- It has taken the Supreme Court eight months to decide what to do about claims for psychiatric injury by secondary victims in clinical negligence cases. By a majority of six to one they have decided that nervous shock has no place in clinical negligence cases:
“We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, 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. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”
2. The Supreme Court found that Taylor v Novo was correctly decided (as before that was Taylor v Somerset HA).
3. Conversely that old favourite of Claimant lawyers, Walters v Glamorgan had been wrongly decided. Sion, Shorter and Ronayne were all correctly decided, but on the wrong basis.
4. So how did the Supreme Court do it? The answer was to come up with a new system of classification of secondary victim cases and the making of a fundamental distinction between accident cases and disease cases. Alcock remains good law but applies only to ‘accident’ cases. Conversely all three appeals were ‘disease’ cases. Mr Paul dropped dead from a heart attack as a result of untreated heart disease. Esmee Polmear collapsed as a result of untreated pulmonary veno-occlusive disease. Evelyn Purchase died from untreated pneumonia.
5. The Supreme Court held that for a secondary victim to recover damages she must be present at the scene of an accident or its immediate aftermath. Taylor v Novo was correctly decided because the claimant was not present at the scene of the accident, and the event she witnessed (the collapse of her mother) was not an accident. The Supreme Court were at pains to distinguish between an accident and any consequent injury (see para 105):
“An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by the event.”
6. Lord Burrows did not agree with the other Justices. He noted that this was not the only way to define an “accident”, stating:
“one might alternatively look at the matter from the perspective of the secondary victim and define an accident as an event external to the secondary victim. Defined in that way, the death of the primary victim is an accident because it is an event external to the secondary victim. Therefore, an objection that can be raised against the insistence on an accident (defined as an event external to the primary victim) is by asking, what is the justification for adopting that definition of an accident and not another?; or, put another way, why do some accidents count and others do not?”
7.The majority of the Supreme Court, however – applying its definition of “accident” – accepted that there will hardly ever be a situation where a failure to treat a patient can be described as an ‘accident’ in the sense required for a nervous shock claim to succeed.
8. The Court has therefore, at a stroke, almost completely ended the possibility of a successful nervous shock claim in a clinical negligence setting.
9. So might there be exceptions? The Supreme Court thought it possible but clearly the circumstances where this might be so will be very limited (para 123):
“The question was raised in argument of whether the rules governing claims by secondary victims arising from accidents could ever apply in a medical setting. The question does not arise in the present cases, as none of them involves an accident in the relevant sense. Various hypothetical examples were, however, posed in argument such as a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.”
10. It remains to be seen how courts will approach these possible exceptions. It is important also to stress that the restrictions on recovery now imposed for psychiatric injury do not apply to primary victims. Consider carefully therefore whether a claimant is a primary victim or not. A labouring mother is the doctor’s patient. It may also be that doctors in the public health sphere owe a wider duty than simply to the patient in front of them (see para 134).
JOHN DE BONO KC
CHRISTOPHER JOHNSTON KC
11 JANUARY 2024