Clinical Negligence – A Compelling Question

Paul and Others v The Royal Wolverhampton NHS Trust and Others

The 2022 Court of Appeal case of Paul and Others v The Royal Wolverhampton NHS Trust and Others raised a compelling question regarding the area of clinical negligence. Specifically, on appeal from the High Court, the Court of Appeal was asked to consider whether a person who is subject to a clinical negligence claim can be held liable for a psychiatric injury to a person who observed the impact of negligence on a close family member. In this article, we will summarise the facts of the case, the conclusion reached by the Court of Appeal, and the importance of an expert psychiatry or psychology witness in such cases.

Clinical Negligence

The facts of the case

Paul and Others v The Royal Wolverhampton NHS Trust and Others considered three appeals (Paul, Purchase, and Polmear), each involving a secondary victim who suffered a psychiatric injury after they observed the impact of clinical negligence on a close family member. In each case, it was alleged that the defendant had failed to diagnose the primary victim with a life-threatening condition. As a result, and sometime after the act of negligence (i.e. failure to diagnose and treat), the primary victim went on to die as a result of their medical condition. In the cases of Paul and Polmear, the deaths were observed by close relatives leading to psychiatric injury.

In the case of Paul, it was alleged that a hospital was negligent when it failed to perform coronary angiography in November 2012 after Mr Paul complained of chest and jaw pain which radiated to the left arm. Mr Paul died on 26th January 2014 while shopping with his children (aged 9 and 12). Both children went on to sustain psychiatric injuries.

The Polmear case concerned 7-year-old Esmee Polmear, who visited her GP on 19th August 2014 with a “history of strange episodes during which she could not breathe, appeared pale and turned blue after a few minutes”. She was referred to a paediatrician and underwent further tests, after which it was concluded that her symptoms were physiological and there was “nothing to suggest an underlying abnormality of her cardiac rhythm”. Despite being re-referred by her GP, Esmee died on 1st July 2015 after collapsing while attending a school trip. One claimant suffered PTSD and major depression after she witnessed the collapse, unsuccessful attempts to resuscitate and the child’s death. Another claimant suffered PTSD and major depression with addictive behaviour.

In the third case, 20-year-old Evelyn Purchase died on 7th April 2013 due to “extensive bilateral pneumonia with pulmonary abscesses”. Evelyn had attended her GP with acute sinusitis in January 2013 and continued to be unwell in the following weeks. Despite further visits to her GP and out-of-hours doctor, she was not diagnosed with severe pneumonia. She was discovered by the claimant “lying motionless on her bed with the house telephone in her hand, staring at the ceiling not moving. Her skin was slightly warm, she looked alive but was not moving or blinking”. As a result of the significant trauma of seeing the primary victim, the claimant went on to suffer “post-traumatic stress disorder, severe chronic anxiety and depression with continuing symptomatology”.

Five factors secondary victims in personal injury cases must prove

The Court of Appeal in Alcock v Chief Constable of the South Yorkshire Police (1992) laid out the five factors that secondary negligence claimants must be able to prove in order to succeed in their claim:

  1. There must be a marital or parental relationship between the plaintiff and the primary victim
  2. The injury for which damages are being claimed must have arisen from the sudden and unexpected shock to the plaintiff’s nervous system
  3. The plaintiff must have been either personally present at the scene of the accident or more or less in the immediate vicinity and witnessed the aftermath shortly afterwards
  4. The injury suffered must have arisen from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim, and
  5. There must have been both physical proximity to the event and a close temporal connection between the event and the plaintiff’s perception of it, combined with a close relationship of affection between the plaintiff and the primary victim.

What did the Court of Appeal conclude in Paul and Others v The Royal Wolverhampton NHS Trust and Others?

After reviewing the relevant case law authorities, the Court of Appeal held that secondary victims of clinical negligence can only bring a claim if the horrifying event is observed at the same time as the breach of duty. Sir Geoffrey Vos, Master of the Rolls, allowed the appeals in relation to Paul and Polmear but not for Purchase. He also signalled that he was minded to grant permission to appeal to the Supreme Court given the important issues raised in the case.

The case was heard by the Supreme Court last month and we will update you as to its decision when it is delivered.

The importance of psychology and psychiatric expertise

Psychology and psychiatric expert witnesses play a central role in assessing the impact on victims of both primary and secondary negligence. They will carefully review all of the correspondence, clinical notes, and any other evidence presented (e.g. photos) and prepare an expert witness report. In cases of secondary clinical negligence, it is not enough to simply establish that a claimant has suffered a psychological or psychiatric injury as an observer. It must first be shown that a) a duty of care was owed to the primary victim, b) the duty was breached, and c) the breach caused the primary victim to suffer harm. Then to prove secondary negligence, the psychology and psychiatric expert witness will seek to draw a clear link between the original act of negligence and the impact on the secondary victim of seeing the traumatic event.

How can Expert Court Reports Ltd help?

Expert Court Reports delivers expert witnesses and medicolegal court reports for solicitors, barristers and other agencies, including the police, probation services, prisons, third-sector organisations, and private clients.

To discuss any issues raised in this article, please call us on 01865 587865, email, or request a call by completing our online form.