Scope of liability in cases of psychiatric harm suffered by secondary victims

This article notes and comments upon the recent High Court decision Paul & Anor v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) which concerned the scope of liability in ‘nervous shock’ cases where secondary victims (i.e. those who witness the death or injury of a primary victim) suffer psychological harm.

The facts:

The case involved a claim made by the family members of the deceased primary victim (the husband and father to the claimants). The primary victim suffered a heart attack, without notice, and died at the scene whilst on a routine shopping trip with his family.  The Claimants suffered psychological harm after observing the same. The Claimants alleged that the Defendant was clinically negligent in failing to diagnose the primary victim’s heart issues when he was in hospital some fourteen months prior to the hear attack and that had he been diagnosed and treated for those conditions then the heart attack would never have occurred.

At first instance the Claimants’ cases were struck out on the basis that they disclosed no reasonable grounds for bringing the claim as no duty of care was owed to the Claimants.

The issue on appeal:

The issue to be decided on appeal was whether the primary victim’s heart attack was a ‘relevant event’ within the meaning of the caselaw. The Court considered (at [62]) that subject to this matter the other aspects of the claim (‘the control mechanisms’) were satisfied:

• there was a parental relationship between the Claimants and the primary victim;
• the injury for which damages were claimed arose from a sudden and unexpected shock to the Claimants’ nervous systems;
• the Claimants were personally present at the scene;
• the injury suffered arose from witnessing the death of the primary victim; and
• there was a close temporal connection between the event and the Claimants’ perception of it, combined with a close relationship of affection between the Claimants and the primary victim.

Court’s Ruling:

Chamberlain J noted there was three possible ways in which it could be suggested the heart attack was not a relevant event:

1. the event was not approximately synchronous to the negligence which gave rise to it – it was held to be correct not to advance this argument as the temporal proximity was required between the psychiatric injury and the event that was caused by the breach, as opposed to the breach itself;
2. liability depends on a negligent act rather than omission – again it was held to be correct that this was not advanced because this was considered to be a distinction which was wrong in principle (i.e. it was no bar that the claim was based upon a negligent omission);
3. the claimants were absent from the ‘scene of the tort’ – this argument was relied upon by the Defendant.

In dismissing the Defendant’s argument, the Court held as follows:

• where the act of negligence and the harm suffered are factually separate, then the ‘scene of the tort’ will be defined by where damage first occurred and in negligence cases this would be ‘when the tort becomes actionable or complete.’
• In the absence of expert evidence, the Court had to continue on the basis that there was no damage prior to the primary victim’s heart attack and therefore the ‘scene of the tort’ was where the heart attack took place.
• It was not correct to argue that there was no foreseeability of harm to the secondary victims in this case: ‘it [i]s 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.’
• There was no requirement that secondary victims ‘perceive’ that the harm caused to the primary victim arises from the Defendant’s negligence at the time of the ‘event’.
• The requirement for there to be an ‘external’ traumatic event was to be read as requiring an event which was ‘external to the secondary victim’.
• The ratio of Taylor v A. Novo [2014] QB 150 (a case where the primary victim was injured after boards fell on her and seemed to be recovering but then collapsed and died arising from deep vein thrombosis, caused by the accident. Her daughter did not see the boards fall but saw her mother later collapse and die. The Court held that the daughter could not establish liability in that case) was that: “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.”
• It was irrelevant that the injury/event that occurred to the primary victim was ‘internal’ as opposed to a normal ‘accident’ type case.

It is important to appreciate that Chamberlain J also went on to deal with the situation had the position been that it could be shown the primary victim had suffered some damage prior to the heart attack. It was held that if there was a cut-off point for actionability, this would be at the time when the damage became ‘manifest’ or ‘evident’. On the facts of this case this matter would have made no difference as the heart attack was this point in time.

Comment:

The Court’s decision is noteworthy. Firstly, Chamberlain J gave a detailed overview of the caselaw in this area and how the law has developed (a matter which is beyond the scope of this article). For practitioners, the case therefore serves as a useful and helpful guide to understanding the law in this area.

Secondly, the case highlights a distinction in the Court’s approach. Chamberlain J noted that because of ‘constitutional considerations’ it was not open for the Court to apply ‘analogical reasoning’ to extend the availability of recovery to certain cases on principle. However, Chamberlain J emphasised that such limitations did not apply in deciding whether, in each case, the control mechanisms were satisfied; and liability was not constrained to the facts of those cases where a finding of liability has been made. This reflects importance of considering each case on its facts. For example, as in this case, the mere fact that the alleged negligence concerns an omission arising from a clinical setting is not a bar to liability, nor is the passage of a significant amount of time between the alleged breach and the event.

Nathan Davis

Nathan is a common law pupil who is currently undertaking his second six.