No change to the law on secondary psychiatric harm claims [for the time being?]

Yesterday the Court of Appeal dismissed appeals in three joined cases concerning medical negligence and secondary psychiatric harm. The novel point involved was the separation in time between the alleged negligent act or omission and the secondary victims’ perception of harm caused to the primary victim to whom they had a close tie of love and affection.

That temporal separation has led to some debate about the ‘event’ that has to be perceived by the secondary victim in order for his or her claim to succeed. That inquiry takes matters into the technical detail of the five elements of the legal control mechanisms applicable to such claims, which themselves stem from litigation relating to the Hillsborough stadium disaster over thirty years ago. The dismissal of the present claims may not be the end of the road, however, given that the Court appeared minded to give permission to appeal to the Supreme Court.

Delay between a negligent act and the secondary victim witnessing harm was at the heart of Taylor v Novo, a decision from 2013.  In Taylor, the claimant witnessed her mother’s sudden death from injuries she sustained in an accident at work around three weeks earlier. She (the claimant) had not witnessed the accident itself. The Court of Appeal held that the relevant ‘event’ was the accident and therefore the claim failed because the claimant did not see it. [In addition, the circumstances could not be regarded as a continuum.]

The three cases now before the Court of Appeal involved allegedly negligent missed diagnoses and the subsequent manifestation of harmful consequences seen by the secondary victim who suffered psychiatric harm as a result. For example, one involved missed diagnosis of a heart condition and the patient dying from a heart attack a little over a year later while he was on a shopping trip with his daughters.

Although this is a highly technical area (the issues were set out in this earlier post), the essence of the dispute and the need for clarity are helpfully summarised in this early passage of Vos MR’s judgment:

Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event. I accept that, although there is no logical reason for these rules, they are the way Auld J in Somerset and the Court of Appeal in Novo built upon the five elements and adapted them to the clinical negligence context. If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case.”

This passage heralds the MR’s conclusion regarding the cases, which itself has three aspects. First, that he is bound by Taylor to dismiss them, second that absent Taylor he would have been minded to allow them and third that this is a topic on which the view of the Supreme Court could provide useful guidance.

Underhill LJ gave a shorter judgment in very much the same vein, adding that “if the point were free from authority I would be minded to hold that on the pleaded facts the claimants in all three cases should be entitled to recover …  [doing that] would not involve going beyond the elements established in [the post-Hillsborough cases] rather, it would represent their application in a different factual situation.” He also said that his “strong provisional view” was that the matters merited examination by the Supreme Court.

It might be thought that allowing these claims might give rise to a ‘floodgates’ risk, ie exposing defendants and insurers to extensive new liabilities to secondary victims. Underhill LJ’s comment above that this would not actually go beyond the established law looks at first sight to be an elegant rejection of that.

It is of course too early to say if the claimants might seek, never mind secure, permission from the Supreme Court in its turn. What we can say is that the decision does not have the feel of being the end of arguments probing the limits of the nature of legal liability for psychiatric illness caused to secondary victims as a consequence of harm negligently inflicted on someone else.

In rejecting the present claims, the Court of Appeal followed its own authority but aired the prospect of the Supreme Court examining the area afresh. Whether it accepts an invitation to do so (if the claimants ask) and whether in that event it might reach a different conclusion are things to keep a very close eye on over the medium term.

Alistair Kinley at BLM
Alistair Kinley, Director of Policy and Government Affairs at BLM

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