clinical negligence as very limited, but of course each will have to be determined upon its own merits.  Should there be any prospective secondary victim claims arising from “medical accidents” I would be more than willing to consider the facts as the Courts will, no doubt, now be asked to consider the extent to which (if at all) such claims might be successful.

22nd Jan 2024

Thomas Wood

Call 2002