Supreme Court To Consider Secondary Victim Cases

Compensation for secondary victims of medical negligence is to come under the scrutiny of the Supreme Court of England and Wales. Following a request by two senior appeal judges, the highest court in the land will decide whether claims are admissible for close family members.

Liability for psychiatric trauma

Claims by secondary victims relate to trauma experienced following negligent treatment received by the primary victim involved. Previously, the Court of Appeal decided that relatives could not pursue claims for this resultant distress or psychiatric injury.

Despite terming the results of medical mistreatment as horrific events, the current legal difficulty stems from the original negligent incident occurring earlier. Nonetheless, there is now a glimmer of hope for claimants.

Master of the Rolls Sir Geoffrey Vos heads the Court of Appeal. In what could help family members, he has reasoned that the same guidelines should apply to clinical negligence as accident cases to prove the legal proximity of secondary victims.

Clarification sought

For courts to deem that secondary injury is close to the victim of the primary injury, the horrific event cannot be separate – within the current legal framework. Therefore, lawyers are questioning whether, in its focus on the date of the subsequent claim, ‘separate’ avoids connecting the consequential suffering with the root cause.

In Paul and others v. the Royal Wolverhampton NHS Trust and others, patients who had suffered alleged medical negligence asked a lower court to clarify the circumstances in which hospitals may also be liable for the trauma experienced by an immediate relative. Vos and Lord Justice Underhill, a fellow Court of Appeal judge, directed that these three cases voiced significant issues. They would, therefore, refer them upwards.

The three actions arose in the wake of claims that the defendants – two hospital trusts and a doctor – failed to diagnose life-threatening conditions. As a result, when the primary victim died, the next of kin suffered alleged psychiatric problems and then sought to redress the blunder.

In short, the Supreme Court may decide to reverse the previous ruling that did not support consequential liability to dependants for medical mistreatment.

Legal precedent

The involvement of the finest legal minds stems from divergent case law. Firstly, in Alcock v. South Yorkshire Police (1991), the House of Lords established five elements to demonstrate proximity in secondary victim cases. The question had arisen following psychiatric suffering, injuries and fatalities in the Hillsborough disaster. However, in Crystal Taylor v. A. Novo (UK) Ltd. (2013), the Court of Appeal ruled out claims for psychiatric injury arising after the original accident or negligence.

Vos has accepted that he sees no logical reason for secondary victims not claiming damages. However, it was for the Supreme Court to determine whether to depart from Lord Dyson’s findings in the Novo case.

If the verdict goes in the victims’ favour, damages could become payable when a defendant’s negligence causes trauma in a spouse, partner or close family member.

For all NHS Negligence Claims contact one of our team on our free 24hr Claims Helpline 0333 987 4161