The distinction between a Primary and Secondary Victim
What is a primary victim?
A primary victim is someone who has been directly involved in an accident and who suffers an injury (or is at risk of suffering an injury).
What is a secondary victim?
A secondary victim is someone who has suffered a psychiatric injury as a result of witnessing the negligence caused to the primary victim but has not been directly involved.
The legal test for secondary victim claim
The lead case on secondary victim claims is Alcock v Chief Constable of South Yorkshire Police [1992] which sets out a 4-stage test known as the control mechanisms. For a secondary victim to be successful in their claim, they must prove the following:
- It must be reasonably foreseeable that a person of “normal fortitude” might suffer psychiatric injury by shock. There must be a recognised psychiatric injury suffered.
- There must be a close relationship of love and affection between the primary victim and the secondary victim.
- The psychiatric injury must be caused by and result from a sudden and unexpected shock. It must be caused by seeing or hearing the relevant incident or its aftermath.
- The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath.
Paul v The Royal Wolverhampton NHS Trust and others
On 13 January 2022, the Court of Appeal handed down its judgment in the case of Paul v The Royal Wolverhampton NHS Trust and others, which was heard alongside another two secondary victim cases with similar facts, Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed.
In the case of Paul v The Royal Wolverhampton NHS Trust and others, The primary victim died of a heart attack in January 2014 when out shopping with his daughters. It was the Claimant’s case that the Defendant failed to perform a coronary angiography in November 2012. Had this been done, it would have revealed coronary artery disease and the primary victim could have been successfully treated by coronary revascularisation.
The primary victim’s daughters brought secondary victim claims as they both suffered psychiatric injuries as a result of witnessing their father’s traumatic death.
The secondary victims had no issue proving the first 3 of the 4 criteria above, as set out in Alcock v Chief Constable of South Yorkshire Police [1992] but had difficulty proving “proximity”, as they did not witness the lack of treatment provided to their father in 2012.
The Defendant’s position
The Defendant relied on the caselaw of Taylor v Somerset Health Authority [1993]. This was a clinical negligence claim whereby the Defendant failed to diagnose the Claimant’s worsening heart condition, which resulted in him suffering a heart attack months later and dying. His widow attended the hospital within an hour of her husband dying and was told of her husband’s death by a doctor about 20 minutes later.
In this case, it was held that the progressively deteriorating heart condition, the death, and then the transfer to hospital where the Claimant’s widow was informed of what had happened, did not meet the “proximity” criteria. This was further validated in Taylor v A Novo (UK) Ltd [2013] where the Claimant’s argument that the event to which the proximity test applies is the consequence of the negligence i.e., the husband’s death, was rejected. Proximity also requires proximity to the event i.e., the failure to diagnose her husband’s heart condition.
The Claimant’s position
The Claimant relied on the case of North Glamorgan NHS Trust v Walters [2002] whereby there was a negligent failure by the Defendant to treat a baby’s acute hepatitis. Around 17 June 1996, the baby was admitted to hospital and incorrectly diagnosed with jaundice. On 30 July 1996, the baby had a seizure which was witnessed by the mother. A misdiagnosis then delayed treatment for the baby’s brain damage and due to its severity, life support was terminated. The Court of Appeal held in this case that “there was an inexorable progression from one moment when the fit causing the brain damage occurred as a result of the failure of the hospital to properly diagnose and treat the baby, [to] the dreadful climax when the child died in her [the mother’s] arms. It is a seamless tale.” This was regarded as a single horrifying event.
Outcome in Paul v The Royal Wolverhampton NHS Trust and others
The Court of Appeal held that they could not distinguish the facts of Paul v The Royal Wolverhampton NHS Trust and others, with that of Taylor v Somerset, which was approved by the Court of Appeal in Taylor v Novo.
The death of the secondary victims’ father was 14.5 months after the negligent incident, was separated in space and time and could not be said to be a relevant event for deciding proximity. It was held that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or first horrific event and therefore the claim failed.
The Master of the Rolls, Sir Geoffrey Vos commented that whilst “there was no logical reason for these rules” i.e., why the proximity in clinical negligence cases must be in relation to the initial cause of action, “it is for the Supreme Court to decide whether to depart from the law” and the Court of Appeal were simply bound by the precedent in Taylor v Novo.
The cases of Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed also failed on the basis that they too failed to meet the proximity criteria. Whilst there was an indication by the Court of Appeal that an appeal in Purchase v Ahmed would not be allowed, the distinction being that the secondary victim found her daughter moments after she had died rather than witnessing the collapse and death first-hand, all cases have now received permission to appeal to the Supreme Court.
It is therefore a victory for Defendants and any subsequent secondary victim claims will now be bound by this decision. However, based on Vos’s comments, it seems this decision may be short-lived, but it will be for the Supreme Court to determine whether claims by secondary victims in failure to diagnose cases will be allowed in the future. It is hoped that the appeals will be heard by the Supreme Court at the end of 2022/early 2023.
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