We will all be familiar with the Supreme Court’s recent decision in the conjoined appeal of Paul, Polmear and Purchase (PPP). The decision has made it almost impossible for secondary victim claims as a result of medical negligence to be successful.
But what about secondary victim claims generally? Is the outlook as bleak?
This article is designed to give a quick tour of what a secondary victim is, what happened in PPP, and will consider secondary victim claims in the digital age.
Authorities pre-PPP
As a generality, we can class a primary victim as someone who was directly involved in an accident. A secondary victim is someone who witnessed the injury of another, but who was not at risk of physical injury him or herself.
The case of Alcock -v- Chief Constable of South Yorkshire Police 1991, known as the Hillsborough case, sets out five control mechanisms to establish secondary victim status.
In Alcock, the court held there was no duty of care to the friends and relations of those who died in the Hillsborough disaster who watched the event on television.
The Court of Appeal held that to establish a claim for psychiatric illness resulting from shock it was necessary to show that the injury was reasonably foreseeable, and the relationship between the injured person and person making the claim was sufficiently proximate. The claimant had to show “propinquity in time and space” to the accident or its immediate aftermath. In the case of the claimants present at the match, the mere fact of the relationship was insufficient to give rise to a duty of care; and the viewing of the event on television was not equivalent to being within sight and hearing of the event or its immediate aftermath.
The five control mechanisms are therefore:
-
-
- there requires to be close ties of love and affection between the claimant and the victim;
- the injury requires to have been caused by a sudden and unexpected shock to the claimant’s nervous system;
- the claimant was present at the scene or arrived in the immediate aftermath;
- the injury resulted from witnessing the death, or extreme danger to, the primary victim; and
- there is a close temporal relationship between the incident and the injury for which damages are claimed.
Before PPP, how did this evolve in clinical negligence cases?
In Taylor -v- Novo 2013, a woman had suffered a workplace accident that resulted in her sustaining injury. She suffered a fatal thrombosis three weeks later. Her daughter witnessed her death and sued her mother’s employer for PTSD she had sustained as a result.
At first instance, it was ruled that there was sufficient proximity as the event that caused the daughter’s PTSD was her mother’s death and there was no gap between that event and her resulting psychiatric injury.
The decision was appealed, and the daughter’s claim was rejected. The relevant event for assessing proximity was the accident and not the death of the mother.
Lord Moore-Bick MR was of the opinion that if the death was the relevant event, the mother’s employer would owe a duty of care even if the mother died years later. We can see how this translated into the decision in PPP.
Fast-forward to PPP
This concerned the conjoined appeal of 3 cases:
1. Paul and Another v Royal Wolverhampton NHS Trust
On 9 November 2012, Mr Paul was admitted to hospital complaining of chest and jaw pain. He was treated for acute coronary symptoms. He was discharged from secondary care three days later. Fourteen months later, Mr Paul suffered a cardiac arrest while shopping with his young daughters. They saw their father fall backwards and hit his head on a pavement. They also saw the ambulance crew place a blanket over Mr Paul and chest compressions being performed. Mr Paul was dead by the time he got to hospital.
It was accepted that the heart attack would have been avoided had there been no negligence. Mr Paul should have received a coronary angiography in November 2012 and failure to do so led to the fatal heart attack.
Claims were brought by Mr Paul’s daughters for damages for psychiatric illness caused by witnessing the death of their father.
2. Polmear and Another v Royal Cornwall Hospitals NHS Trust
In 2014, Esmee Polmear (aged 6) attended her GP in respect of medical episodes where she could not breathe, appeared pale and turned blue. She was reviewed by a paediatrician towards the end of 2014. Her symptoms were thought to be caused by exertion, but it was later admitted that veno-occlusvie disease should have been diagnosed at this stage.
On 1 July 2015, Esmee took unwell during a school trip. Her parents were called. Esmee collapsed and died in the presence of her parents after her father’s unsuccessful resuscitation attempts.
Her parents claimed for PTSD and depression as a result of witnessing the death of their daughter.
3. Purchase v Ahmed
On 4 April 2013, Evelyn Purchase attended an out of hours clinic with her mother and was examined by the defendant. She had difficulty walking into the clinic and was weak, dizzy and had difficulty breathing. She was discharged home with a prescription for antibiotics and antidepressants. On 6 April 2013, she complained of heart palpitations.
The following day, her mother returned home to find Evelyn motionless on the bed with her phone in her hand. Evelyn’s sister called 999 and was advised to give cardiopulmonary resuscitation. Evelyn’s mother opened her mouth to attempt mouth to mouth resuscitation. Blood and fluids spilled out of Evelyn’s mouth and nose. Evelyn died of severe pneumonia which the defendant failed to diagnose.
Evelyn’s mother realised her daughter had phoned her and left a voicemail which was Evelyn’s dying breaths. The call ended 5 minutes before Evelyn’s mother arrived home.
As a result, Evelyn’s mother developed post-traumatic stress disorder and severe anxiety and depression, for which she was claiming damages.
Legal issues in PPP
The key issue in these conjoined cases was whether doctors owe a duty to a patient’s family to protect them against the risk of injury they might suffer from witnessing the death or injury of a loved one due to illness caused by medical negligence. Can the pool of secondary victim pursuers be widened to include those whose injury is caused by witnessing the injury or death of a loved one from a medical condition which occurred as a result of medical negligence i.e. where there is no “accident”?
Novo was upheld by a 6:1 majority in the PPP appeal. The answer to the above question is no – there is no duty of care to the patient’s relative. To establish such a duty would widen the scope for claims; a prospect not favoured by the court due to the longstanding fear of opening the floodgates.
This decision forces practitioners to see Alcock and its related subsequent case lawin a different light for cases arising out of an accident. A court no longer needs to determine whether there was one event or a string of events and whether they were uninterrupted. The gap in time between negligence and event caused should not dictate liability (whether it is long or short).
The court instead focussed on two key requirements:
-
-
- Whether there has been an accident;
- Was it directly witnessed by a secondary victim
Framing the test for secondary victims in such a way makes is clear that success is unlikely in a clinical negligence context, but arguably more straightforward in a personal injury context.
All but done for clinical negligence – what is the future?
The numerous Covid lockdowns altered the landscape in which we communicate with one another. Think of Teams, Zoom and Webex – they have replaced in-person procedural court hearings for the most part, and make meetings a little easier if the requirement is no longer there for everyone to be sitting around the same table.
Keep in mind that control mechanisms, from whatever case, exist to limit the number of claims made.
The decision in Alcock is based around facts where traumatic events were televised. Imagine an individual witnesses a traumatic incident on FaceTime. They were on a one-on-one call with a close family member. They hear and see everything, but this is filtered through a mobile phone, internet, and whatever else is in cyberspace. Should this experience be treated the same as being at the scene of an accident in person?
Whereas a person who learns of an apparently random incident via television, or say, on a general social media feed is very unlikely to know the people involved, there is not that degree of abstraction or removal in hearing and seeing an event unfold first hand on a private Zoom call. You directly witness the accident as it is happening. The familiarity to you of the person involved makes the incident even more real and vivid an experience. You are not seeing “highlights,” an edited version or someone else’s recording of the accident via television or social media. For the purposes of this example, there could be a novel argument that this fulfils the criteria for secondary victim status (assuming of course it is an accident and not a medical crisis per PPP).
This of course raises other questions. Will the quality of the digital medium i.e. signal strength, bandwidth problems, pixelation etc, have any impact on how a court perceives an individual witnessed an accident? How would a pursuer go about proving that they had a strong signal and the call was not dipping? A recording of the video call would of course solve that, but who records all their video calls? This is a real hurdle and a court may use this point as another floodgate barrier.
Practitioners and their clients will be despondent that secondary victim claims in clinical negligence matters are now unlikely to succeed. Those practising in personal injury, however, can be reassured that the test for secondary victim claims has become clearer. Secondary victim claims stemming from an accident witnessed digitally is a novel concept which practitioners should be encouraged to explore, particularly with the benefit of clarification of the test.
An abbreviated version of Alannah’s article appeared in the Scotsman on Monday 2nd September 2024.
Home > News + events > Secondary victim claims – a whistle stop tour and what the future holds
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Alannah Jones
Secondary victim claims – a whistle stop tour and what the future holds
We will all be familiar with the Supreme Court’s recent decision in the conjoined appeal of Paul, Polmear and Purchase (PPP). The decision has made it almost impossible for secondary victim claims as a result of medical negligence to be successful.
But what about secondary victim claims generally? Is the outlook as bleak?
This article is designed to give a quick tour of what a secondary victim is, what happened in PPP, and will consider secondary victim claims in the digital age.
Authorities pre-PPP
As a generality, we can class a primary victim as someone who was directly involved in an accident. A secondary victim is someone who witnessed the injury of another, but who was not at risk of physical injury him or herself.
The case of Alcock -v- Chief Constable of South Yorkshire Police 1991, known as the Hillsborough case, sets out five control mechanisms to establish secondary victim status.
In Alcock, the court held there was no duty of care to the friends and relations of those who died in the Hillsborough disaster who watched the event on television.
The Court of Appeal held that to establish a claim for psychiatric illness resulting from shock it was necessary to show that the injury was reasonably foreseeable, and the relationship between the injured person and person making the claim was sufficiently proximate. The claimant had to show “propinquity in time and space” to the accident or its immediate aftermath. In the case of the claimants present at the match, the mere fact of the relationship was insufficient to give rise to a duty of care; and the viewing of the event on television was not equivalent to being within sight and hearing of the event or its immediate aftermath.
The five control mechanisms are therefore:
Before PPP, how did this evolve in clinical negligence cases?
In Taylor -v- Novo 2013, a woman had suffered a workplace accident that resulted in her sustaining injury. She suffered a fatal thrombosis three weeks later. Her daughter witnessed her death and sued her mother’s employer for PTSD she had sustained as a result.
At first instance, it was ruled that there was sufficient proximity as the event that caused the daughter’s PTSD was her mother’s death and there was no gap between that event and her resulting psychiatric injury.
The decision was appealed, and the daughter’s claim was rejected. The relevant event for assessing proximity was the accident and not the death of the mother.
Lord Moore-Bick MR was of the opinion that if the death was the relevant event, the mother’s employer would owe a duty of care even if the mother died years later. We can see how this translated into the decision in PPP.
Fast-forward to PPP
This concerned the conjoined appeal of 3 cases:
1. Paul and Another v Royal Wolverhampton NHS Trust
On 9 November 2012, Mr Paul was admitted to hospital complaining of chest and jaw pain. He was treated for acute coronary symptoms. He was discharged from secondary care three days later. Fourteen months later, Mr Paul suffered a cardiac arrest while shopping with his young daughters. They saw their father fall backwards and hit his head on a pavement. They also saw the ambulance crew place a blanket over Mr Paul and chest compressions being performed. Mr Paul was dead by the time he got to hospital.
It was accepted that the heart attack would have been avoided had there been no negligence. Mr Paul should have received a coronary angiography in November 2012 and failure to do so led to the fatal heart attack.
Claims were brought by Mr Paul’s daughters for damages for psychiatric illness caused by witnessing the death of their father.
2. Polmear and Another v Royal Cornwall Hospitals NHS Trust
In 2014, Esmee Polmear (aged 6) attended her GP in respect of medical episodes where she could not breathe, appeared pale and turned blue. She was reviewed by a paediatrician towards the end of 2014. Her symptoms were thought to be caused by exertion, but it was later admitted that veno-occlusvie disease should have been diagnosed at this stage.
On 1 July 2015, Esmee took unwell during a school trip. Her parents were called. Esmee collapsed and died in the presence of her parents after her father’s unsuccessful resuscitation attempts.
Her parents claimed for PTSD and depression as a result of witnessing the death of their daughter.
3. Purchase v Ahmed
On 4 April 2013, Evelyn Purchase attended an out of hours clinic with her mother and was examined by the defendant. She had difficulty walking into the clinic and was weak, dizzy and had difficulty breathing. She was discharged home with a prescription for antibiotics and antidepressants. On 6 April 2013, she complained of heart palpitations.
The following day, her mother returned home to find Evelyn motionless on the bed with her phone in her hand. Evelyn’s sister called 999 and was advised to give cardiopulmonary resuscitation. Evelyn’s mother opened her mouth to attempt mouth to mouth resuscitation. Blood and fluids spilled out of Evelyn’s mouth and nose. Evelyn died of severe pneumonia which the defendant failed to diagnose.
Evelyn’s mother realised her daughter had phoned her and left a voicemail which was Evelyn’s dying breaths. The call ended 5 minutes before Evelyn’s mother arrived home.
As a result, Evelyn’s mother developed post-traumatic stress disorder and severe anxiety and depression, for which she was claiming damages.
Legal issues in PPP
The key issue in these conjoined cases was whether doctors owe a duty to a patient’s family to protect them against the risk of injury they might suffer from witnessing the death or injury of a loved one due to illness caused by medical negligence. Can the pool of secondary victim pursuers be widened to include those whose injury is caused by witnessing the injury or death of a loved one from a medical condition which occurred as a result of medical negligence i.e. where there is no “accident”?
Novo was upheld by a 6:1 majority in the PPP appeal. The answer to the above question is no – there is no duty of care to the patient’s relative. To establish such a duty would widen the scope for claims; a prospect not favoured by the court due to the longstanding fear of opening the floodgates.
This decision forces practitioners to see Alcock and its related subsequent case lawin a different light for cases arising out of an accident. A court no longer needs to determine whether there was one event or a string of events and whether they were uninterrupted. The gap in time between negligence and event caused should not dictate liability (whether it is long or short).
The court instead focussed on two key requirements:
Framing the test for secondary victims in such a way makes is clear that success is unlikely in a clinical negligence context, but arguably more straightforward in a personal injury context.
All but done for clinical negligence – what is the future?
The numerous Covid lockdowns altered the landscape in which we communicate with one another. Think of Teams, Zoom and Webex – they have replaced in-person procedural court hearings for the most part, and make meetings a little easier if the requirement is no longer there for everyone to be sitting around the same table.
Keep in mind that control mechanisms, from whatever case, exist to limit the number of claims made.
The decision in Alcock is based around facts where traumatic events were televised. Imagine an individual witnesses a traumatic incident on FaceTime. They were on a one-on-one call with a close family member. They hear and see everything, but this is filtered through a mobile phone, internet, and whatever else is in cyberspace. Should this experience be treated the same as being at the scene of an accident in person?
Whereas a person who learns of an apparently random incident via television, or say, on a general social media feed is very unlikely to know the people involved, there is not that degree of abstraction or removal in hearing and seeing an event unfold first hand on a private Zoom call. You directly witness the accident as it is happening. The familiarity to you of the person involved makes the incident even more real and vivid an experience. You are not seeing “highlights,” an edited version or someone else’s recording of the accident via television or social media. For the purposes of this example, there could be a novel argument that this fulfils the criteria for secondary victim status (assuming of course it is an accident and not a medical crisis per PPP).
This of course raises other questions. Will the quality of the digital medium i.e. signal strength, bandwidth problems, pixelation etc, have any impact on how a court perceives an individual witnessed an accident? How would a pursuer go about proving that they had a strong signal and the call was not dipping? A recording of the video call would of course solve that, but who records all their video calls? This is a real hurdle and a court may use this point as another floodgate barrier.
Practitioners and their clients will be despondent that secondary victim claims in clinical negligence matters are now unlikely to succeed. Those practising in personal injury, however, can be reassured that the test for secondary victim claims has become clearer. Secondary victim claims stemming from an accident witnessed digitally is a novel concept which practitioners should be encouraged to explore, particularly with the benefit of clarification of the test.
An abbreviated version of Alannah’s article appeared in the Scotsman on Monday 2nd September 2024.