No widening for ‘secondary victims’, for now…

The conjoined appeals of Paul & anor v Royal Wolverhampton NHS Trust; Polmear & anor v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [2024] UKSC 1 has been decided by no fewer than 7 members of the UK Supreme Court.

The case has garnered widespread media coverage and generated plentiful comment in the legal press as well as amongst academics.

The Claimants in each of the cases sought compensation for psychiatric illness caused by witnessing the unfortunate deaths of a close family member in distressing circumstances. The Defendants applied for the claims to be dismissed, stating that as a matter of law, the claims could not succeed.

The general rule is that claims of so called ‘ secondary victims’ who are not the primary victim of the negligence, will not succeed. The case of Alcock v Chief Constable of South Yorkshire [1991] UKHL 5, [1992] 1 AC 310 is the leading authority in the area. In that high-profile case, none of the Claimants were successful in their claims.

In the combined appeals decided recently, the UK Supreme Court decided by a margin of 6-1, to dismiss the appeals. The majority's judgment reaffirmed that medical professionals owe a duty of care to their patients, but not to members of that patient’s close family, to protect them from the risk of psychological illness, stemming from a failure to correctly diagnose a condition that leads to the death of the patient.

Lord Burrows was the only Justice to have dissented. He held that instead of the majority's emphasis on an accident precipitating the secondary victim's injury, the relevant event was in his view the death of the loved one. He reasoned that the Court should extend the duty of care owed to medical professionals to the ‘secondary victims’. Notably, at paragraph [204] of the judgment, Lord Burrows suggested that there is, “no need to give up on the incremental development of the common law in this area.”

For now, the line has been drawn by the UK Supreme Court. It remains to be seen if future cases brought by ‘secondary victims’ will open the door to personal injury claims of this sort.

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