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Secondary Victim Claims: Tom Gibson comments on Paul v Wolverhampton

The Court of Appeal has now handed down judgment in Paul v Wolverhampton, Polmear v Cornwall and Purchase v Dr Ahmed – three conjoined appeals on the ‘secondary victim’ criteria for psychiatric injury claims in a clinical negligence setting.  Tom Gibson takes a closer look at the implications.

While medical negligence practitioners everywhere may have been hoping for clarity in the law, it looks as though the secondary victim claims saga will continue to run.  Though the Court of Appeal decided the appeals, perhaps reluctantly, in favour of the defendants, the Court also encouraged the claimants to appeal to the Supreme Court.

All three cases featured claimants who suffered psychiatric injuries resulting from family members’ tragic, sudden deaths following medical treatment. 

In Paul, two daughters aged 9 and 12 watched their father die from a heart attack following an alleged failure to provide treatment 14½ months earlier.  In Polmear, two parents witnessed the collapse and death of their 7-year-old daughter following admitted failures in treatment 6 months earlier.  And in Purchase, a mother found her 20-year-old daughter minutes after her death from pneumonia, following allegedly negligent treatment 3 days earlier.

The Decision

The Master of the Rolls, Sir Geoffrey Vos, toured the legal authorities from the last 40 years, including:

  • McLoughlin v O’Brian [1983] AC 410 (House of Lords)
  • Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (House of Lords)
  • Taylor v Somerset Health Authority [1993] PIQR 262 (High Court QBD)
  • Sion v Hampstead Health Authority [1994] 5 Med LR 170 (Court of Appeal)
  • White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (House of Lords)
  • Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 (Court of Appeal)
  • Taylor v A Novo Ltd [2013] EWCA Civ 194 (Court of Appeal)
  • Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588

The Master of the Rolls then summarised his decision – in the defendants’ favour – in the following paragraph (with emphasis added):

“First, the five elements required to establish legal proximity in secondary victim cases apply as much to clinical negligence cases as they do to accident cases. The question of what is a relevant horrific event is not dependent either on the completion of the primary victim’s cause of action for negligence [as the defendants had argued] or the first manifestation of injury to the primary victim [as the claimants in Paul had argued]. The primary victim’s cause of action is not the critical thing; there may not always be one. For a secondary victim to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary victim injury, the horrific event cannot be a separate event removed in time from the negligence. If the negligence and the horrific event are part of a continuum as seems to me the best possible explanation of Walters, there is sufficient proximity. It may be that the negligence was continuing in Walters at the time the 36-hour shocking event began. Either way, Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event (para 96) ”.

As a result, the Court of Appeal allowed the defendants’ appeals in Paul and Polmear and dismissed the claimant’s appeal in Purchase.   

Implications for Clinical Negligence practitioners

Tom Gibson, a barrister in our Clinical Negligence team commented on the case as follows:

Medical negligence practitioners everywhere might have been hoping that the Court of Appeal’s decision would bring some finality and clarity to this technically difficult and emotionally charged area of law.  However, it now looks as though the secondary victim claims saga will continue to run. 

The Court of Appeal’s decision in the defendants’ favour was lukewarm at best.  The Master of the Rolls said that, if it were not for the Court of Appeal’s decision in Taylor v A Novo, he would have decided the appeal in the claimants’ favour [paragraphs 87-88 and 93].  Lord Justice Underhill (the Vice-President of the Court of Appeal) also said that “if the point were free from authority I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover” [paragraph 103]. 

As a result, the Master of the Rolls said that “Subject to hearing further argument, therefore, I would be prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case” [paragraph 99].  Underhill LJ agreed, saying “My strong provisional view, like his [the MR’s], is that the issues raised by them merit consideration by the Supreme Court”.  And Nicola Davies LJ agreed with both judgments.

Practitioners may therefore have to wait for a Supreme Court decision: on precisely what circumstances secondary victim claims for psychiatric injury, in a medical negligence setting, can be brought in.

Tom Gibson specialises in medical negligence, including secondary victim claims. He appeared for the (so far successful) defendant, Dr Ahmed, in the first instance decision in Purchase v Ahmed.

Find out more

A detailed summary of the decision in Paul v Wolverhampton is available on here. This blog includes summaries of judgments in clinical negligence cases as they are handed down and provides a useful research resource for legal practitioners.

A summary of Polmear v Cornwall can be found on here. 

A summary of Purchase v Dr Ahmed can be found on the Outer Temple website here.

If you would like to discuss the above decision or instruct Tom, please contact Paul Barton on +44 (0)20 7427 4907 or Mark Gardner on +44 (0)20 7427 4909 for a confidential discussion.

Our dedicated practice management team can help you identify the right barrister for your case.

Clinical Negligence, News 18 Jan, 2022


Tom Gibson

Call: 2010

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