Secondary victim claims for psychiatric injury present claimants with a particular set of difficulties, namely the control mechanisms laid out in the case of Alcock v Chief Constable of South Yorkshire Police (which followed the Hillsborough stadium disaster). In order to succeed, a secondary victim must prove that he or she: (1) witnessed a shocking or horrifying event (or its immediate aftermath), (2) suffered a recognised psychiatric injury, (3) had a close tie of love and affection with the primary victim of the event, (4) witnessed the event directly and (5) was sufficiently “proximate” to the event in both time and space.
But what is the event the secondary claimant must have witnessed in order to satisfy the control mechanisms? A line of case law had developed over the years, suggesting that the tortfeasor’s negligence and the resultant shocking event must be one and the same.
In Taylor v Somerset Health Authority  the claimant had been told of her husband’s heart attack (there had been an earlier failure to diagnose heart disease). On arriving at hospital she was informed he had died. She suffered psychiatric damage on seeing his body. These matters however were held not to form part of the “immediate aftermath” of the tortious event – that being the missed diagnosis – and therefore her secondary victim claim failed.
In Taylor v A Novo  the claimant’s mother was injured at work. As a result of those injuries she collapsed and died at home three weeks later. Her collapse and death (but not the original accident) were witnessed by the claimant, who suffered a psychiatric injury. The Court of Appeal held that the original accident was the relevant event. As the claimant had not witnessed that her claim failed.
More recently, we acted for the defendant in Tanner v Sarkar . In common with Taylor v Somerset and Taylor v A Novo, the court found that the relevant event for the purposes of a secondary victim claim was the defendant’s original tortious omission (alleged clinical negligence, which the claimant did not witness) and not the later consequences of the omission.
The case law seemed relatively settled in requiring the witnessing of the initial tort in order to succeed with a secondary claim. The position has, however, has been thrown into doubt by the recent decision of Chamberlain J in Paul v Royal Hampton NHS Trust (on appeal from a Master’s decision).
The case involved two children who witnessed their father’s fatal heart attack and suffered psychiatric injury as a result. Their father had been examined in hospital 14 months earlier and the defendant NHS Trust admitted negligence for failing to diagnose and treat his heart disease. The matter in issue was that of the relevant event for the purposes of the secondary victims’ claims. Was it the earlier admitted negligence, which the claimants had not witnessed, or was it the subsequent heart attack, which they had?
The defendant applied to strike out the claim, relying upon Taylor v Somerset and Taylor v A Novo, and succeeded at first instance before Master Cook. He, unsurprisingly, held that the claimants could not satisfy the proximity control test because they were not present when the tort (missed diagnosis) was committed.
On appeal, the claim was reinstated, with Chamberlain J rejecting the defendant’s contention that the relevant event for the purpose of the Alcock control mechanisms required a secondary victim to be present at the scene of the tort.
He reasoned that while that may be so in accident cases, where the accident itself is the relevant event to be witnessed by the secondary victim, it is not a requirement and may not be the case in a claim for clinical negligence where, as in Paul, the sudden and shocking event giving rise to the secondary claim (and indeed likely to be the first sign of any damage arising from the earlier negligence) may occur weeks or months later. He therefore concluded that “the principle in Taylor v A Novo is no bar to recovery in this case if it is shown that Mr Paul’s collapse from a heart attack on 26 January 2014 was the first occasion on which the damage caused by the hospital’s negligent failure to diagnose and treat his heart condition became manifest.”
Despite careful analysis of Taylor v A Novo earlier in the judgment, it is quite difficult to reconcile this passage with the prevailing case law which had required proximity to the event rather than the subsequent manifestation of its consequences. Adding to the difficulty here is the fact that this very point appears to have been made a little later on in the judgment: “even if there is a qualifying shocking event, it will remain necessary to show that it was that event, and not some later discrete consequence of it, that caused the psychiatric injury.”
It remains to be seen whether the decision in Paul will be appealed further. At present, however, the judgment could provide claimants with cause for some optimism that, despite the earlier line of cases, there might nevertheless be scope to succeed as a secondary victim in circumstances – later manifestation cases – in which claims might previously have been considered unsustainable.
Greg McEwen, Partner at BLM