Two cases testing the legal control mechanisms on claims for psychiatric harm by secondary victims - those who directly observe injury caused to others close to them - are heading for the Court of Appeal later in the year. Although both are clinical negligence claims, if the outcome was to make any refinement to the control mechanisms there could be effects where secondary psychiatric harm arises in other settings, such as in road traffic or workplace accidents.
Control mechanisms and ‘events’
The well-known control mechanisms were developed in the litigation that followed the Hillsborough Stadium disaster in 1989, now almost two generations ago. The mechanisms include: (i) direct perception by the secondary victim (SV) of (ii) a shocking and horrifying wrongful event (or its immediate aftermath) injuring a primary victim, which (iii) causes recognisable psychiatric harm to the SV and, (iv) & (v) to which the SV is proximate. The two necessary elements of proximity are closeness in time and space, i.e. witnessing the ‘event’ or its immediate aftermath, and closeness of relationship, i.e. that the SV has a close tie of love and affection to the primary victim.
Defining the ‘event’, point (ii) of the control mechanisms, has been the focus of two recent cases. In accident claims, it is usually fairly clear that the ‘event’ is the accident itself. There may be less clarity about the ‘event’, however, where there is some delay between the negligent act and the SV’s perception of a horrifying incident. For example, negligent failure to diagnose a patient’s chronic heart condition leading some months later to the patient’s partner witnessing his or her death from a heart attack (that would have been preventable but for the missed diagnosis) and sustaining serious psychiatric harm as a result.
What is the ‘event’ there? The negligent act is the missed diagnosis but the incident that caused the SV’s harm was the subsequent heart attack, in effect the manifestation of the consequences of the negligence. If the event is the former, then the SV’s claim fails. But, without further subtle analysis, it might be thought unlikely to be the latter.
The two recent cases
Just such an analysis was undertaken in Paul v Royal Wolverhampton NHS Trust on facts very close to the example above. The judge held that, as regards SVs, the perception of the consequences of prior negligence was not a bar to recovery. Chamberlain J decided last June that:
“… there was on the facts pleaded only one event: Mr Paul's collapse from a heart attack … it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul's death. The event would have been horrifying to any close family member who witnessed it, and especially so to children … that the event occurred 14½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an ‘accident’ in the ordinary sense of the word, but rather an event internal to the primary victim … where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete [the case law] does not preclude liability.”
In reasoning that the heart attack was “the first occasion on which damage is caused”, the judge was able to distinguish Paul from an earlier Court of Appeal decision, Taylor v Novo. In that case the primary victim’s death was witnessed by her daughter three weeks after she (mother) had been injured in an accident at work. It was the accident itself rather than the later death that was “the first occasion on which damage is caused”.
Towards the end of January 2021, permission to appeal was granted in Paul and it will be heard in early November. It is understood that a second similar decision is also heading to the Court of Appeal.
The second case is Polmear v Royal Cornwall Hospitals NHS Trust, in which judgment was given on 5 February 2021. The claimants had witnessed their young daughter’s death due to previously undetected pulmonary veno-occlusive disease, although it was accepted that she had suffered earlier non-fatal consequences.
As well as being another missed diagnosis case, Polmear, like Paul, involves an initial ruling by Master Cook. In Paul, his decision to strike out the SV claims was overruled by the judge (for the reasons set out above). In Polmear, however, the preliminary issue was “whether the Claimants have a reasonably arguable case that the relevant ‘event’ required to satisfy the control mechanism of proximity was the collapse and death of [their daughter]?” In answering that, the Master was now bound by the judge’s decision in Paul, in light of which he was satisfied that these claimants did have a reasonably arguable case and he refused the defendant’s application to strike out their claims.
He went further, granting permission to appeal and ordering (under CPR 52.23) that the appeal should be transferred directly to the Court of Appeal. He was clear that there was an important point of principle to be decided, it being how a SV can satisfy the proximity control test “when the negligence complained of preceded the sudden shocking event giving rise to the psychiatric injury for which compensation is sought, and what constitutes the relevant event for the purposes of establishing proximity.”
He was also satisfied that there were three compelling reasons for matter going directly to the Court of Appeal: (i) the present lack of clarity in the law (ii) the granting of permission in Paul on similar facts and issues, although Polmear has the added complicating factor of actionable damage occurring before the primary victim collapsed and died, and (iii) the fact that many SV cases have been stayed pending the appeal in Paul in which the Court will have to consider claims from omissions rather the accidents as had been the case in Taylor v Novo.
It is not clear if these two cases will be heard together, although that possibility feels like a very practical way of tackling what are difficult and important points. Although there could be a decision in the appeals several weeks after the November hearing scheduled in Paul, it is far from impossible to imagine that the matter could reach the Supreme Court. Interestingly, in the Taylor case above the Court of Appeal left open the prospect of limited judicial refinement of the control mechanisms: “the courts should not seek to make any substantial development of these principles. That should be left to Parliament, although the case law shows that some modest development by the courts may be possible.”
The outcomes in the appeals will resolve whether or not subsequent manifestation cases fall within “modest development” of the law. In the meantime, secondary victim cases arising from manifestation of damage that is separated in time from a negligent act appear very likely to be stayed.
Both Paul and Polmear deal only with just one part of the proximity requirement of the post-Hillsborough control mechanisms set out at the beginning of this post. In relation to the other part of proximity, the close tie of love and affection, it is very clear that marriage and civil partnership has changed significantly since 1989. As to the requirement for perception, the means by which we perceive events in real-time are also very different from 32 years ago (the wholly remote hearing before the Master in Polmear being a very good example of that).
Although these two cases do not argue that those sorts of social and technological changes should form the basis of further challenges to the control mechanisms, it is quite possible that others in due course may seek to do that.