Secondary victim claims – a recap of the requirements following new case considering question of proximity
BALBIR KAUR PAUL (ON HER OWN BEHALF & AS ADMINISTRATRIX OF THE ESTATE OF PARMINDER SINGH PAUL) (2) SAFFRON OLIVIA KAUR PAUL (A CHILD BY HER LITIGATION FRIEND BALBIR KAUR PAUL) (3) MYA PAUL (A CHILD BY HER LITIGATION FRIEND BALBIR KAUR PAUL) v ROYAL WOLVERHAMPTON NHS TRUST (2019)
 EWHC 2893 (QB)
Master Cook confirmed that secondary victim claims in cases of Clinical Negligence require proximity to the “relevant event”, not simply proximity to the final consequence of the negligence.
Two daughters witnessed their father’s death from a heart attack in January 2014. They sought damages for psychiatric injury as secondary victims, alleging the Defendant negligently failed to diagnose their father’s earlier cardiac problem which – if diagnosed and treated in around November 2012 – would have avoided the death.
The Defendant filed an application seeking an order for the claim be struck out because there was no close proximity in space and time between the alleged negligence and the Claimants witnessing their father’s death.
The application was successful and is a useful reminder of the case law on secondary victims.
The Claimants’ case
The Claimants’ father should have been diagnosed with significant coronary artery disease, and treated with coronary revascularisation, in around November 2012. Had that been the case, he would not have died when he did in January 2014.
In January 2014 the Claimants (both children) and their father were walking together in the street. The father said he felt ill, leaned against a wall and then his eyes rolled back. The Claimants were alone with their father as he fell backwards and hit his head on the floor. A passer-by responded to their shouts for help and called an ambulance. The head injury was severe and as the Claimants appeared distressed they were taken to a nearby Church to be comforted. The children heard their mother’s screams when she arrived at the scene. They went to her and saw their father under a foil blanket receiving chest compressions from paramedics. There was a crowd of people there including the Police. The Claimants were then taken away to a relative’s house. The father was taken to hospital by ambulance but died within the hour.
It was the Claimants’ case that their father’s collapse was the first appreciable manifestation of the Defendant’s breach of duty (in other words the point at which the damage became evident). Their claims were supported by medical-legal reports which concluded that they each presented with symptoms of PTSD caused by witnessing the events set out above.
The Defendant’s application and the applicable law
The Defendant argued the Claimants could not be described as secondary victims as there was no relevant “event” and no proximity.
The lead case on secondary victims is Alcock v Chief Constable of South Yorkshire Police  1 AC 310 and based on that case and subsequent caselaw, a secondary victim who sustains psychiatric injury as a result of witnessing death or injury of another must show the following:
- It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock. There must also 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 Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath.
- 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 immediate aftermath.
There was no issue with the Claimants meeting these criteria except for that of “proximity”, particularly as the Claimants did not witness the 2012 treatment, or lack thereof.
The Defendant cited Taylor v Somerset Health Authority  4 Med LR 34. This was a clinical negligence claim relating to a failure to diagnose a late husband’s worsening heart condition which many months later resulted in him suffering a heart attack at work and death in hospital. The Claimant Widow attended hospital within the hour and was told of her husband’s death by a doctor after about 20 minutes. It was admitted the Claimant suffered nervous shock as a result of what she saw and heard at hospital. The Court accepted there needed to be:
- An external, traumatic event caused by the Defendant’s breach of duty of care which immediately causes some person injury or death; and
- A perception by the Claimant of the event as it happens, normally by presence at the scene or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event and its consequence is brought home to him.
In Taylor, the progressively deteriorating heart condition, the death at work and the transfer to hospital where the Claimant was informed of what had happened when she saw the body did not constitute such an event.
Taylor was endorsed by the Court of Appeal in Taylor v A Novo (UK) Ltd  QB 150 where it expressly rejected 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. The Court accepted “proximity” also requires physical proximity to the event.
Given the above, the Defendant submitted that the Claimants’ claims as secondary victims were bound to fail.
The Claimants’ response
The Claimants accepted the Alcock control mechanisms are the starting point for secondary victim claims, but argued the law on secondary victims is complex and developing.
They referred to, North Glamorgan NHS Trust v Walters  EWCA Civ 1792. In that case there was a negligent failure to diagnose and treat a baby’s acute hepatitis. The first breach was around 17 June 1996 when the baby was noted to be jaundiced and admitted to hospital. The negligence manifested itself on 30 July 1996 when the baby had a seizure, from which followed a 36-hour period beginning with the Mother sharing a hospital room with the baby, being waken by the baby having a fit. A misdiagnosis then delayed treatment for brain damage and ultimately the Mother was told the brain damage suffered was severe and it was agreed the baby’s life support would be terminated.
The Court of Appeal regarded this as a single horrifying event in which “there was an inexorable progression from the moment when the fit causing the brain damage occurred as a result of the failure of the hospital properly to diagnose and then treat the baby [to] the dreadful climax when the child died in her arm. It is a seamless tale” as a result of which the mother “reeled under successive blows [to her nervous system].”
Master Cook noted the law may “appear arbitrary and unsatisfactory” although he did not accept is is a developing area of law. The question was whether the father’s death was capable of being the relevant “event” for deciding the proximity question. A trial of the facts was not required to enable the Court to answer that question.
He held he could not sensibly distinguish the facts of this case from those in Taylor v Somerset, which was expressly approved by the Court of Appeal in Taylor v A Novo.
To focus simply on the death of the father as being the first point at which the consequence of the Defendant’s negligence became apparent “is not an approach which is supported by the authorities. To do so overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event”. As per Lord Dyson MR in Taylor v A Novo, proximity in time and space is “a necessary, but not sufficient, condition of legal proximity.”
Master Cook considered the Claimants’ secondary victim claims were “bound to fail”. Their father’s death 14 and a half months after the negligent incident, in circumstances separated in space and time from the negligence, “cannot possibly be said to be the ‘relevant event’ for deciding proximity required to establish liability under the established control mechanisms.”
The claims as secondary victims were struck out, with a loss of dependency claim under the Fatal Accidents Act 1976 to continue.
Many may find the requirement for proximity to the alleged negligence unsatisfactory, especially in claims of negligent omission such as a failure to treat a progressive disease.
The case law is, however, clear. The successful application for strike out of the secondary victim claims saved considerable time and money in avoiding a contested trial. Judges are hesitant to conduct a full review of the evidence that would be available at Trial at an interlocutory hearing although when the issue is the application of a point of law, such hearings can help parties address key points of contention.
A good time to consider filing such applications is with your Directions Questionnaire, so the Court can consider whether to list a preliminary hearing prior to the costs of complying with substantive directions are incurred.