ISSUE 54 EWJ web - Journal - Page 29
The Supreme Court Rules on
Claims of Secondary Victims in
Medical Negligence Cases
by Alessandra Paduano - www.giambronelaw.com
A Supreme Court decision in the cases of Paul & Anor
v Royal Wolverhampton NHS Trust and the connected case
of Polmear & Anor v Royal Cornwall Hospitals NHS Trust
and Purchase v Ahmed, after some considerable years of
debate, it has clarified the question as to whether a person who witnesses the death or serious injury of a loved
one related to serious harm or death due to medical
negligence that could have been prevented by timely
competent medical treatment, can claim to be a secondary victim and receive an award in compensation.
extend to protecting members of the patient’s close family from
exposure to the traumatic experience of witnessing the death or
manifestation of disease or injury in their relative. To impose
such a responsibility on hospitals and doctors would go beyond
what, in the current state of our society, is reasonably regarded
as the nature and scope of their role.”
The Supreme Court also made observations that the
requirement to prove that a secondary claimant that
their injury was caused by the means of a “sudden
shock to the nervous system” and “horrifying event”,
enshrined in the Alcock v Chief Constable of South Yorkshire Police judgment, expressing a view that the law
had made an “unfortunate wrong turn” which the
Court believes it has corrected.
The Supreme Court not only settled the debate on
whether secondary victim claims can be pursued
when medical negligence is witnessed but also clarified the requirements needed to be satisfied by a
secondary victim,
Alessandra Paduano, an associate, commented “The
Supreme Court’s judgment has removed the ambiguity surrounding secondary victim status in medical negligence
claims. However, it also confirmed that decisions in respect of
other types of medical negligence claims will be decided on a
case by case basis” Alessandra further pointed out “It may well
be decided in future cases that in such a situation where the potential secondary victim actually observed treatment where a
medical practitioner administered the wrong drug or perhaps
The authority on this point is Alcock v Chief Constable of
South Yorkshire Police, where the Court established that
to be successful a secondary claimant must:
l Have a close tie of love between the claimant and
the primary victim;
l That the injury for which damages are sought arose
from “sudden and unexpected shock to the
Claimant’s nervous system”;
l Be present at the scene of the accident or the aftermath shortly afterwards;
Mr Howard Brydon
Consultant Neurosurgeon
Based on the above, to be successful a secondary
victim must show there was not only a physical proximity to the event but a close temporal connection.
MB ChB, MD, FRCS, FRCS(SN)
I qualified from Liverpool University in 1982, obtaining my FRCS in
A claim to be a secondary victim in a case involving
medical negligence cannot meet the criteria, in that
there is nearly always a period of time from when the
provision of inappropriate medical care was administered to when the adverse consequences manifested
themselves on the patient. Furthermore, the Supreme
Court felt that common law does not recognise or
compensate third parties for the consequences of
injuries to other people.
1987. My neurosurgical training was obtained in Birmingham,
which was split by a research post into hydrocephalus and CSF
proteins, which led to an MD degree in 1995. I obtained my
FRCS(SN) and CCST in 1997.
I have been a consultant neurosurgeon at the University Hospital
of North Staffordshire since September 1998. I provide a general
adult neurosurgery service. I have special interests in subarachnoid haemorrhage and vascular neurosurgery and have presented
my work into ‘keyhole surgery’ for cerebral aneurysms at national
and international meetings. I also have a significant practice in
neuro-oncolog y and hydrocephalus.
In the instance of medical negligence, the term “accident” refers to a ‘discrete event’, an unforeseen unintentional event which causes injury (or a risk of injury)
to a victim by violent external means. Further, the
Court stated that it is difficult to identify a ‘discrete event’
in a “medical crisis”.
I was chair of the Regional Expert Advisory Group in Neurooncolog y from 2012 to 2017. I have been West Midlands Training
Programme Director from 2013 to 2018 and a member of the
Specialist Advisory Committee of the Royal College of Surgeons
with a lead role in Quality Assurance from 2015 to February 2020.
I have been undertaking medicolegal reports for over 18 years,
acting for the plaintiff in 90% of cases. I have been to court on
The Court also considered that witnessing an injury or
illness in a medical crisis is variable and an adequate
test has not been identified.
numerous occasions for criminal and civil cases. I have been
undertaking medical negligence work since 2005, mostly for the
complainant.
It was also considered the generally accepted duty of
care owed by medical staff and the Court found that
“We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided,
EXPERT WITNESS JOURNAL
Tel: 01782 679 946 - Mobile: 0780 8165 329
Email: howard.brydon@uhns.nhs.uk
Department of Neurosurgery,
University Hospital of North Midlands,
27
APRIL 2024