Nervous shock claims for medical negligence: Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC1

The appeal to the UKSC involved three separate claims by family members who were present when their close relative died in shocking circumstances or arrived in the immediate aftermath of the death. The claimants contended the death was caused by the negligence of the medical professional or health authority in failing to diagnose and treat a life-threatening medical condition. They each suffered psychiatric illnesses as a result of witnessing the death or its immediate aftermath and sued the medical professionals for compensation.

The general common law rule is that no person has a legally compensable interest in the physical wellbeing of another. Only the primary victim² may claim compensation for the injury to their person (whether physical or mental). However, over time the courts established an exception for secondary victims,³ where the claimant suffers a recognizable psychiatric condition as a result of witnessing an accident in which a close relative is killed or injured (or put at risk of this) as a result of the defendant’s negligence. The question on appeal was whether this exception includes cases where the claimant’s psychiatric injury was caused by witnessing death, disease or injury resulting from professional negligence instead of an accident.

The UK courts have historically treated secondary victims claims cautiously, recognizing that there are good policy reasons to limit the ability to bring such claims, including the risk of proliferation of and/or fraudulent claims, the burden on defendants, evidentiary difficulties and the cost and time of litigation.⁴ In Alcock and Frost (two cases involving the Hillsborough disaster), the House of Lords said that secondary victim claims were permissible provided proximity is established by the claim meeting the following requirements:⁵

• The claimant was within the class of persons whose claims should be recognized. They were a close relative, usually (but not limited to) a parent, child or spouse.
• The claimant was proximate to the accident. They personally witnessed the accident or its immediate aftermath.
• The claimant’s injury was caused by witnessing the death or injury (or fear of the same) to their close relative during the accident.

A claimant who meets these requirements must still establish the elements of negligence to succeed. However, the Alcock requirements mean that even where negligence can be proven, secondary victim claims by less close relatives such as brothers or brothers-in-law cannot succeed, nor can claims by close relatives who have to identify bodies or attend the hospital but do not witness the event, nor can claims by close relatives who witness the event indirectly via media reporting.

The UKSC decided it was not desirable to allow secondary victims to bring claims involving medical negligence as this would create too much uncertainty and result in unfair outcomes which society would consider unreasonable and unjust.

The Court distinguished between accidents and medical negligence. A negligent act or omission by a medical professional may be inadvertent but is not an “accident”. An accident is an unexpected and unintended event which causes injury or risk of injury to the primary victim by violent external means.

An accident is a discrete event, which happens in a particular time, place and way. It is straightforward to establish that the primary victim has been killed, injured or put in peril in an accident and that the secondary victim witnessed this. In contrast, although some medical events are comparable to accidents (ie the primary victim in Paul collapsing in cardiac arrest), for most medical events there is significant variation in the manifestation and duration of the primary victim’s suffering, which creates uncertainty about what qualifies as the event underlying the secondary victim’s claim.

The experience of witnessing a close relative’s injury or illness also varies considerably. There was a range of possible responses by a witness, from mild to extreme. There was no acceptable test to distinguish between which secondary victim’s claims should be allowed and which should not.

Allowing secondary victims of medical negligence to bring claims against medical practitioners was not consistent with the duty of care owed by medical practitioners to their patient. That duty is owed only to the patient, with possible exceptions where the patient has an infectious disease. A doctor’s role does not extend to protecting a patient’s family members from the harm of witnessing the death, illness or injury to their relative. Such experiences are part of the human condition.

The New Zealand courts have considered a small number of secondary victim claims, as these are not barred by the ACC legislation. In van Soest and Xi v Howick Baptist Healthcare Ltd,⁶the secondary victims sought damages for mental suffering caused by medical negligence that killed or injured their relatives. The claims failed as the claimants had not suffered a recognizable medical condition. In these cases, the Alcock factors were relevant to the claims but the courts did not consider whether a distinction should be drawn between medical negligence and accidents. Our courts will need to revisit this approach in light of the UKSC judgment in Royal Wolverhampton.

1. Alcock v Chief Constable of the South Yorkshire Police [1983] AC 410
2. the person who is injured/killed or at risk of injury/death as a participant in the relevant event
3. a witness to the harm/potential caused to the primary victim by the relevant event.
4. Alcock, Frost v Chief Constable of the South Yorkshire Police [1992] 2 AC 455(HL), McLoughlin v O’Brien [1983] 1 AC 410 (HL)
5. Alcock Lord Oliver at p411F-H
6. [2021] NZHC 1058

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