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Successful appeal brought by claimants following the striking out of their secondary victim claims

  • Legal Development 9 June 2020 9 June 2020
  • UK & Europe

  • Healthcare

In November 2019 Master Cook struck out nervous shock/ secondary victim claims brought by the children of Mr Paul who collapsed and died from an untreated heart condition whilst out on a shopping trip. On 5 June 2020 Mr Justice Chamberlain reversed the decision of Master Cook allowing the claimants' claims to proceed to trial. The full judgment can be found here.

Successful appeal brought by claimants following the striking out of their secondary victim claims

Background

On 9 November 2012, Mr Paul was admitted to New Cross Hospital Wolverhampton. He complained of chest and jaw pain and was discharged on 12 November 2012 after various tests and investigations. On 26 January 2014  while out on a shopping trip with his two children he collapsed and died from a heart attack. 

The claimants argued the Trust's alleged negligence in November 2012 caused them to suffered post-traumatic stress disorder as a consequence of witnessing their father's death fourteen months later in January 2014. 

The defendant claimed that it did not owe the claimants a duty of care as there was insufficient proximity between the alleged negligence of the Trust in November 2012 and the eventual psychiatric damage suffered by the claimant's in January 2014. The defendant sought to argue that the heart attack fourteen months after the alleged negligence was not an "event" for the purposes of the control mechanisms adopted by the Courts in secondary victim cases.

We first wrote about this case in our article of 7 November 2019.

Appeal

Although the defendant's arguments were accepted by Master Cook in the first instance, they were rejected by Chamberlin J on appeal. He found that secondary victim claims are not bound to fail where there is a significant gap in space in time between the defendant's alleged negligence and the eventual psychiatric injury suffered by the claimant.

The key issue in Chamberlain J's judgment, was identifying the first point when the defendant's negligence in failing to diagnose and treat Mr Paul's heart condition became manifest. This point was the time when he collapsed from his heart attack and not the breach of duty of the defendant fourteen months before. 

Conclusion

Paul should provide some helpful guidance to both claimants and defendants in secondary victim cases.

  • Firstly, Paul serves as reminder that strike out applications on substantive grounds have a very high threshold of success.
  • Secondly, Paul demonstrates that secondary victim cases may succeed where there is a significant gap in space and time between the alleged breach of duty of the defendant and the damage suffered by the claimant. This is particularly relevant in clinical negligence cases, where physiological change after the alleged negligence takes time to manifest itself.

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