The High Court has ruled it was wrong to strike out secondary victim claims from daughters who witnessed their father die after he was allegedly victim of clinical negligence.
The girls, aged 12 and nine at the time, claim for a psychiatric injury suffered as a result of witnessing the event for a type of injury referred to in the authorities as ‘nervous shock’. It is alleged that their father’s heart condition was negligently missed by Wolverhampton’s New Cross Hospital 14.5 months before his death, but the daughters’ claim was struck out after the defendant rejected that it owed a duty of care to them.
In Paul & Anor v Royal Wolverhampton NHS Trust, Mr Justice Chamberlain allowed the claimants’ appeal and set aside the decision to strike out their claims. He rejected submissions that this approach would ‘open the floodgates’ to claims from secondary victims in an unacceptably large number of cases. Instead he ruled that arguments were best addressed at trial, and it would still be necessary for the claimants to establish the event in question was sudden, unexpected and shocking.
He said: ‘The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and nine. The fact that the event occurred 14.5 months after the negligent omission which caused it does not, in and of itself, preclude liability.’
The decision adds some clarity to an area of law with a host of similar cases and conflicting arguments.
The judge said the array of authorities on this subject indicated a ‘degree of frustration about the lack of coherent principle underlying the law’ for psychiatric claims suffered by secondary victims. He pointed to Lord Steyn in White v Chief Constable of South Yorkshire Police describing the law in this area as a ‘patchwork quilt of distinctions which are difficult to justify’.
Master Cook, on first instance, had concluded the daughters’ claims were bound to fail, the negligence incident having been ‘separated in time and space’ and not therefore a ‘relevant event’ for deciding the proximity required to establish liability.
Blogging on the decision, clinical negligence specialist Nigel Poole QC said the judgment puts paid to the argument that where there is a delay between the breach of duty and the injury witnessed, there is insufficient proximity and therefore no entitlement to compensation.
Poole added: ‘Since so many clinical negligence claims arise from negligent omission that has consequences days, weeks or months later, this was a significant barrier. This careful and detailed judgment removes it.
‘Secondary victims do not have to be present at the scene of the tort, nor does the ‘event’ have to be proximate in time to the negligence.’