Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent)

The Supreme Court judgment for three conjoined appeals that arose in the context of clinical negligence was delivered on Thursday 11 January. The judgment saw a significant shift in the law leaving secondary victims of clinical negligence with minimal prospects in a claim for compensation.

The three claims, known as Paul, reached the Court of Appeal in May 2023 under the ambit of admitted or alleged clinical negligence. The first set of claimants were two children who witnessed their father die from cardiac arrest whilst shopping. The second claim was brought by parents that had witnessed their six-year-old daughter collapse and die from a lung condition they claimed should have been detected six months earlier. The mother in the third claim of undiagnosed pneumonia had found her 20-year-old daughter moments after her death and heard her last breaths on a voicemail.

The law

The general position in law is anyone that is not a primary victim can only bring a claim for compensation as a secondary victim in limited circumstances. Typically claims by secondary victims are predominantly pursued after road traffic accidents causing injury or death to their loved ones. Infrequently secondary victim claimants pursue claims after suffering psychiatric injury due to the medical negligence inflicted upon the primary victim.

The legal test for claims by secondary victims was established in the case of Alcock rising out of the Hillsborough disaster where secondary victims brought unsuccessful claims for psychiatric injury after watching their loved ones crushed, killed, or injured. The legal test for secondary claimants was set out in Alcock stipulating:

• There must exist a close tie of love and affection between the primary victim and the secondary victim claimant.
• The secondary victim must have witnessed the accident with their own unaided senses (not on a television)
• The claimant must be at the scene of the accident in both time and space or arrive in its immediate unchanged aftermath.

The Alcock mechanisms served as a starting point for claims brought in the area of psychiatric injury suffered by secondary victims. Subsequent cases have refined the Alcock criterion however few medical negligence claims have been brought by secondary victims and none have had cause to reach the highest courts.

The current position and medical negligence  

The Supreme Court dismissed the conjoined appeals in Paul, developing the legal principle and test for secondary victims in medical negligence claims:

• The presence at the scene of the accident
• Witnessing the incident (or the immediate aftermath)
• A close tie of love and affection with the primary victim  

To ensure clarity, the judges described an “accident” was “an unexpected or unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims”.

The new legal requirement for a violent “accident” can be distinguished from the situations in the three claims described as “medical crises”. The scope for medical negligence incidents to be characterised as “accidents” occurring by external means are limited, clearly distinguishing an “accident” from a medical crisis.

Additionally, the Supreme court considered whether the duty of care owed by doctors (and hospital authorities) to their patients, characterised as an ‘assumption of responsibility’, extended to the patient’s family, and loved ones, leading to liability. The Court recognised a clear duty and ‘assumption of responsibility’ in a doctor-patient relationship, giving rise to a duty of care in the expectation of the provision of a service administered with reasonable care and skill. Surgery and operations involving violent force will rarely be conducted in the presence of loved ones, and misdiagnosis does not involve any “accidents” falling within the court’s definition.

The decision of the majority in the Supreme Court judgment was based on the need to define “the limits in the recovery of damages by secondary victims to avoid distinctions which would offend most people’s sense of justice” adding that “to impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role”. A judgment tinged with policy considerations will be welcomed by doctors and health authorities in its particular limitation of liability and measured recognition of the need to restrict wider implications of medical negligence beyond primary victims.