Secondary victim claims for psychiatric injury – where are we now?

During the 1989 FA Cup semi-final, an excessive number of supporters crammed into the Hillsborough stadium in Sheffield, resulting in ninety-six people being crushed to death and over four hundred physically injured. The Chief Constable of South Yorkshire Police admitted liability in negligence for the deaths and physical injuries. However, sixteen separate actions were brought against him by individuals that were not present at the event. The claimants were close relatives of the victims who watched the events broadcast live on television and suffered severe psychiatric injury.

This case is known as Alcock v Chief Constable of South Yorkshire, and it is a defining moment for secondary victim cases. The House of Lords drew a distinction between primary and secondary victims, namely those who were directly impacted by the event and those that had witnessed it. Further, the House of Lords established five essential elements which must be satisfied in a secondary victim claim:

1. In each case there was a marital or parental relationship between the claimant and the primary victim
2. The injury for which damages were claimed arose from the sudden and unexpected shock to the claimant’s nervous system
3. The claimant in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards
4. The injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim
5. There is not only an element of physical proximity to the event but a close temporal connection between the event and the claimant’s perception of it combined with a close relationship of affection between the claimant and the primary victim

Despite recognising the possibility of a claim succeeding, the House of Lords rejected all the claims since none satisfied every condition. Among the claimants was a brother-in-law, a fiancé and a grandfather who watched the tragedy on television.

The judgment demonstrated that the test for psychiatric injury in secondary victim claims was a difficult one to satisfy.

The Novo decision

In Taylor v A. Novo (UK) Ltd (2013) the claimant’s mother injured her head and foot when a fellow employee tipped a stack of racking boards over her.  The employer admitted liability. She appeared to make a good recovery but three weeks later collapsed suddenly, in the presence of her daughter, and died of a deep vein thrombosis and pulmonary emboli caused by her injury. The daughter suffered post-traumatic stress disorder as a result of witnessing her mother’s death.

The Court of Appeal (Lord Dyson gave the judgment) rejected the daughter’s claim. If the daughter had been present at the time of the accident, she would have qualified as a secondary victim. However, the three-week delay between the relevant event (the accident rather than the mother’s death) and the daughter’s injury stretched the concept of proximity established by the case law too far; such an expansion should only be done by parliament.

Conjoined claims in the Court of Appeal

On 13 January 2022, the Court of Appeal delivered the highly anticipated judgment in the conjoined appeals of Paul v Royal Wolverhampton NHS Foundation Trust, Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed. The court considered whether a defendant to a clinical negligence / medical malpractice claim can be held liable for psychiatric injury suffered by a secondary victim.

The claims

In each case, the defendant allegedly failed to diagnose the primary victim’s life-threatening condition. The primary victim later died in traumatic circumstances, the close family members witnessing the death or coming across the deceased victim immediately afterwards. As a result, these secondary victims sustained psychiatric injuries.

The central issue for the court was to decide whether the claimants could satisfy the proximity test, as applied in Novo. Sir Geoffrey Vos, the Master of the Rolls (“Vos MR”) gave the leading judgment and said:

“The true question is how the authorities are to be applied to clinical negligence cases where there is a delay between the negligent act or omission and a horrifying event caused to the primary victim by that negligent act or omission”.

All three cases involved delays of varying degrees between the negligent act or omission and the traumatic death of the family member. The case of Paul in particular involved a considerable interval – the failure to diagnose Mr Paul with coronary artery disease was 14 months prior to Mr Paul’s collapse and death when out shopping with his daughters.

The decision

The Court of Appeal reluctantly found for the defendant in each of the three appeals. It held that it was bound by its judgment in Novo and the importance, when applying the proximity test, of the interval of time between the breach of duty and the shocking event.

Vos MR’s reticence in reaching this conclusion was starkly apparent in his judgment. The restrictive interpretation of earlier case law adopted in Novo will result in most secondary victim claims failing in medical malpractice cases. He questioned whether the proximity principles were correctly interpreted in Novo, given that the earlier cases addressed the position where the death of the primary victim was broadly contemporaneous with the breach of duty. He said:

“If I were starting with a clean sheet, I can 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”.

Granting permission to appeal, Vos MR invited the Supreme Court to determine whether to depart from the law as stated by the Court of Appeal in Novo.

Conclusion

If one of these cases does go to the Supreme Court, it will be interesting to see whether the Justices share the unanimous view of the Court of Appeal that the restrictive approach to secondary victim claims taken in Novo should be abandoned, or whether they feel that this should be a matter for parliament. 

While this will be particularly important for relatives such as the claimants in the present cases, it will also have consequences for a wide range of professional defendants.

This was acknowledged by Vos MR.  He gave this example: a negligent architect designing a door in a load-bearing wall without specifying an RSJ could cause masonry to fall on a primary victim’s head years later and a close relative could suffer psychiatric damage on witnessing that event.

He could not see why the gap in time between the negligence (of whatever kind) and the horrific event caused by it should affect the defendant’s liability to the secondary victim. It will be interesting to see whether the Supreme Court agrees with him.

For more information, please contact Stephen King.