Posted by Matthew Best, director of ATE partnerships at Legal Futures Associate Temple Legal Protection
The Supreme Court last week handed down its long-awaited judgment on conjoined clinical negligence cases concerning psychiatric injuries suffered by secondary victims.
Paul & Anor v Royal Wolverhampton NHS Trust  UKSC 1 concerned a failure to diagnose a life-threatening condition that resulted in Mr Paul’s death. The decision was unfavourable for the claimants in this matter, and thus for many other cases that were stayed pending this decision.
There were two other matters, Polmear and Purchase, each also concerning claims for psychiatric illness caused by seeing a traumatic event and death caused by a respondent’s negligence.
Following Paul, an application to dismiss the claim in Polmear was rejected but, again, permission was given to appeal. The Court of Appeal found for the appellants in Paul and Polmear, and for the respondent in Purchase.
All three cases then came before the Supreme Court, also as a conjoined appeal. The primary issue to determine was simply whether an individual can, as a result of earlier clinical negligence, make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative.
In summary, with this judgment the Supreme Court has now determined that witnessing an ‘accident’ (defined as “an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims”) is a necessary condition for a secondary victim claim, but that witnessing a medical crisis (the suffering or death of a relative from illness) or its aftermath is not sufficient.
It has concluded that Novo was previously correctly decided, whilst Walters was wrongly decided on the facts. Had the defendant raised the defence that the claimant had not witnessed an accident (or its aftermath), the claim should have failed.
Temple provided the after-the-event insurance for Mr Paul’s family. I agree with Phil Barnes and his legal team at Shoosmiths, who represented the family, that the Supreme Court’s decision has effectively turned back the clock.
The requirement for the secondary victim to witness an accident (an event external to the primary victim) will in practice mean that only in medical negligence cases will it be rare to make a secondary victim claim – such as negligent overdosing of a primary victim causing immediate adverse reaction and injury witnessed by the secondary victim.
On a more positive note for claimants, in accident cases it will no longer be necessary to prove that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event”.
Phil Barnes offered this view: “The Supreme Court has brought clarity to the application of the requirements in secondary victim claims arising from medical negligence cases by insisting that there must be an accident for there to be recovery for negligently caused psychiatric injury, but in so doing they have, in the words of Lord Burrows, taken an ‘unwarranted backward step’ and departed ‘from the reasoning in almost all of the reported medical negligence cases in this area’.
“The court’s approach is too restrictive and insensitive to those secondary victims who suffer psychiatric harm as a result of witnessing the death, injury or fear of injury to a loved one as a result of medical negligence.”
The Supreme Court currently has a very conservative outlook. This is apparent in many of its recent personal injury decisions – BXB, HXA, YXA and McCullough (going with the more doctor-friendly test). The consistent theme seems one of a retraction of duties and a consequent negative impact on the ability of claimants to pursue their case.
The legal team here put forward such compelling arguments to the court. Their handling of this matter has been so impressive, and we are united in our view that this verdict is terribly unfortunate.
It is now time to deal with the consequences. Temple will remain on hand to deal with any claims made under our policies. We are here to fight for justice and sometimes on that journey we hit bumps in the road; that is what an insurer is here for, to support our solicitor business partners and their clients – especially when things don’t go as planned.