Can the Civil Liability (Contribution) Act 1978 apply to claims arising outside England & Wales?

Today and tomorrow the Supreme Court will examine this question in the context of alleged clinical negligence in Germany dating back to 2000. The hearing is the final determination of the point and follows the Court of Appeal’s July 2020 decision in this case, which was the subject of a blog at the time (linked here).

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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.

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Secondary victims & psychiatric harm: update on appeals in December

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
alistair.kinley@blmlaw.com