In a brief blog in June we noted that two secondary victim claims, both clinical negligence cases, will be considered together by the Court of Appeal in December. We now know that a third clinical case is also involved, again in the context of an allegedly negligent diagnosis followed by a family member witnessing the subsequent onset of harm. This third case is Purchase v Ahmed, a decision of HHJ Lumb last May in which he struck out the claim “not without some considerable regret [because] the circumstances of Mrs Purchase’s case do not come within the parameters of a permissible and actionable secondary victim claim.”
He noted that he was bound by the Court of Appeal’s decision in Taylor v Novo, which is authority for the proposition that the relevant “event” for the purposes of a secondary victim’s claim is the initial accident or negligence and not the later manifestation of harm as witnessed by the family member and which causes psychiatric harm. That separation in time meant that the secondary victim’s claim would fail for want of proximity. HHJ Lumb added that “the only way that Taylor can be overturned as a binding authority on this Court is by a different conclusion being reached by the Supreme Court or by Parliament changing the law. Neither of those appear realistic prospects in the foreseeable future.” It is possible that the outcome of the three cases before the Court of Appeal could alter those prospects and therefore the appeal should definitely be on the radar of insurers and clinical compensators alike.
Written by Alistair Kinley, Director of Policy and Government Affairs at BLM