Paul v Royal Wolverhampton NHS Trust: success for Laura Johnson on behalf of the Appellants in secondary victim appeal

Articles | Thu 4th Jun, 2020

Chamberlain J handed down judgment this morning in the appeals of Saffron and Mya Paul whose secondary victim claims were struck out by Master Cook in November 2019.  Chamberlain J concluded that Master Cook was wrong to strike out the claims and they should proceed to trial.

The appeal was concerned with the vexed issue of secondary victim claims in clinical cases.  Saffron and Mya Paul are the daughters of Mr Parminder Singh Paul and Mrs Balbir Kaur Paul.  On 9 November 2012, Mr Paul was admitted to New Cross Hospital in Wolverhampton, part of the Defendant Trust, after complaining of chest and jaw pain. He was discharged on 12 November 2012 after various tests and investigations. More than 14 months later, on 26 January 2014, while out on a shopping trip with Saffron (then 12) and Mya (then 9), he collapsed and died from a heart attack.

Mr Paul’s heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. The Claimants’ case is that the failure to diagnose these conditions during Mr Paul’s stay in hospital in November 2012 was negligent. In particular, it is said that the Hospital should have performed coronary angiography on Mr Paul. This, it is said, would have revealed significant coronary artery disease, which could and would have been successfully treated by coronary revascularisation. The Claimants say that, had that occurred, Mr Paul would not have suffered a cardiac event in January 2014; and Saffron and Mya would not have suffered the psychiatric injuries which they say were caused by witnessing his collapse and death.  It is the Claimants’ pleaded case that Mr Paul’s collapse from a heart attack on 26 January 2014 was “the first manifestation of the Defendant’s breach of duty”.

The Defendant Trust applied to strike out Saffron and Mya’s secondary victim claims on the basis that it did not owe them a duty of care.  The appeal was heard by Master Cook late last year.

The Trust argued before Master Cook and on appeal that the claims could not satisfy the criteria of proximity in time and space to the relevant “event”, one of the control mechanisms that must be met in order to establish a duty of care in a secondary victim claim (Alcock v Chief Constable of South Yorkshire Police [1992] AC 310).  It was said that in accordance with relevant authorities it was necessary to identify some external traumatic event in addition to the primary consequence of injury or death and that, in the circumstances of these claimants, there was no relevant event at all.  It was also submitted that there needed to be a “proximate connection” between the negligence and the shocking event.  In this case the Defendant submitted that there was a completed tort at the time of the admission in November 2012 and therefore the heart attack 14 months later could not itself qualify as an “event”.  In support of these submissions the Defendant relied upon Taylor v Somerset Health Authority [1993] PIQR 26 and Taylor v A. Novo (UK) Ltd [2014] QB 150, which it argued provided a complete answer to the claims.

The Appellants did not accept the Defendant’s interpretation of the effect of the two Taylor cases and instead relied upon the Court of Appeal decision of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 as being authority for the proposition that the shocking “event” can be an event caused by the defendant’s negligence rather than the defendant’s negligent act or omission itself.

In his judgment on appeal Chamberlain J identified the key question as being “whether Mr Paul’s collapse from a heart attack, 14½ months after the allegedly negligent treatment, is capable of constituting a relevant “event”.  He identified three possible reasons why not:

1. That the “event” has to be synchronous, or approximately synchronous, with the negligence with gives rise to it. This was not argued by the Defendant and Chamberlain J observed that the Defendant was correct not to “and the reason why is relevant to the arguments [the Defendant] did advance.  Although McLoughlin and Alcock were both cases where the negligence was close in time to the “event” there is nothing in any of the House of Lords authorities to suggest that this must invariably be so.  Lord Oliver said in Alcock at 416 that the “temporal propinquity” required was between the psychiatric injury and “the event caused by the defendant’s breach of duty to the primary victim” (emphasis added), not the breach of duty itself”.
2. That liability depends on there being a negligent act rather than an omission. Again the Defendant did not advance this argument and was right not to do so.  There is no reason of principle why an omission should be treated any differently and Walters was a case of negligent omission.
3. That the Claimants were absent from the “scene of the tort”. “This was very much part of [the Defendant’s] submissions.  In my judgment, however, it takes matters no further.  In “accident” cases, like McLoughlin, Alcock and Taylor v A. Novo, where the breach of duty and the damage cased are coincident in time and place, the “scene of the tort” is also the scene of the negligence.  When the negligence and the damage are separated, and assuming that there is no requirement for the negligence and the damage to be synchronous, the “scene of the tort” can only mean “the scene where damage first occurred”.  In the tort of negligence, this is the point when the tort becomes actionable or complete.”

“It was [the Defendant’s] case that the tort here became actionable at the time of or immediately after Mr Paul’s admission to hospital in November 2012, because the negligent failure to diagnose Mr Paul’s condition would at that point have set in train, or failed to arrest, the biological processes that eventually led to his death. [The Defendant] submitted that Dryden v Johnson Matthey showed this to be so even if, as pleaded in the Particulars of Claim, Mr Paul’s collapse was the “first manifestation of the Defendant’s breach of duty”. The difficulty with this submission is that Dryden v Johnson Matthey shows only that non-manifest biological changes can constitute actionable damage. The question whether, in this case, the Defendant’s negligence caused actionable damage prior to Mr Paul’s collapse is a question of fact, which would no doubt have to be determined on the basis of expert evidence. At this stage, Ms Johnson’s position is that there is no indication of any damage prior to the moment of Mr Paul’s heart attack. For the purposes of this strike out application, I have to proceed on the factual basis most favourable to the Claimants, so I have to assume that the cause of action did not accrue – in other words, there was no completed tort – until Mr Paul’s collapse on 26 January 2014. On this assumption, the “scene of the tort” was the pavement where, on 26 January 2014, Mr Paul collapsed and died. The Claimants were present at that scene.”

Chamberlain J went on to acknowledge that the argument did not end there for either party.  It was the Defendant’s argument that even if the court accepted this proposition, the claim could not succeed.  Conversely, it was the Claimants’ argument that the claim could succeed even if it transpired that there had been damage prior to the heart attack on 26 January 2014.

Chamberlain J rejected the Defendant’s argument that it was not foreseeable that psychiatric injury would result from witnessing the consequence many months later of a negligent omission in the clinical context.  “I would regard it as eminently foreseeable that a negligent failure to diagnose and treat a heart condition might result in a sudden and shocking event that, if witnessed by close family members, might occasion psychiatric damage.”

Chamberlain J also rejected the Defendant’s argument that the need to show that the shock was caused by the “fact and consequence” of the Defendant’s negligence “entailed a requirement that the secondary victim must, at the time of the “event”, perceive not only the injury to the primary victim but also the fact of its causation by the defendant’s negligence.  I can see no justification for any such requirement and no support for it in the authorities.”

Chamberlain J went on to consider what was described as the “centrepiece” of the Defendant’s argument: that the two Taylor cases were a complete answer to the claims.  He rejected the argument that it was a requirement as a result of the Somerset case that the “event” had to be external to the primary victim.  If that was the case it would be impossible for a claimant to recover damages arising out of a negligent omission and Walters, a case arising out of negligent omission, would be wrongly decided.  Instead Chamberlain J concluded that the reference to “an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death” in Somerset was to an event “external to the secondary victim”.  He distinguished Taylor v A Novo on the basis that the ratio of the case was that where the defendant’s negligence results in an “event” giving rise to injury in a primary victim, “a secondary victim can claim for psychiatric injury only where it is caused by witnessing that event rather than any subsequent, discrete event which is the consequence of it, however sudden or shocking that subsequent event may be.”  The reference to “accident” cases as ““[a] paradigm example” of those in which a claimant can recover damages as a secondary victim” was a “careful formulation” that allowed for “non-paradigm cases where there is no “accident”, but some other kind of event – such as in Walters”.  “The passage at [35] in which Walters is distinguished appears to me to recognise that an event which is external to the secondary victim, but internal to the primary victim, could in principle qualify if it is sufficiently sudden and horrifying and leads immediately or “seamlessly” to death or injury in the primary victim.”

This analysis led Chamberlain J to conclude that the Master was wrong to decide that the claims are bound to fail on the facts pleaded.

Although this was sufficient to demonstrate that the appeal must be allowed, Chamberlain J went on to consider the Appellants’ argument that it was possible for the claim to succeed even if the negligent failure to diagnose had given rise to actionable damage prior to Mr Paul’s collapse on 25 January 2014.  Chamberlain J accepted that liability would be precluded by Taylor v A. Novo if there had been a relevant “event” prior to the collapse in January 2014.  In that case the collapse would be merely the consequence of the earlier event caused by the defendant’s negligence and not the event itself.  However, on the pleaded case, even if actionable damage had been sustained prior to January 2014, there was nothing that could naturally be described as an “event” before the heart attack and collapse.

Chamberlain J went on to say: “If it is necessary to identify a stopping point after which the consequences of a negligent act or omission can no longer qualify as an “event” giving rise to liability for psychiatric damage in a secondary victim, the most obvious candidate is the point when damage to the primary victim first becomes manifest or, as Swift J put it in Shorter… “evident”.”  This was consistent with Walters.  “I would therefore hold that the principle in Taylor v A. Novo is no bar to recovery in this case if it is shown that Mr Paul’s collapse from a heart attack on 26 January 2014 was the first occasion on which the damage caused by the hospital’s negligent failure to diagnose and treat his heart condition became manifest.”  The Defendant’s floodgates argument in respect of this was rejected for two reasons.  First, these types of argument are best addressed when the control mechanisms are set, not when they are applied.  Second, Chamberlain J rightly recognised that overcoming all of the hurdles of the Alcock control mechanisms is not easy for claimants, particularly in a clinical setting.

Laura Johnson of 1 Chancery Lane acted for the Appellants, instructed by Shoosmiths LLP

Read the judgment in full here.