Paul v The Royal Wolverhampton NHS Trust (Rev 1)

Secondary-victim claims in clinical-negligence cases remain subject to the established strict control mechanisms. Clinical negligence does not attract a different legal test merely because the breach is an omission or the damage becomes apparent later.

The relevant event must have a proximate connection in space and time with the initial negligence. A death occurring many months after the negligent treatment, and separated from it in place and time, is not itself the relevant event for the proximity requirement. A strike-out application may succeed where, taking the pleaded facts at their highest, the claim is bound to fail.

The defendant applied under CPR r 3 and CPR r 24 to strike out psychiatric-injury claims brought by the deceased’s two daughters as secondary victims. The claims arose from their witnessing their father collapse and die in the street.

The alleged negligence occurred during hospital treatment approximately 14½ months earlier. The claimants argued that the collapse was the first appreciable manifestation of the breach and relied on authorities concerning negligent omissions and continuing events. The central issue was whether the father’s death could constitute the relevant event for the physical-proximity control mechanism.

1. Application allowed. The claims of the second and third claimants were struck out because, on the pleaded facts, they were bound to fail. The claimants retained their dependency claims under the Fatal Accidents Act 1976.
2. The applicable strike-out test was whether the claims were bound to fail, there being no material difference for this application between CPR r 3 and CPR r 24, following Farah v British Airways [1999] WLUK 155.
3. The established control mechanisms for secondary-victim claims applied. Clinical-negligence claims did not involve a different legal principle merely because the alleged breach was an omission. The court adopted the approach expressed in Taylor v A Novo (UK) Ltd [2014] QB 150 and Walters [2002] EWCA Civ 1792.
4. The relevant event had to be sufficiently proximate in space and time to the initial negligence. The death in this case occurred 14½ months after the alleged negligent incident and in circumstances separated from the hospital treatment. It could not therefore constitute the relevant event for establishing the necessary proximity. The reasoning in Taylor v Somerset Health Authority [1993] 4 Med LR 34 applied and had been expressly approved in Taylor v A Novo (UK) Ltd.
5. Walters was distinguishable in principle, not merely on its facts, because the events there formed one connected, seamless experience in space and time. The present case did not disclose such a single event.