Clinical negligence secondary victim case heads for supreme court with full support of ATE insurer

Temple Legal ProtectionBy Legal Futures Associate Temple Legal Protection

The Court of Appeal handed down judgment on 13 January in Paul v The Royal Wolverhampton NHS Trust. Paul is a clinical negligence claim against the defendant for Mr Paul’s death and a psychiatric injury claim for his daughters (the secondary victim claimants) who witnessed their father’s heart attack and death.

Mr Paul suffered a heart attack and collapsed in January 2014 when out shopping with his daughters, aged 9 and 12 at the time. Mr Paul suffered a heart attack caused by ischemic coronary artery atherosclerosis. Temple Legal Protection provided ATE insurance for Mr Paul and his family, with Shoosmiths representing them.

The claimants’ case is that the defendant was negligent in failing to perform a coronary angiography in November 2012 which would have revealed the coronary artery disease. This could and would have been successfully treated by coronary revascularisation. The defendant applied to strike out the secondary victim claims on the basis that no duty of care was owed to the claimants. The Court of Appeal allowed the appeals on the basis that they are bound by the case of ‘Novo’, which is fatal to the claims, but Vos MR and Underhill LJ expressly stated the issues raised need consideration by the Supreme Court.

Commenting on the judgment and subsequent decision to grant the claimants’ permission to appeal to the Supreme Court, Matthew Best Senior Underwriting Manager at Temple Legal Protection said ‘Having read the judgement myself and having had many conversations with Phil Barnes about this we feel strongly about escalating this matter to the Supreme Court. I also entirely agree with Vos MR where he says “it is hard to see why the gap in time (short or long) between the negligence (whether misdiagnosis or door design) and the horrific event caused by it should affect the defendant’s liability to a close relative witnessing the primary victim’s death or injury that it caused.”’

Matthew went on to say ‘The current, and even ultimate outcome of these matters, which if overturned, will have far-reaching consequences across our industry. It is only right that we stand by Mr. Paul and his family in a hope that justice will prevail. Therefore Temple Legal Protection has committed to backing these matters at the Supreme Court’.

Phil Barnes, partner and head of the serious injury team at Shoosmiths, representing Mr Paul’s family said ‘This decision means that in any case where there has been a negligent failure to do something e.g. a failure to diagnose or failure to treat, where there was no act, or there is a gap in time between the negligent act and the horrifying event there can be no secondary victim claim.  This is blatantly unfair to innocent secondary victims like my clients who have suffered psychiatric injury in these circumstances.  It insulates defendants like the NHS from liability in such cases.  The Court of Appeal recognise this unfairness and permission has been granted to put this issue before the Supreme Court, who it is hoped will apply a much fairer approach’.


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