Viewed in the context of other recent decisions, the judgment in Paul could suggest a steady cooling in judicial attitudes to the scope of tort.
Judgment
The Supreme Court's decision substantially changes the law on secondary victim claims. In broad terms, secondary victim claims in the clinical negligence sphere will only succeed where the claimant's injury is caused by witnessing a medical accident. If a claimant instead witnesses the effect of what might be called a medical crisis (e.g. a heart attack caused by an undiagnosed cardiac condition) the claim will fail.
The following questions should be borne in mind when considering secondary victims claims:
1. Did negligence cause an accident which in turn caused injury to the primary victim?
2. Was the accident or its immediate aftermath witnessed by the claimant?
3. Does the claimant have close ties of love and affection with the primary victim?
4. Can the claimant show there is a causal connection between witnessing the accident or its immediate aftermath?
"Accident"
Central to the decision in Paul is the difference between an accident and a medical crisis.
An accident is an "unexpected, unintended event" which causes injury by "violent external means" [52]. The Court cites with approval the formulation given in Taylor v Somerset Health Authority that an accident is "some external, traumatic, event" [61].
In contrast, a medical crisis occurs where the primary victim suffers some symptom as a result of an underlying medical process which, were it not for negligence, would have been addressed. Examples include a stroke caused by an undiagnosed vascular condition, death or injury caused by failure to diagnose and treat sepsis.
It is clear that the Supreme Court do not accept that the duty owed by a doctor to their patient extended to protecting family members from witnessing death, disease or injury to their relative where it arises from a medical crisis [138] and that such an experience is "not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition" [139].
The distinction between an accident and a medical crisis is not as simple as harm caused by an action compared with harm caused by inaction. This is illustrated by the Court's views on Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 a case which concerned harm caused by action. The primary victim underwent an operation during which a suture was negligently misplaced causing injury to her colon. She was discharged but readmitted a few days afterwards with septicaemia and needed a long stay in hospital. Mr Ronayne (the primary victim's husband) claimed for psychiatric illness caused by witnessing his wife's deterioration and her subsequent stay in hospital. Whilst his claim succeeded at trial, the decision was overturned on appeal.
The Supreme Court said the case had been correctly decided but for the wrong reason. In Ronayne, the "claimant did not witness an accident (or its aftermath) caused by the defendant's negligence" [122]. The Court did not elaborate on its reasoning but it seems to us that the claimant in Ronayne had witnessed (and suffered harm because of) his wife's deterioration. However, he neither witnessed the thing that caused the harm nor its aftermath (i.e. the misplaced suture), nor did he witness an "accident" because the harmful thing was not of itself violent and traumatic. In the absence of an accident, the claim must fail.
It remains to be seen what an "accident" would look like in a medical setting. Whilst various hypothetical examples were provided to the Court as to whether the rules governing claims by secondary victims arising from accidents could ever apply in a medical setting, the Supreme Court said "the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts" [123].
Was the accident or its immediate aftermath witnessed?
There remains a requirement that the accident or its immediate aftermath have to be witnessed.
Various cases have sought to extend the definition of "aftermath" by for instance characterising ever-longer periods as falling within it (e.g. in Walters v North Glamorgan – a period of 36 hours was viewed as one continuous aftermath). The Supreme Court did not look favourably on these earlier decisions, and has emphasised the requirement that the aftermath be "immediate". It recognised that in the leading case of McLoughlin aftermath was interpreted as around 2 hours after the event but emphasised that this was exceptional, at the limits of the law, and was highly dependent on evidence that the scene which confronted Mrs McLoughlin 2 hours after the event was very similar to that of the accident, for her family members were still covered in oil and mud and were distraught with pain.
The Supreme Court confirmed that whilst typically in accident cases, the accident and negligent act or omission occur at much the same time, this does not have to be the case for a claim to succeed. What matters is when the accident (i.e. the obvious consequence of the negligence, which then causes an injury) occurs and whether the accident, or its immediate aftermath, was witnessed by the claimant.
Close ties of love and affection
Whilst the judgment upends many established legal tests for dealing with secondary victim claims it does not seek to interfere with the major House of Lords authorities of Alcock¸ McLoughlin and Frost. It remains necessary for there to be close ties of love and affection between the claimant and the primary victim.
Causal connection
Previous cases consider at length whether a claimant needs to have been exposed to a "horrifying event" and whether a "sudden shock" has caused their injury. The Supreme Court has rejected these tests. Not only are they based on an earlier less developed understanding of what causes psychiatric injury, but it is also impossible to adequately say what is and what is not horrifying, for in the Court's words "There is no available Richter scale of horror" [76].
Instead, the Supreme Court said "it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced. [74]"
Where next?
There remains a degree of uncertainty as to what would and would not be categorised as an accident as opposed to a medical crisis, and our understanding of this will develop with time.
More generally, the past decade or so has seen an incremental expansion of the scope of liability towards those who have suffered injury. For example in Montgomery v Lanarkshire Health Board the Supreme Court created a whole new class of liability whereby patients' informed consent for medical treatment now required them to be aware of all material risks, and in Woodland v Essex County Council the law on non-delegable duties was developed and expanded.
Over the past year the Supreme Court has handed down a number of judgments which again address the scope of liability to the injured. HXA v Surrey County Council concerned whether local authorities were liable for failing to protect vulnerable young people from abuse. Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB addressed whether vicarious liability should extend to a church elder. Both provided strong moral cases for compensation to be paid, but in both the Supreme Court chose not to allow the claims to succeed. There is also the Supreme Court's decision in McCulloch v Forth Valley Health Board, which makes it harder for claimants to establish liability under Montgomery principles.
Viewed in this context, the decision in Paul indicates that the prevailing winds of judicial policy are, for now, in favour of carefully controlling the circumstances in which a person can be held liable for injuring another.
