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Psychiatric Injury 'Nervous shock': applying existing control mechanisms and common sense

Paul v Royal Wolverhampton NHS Trust

Two children aged 9 and 12 were walking on the street with their father, Mr Paul, when he collapsed and died. The event was shocking to them and caused them to suffer psychiatric injury. They claimed damages as secondary victims, alleging that the Defendant NHS Trust had negligently failed to investigate their father’s coronary symptoms 14 months earlier. Had they done so then he would have received treatment that would have prevented his fatal collapse in front of his children.

On 4 November 2019, Master Cook struck out the claim, finding that there “must be a proximate connection between the initial negligence and the shocking event.” He described this as a proximity in time and space. There was no prospect of the claimants proving that proximity and therefore their claim was struck out before trial.

On 5 June 2020 Chamberlain J. allowed the Claimant’s appeal and reinstated the claim and applied the existing control mechanisms to the facts of the case. He took the view that although there was no ‘event’ until Mr Paul collapsed in the street in front of his family, the fact that the reason for the collapse was a breach of duty that took place more than a year before, was no bar to a successful claim.

The Law relating to Secondary Victims and Nervous Shock: the ‘control mechanisms’

The lead case on secondary victims is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and based on that case and subsequent cases, a secondary victim who sustains psychiatric injury as a result of witnessing death or injury of another must show the following:

  1. It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock. There must also be a recognised psychiatric injury suffered.
  2. There must be a close relationship of love and affection between the primary victim and the secondary victim.
  3. The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath.
  4. The psychiatric injury must be caused by – and result from – a “sudden and unexpected shock”. It must be caused by seeing or hearing the relevant incident or its immediate aftermath.

This decision helps clarify the law relating to secondary victims and when they may be successful in a claim for psychiatric harm. Chamberlain J. was right to opine that finding for the claimant won’t necessarily open the floodgates and it is important to apply common sense to the facts of the case. However, he has made it clear in his judgement that ‘event’ can mean the consequences of an earlier breach of duty, and that a temporal gap between the breach and the event, which is a consequence of the breach, is no bar to recovery. Given the potential complexity in this area of law, it’s important for claimants to seek expert legal advice from the outset when contemplating this type of claim.

If you or your family have suffered a psychiatric injury due to medical negligence, you may be entitled to a compensation. If you wish to speak to our psychiatric medical negligence experts please call 0330 822 3451 or request a call back