This appeal raises a difficult point of law about the circumstances in which a defendant who owes a duty of care to a primary victim may be liable to a secondary victim for a psychiatric injury suffered as a result of witnessing the death or injury of the primary victim. This type of injury is referred to in the authorities, inaptly, as “nervous shock”. [1]
The issue arises in proceedings brought in respect of the death of Mr Parminder Singh Paul by his wife Mrs Balbir Kaur Paul and their daughters Saffron and Mya. On 9 November 2012, Mr Paul was admitted D hosptial after complaining of chest and jaw pain. He was discharged on 12 November 2012 after various tests and investigations. More than 14 months later, on 26 January 2014, while out on a shopping trip with Saffron (then 12) and Mya (then 9), he collapsed and died from a heart attack… [2]
Mr Paul’s heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. Cs’ case is that the failure to diagnose these conditions during Mr Paul’s stay in hospital in November 2012 was negligent. In particular, it is said that the Hospital should have performed coronary angiography on Mr Paul. This, it is said, would have revealed significant coronary artery disease, which could and would have been successfully treated by coronary revascularisation. Cs say that, had that occurred, Mr Paul would not have suffered a cardiac event in January 2014; and Saffron and Mya would not have suffered the psychiatric injuries which they say were caused by witnessing his collapse and death. Cs plead that Mr Paul’s collapse from a heart attack on 26 January 2014 was “the first manifestation of D’s breach of duty”. [3]
D accepts that it owed a duty of care to Mrs Paul. It does not accept that it owed a duty of care to Saffron or Mya. It therefore applied to strike out their statements of case … as disclosing no reasonable grounds for bringing the claims, alternatively, for summary judgment… on the basis that the claimants have no reasonable prospect of succeeding. In a detailed judgement handed down on 4 November 2019, Master Cook held that, on the facts pleaded, Saffron’s and Mya’s claims were bound to fail: He therefore struck out their claims. [4]
The Master concluded as follows: “In the circumstances Cs’ secondary victim claims are, in my judgment, bound to fail. Mr Paul’s tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence I must assume occurred in the hospital, cannot possibly be said to be the ‘relevant event’ for deciding the proximity required to establish liability under the established control mechanisms. It follows that D’s application must succeed and the secondary victim claims will be struck out. They will of course retain their loss of dependency claims under the Fatal Accidents Act 1976.” [44]
…the Master was wrong to conclude that these claims are bound to fail on the facts pleaded… there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack on 26 January 2014. On the facts pleaded, it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul’s death. The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and 9. The fact that the event occurred 14 ½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an “accident” in the ordinary sense of the word, but rather an event internal to the primary victim. In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete… [75]
… this appeal must be allowed and the Master’s order striking out these claims set aside… [76]
Even though defendants are in principle liable to secondary parties for psychiatric damage caused by witnessing an event in the primary victim caused by clinical negligence, it will still be necessary to establish that the event in question was sudden, unexpected and shocking in the relevant sense… this will not be easy, particularly where the event occurs in a clinical setting. Moreover, even if there is a qualifying shocking event, it will remain necessary to show that it was that event, and not some later discrete consequence of it, that caused the psychiatric injury. These are stringent limits on recovery for psychiatric damage by secondary victims. Any additional limit would involve modification of the existing control mechanisms; and that is a matter for Parliament or, possibly, for the higher appellate courts. [81]
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