Claiming for compensation as a secondary victim

The Supreme Court heard three conjoined appeals in the case of Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024] UKSC 1. The appeals relate to claims for compensation for psychiatric injury caused by witnessing the death of a close family member. In all three cases, the defendant is alleged to have failed to diagnose a life-threatening condition. In two of the cases, the death occurred in the presence of the relatives. In the third, the relative found their loved one immediately after her death.

Background

There is an exceptional category of claims, secondary victim claims, that allows damages to be claimed by one person when harm is done to another, or in some cases the threat of harm.  For example, a person’s psychiatric illness is caused by witnessing an accident, or the immediate aftermath of an accident, that was caused by the defendant’s negligence and in which a close family member died or was injured.

Due to the nature of the claim, the criteria for this type of claim to be successful is complex and has been subject to legal debate over the years. The question for the Supreme Court was whether this category included cases where the death or injury is caused by a defendant’s negligence in failing to diagnose or treat a medical condition.

By a majority of six to one, the Supreme Court held that, while doctors owe a duty of care to protect the health of their patients, they do not owe a duty of care to members of the patient’s close family to protect them against the risk of illness from the experience of witnessing the death or medical crisis of their relative from a condition which the doctor has negligently failed to diagnose or treat.

Despite the differences between English and Scots law in relation to the right to claim damages caused by the death of another person, Lord Carloway helpfully stated that ‘Had Scots Law been applied, the same result in relation to the present claimants would have been reached’.

The circumstances surrounding the deaths of the appellant’s family members were incredibly distressing. Many would feel deep sympathy for the individuals involved. In this regard, the court stated that ‘The Law cannot, however, impose duties and liabilities on the basis of sympathy, however strongly felt’.

The question of whether rules governing claims by secondary victims arising from accidents could ever apply in a medical setting remains live. The court was asked to consider several scenarios, such as a doctor injecting a patient with the wrong drug, or wrong volume of a drug, inducing an adverse reaction which is witnesses by a close relative. The court chose not to answer the question, reasoning that “in our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts”. We may therefore see future cases seeking to answer this question.