Tom Gibson acts for successful defendant in secondary victim claim strike out

Tom Gibson acted for the successful defendant in Purchase v Ahmed in striking out the claimant’s ‘secondary victim’ claim for psychiatric injury following the death of her daughter. However, the law on ‘secondary victim’ claims may soon change…

The law might develop further in this area soon as the appeal in Paul v The Royal Wolverhampton NHS Trust [2019] EWHC 2893 (QB) is due to be heard this week, on 13-15 May 2020.

Tom Gibson of our Clinical Negligence Team has successfully struck out the claimant’s ‘secondary victim’ claim in the case of Purchase v Ahmed (Birmingham County Court, 6 May 2020) and analyses the case and what the future may hold for ‘secondary victim’ claims below.

The Facts

The defendant, an experienced GP, saw the claimant and her 20-year-old daughter at an out of hours consultation on a Thursday evening.  The defendant prescribed medication for the claimant’s daughter and they both returned home.  The claimant’s daughter remained at home for the next two days, on Friday and Saturday, while the claimant and her younger daughter went out to London on Saturday evening for pre-planned birthday celebrations.

In the early hours of Sunday morning the claimant returned home to find her daughter unresponsive.  A paramedic pronounced soon afterwards that her daughter had died (from what was found to be pneumonia at post mortem).  The claimant also discovered a voicemail message from her daughter, left shortly before her death.

The claimant’s psychiatric injury and legal claim

The claimant brought a claim, alleging that she had suffered psychiatric injury (including post traumatic stress disorder) as a result of witnessing “the shocking event” of the aftermath of her daughter’s death in the early hours of Sunday morning.  She argued that she qualified, at law, as a ‘secondary victim’.  She also alleged that the defendant’s GP consultation had been negligent, and that with reasonably competent treatment her daughter would have attended hospital and survived.

The defendant’s stance

The defendant, while acknowledging the tragic circumstances of the case, denied that he acted negligently in any way during the consultation on the Thursday.  However, more fundamentally, the defendant argued that the claimant’s claim – based on witnessing the aftermath of a death on Sunday morning, 54 hours after a GP consultation on Thursday evening – should be struck out because she did not qualify as a secondary victim.  He therefore applied for strike out/summary judgment.

The judge’s decision

District Judge Lumb granted the defendant’s application for strike out and summary judgment.  In his careful judgment, he found that, in summary:

• The law in relation to secondary victim claims in clinical negligence matters is not “a developing jurisprudence that would in itself provide a sufficient reason to dismiss a strike out/summary judgment application” [paragraph 3];
• Clinical negligence cases are not a “special category of cases in their own right”, such that the same principles for all personal injury psychiatric injury claims apply to them [paragraph 2];
• The Court of Appeal’s decision in Taylor and another v A Novo (UK) Ltd [2013] EWCA Civ 194 was “the authority of the law as it presently stands that means that Mrs Purchase’s claim is doomed to failure. The death of Evelyn and the aftermath of the discovery of her body cannot be the relevant event for the purposes of deciding the proximity question” [paragraph 28]; and
• Considering Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, the 54 hour period between the GP consultation on Thursday evening and the death on Sunday morning could not constitute “a seamless tale which was one drawn out experience” [paragraph 30].

Permission to appeal

District Judge Lumb granted the claimant permission to appeal “on the ground of there being “some other compelling reason for the appeal to be heard” [CPR 52.6(1)(b)], namely the High Court’s grant of permission to appeal Master Cook’s judgment in Paul v The Royal Wolverhampton NHS Trust [2019] EWHC 2893 (QB)”.

In Paul, the claimants’ claims (based on witnessing the sudden cardiac death of their father 14½ months after allegedly negligent hospital treatment) were struck out by Master Cook for similar reasons: that the death “cannot possibly be said to be the “relevant event” for deciding the proximity required to establish liability under the established control mechanisms” [paragraph 41 of Paul].

Comment – and further appeals?

Purchase v Ahmed (along with Paul v Royal Wolverhampton) shows that secondary victim psychiatric injury claims have to be navigated carefully in a clinical negligence setting.  This is because the sudden death of a relative – as opposed to their medical treatment – “cannot be the relevant event for the purposes of deciding the proximity question”.

However the law might develop further in this area soon as the High Court is due to hear an appeal in Paul v Royal Wolverhampton this week, on 13-15 May 2020.

Tom was instructed by Joseph McCaughley at the Medical Protection Society. Tom specialises in clinical negligence, personal injury, and inquests. If you would like to discuss any of the issues covered in this article please contact Tom directly or via his Practice Director Paul Barton.

News 12 May, 2020