Secondary Victim Claims – “Proximity in Time and Space”: Polmear and Anor v Royal Cornwall Hospitals NHS Trust
The law surrounding secondary victims who have witnessed a loved one’s death and have suffered psychiatric harm has been contested in the Courts for years.
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:
- 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.
- There must be a close relationship of love and affection between the primary victim and the secondary victim.
- The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath.
- 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.
Claimants often found that they were unable to satisfy the proximity test despite all the other components being satisfied. Taylor v Novo was a case in 2013 involving an accident at work with the alleged secondary victim sustaining Post Traumatic Stress Disorder (‘PTSD’) from witnessing her mother’s death from the resulting injuries 21 days after the accident. In that case the Court of Appeal found that the relevant “event” for the determination of the secondary victim status was the original accident not the death 21 days later.
In a similar quandary, in Paul v Royal Wolverhampton NHS Trust (2019) Master Cook struck out the claim, finding that there “must be a proximate connection between the initial negligence and the shocking event.” This is a case where the Defendant NHS Trust were negligent in diagnosing the Deceased’s heart condition which culminated in him suffering a fatal heart attack, witnessed by his young children 14½ months later. Master Cook described this as requiring proximity in time and space and that there was no prospect of the Claimants proving that proximity and therefore their claim was struck out before trial.
In 2020, Chamberlain J allowed the Claimant’s appeal in Paul, which helped clarify the law relating to secondary victims and when they may be successful in a claim for psychiatric harm specifically in relation to proximity. In dealing with proximity, Chamberlain J responded that an ‘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
Most recently, the case of Polmear v Royal Cornwall Hospitals NHS Trust is now headed to the Court of Appeal.
The facts of Polmear are similar to Paul save for an additional factor; the symptoms of the underlying heart condition continued to present during the period when the condition should have been diagnosed and the traumatic event occurring.
The Claimants were the mother and father of a young girl who died of veno occlusive disease. In the two years prior to her death their daughter had experienced quite regular episodes that could last up to 30 minutes several times per week, where her breathing became shallow and rapid causing her lips to turn blue.
On 1st July 2015 the Claimants were called to their daughter’s school where she had collapsed. The parents were then present during efforts to revive her and then at the time of her death. A claim was brought on the basis that they had suffered psychiatric shock from witnessing the sudden and horrifying events of their daughter’s collapse and death.
The Defendant NHS Trust applied to strike out the parents’ claim relying on the Alcock control mechanisms.
Master Cook refused to strike out the case stating that the law governing secondary victim clams does not mandate the shocking event to coincide with, or immediately precede, the first actionable damage sustained to the primary victim (in this case, the child). A Court of Appeal decision is now awaited.
Master Cook was satisfied that the appeal, like the pending appeal to be heard by the Court of Appeal in Paul in early November 2021, raises an important point of principle – what constitutes the relevant event for the purposes of establishing proximity.
The Polmear decision highlights the difficulties in applying pre-existing and established control mechanisms introduced in 1992, when times have moved on and there is clearly a need for change.
Given the potential complexity in this area of law, it is important for claimants to seek expert legal advice from the outset when contemplating this type of claim.