The conventional view in English law is that a duty of care exists between a healthcare professional
and their patient and a breach of that duty may result in a claim for medical or clinical negligence. In
making a claim, the law draws a distinction between primary victims, who suffered the negligence,
and secondary victims. Recently, the Supreme Court considered three conjoined cases that involved
allegations that the defendants had failed to diagnose life-threatening conditions which led to
traumatic deaths along with subsequent psychiatric injuries to the primary victims’ close relatives.
What is a ‘secondary victim’ of medical negligence?
Secondary victims are those persons who are not directly subjected to medical negligence but
witness the suffering of close relatives resulting in psychiatric injury to themselves as a consequence.
Decision in Paul v Wolverhampton NHS Trust (2024)
The primary issue in this and the two conjoined cases was to determine whether an individual can,
as a consequence of earlier clinical negligence, make a claim for psychiatric injury caused by
witnessing the death or some horrifying event suffered by a close relative.
The Supreme Court determined that witnessing an ‘accident’ is a necessary condition for a
secondary victim claim and that witnessing a medical crisis (the suffering or death of a relative from
illness) or its aftermath is not sufficient. An accident is defined as ‘an unexpected and unintended
event which caused injury by violent external means to one or more primary victims’.
The decision was not unanimous. Lord Burrows, dissenting, considered that the Supreme Court had
‘taken an unwarranted backward step’ in ‘departing from the reasoning in almost all of the reported
medical negligence cases in this area’. For Lord Burrows the relevant event is the death. In
considering the distinction between a death caused by an accident and a heart attack, the first
instance potentially permits a secondary victim to recover damages but not the second, a distinction
that might be considered arbitrary.
Practical Implications of Paul v Wolverhampton NHS Trust to medical negligence claims
In practice, the need for a secondary victim to witness an ‘accident’ means that such claims in
medical negligence cases have become more problematic. On a more positive note, secondary
victims in ‘accident’ cases no longer have to prove their injury was caused by a ‘sudden shock to the
nervous system’ and was a sufficiently ‘horrifying event’. These terms lacked precision and the
clarification will assist those advising on the merits of a claim.
If you believe that you or a loved one has been a victim of medical negligence please call for a free, informal chat to see if Graystons Solicitors can help you fight for the justice and compensation you deserve. Call 0151 645 0055 or email enquiries@graystons.co.uk