Secondary Victim Claims – Proximity is Key

The English Court of Appeal has recently handed down judgment in the appeal of three cases Paul v The Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospitals NHS Trust & Purchase v Ahmed [2022] EWCA Civ 12. This decision provides important clarification of the elements which are required in English law in order for a claimant to establish a secondary victim claim.

Secondary Victim Claims

A ‘secondary victim claim’ is a claim for compensation brought by someone (the secondary victim) who has suffered a recognised psychiatric injury as a result of witnessing a traumatic incident that has occurred to someone else (the primary victim). In Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 set out the criteria which a claimant must satisfy in order to bring a successful secondary victim claim:

• The claimant must perceive a “shocking event” with their own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its “immediate aftermath”. There must be “physical proximity” to the “event”.
• The shock must be a “sudden” and not a “gradual” assault on the claimant’s nervous system.
• The claimant must show a “sufficiently proximate” relationship to the primary victim. This “personal proximity” is presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.
• It must be reasonably foreseeable that a person of “normal fortitude” in the claimant’s position would suffer psychiatric damage.

The Cases

The facts of the cases give rise to enormous sympathy for the claimants.

• Mr. Paul died of a heart attack. His daughter, the claimant, witnessed his death and suffered a psychiatric injury as a consequence. She brought a claim against the hospital trust which she alleged had negligently failed to diagnose Mr. Paul’s coronary artery disease some 15 months earlier.
• Mr. & Mrs Polmear brought a claim as a secondary victims against another hospital trust. They suffered post-traumatic stress disorder after witnessing their 7 year old daughter collapse and die. It was alleged that the hospital had failed to diagnose a condition called pulmonary veno-occlusive disease 6 months prior to her death.
• The mother of Evelyn Purchase brought a secondary victim claim against a GP after witnessing the death of her daughter from pneumonia. Evelyn Purchase had gone to her GP 3 days prior to her death where she had allegedly been incorrectly diagnosed with a respiratory tract infection.

The Decision

It was acknowledged that each of the claimants met three of the criteria set out in Alcock: there was obvious personal proximity; each claimant witnessed a traumatic event; and psychiatric injury ensued.

The Court of Appeal in Paul concluded that the issue was how to read the requirement that the claimant be personally present at the scene of the accident or be more or less in the vicinity and witness the aftermath shortly afterwards, in the context of clinical negligence cases.

The Court of Appeal was required to consider its own judgment in Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194. In Taylor, Lord Dyson found it ‘would go too far’ to allow a claimant to succeed as a secondary victim when she witnessed the death of her mother three weeks after an accident at work which was directly linked to the development of a fatal pulmonary embolism.

Despite some concerns raised by the Court of Appeal judges, it was concluded that Novo remained: “binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in space and time from the original negligence, accident or first horrific event.” Absent intervention by the Supreme Court (which one of the Court of Appeal judges almost encouraged), the English law in this area now looks pretty settled.

Relevance to Jersey

The Alcock criteria and subsequent English case law in respect of claims by secondary victims have not been fully considered by the Jersey courts. Whilst not technically binding, in the area of negligence, Jersey courts tend to look to English law for guidance.

However, the Jersey courts may be more willing to depart from the English position given the comments of the Court of Appeal in Paul. The Master of the Rolls said: “if I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury”. Lord Justice Underhill also considered the issue of proximity merited further consideration by the Supreme Court.

In our view, the door is still firmly ajar for the law of Jersey to develop its own criteria for secondary victim claims and widen the interpretation of sufficient proximity in time between the alleged breach of duty and the horrifying event.