ISSUE 54 EWJ web - Journal - Page 43
their death or injury. Accordingly, there have been
relatively few secondary victim claims arising out of
medical negligence and none of the cases that have
come before the courts previously had reached the
highest court to consider.
Duty of care
The court felt it to be essential to consider whether a
duty of care is owed to secondary victims in line with
the general principles applicable to medical negligence claims. The court explained that in the case of
a primary victim, there is a clear assumption of responsibility giving rise to a duty of care. In the case of
a primary victim, responsibility is assumed where a
person (A) provides a service to another person (B)
who reasonably relies on the service-provider’s expertise. The service-provider assumes a responsibility
to perform the service with reasonable care and skill,
giving rise to a duty of care.
That was the case, until 2023. The Supreme Court has
considered the overarching case law and concluded
that a line must be drawn somewhere to keep the
liability of negligence for secondary harm within
reasonable bounds.
Paul, Polmear and Purchase
The Supreme Court has now heard from three secondary victim claimants; the family of Parminder
Singh Paul, Esmee Polmear and Evelyn Purchase. In
each of the cases, there had been negligence in the primary victim’s care; a failure by the treating
doctor/health authority had resulted in a missed opportunity to treat the primary victim’s disease, manifesting in their death at a later point. Each claimant
sought compensation for their psychiatric injuries
brought about by witnessing the horrific death or
aftermath of death of their loved ones.
The court felt that this applies in a medical context
and forms the basis of the doctor-patient relationship.
However, it determined that it would be far-fetched
to assert that a doctor entering into a doctor-patient
relationship with a patient, also enters a relationship to
assume responsibility for the health of other members
of the patient’s family.
The court considered that to impose such a duty
would likely give rise to unacceptable and unfair differences in treatment between different categories of
claimant. It considered that it would also lead to undesirable behaviour and decision-making in respect of
end-of-life care. The court foresaw that imposing a
broader duty of care on a doctor could impact and
alter end-of-life care if the hospital or doctor felt that
allowing a family member to witness a death would
expose them to a potential legal liability.
When the cases were heard in the lower Court of
Appeal, they were dismissed on the basis that the court
was bound by a previous Court of Appeal decision in
another secondary victim claim (Taylor v A Novo). That
case had held that the control mechanism of proximity meant that a secondary victim must witness a ‘relevant event’ which is neither separate in time nor
space from a negligent act or omission, which causes
psychiatric injury. The court held that the ‘relevant
event’ was not the manifestation of the injury and, on
the basis that each of the claimants’ injuries arose from
witnessing the manifestation of the injury, rather than
the ‘relevant event’, the claims were dismissed.
The court ultimately determined that it was not the
responsibility of the doctor to shield family members
from death.
Proximity to the accident
The court considered the legal significance of a secondary victim witnessing an accident in close proximity. It identified three ways in which the occurrence of
an accident is integral both to the reasons for recognising the category of claims by secondary victims and
in defining the limits of this category:
Sir Geoffrey Vos, Master of the Rolls, commented in
his judgment that, had it not been for the decision in
Novo, he may have decided these cases differently and
gave permission to each of the claimants to appeal to
the Supreme Court.
l an accident is a discrete event. Identifying
someone’s presence is often a clear and straightforward answer and therefore has the merit of
providing legal certainty;
The judgment
The issues the Supreme Court was asked to consider
were:
l can witnessing a negligently caused medical crisis
(or its aftermath) in principle found a claim for damages by a secondary victim, or does such a claim only
apply where the triggering event is an accident;
l witnessing the accident involving a close family
member draws the line clearly between those who suffered the ordeal of actually witnessing the accident
and those that did not;
l whether the rules that determine proximity in the
l the nature of an accident means that a secondary
victim is often close enough in physical proximity to
the accident to experience a threat of immediate personal injury to oneself or bodily integrity.
case of a secondary victim apply in cases of medical
negligence where there is no accident;
l whether a doctor who owes a duty of care to a
patient also owes a duty of care to members of the patient’s close family. Is there a duty to take care to protect family members against the risk of illness as a
result of witnessing a medical crisis of their relative
arising from the doctor’s negligence.
By contrast, in the case of medical negligence:
l the length of time for which symptoms of injury or
disease last before a person recovers or dies is entirely
variable, which gives rise to legal uncertainty; and
In reaching its conclusion, the court assessed the
issues of duty of care, proximity and the legal significance of an accident.
EXPERT WITNESS JOURNAL
l the extent of the traumatic experience of witness-
ing an illness or injury is entirely variable, again
introducing uncertainty.
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APRIL 2024