The Claimants (both minors) sought damages for psychiatric injury caused after witnessing the death of their father. Mr Paul had Type II diabetes and related complications. He was admitted to New Cross Hospital in November 2012 with chest and jaw pain. He was treated for acute coronary syndrome and had an echocardiography, but no other cardiac investigations.
In January 2014, Mr Paul was shopping with the Claimants when he collapsed and died. The Claimants witnessed the final moments of their father's life, and suffered from Post-Traumatic Stress Disorder as a result. The Claimants submitted claims for psychiatric injuries against the Defendant as secondary victims. The Defendant applied to have their claims struck out on the basis that the claims had no real prospects of success.
Contesting the application, the Claimants alleged was that there were failures in the care given by the Defendant to Mr Paul in November 2012. They submitted that had the correct tests been carried out, Mr Paul would have been offered suitable treatment and it is unlikely that he would have collapsed and died in January 2014. It was their case that "Mr. Paul's collapse was the first appreciable manifestation of the Defendant's breach of duty."
The Defendant submitted was that the Claimants could not be "described as secondary victims because there was no relevant event and no proximity."
Counsel for the Defendant submitted the Claimants' case was based upon witnessing their father's death from a heart attack and there was no suggestion they witnessed the events during the hospital admission in November 2012. There was no suggestion that the events in 2012 were in "any sense shocking in law or caused psychiatric injury".
It was accepted by Counsel for both parties that the Claimants would succeed in establishing they fell within each of the control mechanisms for establishing a duty of care by the Defendant, save for that of proximity. Master Cook stated that the question in this case was whether the death of Mr Paul was capable of being the relevant 'event' for deciding the proximity question.
He found that Mr Paul's "death 14 ½ months after the negligent incident, in circumstances separated in space and time from the negligence I must assume occurred in the hospital, cannot possibly be said to be the "relevant event" for deciding the proximity required to establish liability under the established control mechanisms."
Accordingly, the Claimants' claims for psychiatric injury as secondary victims could not succeed, and therefore their claims were struck out.
(NOTE - On 14/01/2020 the Claimants were granted permission to appeal.)