It is long established that a secondary victim to an accident can claim for psychiatric injury suffered from witnessing an event. There are strict requirements to be met for someone making such a claim following the foundational ruling of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC310. The requirements to be met following Alcock are clear and ensure that not all those who witness an incident are entitled to make a claim for damages. However, there had been a certain level of uncertainty surrounding secondary victims in a clinical negligence context.
In January 2024, the Supreme Court handed down its judgment after hearing the cases of Paul, Polmear and Purchase. This Supreme Court judgment has provided clarity on secondary victim claims in a medical negligence context, with all three appeals being dismissed, thereby making it virtually impossible for secondary victim claims, as a result of medical negligence, to be successful. This article will explore the implications of these appeals on Scots law.
The Cases
Each case concerns an individual who has died in particularly distressing circumstances. It was alleged that each death was due to a missed diagnosis at an earlier date.
In Paul, whilst out with his two daughters (9 and 12) Mr Paul suffered a cardiac arrest and collapsed in the street, hitting his head. He was pronounced dead upon arrival at the hospital. 14 months earlier, Mr Paul had been admitted to the defender's hospital with pain in his chest and jaw. He was treated and discharged. It is the claimant's position that had he been treated appropriately on this admission, he would not have suffered the cardiac arrest when he did.
In contrast, Polmear was the case of a 6-year-old child, Esmee Polmear who had been wrongly diagnosed almost six months earlier, meaning she did not receive the correct diagnostic tests and subsequent treatment. She succumbed to her misdiagnosis of veno-occlusive disease following failed attempts by both parents to resuscitate her.
Finally, Purchase was the case of 20-year-old Evelyn Purchase who passed away from severe pneumonia. Despite two visits to her GP and a visit to the out-of-hours service, her diagnosis was missed. Evelyn's mother found Evelyn passed away in distressing circumstances after receiving a voicemail of her last breaths five minutes before she arrived.
These cases were not being brought as solatium, loss of society or loss of support claims that would have been allowed under Damages (Scotland) Act 2011, but rather as secondary victim claims. This is an attempt to compensate for their own psychological illness that has developed after witnessing the harrowing deaths of their loved ones.
Issues
The central issues that the Supreme Court were presented with include physical closeness to the event and how far a clinician's duty of care extends.
Closeness to the accident or 'event'
By nature, often the fatal consequence of medical negligence can take time to manifest, with symptoms developing over days, months or even years. In Paul, Mr Paul should have received his diagnosis of atherosclerosis 14 months earlier. In Polmear, Miss Polmear should have been diagnosed with pulmonary veno-occlusive disease just over five months earlier. In Purchase, Ms Purchase had been seen by the defendant just three days earlier who failed to diagnose her severe pneumonia.
The court considered that the first manifestation of injury is not what qualifies as an event giving rise to a claim. The court are eliminating the complex question of what counts as a first manifestation and therefore, what symptom must be witnessed to give rise to a claim.
The court have referred to Alcock as authority to conclude that witnessing an injury caused by an accident is not sufficient in a secondary victim claim. Witnessing the consequences of an accident does not meet the threshold test of being present at the accident or its immediate aftermath.
The court have left one area potentially open for future claims and this was explored in paragraph 123 of the judgment. The question raised surrounded hypothetical examples of a doctor injecting a patient with the wrong drug or dosage, resulting in immediate adverse reaction in the patient that is witnessed by a close relative. The court did not dismiss this scenario and advised that these would have to be addressed on the actual facts if such a case were to arise.
Duty of Care
A judgment could not be made without considering the general principles that determine when a duty of cared is owed by clinicians and to who. The court found that it was straightforward to identify the duty of care that exists between a clinician and their patient. The clinician is providing a service of care to their patient and therefore, the duty of care is apparent.
However, the court found that a clinician's duty of care cannot extend to a patient's family. They cannot be expected to protect family members from the risk of developing an illness as a result of witnessing the consequence of medical negligence.
This would likely extend to including the case of an expecting father who may witness the unexpected stillbirth of their child and develop a psychiatric illness as a result. In such an instance, the father is witnessing this shocking event in close proximity in both time and space but will not be entitled to make a claim.
Whilst this may appear inconsistent with the duty of care placed on drivers that extends to secondary victims, this may relieve a certain pressure that would otherwise be present on clinicians at end-of-life care. Had the appeals been allowed, clinicians may resist the wishes of a family wanting to be present as their loved ones pass away as a consequence of negligence, for fear of a secondary victim claim arising.
Scots Law
Whilst these cases were brought within the England and Wales jurisdiction, Lord Carloway commented on how the cases would have been dealt with had the negligence occurred in Scotland.
He emphasised that had the families brought claims for damages in Scotland under the Damages (Scotland) Act 2011 for their pain and suffering, loss of society and loss of support of their loved one, they would likely have been successful in being awarded damages. Families in Scotland have the benefit of being entitled to claim substantial damages in these circumstances, in comparison to the damages available in England and Wales.
Nevertheless, these cases were brought as secondary victim claims. Both Lord Carloway and Lord Sales were in agreement that had Scots law been applied to the facts and circumstances of these cases, the same decision would have been reached and the individuals would not have been successful in their secondary victims claims for damages. These comments have provided welcome certainty as to the aligned approach in our respective jurisdictions.
This article is part of our Litigation in Scotland Report 2025. To explore more cases, you can access the full report here.
