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 email@example.com
Back in February, we blogged about two clinical negligence claims, Paul and Polmear, which are subject to appeals. At the time we raised the possibility of the Court of Appeal hearing them together given that they involve essentially the same points of law.
Although the appeal hearing in Paul had initially been listed in November, the latest news is that both cases been now been listed in the same window in mid-December and it has recently been confirmed that they will be heard together by the same bench.
Given the common issues (summarised in the earlier blog linked above) this is a pragmatic and welcome approach. With the hearings in December, we should therefore expect what will be an important judgment on those issues during the first few months of 2022.
We have previously written about the UK government’s plan to set up designated settings for persons leaving hospital who require a care home but have a diagnosis of COVID-19. This was originally outlined in the Adult Social Care Winter plan released in November, and each local authority was required to put in place plans to set up such facilities. Part of the set up problems was the willingness of the insurance market to provide cover for these settings.
In a written statement this week (18 January 2021), the Vaccines Minister Nadhim Zahawi has confirmed provision of a temporary government backed indemnity to provide cover for clinical negligence, EL and PL cover in the circumstances where a care provider cannot secure sufficient cover, or cover at all via the commercial insurance market. The scheme is intended to run only until the end of March 2021 and, as such, has the feeling of a ‘stop gap’ solution.