Paul & Anor v The Royal Wolverhampton NHS Trust

Secondary-victim liability is governed by established control mechanisms. Courts may develop their application incrementally and coherently, but cannot enlarge the categories of recoverable psychiatric injury by analogy at the macro level. The relevant event need not be synchronous with the negligent act or omission, and it may arise from clinical negligence. It must, however, be a sudden, unexpected and horrifying event witnessed by the secondary victim, rather than a later discrete consequence of an earlier event. Where the primary victim’s collapse is the first manifestation of damage caused by negligence, and the pleaded control mechanisms are satisfied, the claim should not be struck out merely because the negligence occurred months earlier.

The claimants, two children, alleged psychiatric injury after witnessing their father collapse and die from a heart attack. They alleged that the defendant NHS Trust had negligently failed to diagnose and treat his heart disease more than 14 months earlier. The Trust accepted a duty to the children’s mother but denied owing a duty to the children as secondary victims.

Master Cook struck out the children’s claims, holding that their father’s death could not be the relevant event for the proximity control mechanism. The appeal concerned whether the pleaded collapse and death could constitute a qualifying event, particularly where the negligent treatment and the alleged damage were separated in time.

1. Appeal allowed. The order striking out the children’s secondary-victim claims was set aside.
2. The control mechanisms governing secondary-victim claims remain applicable. Their adoption prevents courts from extending liability by macro-level analogy, but does not prevent coherent, fact-sensitive application of the existing rules.
3. “Proximity” has two meanings. It may describe the relationship necessary to found a duty of care. In secondary-victim cases it also denotes physical proximity in time and space to the relevant event. The latter question must be answered by applying the control mechanisms, not by broad intuition about the parties’ relationship.
4. The relevant event need not be synchronous with the negligent act or omission. Negligent omissions may found liability. Nor must the secondary victim perceive that the event was caused by the defendant’s negligence.
5. The ratio of Taylor v A. Novo (UK) Ltd [2014] QB 150 is that a secondary victim must suffer psychiatric injury from witnessing the event caused by the negligence, rather than a later discrete consequence of that event. It does not preclude recovery where the witnessed event is the first manifestation of damage caused by earlier clinical negligence.
6. On the pleaded facts, the father’s collapse was a single, sudden and horrifying event, external to the children, leading rapidly to his death. The children were present, had the necessary close relationship, and alleged psychiatric injury caused by witnessing the event. Whether actionable damage occurred before the collapse was a factual question requiring evidence and could not determine the strike-out application.
7. The court observed that any further modification of the control mechanisms would be a matter for Parliament or a higher appellate court. The matter was left for further directions.

• High Court (Queen’s Bench Division): On appeal from Master Cook, the court allowed the appeal and set aside the order striking out the children’s claims: [2020] EWHC 1415 (QB).
• High Court (Queen’s Bench Division): Master Cook struck out the claims as bound to fail: [2019] EWHC 2893 (QB).