Polmear & Anor v Royal Cornwall Hospitals NHS Trust

A secondary victim claim should not be struck out unless it is certain to fail. In clinical negligence cases, the relevant event for proximity may be a sudden and horrifying collapse and death occurring after the negligent omission. Earlier symptoms or actionable damage do not automatically prevent that later event from qualifying. The event need not coincide with, or immediately precede, the first actionable damage to the primary victim. The question is fact-sensitive and requires analysis of whether the later event can properly be viewed as a fact and consequence of the negligence. Permission to appeal may appropriately be granted where the issue raises an important point of principle and the law is materially uncertain.

The claimants, the parents of Esmee Polmear, sought damages as secondary victims for psychiatric injuries allegedly caused by witnessing their daughter’s collapse, unsuccessful resuscitation attempts and death. The defendant accepted that Esmee’s life-threatening condition should have been diagnosed earlier, but applied under CPR 3.4(2) to strike out the claims.

The central issue was whether the relevant event for the proximity control mechanism was Esmee’s collapse and death, despite symptoms and potentially actionable damage having occurred earlier. The court also considered the effect of Paul v The Royal Wolverhampton NHS Trust and the approach in Taylor v A Novo (UK) Ltd.

1. Strike-out threshold. Under CPR 3.4(2), the claim could be struck out only if it disclosed no reasonable grounds. Following Hughes v Colin Richards & Co, the application could not succeed unless the claims were certain to fail.
2. Secondary victim control mechanisms. The court adopted the established requirements identified in Alcock v Chief Constable of South Yorkshire Police, including foreseeability, a close relationship, recognised psychiatric injury, causation, proximity to the relevant event and direct perception.
3. Relevant event and prior damage. The court considered itself bound by the appellate decision in Paul v The Royal Wolverhampton NHS Trust. A qualifying event may exist where negligence by omission precedes a sudden, horrifying event which causes the psychiatric injury. It is not necessary that the event coincide with, or immediately precede, the first actionable damage to the primary victim.
4. Esmee’s earlier episodes were regular and sufficiently concerning that a claim on her behalf could arguably have been brought before her death. Nevertheless, on the pleaded facts, her final collapse was sudden, external to the claimants and rapidly followed by death. It could properly be regarded as a fact and consequence of the defendant’s negligence. Earlier symptoms therefore did not automatically constitute a stopping point preventing recovery.
5. The court distinguished the defendant’s broader reading of Taylor v A Novo (UK) Ltd. That decision concerned a subsequent discrete event which was merely a consequence of an earlier event. It did not decide that a later shocking event could never qualify where actionable damage had occurred earlier.
6. The strike-out application was dismissed. Permission to appeal was granted under CPR 52.6, and the appeal was transferred directly to the Court of Appeal under CPR 52.23, because the issue raised an important point of principle and there was compelling reason for appellate consideration.

This was a first-instance decision on an application to strike out the claims. The judgment states that the decision in Paul v The Royal Wolverhampton NHS Trust had overturned an earlier strike-out decision by Master Cook and was binding on him. Permission to appeal in Paul had subsequently been granted. The present court granted permission to appeal and ordered transfer to the Court of Appeal.