Compensation for secondary victims not present at the scene of the tort? – Paul v NHS Trust

By Emily Girvan-Dutton


The current law on secondary victim claims for psychiatric injury can be found in Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907. The following control mechanisms were developed to restrict liability for the causing of psychiatric harm to secondary victims: proximity of relationship with the primary victim, proximity to the accident, and the requirement of directly perceiving the immediate aftermath of the tort.



In Taylor v A Novo (UK) Ltd [2014] QB 150, the claimant's mother was negligently injured. Three weeks later, she collapsed and died at home because of problems caused by the accident. Despite witnessing her mother’s death, the daughter was unable to claim damages as three weeks was regarded to be too great a period after the negligence.


BACKGROUND: The case was brought in respect of the death of Mr Paul by his wife and their two daughters. In November 2012, Mr Paul attended a hospital within the Defendant’s Trust with complaints of chest and jaw pain. Following a series of tests, he was discharged. 14 months later, he suffered a fatal heart attack whilst out with his two daughters. His collapse was sudden and extremely distressing for his children to witness, being only 12 and 9 at the time.


The Claimants' case is that the failure to diagnose the conditions that lead to his heart attack during Mr Paul’s stay in hospital in 2012 was negligent. Had the negligence not occurred, he would not have had a heart attack and his daughters would not have suffered the psychiatric injuries caused by witnessing his death.


SECONDARY VICTIM CLAIMS:

The point of contention, in this case, is whether Mr Paul’s heart attack, 14 months after the negligent treatment, could be regarded as a relevant ‘event’. If answered in the affirmative, Mr Justice Chamberlin submits that ‘each of the “control mechanisms” [would be] satisfied on the facts pleaded’ due to the parental relationship between the primary and secondary victims, the claimants were present at the moment of death, and the psychiatric injury suffered arose from witnessing the death. He also regarded it as ‘eminently foreseeable that a negligent failure to diagnose and treat a heart condition might result in a sudden and shocking event that, if witnessed by close family members, might occasion psychiatric damage.’


Referencing accident cases like Alcock and Taylor v A Novo, he asserts that ‘where the breach of the duty and the damage caused are coincident in time and place, the “scene of the tort” is also the scene of the negligence … the “scene of the tort” can only mean “the scene where damage first occurred”. In the context of the tort of negligence, this is the point when the tort becomes actionable or complete.’ It is on this basis that Taylor v A Novo failed and ‘not because injuries caused by negligent omission in a clinical setting are incapable of founding liability for psychiatric injury in a secondary victim’.


He surmises the ratio of Taylor v A Novo as ‘in a case where the defendant's negligence results in an “event” giving rise to injury in a primary victim, a secondary victim can claim for psychiatric injury only where it is caused by witnessing that event rather than any subsequent, discrete event which is the consequence of it, however sudden or shocking that subsequent event may be.’


Mr Justice Chamberlin does not attempt to overrule Taylor v A Novo. Rather, he distinguishes the current case on the basis ‘there was on the facts pleaded only one event: Mr P's collapse from a heart attack on 26 January 2014 … The fact that the event occurred 14 ½ months after the negligent omission which caused it does not, in and of itself, preclude liability … In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete’ Taylor v A Novo does not immediately preclude liability for the psychiatric injury caused to secondary victims like Mr Paul’s daughters.


The appeal was allowed.


SIGNIFICANCE:

The significance of Paul is that secondary victims can depart from the strict proximity requirements stated in Alcock and affirmed by Taylor v A Novo (and others) and receive some recognition for their psychiatric injury suffered even when there is an extended period between the breach of duty and the witnessing of the injury to the primary victim. This is particularly noteworthy for other cases like Paul where the act of negligence was an omission (failure to identify the signs of an impending heart attack).

Mr Justice Chamberlin’s decision can still be appealed but his judgment will provide encouragement to claimants and has initiated a process of clarifying the law in this area.


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