Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 (13 January 2022)

These three cases raise the question of the circumstances in which a defendant to a clinical negligence claim can be held liable for psychiatric injury (or what used to be called nervous shock) caused to a close relative of the primary victim of that negligence. The basic facts in each of the cases are that the defendant is alleged to have failed to diagnose the primary victim’s life-threatening condition. Some time after that negligent omission, the primary victim suffered a traumatic death. In two of the cases (Paul and Polmear), the shocking death occurred in the presence of the close relatives, causing them psychiatric injury. In the case of Purchase, the close relative came upon the primary victim immediately after her death, again causing her (the mother in that case) psychiatric injury. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative (often referred to as the secondary victim). [1]

…we have to decide whether a claimant, who sustains psychiatric injury as a result of witnessing the death or other horrific event suffered by a close relative as a result of earlier clinical negligence, can claim damages for that psychiatric injury. The question turns on the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant. The parties have put forward three possible answers. They suggest that, as a matter of law, a defendant to a claim for damages for clinical negligence can be liable to a secondary victim who has suffered psychiatric injury by witnessing the death or other horrific event affecting the primary victim and caused by the negligence: (a) only when that horrific event is the damage completing the primary victim’s cause of action in negligence, or (b) only when that horrific event is the first manifestation of damage to the primary victim caused by the negligence, or (c) whenever that horrific event occurs… [10]

The resolution of these questions necessitates a careful examination of the authorities so as to understand precisely what they decided. The difficulty is exacerbated by the fact that the decisions of the House of Lords on which all parties rely and the decision of the Court of Appeal in Novo were cases about horrific events caused by accidents rather than clinical negligence. The issue we have to decide has not been specifically considered before in this context in the Court of Appeal. [11]

no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event [96]

none of the present claims can succeed… the issues raised by them merit consideration by the Supreme Court. [106]