Four members of No5's Clinical Negligence team appeared before the Court of Appeal to argue the case for secondary victims of clinical negligence

Thu, 16 Dec 2021

On 14 & 15 December, four members of the No5's Clinical Negligence team appeared in the Court of Appeal to argue the case for secondary victims of clinical negligence.

Henry Pitchers QC, David Tyack QC, Esther Gamble and Oliver May appeared before the Master of the Rolls, the Vice President of the Court of Appeal (Civil Division) and Nicola Davies LJ in the conjoined appeals of Purchase v Dr Ahmed and Polmear v Royal Cornwall Hospital NHS Trust (also heard with the second appeal in Paul v Royal Wolverhampton NHS Trust).

The two cases involve devastating trauma to parents who witnessed the deaths of their beloved daughters, in wholly unexpected and horrific circumstances, after allegedly negligent mismanagement by doctors.

The appeals concern the issue of whether secondary victims can recover compensation for psychiatric injury suffered as a result of witnessing the horrific death of a loved one, when the clinical breach of duty precedes that horrifying event by days, months or years.

The Defendants argued that in such cases there is insufficient legal proximity between the defendant and the secondary victim claimant and submitted that in order to establish legal proximity the horrifying event must coincide with the moment when actionable damage is first suffered by the primary victim – a requirement which would preclude the majority if not all secondary victims of clinical negligence from recovering compensation.

Henry, David, Esther and Oliver argued that in such cases the control mechanisms described by Lord Oliver in the case of Alcock v Chief Constable of Merseyside Police are satisfied, and as a result legal proximity is established. Alternatively, if satisfaction of the control mechanisms is a necessary but not sufficient condition to establish legal proximity, the secondary victims were within the reasonable contemplation of the tortfeasor and therefore legal proximity is made out, and the claims should succeed.

The Court of Appeal was invited to consider how to correctly interpret the decisions in the cases of Walters v North Glamorgan NHS Trust and Taylor v A Novo (UK) Ltd.

The entire hearing was livestreamed and can be watched on the Court of Appeal, Court 71 YouTube channel. Links to the morning and afternoon sessions for Day 2, in which members of No5 spoken on behalf of Mrs Purchase and Mr and Mrs Polmear, are below;

Day 2 morning session - https://www.youtube.com/watch?v=tQLpvrbsgRI

Day 2 afternoon session - https://www.youtube.com/watch?v=JkAiFHJa4Mg

 

Day 1, in which the Defendant NHS Trusts put forward their arguments, can be found here:

Morning session - https://www.youtube.com/watch?v=roBYptvQoBI

Afternoon session - https://www.youtube.com/watch?v=KsN3TbTFGiY "

 

Judgment is expected in 2022.

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