ISSUE 54 EWJ web - Journal - Page 44
The court acknowledged the shocking nature of the
claims and the tragic events giving rise to the cases before them. However, it concluded that the law cannot
impose duty and liability based on sympathy and ultimately found that none of the cases satisfy the legal requirements for the recovery of damages by secondary
victims who suffer injury as a result of the death of
another person.
The law now
The court ultimately maintained that the general legal
principle and starting point when considering such
claims is that the law does not grant remedies to third
parties for the effects of injuries to other people. The
small exception that has been carved out by Alcock (set
out above), truly is an exception, which the court considered to be too well established to be called into question. However, without a duty of care being owed by
a doctor to a patient’s family members, there can be no
liability in relation to injuries caused to those family
members brought on by witnessing injury or death
because of the doctor’s negligence.
The court also felt it necessary to address the case of
Walters, the only previous successful secondary victim
claim in a medical negligence context. It considered
that Walters was wrongly decided on its facts and
should not be followed. Similarly, the authority of
Galli-Atkinson which found that a mother who did not
see the accident which killed her daughter but attended the mortuary to identify her body hours later,
should not be followed and the case of McLoughlin
sets the limit for the ‘immediate aftermath’ test.
Accordingly, there is now very little, if any, scope for a
secondary victim claim in the context of pure medical
negligence and such claims are now reserved for personal injury claims arising from a distinct accident witnessed in close proximity by certain close family
members.
Authors
Lyndsey Banthorpe
Email Lyndsey
+44 (0)20 7457 3008
The intention of the lines now drawn by the court is to
offer clarity and certainty to this area of law which has
been subject to much debate. The court has sought to
restrict the class of eligible claimants to those who are
most closely and directly connected to the accident
(not the primary victim) which was negligently caused
by a defendant. The restrictions are intended to be
straightforward, certain and comprehensible to the
ordinary person.
Arran Macleod
Email Arran
+44 (0)1483 411423
www.penningtonslaw.com
Mr Gerard Cronin
Nursing Care Expert
Ms Ruth Mason
BSc (Hons), Nursing MA (Healthcare), Diploma in Nursing & Registered Nurse
Consultant Obstetrician
MD MRCOG
I am a Registered Nurse and Medico Legal Exper t with 25 years of full-time NHS
experience. I remain clinically active as a Nurse within the private healthcare sector.
I have worked as a medico legal expert since 2008. I have been fully trained in all
aspects of the medico legal process including giving evidence in Court. I am fully
Ruth Mason started preparing medico-legal
reports for claimants and defendants in 2016 and
has prepared over 200 reports.
conversant with CPR rules and directions. I have given evidence both in the Crown
Court in England and to the Fatal Accident and Sudden Death Inquiry Court in Scotland.
On average, I prepare 100 Medico Legal repor ts each year. My Defendant/
Claimant split currently stands at 30/70.
Consultant Obstetrician at University Hospitals, Sussex
since 2010, becoming Labour Ward Lead.
My areas of clinical expertise include:
General Nursing care A&E/Emergency Care
Acute Assessment Unit Acute Medical Wards
Special expertise in Obstetrics and Feto-Maternal medicine,
including ultrasound scanning of the fetus.
My company retains several Nursing and Midwifer y Associates.
We provide medico legal experts who are in current clinical practice in the
Expert witness for HM Coroner in Surrey on a series of
Neonatal deaths, giving evidence in court.
following areas:
Midwifer y exper ts (Community & Acute).
Adult Nursing
Paediatric Nursing
Practice/GP Nursing
General Nursing
Respirator y Nursing
Intra Venous therapy nursing
A&E Nursing
Tissue Viability Nursing
Prison Nursing
Mental Health Nursing
Learning Disability Nursing
Reviewed all the maternity protocols to obtain CNST Level 3
in 2013. The maternity unit was designated "outstanding"
by the CQC in 2016.
Her main interests are in complex pregnancies, including
twins, and the management of labour. Antenatal clinic for
mums with mental health illnesses.
All of my Associates have been trained to produce CPR Par t 35 compliant exper t
repor ts and have been trained in the provision of oral evidence to the Cour t.
Contact: Gerard Cronin
Contact Details:
Mobile: 07757 301 280
Medico-legal secretary: Alayne Fawkes
Tel: 01903 741154
Email: pms@pypermedical.co.uk
Email: info@croninsolutions.co.uk
Website: www.croninsolutions.co.uk
Cronin Ltd, 64 Sackville Road, Southend on Sea, Essex, SS2 4UG
Area of work: Nationwide and Republic of Ireland
EXPERT WITNESS JOURNAL
Hareswith Cottage, West Chiltington Road, Storrington, West Sussex RH20 4BP
42
APRIL 2024