Joseph McCaughley, Litigation Solicitor at Medical Protection, looks at his recent successful defence of a member against a secondary victim claim for psychiatric injury
Who can claim for a secondary victim psychiatric injury?
In the case of Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, brought by relatives of individuals caught up in the Hillsborough disaster in which 96 Liverpool FC fans tragically died, the House of Lords separated victims of negligence into two categories: primary and secondary victims.
Primary victims are those directly involved in the event and who suffered reasonably foreseeable injury as a result. In contrast, the law introduced certain “control mechanisms” to limit the class of individuals who could successfully recover damages for psychiatric injury as a secondary victim:
- It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer a recognisable psychiatric injury induced by shock.
- There must be a close relationship of love and affection between the primary and secondary victim.
- The proposed secondary victim must be in close proximity in space and time to the relevant event or its immediate aftermath, and the psychiatric injury caused by seeing or hearing that event.
- The psychiatric injury must result from a sudden and unexpected shock, which is horrifying and exceptional in nature.
A tragic case but a successful defence
Mrs P and her 20-year-old daughter attended an out-of-hours consultation with GP Dr A just before 10pm on a Thursday evening. Dr A took a full history of Mrs P’s daughter’s presenting complaints (which included mouth ulcers, sore throat, chesty cough, shortness of breath and pain in the right lower chest) and, following a thorough examination, diagnosed respiratory tract infection and pleuritic pain. Co-amoxiclav was prescribed and safety netting advice given, and both Mrs P and her daughter returned home. Over the course of the following days, Mrs P’s daughter remained at home.
On Saturday evening, Mrs P attended a social event, returning home in the early hours of Sunday morning to find her daughter unresponsive. An ambulance crew was called and shortly after pronounced Mrs P’s daughter dead, from what was later found at post-mortem to have been a significant bronchopneumonia. Mrs P also discovered a voicemail telephone message left by her daughter shortly before her death. As a result, Mrs P suffered psychiatric injury in the form of post-traumatic stress disorder.
Mrs P brought a claim on behalf of her daughter’s estate for damages against Dr A, alleging negligence during the consultation on Thursday evening, which she alleged led to her daughter’s death. This part of the claim was resolved by the parties for a modest sum, with no admission of liability by Dr A, before court proceedings were served.
Mrs P then brought court proceedings as a purported secondary victim seeking damages for her own psychiatric injury, which she alleged was triggered by finding her daughter in an unresponsive state and then dying shortly afterwards.
In relation to the secondary victim claim, Medical Protection argued that Mrs P’s case was misconceived because it relied largely on the wrong event; namely, Mrs P tragically finding her daughter in an unresponsive state and dying shortly thereafter.
Our legal team set out this position before formal court proceedings were issued – and again after court proceedings were served – in an attempt to spare Mrs P the stress of the litigation process by persuading her that the secondary victim claim could not succeed. However, the case ultimately proceeded and Medical Protection made an application to strike out the secondary victim claim.
Secondary victim injury claim: how Medical Protection challenged it
The Medical Protection legal team argued the claim could not succeed in law. They said the ‘relevant event’ could not be Mrs P’s daughter’s death alone because it occurred some time after the alleged negligence. The ‘relevant event’ was the GP consultation on the Thursday evening – which was not in itself a traumatic event – not the alleged consequences of that consultation in the early hours of the Sunday morning. There was no physical proximity in space and time to the relevant event.
Mrs P could only have succeeded in satisfying this control mechanism if she suffered a psychiatric injury after witnessing a sudden, shocking and exceptional relevant event or its immediate aftermath, which was not the case with Mrs P – she witnessed the consequences of the alleged negligence, over 55 hours after the relevant event.
In contrast, the case Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 involved a mother who was present throughout the entire period of a relevant event, from witnessing the deterioration of her baby’s health following the start of the shocking event – a severe fit – to his ultimate death some 36 hours later. The court held that was a single seamless tale and one drawn-out experience. As a comparison, Medical Protection argued that Mrs P’s case was not a single, seamless tale or one drawn-out experience.
Judgment
In summary, the judge welcomed the sensitive way in which Medical Protection had approached the application in what was a tragic case. He struck out Mrs P’s claim, finding that:
- The principles of secondary victim claims apply to clinical negligence cases as they do to other accident cases, but the factual circumstances are often very different.
- The decision of the Court of Appeal in Taylor and another v A Novo (UK) Ltd [2013] EWCA Civ 194 was binding upon the judge. He said: “The authority of the law as it presently stands means that the claimant’s claim is doomed to failure. The death of her daughter and the aftermath of the discovery of her body cannot be the relevant event for the purposes of deciding the proximity question.”
- It did not make any difference that Mrs P was present at the consultation with the defendant on the Thursday evening as that was not the start of a shocking event as defined as “a sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”. Nor did it even come close to representing an accumulation over a period of time of more gradual assaults on the nervous system.
Mrs P was granted permission to appeal the judgment on the basis that a similar case, Paul v The Royal Wolverhampton NHS Trust [2019] EWHC 2893 (QB), is subject to appeal on the same point – what constitutes the relevant event for physical proximity in clinical negligence omission cases.