Secondary Victim Claims – Clinical Negligence and Proximity

Mon, 08 Feb 2021

On 5 February 2021, Master Cook handed down judgment in the case of Polmear and another v Royal Cornwall Hospitals NHS Trust [2021] EWHC 196 (QB), dismissing the Defendant’s application to strike out the claims and/or for summary judgment.  He gave permission to appeal and made an order “leapfrogging” the appeal to the Court of Appeal, pursuant to CPR 53.23.

Henry Pitchers QC from No5 Barristers' Chambers represents the Claimants.

The principal issue in the application is one that has been raised in a number of cases by defendants in clinical negligence claims where there is a period of delay between negligence and the “sudden and horrifying events”. 

The Defendant’s primary submission was that the claims could not satisfy the Alcock[1] control mechanism of proximity, when considered in the light of the Court of Appeal’s decision in Taylor v A Novo[2], a decision which they argued was binding on the lower court in this instance.

The tragic facts as summarised in the judgment of Master Cook can be briefly stated.

The Claimants’ seven-year-old daughter, Esmee, collapsed and died on 1 July 2015 as a result of undiagnosed Pulmonary Veno-Occlusive Disease.  Both her parents were present and witnessed her last moments including unsuccessful attempts to resuscitate her.  These events took place at and close to Esmee’s school, but away from hospital.  Both Claimants suffered severe Post Traumatic Stress Disorder as a result of what they witnessed.

The Defendant admitted that it was a breach of duty to have failed to diagnose the underlying condition by mid-January 2015, hence the delay of some months between breach of duty and death.  In that period, Esmee did experience some episodes in which she was symptomatic, involving transient shortness of breath, pallor, vomiting etc.

Master Cook was bound by the decision of Chamberlain J in Paul v The Royal Wolverhampton NHS Trust[3] (an appeal from another of his decisions).  He characterised the Defendant’s submissions as follows:

37.       It seems to me the issue framed by Ms Jones is whether this is a case where the primary victim, Esmee, suffered actionable damage prior to her collapse and death on 1 July 2015. If so, this would be the stopping point after which the consequences of the negligent omission can no longer qualify as an event giving rise to liability  for psychiatric damage in a secondary victim, in which case the Claimants’ secondary victim claims would be precluded…”

He considered the symptoms experienced by the Claimants’ daughter after the negligent omission but before her fatal collapse to be “regular and clearly very worrying for the Claimants”.  They would, he determined, have been sufficient to found a claim by the primary victim. 

Master Cook continued:

43.       On the facts pleaded, Esmee’s collapse was a sudden event, external to the secondary victims, and it led very rapidly to her death. The event would have been horrifying to any close family member who witnessed it, and especially to the parents. In the circumstances the question is why should the fact that Esmee had suffered non-fatal episodes on previous occasions rule out the secondary victim claims of her parents. It seems to me that Esmee’s final episode can be appropriately described as a fact and consequence of the Defendant’s negligence.

In relation to the decision on appeal in Paul, Master Cook concluded as follows:

44.       I return to the judgment of Chamberlain J in Paul. At paragraph 78 he said:

“In Taylor v A. Novo, however, there was something that could properly be described as an event prior to that witnessed by the secondary victim the collapse of the racking boards on to Mrs Taylor (the primary victim). That event coincided with or immediately preceded the moment when actionable damage was first suffered by her, which was also the moment when that damage became manifest. The same will be true in most accident cases. But in the present case, there was nothing that could naturally be described as an event before Mr P's collapse on 26 January 2014, even on the assumption that some actionable damage was suffered before that date. The Court of Appeal in Taylor v A. Novo did not need to, and did not, decide whether a defendant could be liable to a secondary victim in such a case. It did not say, for example, that an event can qualify only if it coincides with or immediately precedes the first actionable damage to the primary victim.”

45. Chamberlain J prefaced paragraph 79 of his judgment by stating, “if it is necessary to identify a stopping point after which the consequences of a negligent act or omission can no longer qualify as an event..”, my emphasis.

46. Miss Jones’ submissions are both persuasive and logical, however I would hold, on the facts of this case and on the basis of the authorities as they currently stand, it is not necessary to identify a stopping point as it is possible to identify a qualifying shocking event and that shocking event need not coincide with or immediately precede the first actionable damage to the primary victim. I must therefore reject Ms Jones’ submission that prior actionable damage is a bar to recovery in this case.

In light of those matters, Master Cook declined to strike out the claim.  The Defendant has been given leave to appeal and the appeal itself is to be transferred directly to the Court of Appeal, pursuant to CPR 52.2. 

Consequently, the Alcock control mechanisms and the boundaries of the law regarding secondary victims, particularly in the context of clinical negligence claims, will return for substantive consideration by the Court of Appeal in both Polmear and Paul.

[1]  [1992] 1 AC 310

[2]  [2014] QB 150

[3]  [2020] EWHC 1415

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