Paul and another v Royal Wolverhampton NHS Trust

A person who suffers a recognised psychiatric illness from witnessing the death or illness of a close relative cannot recover as a secondary victim unless the claimant witnessed an accident, or its immediate aftermath, in which the relative was killed, injured or imperilled.

The accident must be directly perceived, the claimant must have a close tie of love and affection with the primary victim, and the claimant must be sufficiently close to the accident in time and space. There is no separate requirement that the illness result from a sudden shock or an objectively horrifying event.

A doctor treating a patient does not ordinarily owe the patient’s relatives a duty to protect them from psychiatric injury caused by witnessing a medical crisis resulting from disease. Foreseeability alone does not establish the necessary proximity.

These conjoined appeals concerned claims for psychiatric injury by close relatives who witnessed, or encountered the immediate aftermath of, deaths allegedly caused by negligent failures to diagnose and treat disease. The claims arose from the deaths of a father from cardiac arrest, a young child from pulmonary veno-occlusive disease and a young woman from pneumonia.

The claims had been determined differently at first instance. The Court of Appeal, in [2022] EWCA Civ 12, held itself bound by Taylor v A Novo (UK) Ltd and decided that none could succeed, although its members expressed reservations about that result.

The central issue was whether the exceptional common-law liability to a secondary victim who witnesses an accident involving a loved one extends to a person who witnesses death or injury caused by a medical condition which a doctor negligently failed to diagnose and treat.

1. By a majority, the appeals were dismissed. Lord Leggatt and Lady Rose gave the principal judgment, with which Lord Briggs, Lord Sales and Lord Richards agreed. Lord Carloway agreed, while explaining the position under Scots law. Lord Burrows dissented.

2. The common law generally gives one person no compensable interest in another person’s physical well-being. The exceptional liability to secondary victims is confined to claimants who directly perceive an accident, or its immediate aftermath, involving a person with whom they have a close tie of love and affection. The accident requirement supplies a reasonably clear, certain and comprehensible boundary. It also reflects the close and direct connection between the claimant and the accident negligently caused by the defendant.

3. The decisions in McLoughlin v O’Brian, Alcock v Chief Constable of South Yorkshire Police and Frost v Chief Constable of South Yorkshire concerned accidents. They did not decide whether a medical crisis unconnected with an external accident could found liability. The rules governing accident cases could not reasonably be extended by analogy to witnessing the manifestation of disease. Medical crises vary greatly in duration and character, and proposed distinctions based on a sudden shock, an objectively horrifying event, a seamless sequence or the first manifestation of damage were uncertain and arbitrary.

4. A secondary victim need not prove that psychiatric illness was induced by a sudden shock to the nervous system or that the event was objectively horrifying. Those additional restrictions were not established by Alcock and were absent from the authoritative summary in Frost. It is enough, in an accident case, to prove a recognised psychiatric illness causally connected with directly perceiving the accident or its immediate aftermath.

5. The relevant temporal proximity is between the claimant and the accident, not between the defendant’s negligence and the accident. Liability also does not depend on whether the event witnessed was the first manifestation of damage to the primary victim.

6. North Glamorgan NHS Trust v Walters was wrongly decided and should not be followed. Sion, Shorter and Ronayne reached the correct results on the wrong basis. The approach in Galli-Atkinson, which impermissibly extended an accident’s immediate aftermath, should not be followed. Taylor v A Novo (UK) Ltd was correctly decided because the claimant witnessed a later death, not the accident or its immediate aftermath.

7. General duty principles led to the same conclusion. A doctor assumes responsibility for the patient’s health, but not ordinarily for protecting family members from psychiatric injury caused by witnessing the manifestation of the patient’s disease. Foreseeability did not create the necessary proximity. Lord Burrows would have allowed all three appeals by treating each death as the relevant event and regarding that result as a permissible incremental development.

1. United Kingdom Supreme Court: By a majority, dismissed the claimants’ appeals and affirmed the Court of Appeal’s conclusion that the psychiatric injury claims could not succeed.
2. Court of Appeal: In [2022] EWCA Civ 12, [2023] QB 149, allowed the defendants’ appeals in Paul and Polmear and dismissed the claimant’s appeal in Purchase. It regarded itself as bound by Taylor v A Novo (UK) Ltd.
3. High Court—Paul: Chamberlain J, in [2020] EWHC 1415 (QB), [2020] PIQR P19, allowed the claimants’ appeal from Master Cook and declined to strike out their claims. Master Cook had struck them out in [2019] EWHC 2893 (QB), [2020] PIQR P5.
4. High Court—Polmear: Master Cook refused to strike out the parents’ claims in [2021] EWHC 196 (QB), following Chamberlain J’s decision in Paul.
5. County Court—Purchase: District Judge Lumb struck out the mother’s claim in a judgment dated 6 May 2020.