Court of Appeal Judgement on Secondary Victim Cases

Judgment was today handed down by the Court of Appeal in the cases of Paul v Royal Wolverhampton NHS Foundation Trust, and the two linked cases of Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed, all of which are secondary victim cases in a clinical negligence context.

The Court of Appeal had to decide whether legal proximity existed between the Defendant and a close relative (secondary victim) where there was a gap in time between the negligent treatment, and the horrifying event or injury. Such proximity is necessary to establish liability in these types of cases.

The Court found for the Defendant in each of these cases, on the basis that they were bound by a previous decision of the Court of Appeal, in the case of Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194.

However, this is not the end of the road for these cases as the Claimants in each case have applied to the Court of Appeal for permission to appeal to the Supreme Court. In his lead judgment, Vos MR said that if he were starting with a clean sheet in these cases, then “I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury”.

The application to appeal to the Supreme Court is opposed by the Defendants, and so it remains to be seen how the law will develop (if at all) in this area.

The Clinical Negligence team at Osbornes Law can advise on potential secondary victim claims. Please contact our specialist clinical negligence solicitors by calling, or completing an online enquiry form.