This post is an early look at the Supreme Court's decision in Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) - The Supreme Court which considered the question - "Can an individual make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence?"
Tort:
The law of tort is largely judge-made and is often traceable back for centuries. There have been only occasional interventions by Parliament. Claims for damages in tort frequently arise where a claimant (C) argues that a particular defendant (D) owed C a duty of care and that D negligently breached that duty thereby causing reasonably foreseeable damage (e.g. personal injury) to C.
In some situations the liability of D may be relatively easy to establish but there are particular situations where that is far from being the case. In those particular situations, a claimant
will have to surmount considerable legal obstacles before a defendant's liability is established.Claims for "psychiatric illness" arsing from witnessing a tragic event such as the death of a loved one are one of the most difficult areas in which to establish liability. Naturally there will be grief and sorrow in the aftermath of any such events but tort claims require that genuine psychiatric illness has been caused and that requires professional medical opinion.
Particularly since the House of Lords decision in Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310 , there has been a distinction between primary victims of a tort and secondary victims. The classification is basically a control mechanism aimed at limiting the range of possible claimants and thereby preventing an excessive extent to liability.
The cases appealed to the Supreme Court:
Litigation has been on-going for around four years in three cases brought by secondary victims of alleged clinical negligence. The Court of Appeal (Civil Division) handed down judgment in January 2022 ruling that the secondary victims in question were unable to claim but permission was granted for an appeal to the Supreme Court - see Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 (13 January 2022) (bailii.org). The Court of Appeal was bound by the House of Lords decision in Alcock and also by another Court of Appeal decision - Crystal Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194,
In two of the cases (Parminder Singh Paul and Esmee Polmear), the death occurred in the presence of close relatives, causing them psychiatric injury. In the case of Evelyn Purchase, the close relative came upon the primary victim immediately after her death, again causing her (the mother in that case) psychiatric injury. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative (the secondary victim).
Supreme Court 11 January 2024:
The Supreme Court (Lord Briggs, Lord Sales, Lord Leggatt, Lord Burrows, Lady Rose, Lord Richards, Lord Carloway) heard argument in May 2023. Judgment was delivered on 11 January 2024.
By a majority of 6 to 1 (Lord Burrows dissenting) the appeals of the claimants were dismissed.
Held that while doctors owe a duty of care to protect the health of their patients, they do not owe a duty of care to members of the patient’s close family to protect them against the risk of illness from the experience of witnessing the death or medical crisis of their relative from a condition which the doctor has negligently failed to diagnose or treat. The Court of Appeal’s order dismissing the claims was, therefore, upheld.
Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) - The Supreme Court
Purchase (Appellant) v Ahmed (Respondent) - The Supreme Court
The court noted that for centuries, under the common law, the general rule has been that a person cannot claim compensation for the effect on them, however severe, of the death or injury of another person.
However, an exception developed which allows a person to claim compensation for personal injury (typically, psychiatric illness) caused by witnessing an accident (or the immediate aftermath of an accident) brought about by the defendant’s negligence, in which a close family member (or other loved one) is killed or injured (or put in peril of death or injury).
An “accident” in this context refers to an unexpected and unintended event in which injury (or the risk of injury) is caused by violent external means: for example, a road accident.
The claimants argued that this exceptional category of case ought to be extended to cases where, as a result of a doctor’s negligence, a person dies or manifests injury from a disease which proper treatment would have prevented. The Supreme Court rejected that argument. The majority view was that no analogy can reasonably be drawn between cases involving accidents and cases where the claimant does not witness an accident but suffers illness as a result of witnessing a death or medical crisis brought about by an untreated disease.
The court noted that - Accidents are discrete events. It is usually clear and easy to determine whether someone was present at the scene of and directly perceived an accident. Witnessing an accident involving a close family member is likely to be a disturbing and upsetting event. A person who suffers psychiatric injury when their own life or safety is put at risk by a defendant’s negligent conduct is entitled to claim compensation and it would be difficult and arbitrary to distinguish between psychiatric injury caused by fear for the claimant’s own safety and by fear for the safety of a close family member.
By contrast, in the medical context there is often no event comparable to an accident, as the symptoms of disease or injury may develop over days, months or years. How traumatic it is to witness such events is also highly variable.
Further, in cases where there is no accident, there is no possibility of psychiatric injury caused by fear for the claimant’s own safety or bodily integrity].
It was also necessary to consider the nature of a doctor’s role and the purposes for which medical care is provided to a patient. The responsibilities of a doctor, and the purposes for which care is provided, do not extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative.
Commentaries:
Links to be added as commentaries are published.
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