It describes the relationship between parties which is necessary in order to found a duty of care owed by one to the other, i.e. As Lord Dyson MR stated, at [32]. Secondary victims: “control mechanisms”. Surely each has a distinct cause of action independent of the others. But if such be the case Mr Paul clearly had suffered damage due to the defendant’s breach of duty before his collapse. In 1968 Quintin Hogg Q.C. COVID 19 Vaccine – questions of safety and civil liability, Informed consent in children and young people, R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46, Michelle Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB). The coroner’s primary duty is to decide how somebody came about his or her death. We act for more than 100 NHS bodies and are on all of the national framework agreements – NHS SBS, NHS CPC, HealthTrust Europe, NHS Resolution, NHS Commercial Alliance and CCS. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and following her delivery. It is of particular relevance that RE’s condition on birth was a sudden and unexpected event, for which the claimants had no prior ‘conditioning’ or warning. The Trust has indicated that it will appeal against the decision. This Practice Note reviews the lead case of Alcock v Chief Constable of Yorkshire Police and considers the criteria which secondary victims must satisfy to successfully obtain damages following an accident involving the primary victim. Presumably none of them could succeed. Secondary victims in clinical negligence claims (Paul v Royal Wolverhampton) News. Secondary victim refers to someone who witnesses a traumatic event, such as the death of a loved one, and is psychologically harmed by the experience. But the issue only arises where there are two separate events, (1) the commission of the tort, and (2) the subsequent occurrence of injury or death. 4th June 2020. Adam Hodson, Clinical Negligence Specialist at Sydney Mitchell LLP For nearly 30 years, the law has sought to constrain the ability of secondary victims (those who suffer psychiatric injury not by being directly involved in an incident but by witnessing (or fearing) injury to a primary victim) to make personal injury claims for themselves. Nevertheless, there is likely to be a perception that it ‘opens the doors’ to secondary victim claims. The primary victim was the claimant’s mother, who had suffered injuries to her head and foot when some boards fell on to her while she was at work, due to the negligence of her employer, the defendant. The scope for claiming nervous shock as a secondary victim in clinical negligence cases, in light of a recent Court of Appeal decision regarding injury sustained during childbirth. 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. clinical negligence context and, in particular, to the issue of whether it is fatal to a secondary victim claim if there is a delay between an initial tort (arising for example from a failure to diagnose or a failure to treat a patient) and a claimant’s subsequent experience of shock. The We are the NHS: People Plan for 2020/21 sets out a range of detailed actions to support essential transformation throughout the NHS and in partnership organisations, such as social care, local government and the voluntary and independent sectors. Even if Mr Paul’s coronary artery disease (which on the claimants’ case should have been successfully treated) had not “manifested” itself to him or anyone else, it would ex hypothesi obviously have been visible on a coronary angiogram. However, a secondary victim is someone who suffers psychiatric injury due to witnessing negligence to a primary victim, but who was not at risk of physical injury themselves. Particular consideration should be given to whether the claimant witnessed the event that led to the primary victim’s injury (Wild -v- Southend Hospital NHS Trust 2014); whether the event is exceptional in nature, akin to witnessing an accident (Brock -v- Northampton General Hospital NHS Trust and another 2014); and whether there is a seamless single horrifying event (Shorter -v- Surrey and Sussex Healthcare NHS Trust 2015).In conclusion, whilst the decision in RE is significant and provides a degree of clarification, its scope is limited and it will remain difficult for purported secondary victims of clinical negligence to overcome the strict control mechanisms. For nearly 30 years, the law has sought to constrain the ability of secondary victims – those who suffer psychiatric injury not by being directly involved in an incident but by witnessing (or fearing) injury to a primary victim – to make personal injury claims for themselves. The “event” to which the claimant needed to prove proximity was (a), rather than (b). Change ). Maintained • . Mr Paul suffered damage caused by the defendant’s assumed negligence, at the latest, on the date when if correctly diagnosed he would have undergone successful treatment for his coronary artery disease. About 3 weeks later she collapsed and died as a result of pulmonary emboli caused by her injuries suffered in the accident. While it may be true that there should be limitations on claims as shocking events can affect a very wide number of potential claimants, the regime for secondary victims as it stands is ar… It was not in dispute that they each had a close tie of love and affection with RE; that they perceived the event directly; and that they were sufficiently close to the event in space and time. It did not, therefore, arise in any of the House of Lords cases, McLoughlin, Alcock, Page v Smith, Frost v Chief Constable of South Yorkshire Police, in which the elements of secondary victim liability had been judicially defined. With a team of over 200 lawyers and national coverage, we are one of the leading firms providing legal advice and support to the NHS and independent healthcare organisations. The criteria for bringing a secondary victim claim was set out following the Hillsborough disaster, when Primary victims were defined as those directly involved in the events that had caused life threatening injuries. ( Log Out / If you have any comments, please do let us know. [4] It is a moot point whether the cause of action arose when Mr Paul should have been, but was not, advised of his disease and the need for remedial treatment, or on the date when, if correctly advised, he would have undergone the successful treatment. However, in secondary victim actions, where the claimant’s perception of a qualifying (i.e. Having considered the consultation responses the NDG has decided to: Each month our Health team will update you on recent key developments, and look ahead to what’s coming up in your sector. The court then considered whether RE’s mother and grandmother satisfied the control mechanisms for secondary victim claims. There are less than a handful of reported successful secondary victim claims as a result of clinical... Decision. The dispute between the parties in the present case was as to the point in time at which proximity in fact needed to be established. That case in turn followed the Court of Appeal’s recent summary of the law in this area in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 – plus a host of other recent cases where defendant hospitals successfully defended secondary victim claims, in a medical negligence context, at trial. In Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) Chamberlain J allowed the claimants’ appeal from the order of Master Cook [2019] EWHC 2893 (QB) striking out their claims for damages for psychiatric injury allegedly suffered when they witnessed the collapse of their father in the street following a fatal heart attack in January 2014. Psychiatric injury—secondary victims Practice notes. ), writing in Punch magazine, described a decision of the Court of Appeal as “a strange example of the blindness which sometimes descends on the best of judges”. Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. Accordingly, she was not a separate legal entity and the mother was a primary victim. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. Each month our health team will update you on key recent developments, and look ahead to what’s coming up in your sector. Having allowed the claimants’ appeal on the narrow ground that, on the face of the claimants’ pleaded case, it was arguable that no tort had been committed prior to January 2014, the judge went on to consider what the position was if the defendant’s negligent failure of diagnosis had given rise to actionable damage at the time. The Caldicott principles set out how the NHS should handle confidential information about service users. (1) The psychiatric injury arose from witnessing the injury or death of, or extreme danger or discomfort to, the primary victim (2) The injury arose from sudden and unexpected shock (3) There were close ties of love and affection between the primary and secondary victims (4) The claimant was present at the scene of the event or witnessed the aftermath a short time later (5) Injury … “What is required in order to found liability is something which is exceptional in nature” (Liverpool Women’s Hospital NHS Foundation Trust v Ronayne[2015] … Well here’s another one. ), writing in Punch magazine, described a decision of the Court of Appeal as “a strange example of the blindness which sometimes descends on the best of judges”[1]. Had that approach been adopted the judge should surely have concluded that the claims were bound to fail. Her action failed; there had been two distinct events, (a) the sustaining of injury in the initial accident, and (b) the subsequent pulmonary emboli which caused her death. He opined that the answer was that the claimants could still succeed because the qualifying “event” (which was the point at which proximity needed to be established) would still be the collapse in 2014, and not the damage which completed Mr Paul’s cause of action, because the relevant “event” only occurred when the same became “manifest” or “evident.” He therefore distinguished Taylor v Novo on the ground that in that case, unlike the present, there had been an “evident“ event (the collapse of the shelving on to Mrs Taylor) at the scene of the tort, whereas in the present case there had not. Found in: PI & Clinical Negligence. Ex Turpi Causa – Is Illegality Still a Good Defence in Civil Claims. A person who is injured or even killed by another’s negligence is a primary victim. RE’s mother brought a claim as a primary victim on the basis that RE was injured before delivery and had no separate legal entity whilst she remained in utero. It may therefore typically arise in a clinical negligence action where there is negligent treatment resulting in a latent pathology, which manifests itself in the patient’s injury or death at a later time; alternatively (as alleged in the present case) a failure to diagnose and/or treat an existing condition, which failure eventually causes injury, or death. [1] This was held not to amount to a contempt of court: R v Metropolitan Police Commissioner. ( Log Out / This is in contrast with the claimant in Ronayne who witnessed a ‘series of events which gave rise to an accumulation... of gradual assaults’ and who, at each stage in the sequence of events, had been conditioned as to what he was about to perceive, meaning there was no element of suddenness. This report examines psychiatric damage claims for secondary victims, who face restrictive controls which have limited the amount of meritorious claims significantly. Proximity is a familiar legal concept in the law of negligence generally. The claimants’ case was that coronary angiography should have been performed, which would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation, and that had this taken place he would not have suffered the cardiac event in 2014. The first is witnessed by his mother, the second by his father and the third by his sister, all of whom suffer psychiatric injury. It was held that the event was not exceptional, sudden or objectively horrifying; reinforcing the strict control mechanisms set out in Alcock -v- Chief Constable of South Yorkshire Police 1992. A secondary victim has a whole separate set of requirements to discharge, as set out below. None of the above anomalies and illogicalities exists if the analysis contended for by the defendant in this case is accepted, namely that proximity between the defendant and the secondary victim must be assessed at the time of the commission of the tort against the primary victim. On 20 November 2020, NHS England wrote to all NHS trusts with a clear instruction to implement a plan to vaccinate their workforce. Now, Chamberlain J has conducted a detailed review of numerous recent authorities and, in allowing the claimants' appeal against strike out, has provided some welcome clarity. In the example of the epileptic child above postulated, why should only the first observer succeed and the others not? This month, you’ll hear from Esther in health commercial, Louise in health advisory, and Monia in health litigation. The following PI & Clinical Negligence practice note Produced in partnership with Andrew Wilson provides comprehensive and up to date legal information covering: Psychiatric injury—secondary victims Key points from the Court of Appeal judgment (which overturned the award of compensation to Mr Ronayne made by an experienced clinical negligence trial Judge) were: To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was … James Marwick. This would seem inconsistent with the “thus far and no further” prescription of Lord Steyn in Frost v Chief Constable of South Yorkshire Police, with which Lord Hoffmann and Lord Browne-Wilkinson agreed in that case, and which was one of the two stated reasons for the Court of Appeal’s decision in Taylor v Novo. The claimants’ case was that this was the occurrence of the qualifying “event” (in the present case the collapse and death of their father); the defendant’s case was that it was the occasion of commission of the tort, which was when the primary victim first suffered actionable damage (this being on or soon after failure to diagnose or treat his vascular disease). If one of the family of the epileptic child above referred to happened to be a radiographer, he or she might equally have found the brain scan horrifying. Change ), You are commenting using your Facebook account. However, a primary victim’s immediate family member may become a secondary victim, if they actually witness the negligence and then suffer psychiatric injury. The damage causes no immediately evident signs or symptoms but in fact gives rise to a significant epilepsy risk (so that the tort is complete). The law around secondary victims of medical negligence is not straightforward, so it is important that you seek specialist advice. ( Log Out / The editors reserve the right to delete comments without notice and accept no responsibility for the content of comments. Secondary victim claims in clinical negligence actions In this article, Ronald Walker QC gives his thoughts on why he considers that the recent appeal case of Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 was wrongly decided. Can all three successfully sue the defendant, or if not, why not? RE suffered an acute profound hypoxic ischaemic insult immediately prior to and … So it would not arise in a case where, for example, a garage negligently serviced a car, which negligence caused the brakes to fail and the owner to drive the car off a cliff some time later. Two daughters witnessed their father’s death from a heart attack in January 2014. His reason for so doing was that, for the purposes of the strike out application, he had to proceed on the factual basis most favourable to the claimants, which was that Mr Paul had suffered no damage prior to the moment of his heart attack, which was itself therefore the “scene of the tort”; in other words this was arguably not a “two event” case. The Restriction of Public Sector Exit Payments Regulations 2020 (the Regulations) were made on 14 October 2020 and came into force on 04 November 2020. Home > News > Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. True it of course is, that on a strike out application under CPR 3.4(2)(a) the court is limited to considering whether the statement of case discloses reasonable grounds for bringing the claim. It is also difficult to see why, in principle, successive secondary victims could not succeed if each witnessed a different sufficiently horrifying event caused by the defendant’s tortious act. The High Court and Court of Appeal have recently considered again the application of the secondary victim (SV) ‘control mechanisms’ to claims arising from clinical negligence. Archive • 15.06.2020 • . In fact, as appears from the judgment of Master Cook, it does not seem to be the case that Mr Paul’s collapse in 2014 was the first “manifestation” on any view. Secondary Victims in Clinical Negligence (again): Shorter v Surrey In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). Nevertheless, Chamberlain J allowed the claimants’ appeal from the decision of Master Cook[3] striking out the claims on the ground that they were bound to fail. Be that as it may, even if Chamberlain J’s decision on the strike out application might have been justified, it is difficult to see how, if he was applying the “scene of the tort” test, he could have failed to conclude that the defendant was entitled to succeed on its summary judgment application under CPR 24.2, i.e. You can also access our webinar resources which are designed specifically for our health clients - covering topics that may affect you. Watch our quick round-up: Health InSight - December 2020, Next steps for integrated care systems, place-based partnerships and provider collaboratives – by April 2022, ‘Integrating care: Next steps to building strong and effective integrated care systems across England’, The risks of implementing mandatory COVID-19 vaccinations for NHS employees, Updated guidance from the Court of Protection on capacity assessments and reports, Revised chief coroners guidance on prevention of future deaths reports, The NHS People Plan: an overview for NHS HR and OD professionals, Watch our quick round-up: Health InSight - November 2020, RE’s condition on birth was a sudden and unexpected event and not a process of gradual realisation, there was no conditioning for what came or any warning that RE would be born lifeless and require resuscitation, this was not an event of the kind to be expected as ‘part and parcel’ of childbirth, both were present throughout the birth and witnessed the immediate aftermath, they had both suffered PTSD as a result of observing the events of RE’s birth. This blog does not offer legal advice and should not be used as a substitute for legal advice. A review following the decision in RE and others -v- Calderdale and Huddersfield NHS FT [2017]. He was then “worse off” than he would have been but for the defendant’s negligence. Also, supposing medical evidence established that the child must have had an earlier, unwitnessed, fit. Master Cook confirmed that secondary victim claims in cases of Clinical Negligence require proximity to the “relevant event”, not simply proximity to the final consequence of the negligence. Secondary Victims – Medical Negligence The Court of Appeal case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne EWCA Civ 588 is the latest high profile decision in the area of secondary victims of nervous shock when losing a loved one in a medical negligence context. Secondary Victims in Clinical Negligence (again): Shorter v Surrey Posted on April 28, 2015 | Leave a comment In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). The recent case of RE & others -v- Calderdale and Huddersfield NHS FT [2017] EWHC 824 (QB) provides some guidance on the exceptional circumstances in which a secondary victim claim may succeed in a clinical negligence context. [2] Cf Werb v Solent NHS Trust (Master Roberts, 15 March 2017, unreported). If, instead, they are witness to the immediate aftermath, it becomes a question of whether there has been a ‘seamless tale’ which can be classed as a single horrifying event (as held in North Glamorgan NHS Trust -v- Walters 2002), rather than a process of gradual realisation. Secondary victims are defined as those who witness a medical accident, which results in their suffering of a psychiatric injury. The defendant argued that the mother was a secondary victim since RE survived and the cause of RE’s permanent injuries was the negligent treatment following her birth. It was agreed between the parties that the only issue was whether they could satisfy the criterion of “proximity”. What if it could not be proved which of them was the first to witness a fit? The deceased, who suffered from ischaemic heart disease and occlusive coronary artery atherosclerosis, had been admitted to the defendant’s hospital in November 2012 and discharged without appropriate cardiac investigations being undertaken. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. But, while this may be a pragmatic solution, it is difficult to identify any principle underlying it. Ultimately, the court pinpointed the relevant point in time as when the negligence occurred, which, in this case, began when RE’s body remained in the birth canal. Copyright © 2020 Hill Dickinson LLP VAT number 108228335, North west clinical governance network – focus on maternity safety, Outcome of the consultation on the Caldicott principles. Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally. There are less than a handful of reported successful secondary victim claims as a result of clinical negligence. It would follow that the secondary victim who saw the accident could satisfy the criterion of proximity. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. In deciding that it was, the court highlighted the following factors: Therefore, damages for psychiatric injury were recovered by both the mother and grandmother. In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). Her daughter, who suffered psychiatric injury as a result of witnessing the death, sued as a secondary victim. Found in: PI & Clinical Negligence. In clinical negligence claims, the law makes a distinction between ‘primary’ and ‘secondary’ victims. In detail: Most patients who bring claims in medical negligence are primary victims – ie the health care provider has negligently breached the duty of care that was owed to them as an individual patient. As a matter of policy the law insists on control mechanisms in order to limit the number of potential claimants who were not the primary victims of tortious conduct. 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