November 7, 2019

Secondary victim claims: Application for strike out succeeds

In the recent case of Paul v Wolverhampton Health Authority [2019] EWHC 2893, the defendant was successful in its application for strike out of two secondary victims claims.

This was a very sad case in which the deceased, Parminder Singh Paul, was admitted to New Cross Hospital in Wolverhampton in November 2012 after complaining of chest and jaw pain.  He was provided with treatment for acute coronary syndrome but few cardiac investigations were performed.  Nearly fourteen months later it was recommended that he undergo an elective coronary angiography, but sadly, on 26 January 2014, he collapsed in the street in front of his two young daughters, and passed away.

The primary claim made on behalf of the deceased's estate was that appropriate investigations were not arranged during the admission in November 2012 and had the same occurred, he would not have died in January 2014.  His two daughters also brought claims as secondary victims after the claimants' expert Psychiatrist concluded that each presented with symptoms of PTSD caused by witnessing the events surrounding his death.

For the purposes of this application, both parties agreed that the claimants would satisfy three of the four control mechanisms set out in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. The only mechanism in dispute was whether the claimants were in close proximity in space and time to the relevant event or its immediate aftermath.

There was no suggestion that either of the daughters had witnessed the events during the deceased's hospital admission in November 2012. Therefore it was agreed that the "event" was the heart attack and his subsequent death.

The defendant relied on the unsuccessful claim of Taylor v Somerset Heath Authority [1993] 4 Med LR 34 in which the claimant had not witnessed the failures to diagnose and treat her late husband's gradual worsening heart condition, nor his heart attack or subsequent death, but was instead told of her husband's death shortly after it occurred.  The Court held that the deceased's death, his wife being informed of the same and her viewing the body was not the relevant "event" or its "immediate aftermath". In the present case, the defendant argued that similar circumstances arose, and therefore these claims were bound to fail for want of proximity.

In contrast, the claimant argued that in the case of Taylor, the claimant did not witness the collapse or death of her husband at all which differed from the present case.  Instead, the claimant relied on Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 where the act of negligence occurred approximately 6 weeks before the consequence of that negligence; the claimant's child suffering a seizure and sadly dying 36 hours later. This was described by the Court as a single horrifying event from the moment the fit occurred to when the child died.  The claimant averred that the "event" in Walters was taken to start with the infliction of damage; in other words the first clear manifestation of the breach of duty which had occurred some weeks earlier, and therefore was directly analogous to the current case.  In addition, the claimant maintained that even if the Court were to consider that there was some merit in the defendant's application, the lack of clarity over the application of secondary victim criteria and, in particular, those involving negligent omission which gives rise to injury that becomes evident some time later, militated in favour of allowing this matter to be dealt with at trial following a full investigation of the facts rather than struck out without all of the evidence.

Master Cook rejected this proposition; in his view a trial of the facts was not required to enable the Court to answer that question. He found that he could not sensibly distinguish the facts of the current case from those in Taylor. Further, he disagreed that the case was akin to Walters as to focus simply on the deceased's death as being the first point at which the consequence of the defendant's negligence became apparent is not an approach supported by the authorities and overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event.  Accordingly Master Cook ruled that the deceased's tragic death was separate in space and time from the negligence and therefore could not be said to be the relevant event for deciding the proximity required to establish liability, and subsequently struck out the secondary victim claims.

This case is a welcome decision in the context of the Court's power to strike out a claim; whilst some issues do warrant a full trial, others, such as this, can be determined without a trial, therefore potentially saving both parties significant time and expense.

Many of the secondary victim claims in the last few years have been decided in the defendant's favour and this case is also a useful reminder of the relevant authorities and reluctance of the court to extend the control mechanisms. Of course, there are situations where secondary victim claims can and should be successful but this case highlights the strict approach the court will take to ensure that the control mechanisms set out in Alcock, now nearly thirty years ago, are met.