Judgment was delivered today by the Court of Appeal in a conjoined ‘Secondary Victim’ appeal which reinforces the stringent legal requirements for recovery of damages for psychiatric injury in a healthcare context. As part of that appeal, Bevan Brittan represented Royal Cornwall Hospitals NHS Trust, whilst Browne Jacobson acted for The Royal Wolverhampton NHS Trust and the respondent GP, Dr Ahmed. In a Court led by the Master of the Rolls, the Court of Appeal importantly determined that previous Court of Appeal authority, Taylor v A. Novo (UK) Ltd  EWCA Civ 194, remains binding in determining the issue of proximity in secondary victim claims.
As always, the facts of the cases are heart rending. In each, the Defendant was alleged to have failed to diagnose the primary victim’s life-threatening condition and sometime after that negligent omission, the primary victim suffered a traumatic death. In both Paul and Polmear, the shocking collapse and death occurred in the presence of close relatives, causing them psychiatric injury. In the case of Purchase, a Mother came upon the primary victim, her daughter, immediately after her death, again sustaining psychiatric injury. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative for the secondary victim to bring a claim.
For successful claims to be made, secondary victims have to satisfy a series of strict “control mechanisms,” thereby limiting liability for psychiatric injury, which include proximity. It should be noted the term “control mechanisms” did not find favour with the court, with the Master of the Rolls preferring to refer to these as Lord Oliver’s five elements, as derived from the decision in Alcock v Chief Constable of South Yorkshire Police  1 AC 310. Proximity has previously been understood to mean that a potential claimant has to witness a “relevant event” which is neither separate in time nor space from a negligent act or omission, which causes psychiatric injury. This position was confirmed in Court of Appeal authority in the case of Novo, where the claimant witnessed the collapse of her Mother 3 weeks after a negligent accident at work. Liability to the secondary victim was precluded as the collapse was not the relevant event for the purposes of deciding proximity. The collapse was held to be a later consequence of the original accident at work and the claim failed.
This position was recently challenged in Paul where, upon appeal of a first instance strike out application, Chamberlain J reinstated the claimants’ secondary victim claims, despite a 14 month gap between a negligent failure to diagnose heart disease and the primary victim’s collapse and death. The Trust was given permission to appeal in January 2021.
In the meantime, determination of an application made to strike out secondary victim claims in Polmear was awaited. This case, involved the tragic death of a 7 year old due to an undiagnosed respiratory condition, and secondary victim claims were brought by her parents who witnessed her death 7 months after she had attended the Trust with symptoms of breathlessness. Following the decision by Chamberlain J in Paul, the strike out application in Polmear was dismissed by Master Cook, but with permission to appeal by way of “leapfrog” to the Court of Appeal under CPR 52.23. A similar approach was taken in Purchase, involving a GP’s failure to diagnose the primary victim’s pneumonia 3 days prior to death, leading to a conjoined appeal hearing in December 2021.
Despite the Court noting the meticulous examination of the authorities by Chamberlain J in his decision on Paul, and the Master of the Rolls expressing reservations about whether Novo correctly interprets the limitations on liability to secondary victims contained in the control mechanisms, it was concluded that Novo remained “binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in space and time from the original negligence, accident or first horrific event.”
For this reason, the appeals in Paul and Polmear were allowed and the appeal was dismissed in Purchase. The Claimants have sought permission to appeal and the Court’s determination is awaited.