The Supreme Court has today issued its long-awaited landmark judgment on cases involving secondary victims in clinical negligence settings. We set out a brief history of law concerning secondary victims and the issues the Supreme Court sought to address along with its judgment below.
Secondary victims
There is not a total absence of law that makes room for secondary victim claims – the case of Alcock v Chief Constable of the South Yorkshire Police (a group claim made by witnesses of the Hillsborough Disaster in 1989) dealt with the circumstances in which a secondary victim may bring a claim for compensation, and set out what it called the 5 ‘control mechanisms’ that must be met in order for a claim to succeed.
The distinction between Alcock and the PPP cases however is that the latter centre on witnessing injury, illness and death caused by medical negligence and not as a result of an accident. As such, there is a gap in the law and the absence of firm authority on the issue has been a cause for debate between claimant and defendant lawyers for some time.
Court of Appeal decision
The appeals reached the Supreme Court (SC) following dismissal by the Court of Appeal (COA).
The COA referred to the case of Taylor v A Novo (UK) Ltd (Novo) which dismissed a secondary victims claim for compensation following the traumatic death of her mother. The case required the Court to apply the mechanisms established in Alcock and the court ultimately determined that the criteria had not been met – temporal proximity (a closeness in time – mechanism no.5) was not established.
The decision in Novo set a binding precedent and was therefore a heavy influence in the COA dismissal of the PPP appeals. That being said, the COA made it very clear that the decision to dismiss had been made with great reluctance, highlighting concerns that the court had incorrectly interpreted and applied the mechanisms in Novo and pointed out its difficulty in reconciling why a gap in time (big or small) – i.e temporal proximity – should absolve a Defendant of its liability to a secondary victim.
It acknowledged however that the COA was nonetheless bound by Novo and only the Supreme Court held the authority in deciding whether to depart from the law. Whilst not labelled as such, many have interpreted the COA judgment as an invitation to the SC to adopt a more favorable view than that of Novo and bridge the gap in secondary victim claims.
Permission to appeal was granted and the SC heard the cases in May 2023.
Supreme Court decision
After months of consideration, the SC issued its judgment of the PPP appeals today. To the dismay of claimant lawyers, the appeals were dismissed by a majority of 6-1.
The decision largely turned on the basis that the SC could not extend a medical professional’s duty of care to their patient to also cover the relatives of the patient. In short, the only opportunity in which a person may claim as a secondary victim arises only where they are witness to a medical ‘accident’, thereby leaning in to the law established in Alcock.
The decision of the SC has ultimately further restricted the law for potential secondary victim claims involving medical negligence and is an unwelcome decision for claimant lawyers and their clients.
By contrast, the SC took what appears to be a generous approach to secondary victims of incidents of accident or injury and actually relaxed the criteria (i.e the mechanisms) to be met in such claims. Secondary victims must now only establish:
- Their presence at the scene of the accident (or the immediate aftermath);
- Their witnessing of the accident (or the immediate aftermath); and
- Having a close tie of love and affection with the primary victim.
The SC provided detailed commentary within the judgment as to ‘immediate aftermath’.
Conclusion
As set out, it is clear that the SC has taken a mixed approach to secondary victims.
Whilst secondary victims of medical negligence have been left with a more challenging position when wishing to pursue a claim, secondary victims of accidents have been provided with relaxed framework. It is hard to interpret the decision without concern as to where this will leave those who have suffered incidents of clinical negligence in seeking justice.
If you believe you may be a secondary victim, you can call our expert clinical negligence and serious injury team on 03456 465 465 or email enquiries@rotherabray.co.uk to discuss how we may be able to help and support you.
