Saffron Paul v The Paul Wolverhampton NHS Trust

The five elements for legal proximity in secondary-victim psychiatric injury claims apply equally to clinical negligence. A claimant must be close in time and space to the primary victim’s injury or its immediate aftermath, but recovery does not depend on when the primary victim’s cause of action accrued or when injury first became manifest.

Binding authority in [2013] EWCA Civ 194 prevents recovery where the shocking death or injury is a separate event removed in time from the negligent act or omission. Proximity may exist where negligence and the horrific event form one continuum. A qualifying event need not be an external accident, but it must be objectively horrifying and cause a sudden shock rather than gradual distress.

Three consolidated appeals concerned claims by close relatives who alleged psychiatric injury after witnessing, or encountering the immediate aftermath of, a relative’s death caused by earlier clinical negligence.

In Paul, Chamberlain J allowed an appeal from a master’s strike-out decision, holding that the children’s claims were not bound to fail: [2020] EWHC 1415 (QB). In Polmear, Master Cook followed that approach. In Purchase, District Judge Lumb dismissed the mother’s claim as precluded by Novo.

The common issue was whether a secondary victim has sufficient legal proximity where the negligent failure to diagnose or treat occurred before the traumatic death or other horrifying event witnessed by that claimant.

1. Disposition. The court allowed the defendants’ appeals in Paul and Polmear, and dismissed the claimant’s appeal in Purchase. None of the secondary-victim claims could succeed on the pleaded facts.
2. The five elements identified by Lord Oliver in Alcock govern legal proximity in clinical-negligence claims as well as accident cases. They require, alongside reasonable foreseeability, a close relationship with the primary victim, sudden shock, presence at the event or its immediate aftermath, injury caused by witnessing the primary victim’s death, danger or suffering, and close physical and temporal connection between the claimant’s perception and that event.
3. The court rejected proposed distinctions based on whether the horrifying event completed the primary victim’s cause of action or was the first manifestation of damage. Those distinctions were unprincipled and would generate complex factual disputes. Actual actionable injury to a primary victim is not invariably necessary to establish liability to a secondary victim.
4. A qualifying event need not be an external accident or impact. However, the court was bound by Crystal Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194. That decision prevents recovery for psychiatric illness caused by a separate horrifying event occurring after an appreciable interval from the original negligence, accident, or first horrific event. The rule applies even where the later event is the first occasion on which damage to the primary victim becomes apparent.
5. There may be sufficient proximity where the negligence and the horrifying event form a single continuum, as the court treated the 36-hour sequence in Walters. The deaths in these appeals were instead separate events removed in time from the alleged clinical negligence. The court expressed reservations about the resulting rule and indicated that the Supreme Court might appropriately reconsider it, but applied the binding authority.

• Court of Appeal (Civil Division). The defendants’ appeals in Paul and Polmear were allowed and the claimant’s appeal in Purchase was dismissed: [2022] EWCA Civ 12.
• High Court (Queen’s Bench Division). Chamberlain J allowed the Paul claimants’ appeal from Master Cook’s decision and held that their claims were not bound to fail: [2020] EWHC 1415 (QB). The Court of Appeal disagreed.
• County Court. Master Cook held in Polmear that the parents had an arguable claim. District Judge Lumb dismissed the claim in Purchase, applying Novo. The Court of Appeal reversed the former and upheld the latter.