Court of Appeal judgment on secondary victim clinical negligence cases

By Marianne Walker, a medical negligence solicitor at Irwin Mitchell 

The Court of Appeal has today handed down judgment in the cases of Paul v Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed. 

These appeals were in relation to whether damages are recoverable by secondary victims of medical negligence in circumstances where the claimant witnesses a horrifying event happen to a loved one, typically extreme injury or death, as a consequence of negligence but where there is a passage of time either short or long between the negligence and the event which is witnessed.

Sir Geoffrey Vos, Master of the Rolls concluded that the court was bound by a previous decision in the case of Taylor v A Novo, which held that the horrifying event must be synchronous with the negligent act or on a continuum as in the case of Walters in order for a secondary victim’s claim to succeed.

Sir Vos rejected submissions from the defendant’s counsel that the horrific event must be the first time in which damage is manifest or completes the cause of action, as this would lead to complex factual disputes and ultimately result in an illogical solution. 

He also noted: "If I were starting with a clean sheet, I can quite 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. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case.’

Lord Justice Underhill added: "If the point were free from authority I would be minded to hold that on the pleaded facts the claimants in all three cases should be entitled to recover."

As a consequence, the defendant’s appeals in Paul and Polmear succeeded and the claimant’s appeal in Purchase failed.

Following this judgment, individuals who wish to bring a claim for compensation will currently not be successful if there is a passage of time – whether days, weeks or months – between witnessing a horrifying event and injury befall a loved one and the negligence which caused it. 

However, there are clear concerns laid out in the judgment about the correctness of the binding decision and the current position of the law which can only be resolved by the Supreme Court. All three claimants have sought permission to appeal to the Supreme Court.

Find out more about Irwin Mitchell's expertise in supporting people and their families affected by issues in care at our dedicated medical negligence section.

There are clear concerns laid out in the Judgment about the correctness of the binding decision and the current position of the law which can only be resolved by the Supreme Court. All three Claimants have sought permission to appeal to the Supreme Court.”