Psychiatric injury in secondary victim claims and the scope of proximity
Last month judgment was handed down in the case of Paul v The Royal Wolverhampton NHS Trust  EWHC 2893 (QB), the findings of which, reminds legal practioners of the difficulty in bringing psychiatric injury claims on behalf of secondary victim Claimants. This was an unusual case in many ways but it is notable that Master Cook made an Order to strike out the Claimant’s case following the Defendant’s strike out application pursuant to CPR Rules 3 and 24 –on the basis that the claim disclosed no reasonable grounds for bringing the claims and / or that the claim had no reasonable prospect of success.
The deceased, Mr Paul had Type II diabetes and in 2010 had suffered from a transient ischaemic cerebral attack. In 2012, it was noted that Mr Paul had high blood pressure and had developed chronic kidney disease. In November 2012, Mr Paul was admitted to hospital following complaints of chest and jaw pain. Mr Paul received treatment for acute coronary syndrome but no cardiac investigations were undertaken apart from an echocardiography.
In June 2013, Mr Paul began dialysis treatment and was later seen by a Consultant Nephrologist who noted that Mr Paul felt better after commencing haemodialysis and a renal transplantation was discussed. The Consultant Nephrologist noted that Mr Paul’s ECG showed significant abnormalities which would be a cause for concern to the transplant surgeons. Mr Paul was subsequently referred to a Consultant Cardiologist and in January 2014 a recommendation was made for him to undergo an elective coronary angiography.
Less than three weeks later, whilst out shopping with his two daughters, Mr Paul suffered from a cardiac arrest and collapsed in the street. The collapse was witnessed by his two children who also saw paramedics arrive and perform chest compressions upon him. Mr Paul was taken to hospital by ambulance where attempts to resuscitate him were made but sadly he passed away.
His children brought secondary victim claims against the Defendant NHS Trust alleging that they had suffered a psychiatric injury as a result of witnessing their father’s death. It was the Claimants’ children’s case that there were failures on behalf of the hospital in the care provided to their father when he presented with cardiac symptoms in November 2012. The Claimants’ alleged that during that emergency admission an inpatient coronary angiography should have been arranged. Had this taken place, there would have been a finding of a significant coronary artery disease and it is likely that Mr Paul would have been offered coronary revascularisation. If a coronary revascularisation had been undertaken at the time, then it is unlikely that Mr Paul would have died in 2014.
The Claimants’ claims were supported by reports from a Consultant Psychiatrist who concluded that each of the victims presented with symptoms of Post-Traumatic Stress Disorder which he considered had been caused by their witnessing the tragic event in January 2014, some 14 months after the alleged act of negligence.
The key issue
The Defendant averred that that the Claimants could not be described as secondary victims as there was no relevant ‘event’ or proximity. Citing Alcock v Chief Constable of South Yorkshire Police  1 AC 310, the Defendant made the submission that in the case of secondary victims a duty of care will only arise if the following control mechanisms are satisfied:
- 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 recognisable psychiatric injury.
- There must be a close relationship of love and affection between the (“the primary victim”) and the Claimant (“the secondary victim”)
- The Claimant must be in close proximity in space and time to the relevant event (if there is one) or its immediate aftermath
- The psychiatric injury must result from a “sudden and unexpected shock”. The definition of shock was modified in the case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne  PIQR P20 (“ Ronayne ”) where it was held that the shock must be shown to be: (a) horrifying; and (b) sudden; but also (c) exceptional.
In summary, the Defendant NHS trust disputed that they could be held liable for the psychiatric injuries suffered by the Claimants as a result of witnessing their father’s death given the 14 month delay between the act of negligence and the death of the deceased. The Claimants’ submitted that the collapse of the deceased was the first appreciable manifestation of the Defendant’s breach of duty.
The Claimants had satisfied each of the control mechanisms, save for the one of proximity. It had to be shown that there was a proximate connection between the initial negligence and the shocking event. However, in this case the Claimants had not witnessed the events during the deceased’s admission in hospital during November 2012 and in any event, such treatment was not shocking , nor was it known to be negligent at the time.
The Defendant argued that Paul v The Royal Wolverhampton NHS Trust could not be differentiated from the unsuccessful claim of Taylor v Somerset Health Authority  4 Med LR 34 in which there was a failure to treat the Claimant’s late husband’s worsening heart condition. A few months later, he suffered a heart attack whilst at work and later died in hospital. The Claimant attended hospital and was informed of her husband’s death some 20 minutes later. It was accepted that the Claimant suffered nervous shock but the progression of Mr Taylor’s deteriorating heart condition and being informed of his death at hospital did not constitute a relevant ‘event’ to which the test of proximity could be applied.
In addition, relying on Taylor v A Novo (UK) Ltd  QB 15, the Defendant submitted that in secondary victim claims, the definition of proximity is widened to encompass physical proximity in time and space to an event and for this reason the secondary victim claims in this case were bound to fail for lack of proximity.
The Claimants submitted that the facts of the present case were different to those in Taylor that Mrs Taylor did not witness her husband’s heart attack or death but went to the hospital and was told of her husband’s death later.
The Claimants also placed reliance on Walters v North Glamorgan NHS Trust  EWCA Civ 1792 where there was a failure to diagnose the Claimant’s child with acute hepatitis. A few weeks later the Claimant’s child had a seizure, there was then a 36 hour period in which the Claimant was wakened by her child having a fit, delayed treatment for brain damage and the Claimant then being told that her child’s brain damage was so severe that the life support machine had to be switched off. The Court of Appeal held that this was a single horrifying event which progressed from the moment of the child’s fit to when the child sadly passed away.
It was the Claimant’s case that in Walters, the relevant ‘event’ started with the infliction of the damage, in other words the first clear manifestation of the breach of duty which occurred some weeks earlier and that the facts of Walter were analogous to those in the present case.
In providing his judgement, Master Cook commented that, ‘To focus simply on the death of Mr Paul as being the first point at which the consequence of the Defendant’s negligence became apparent is not an approach which is supported by the authorities. To do so overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event. It is this proximity in space and time that allowed Lord Oliver to impose the duty of care in Alcock and was described by Lord Dyson MR in Taylor v A Novo as “ a necessary, but not sufficient, condition of legal proximity” . It is this proximity which has been found to exist in all successful secondary victim claims including Walters and it is the lack of such proximity which explains why the claims in cases such as Taylor v Somerset Health Authority and Taylor v A Novo failed’
In the circumstances, Master Cook held that that the claims of the secondary victims were bound to fail. Master Cook concluded that, ‘…Mr Paul’s tragic death 14 ½ months after the negligent incident, in circumstances separated in space and time from the negligence I must assume occurred in the hospital, cannot possibly be said to be the “relevant event” for deciding the proximity required to establish liability under the established control mechanisms…’
The Defendant’s application succeeded and the claims of the Second and Third Claimant were struck out. Claims have been permitted to proceed for loss of dependency claims under the Fatal Accidents Act 1976.
This area of law is notoriously complicated and the judgment in this case, reinforces the application of the control mechanism test in Alcock and the principles in Taylor v Novo and Taylor v Somerset Health Authority; that there must be a sufficient degree of proximity between the alleged negligence and the ‘relevant event’. It also highlights the continuing unfair and arbitrary approach adopted by the Courts to restrict the scope of potential secondary victim claims. Notwithstanding the above judgement, there are a few exceptional claims which have been successful, most notably Walters and RE & others v Calderdale and Huddersfield NHS FT  EWHC 824 (QB).