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Landmark Clinical Negligence Secondary Victim Appeal Ends in Disappointment for Claimants at the Supreme Court

By Matthew Best, Director – ATE Partnerships, Head of Personal Injury & Clinical Negligence

(Estimated reading time: 3 minutes 42 seconds)

The Supreme Court handed down its long-awaited judgment on conjoined clinical negligence cases concerning psychiatric injuries suffered by secondary victims. Specifically, the case of Paul which concerned a failure to diagnose a life-threatening condition that resulted in Mr. Paul’s death. The decision was unfavourable for the claimants in this matter, and thus for many other cases that were stayed pending this decision.

The appeal in each case related to a claim by an Appellant for psychiatric illness caused by seeing a traumatic event and death caused by a Respondent’s negligence.

Following Paul, an application to dismiss the claim in Polmear was rejected but, again, permission was given to appeal. These cases were conjoined and heard before the Court of Appeal who found for the Appellants in Paul and Polmear, and for the Respondent in Purchase.

All three cases then came before the Supreme Court, also as a conjoined appeal. The primary issue to determine was simply whether an individual can, as a result of earlier clinical negligence, make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative.

In summary, with this judgment the Supreme Court has now determined that witnessing an “accident” (defined as “an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims”) is a necessary condition for a secondary victim claim, but that witnessing a medical crisis (the suffering or death of a relative from illness) or its aftermath is not sufficient.  It has concluded that previously Novo was correctly decided whilst Walters was wrongly decided on the facts. Had the defendant raised the defence that the claimant had not witnessed an accident (or its aftermath), the claim should have failed.

Commenting on the judgment, Matthew Best, Director of ATE Partnerships at Temple Legal Protection (who provided the ATE insurance for Mr Paul and his family) said “I agree with Phil Barnes and his legal team at Shoosmiths, who represented Mr Paul’s family, that the Supreme Court’s decision has effectively turned back the clock.  The requirement for the secondary victim to witness an accident (an event external to the primary victim) will in practice mean that only in medical negligence cases will it be rare to make a secondary victim claim – such as negligent overdosing of a primary victim causing immediate adverse reaction and injury witnessed by the secondary victim. On a more positive note for claimants, in accident cases it will no longer be necessary to prove that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event.””

Phil Barnes himself offered the following view “The Supreme Court has brought clarity to the application of the requirements in secondary victim claims arising from medical negligence cases by insisting that there must be an accident for there to be recovery for negligently caused psychiatric injury, but in so doing they have, in the words of Lord Burrows, taken an ‘unwarranted backward step’ and departed ‘from the reasoning in almost all of the reported medical negligence cases in this area’… The court’s approach is too restrictive and insensitive to those secondary victims who suffer psychiatric harm as a result of witnessing the death, injury or fear of injury to a loved one as a result of medical negligence.”

On the future, Matthew explained “It is now time to deal with the consequences of this disappointing judgement. Temple will be on hand to deal with any claims made under the ATE policies. We are here to fight for justice and sometimes on that journey we hit bumps in the road; that is what an insurer is here for, to support our solicitor business partners and their clients – especially when things don’t go as planned.”

Commenting on the current Supreme Court itself, Matthew further observed “The Supreme Court currently has a very conservative outlook.  This is apparent in many of its recent personal injury decisions – BXB, HXA, YXA and McCullough (going with the more doctor-friendly test).  The consistent theme seems one of a retraction of duties and a consequent negative impact on the ability of claimants to pursue their case.”

He went on to say “Our business partners, Shoosmiths and its legal team put forward such compelling arguments to the court. Their handling of this matter has been so impressive, and we are united in our view that this verdict is terribly unfortunate.”

Matthew Best Cert CII

Head of Personal Injury & Clinical Negligence
Read articles by Matthew Best Cert CII

Matthew Best Cert CII

Matt has an insurance background and joined Temple in 2011 having worked for 4 years in a leading insurance company where he was dealing with personal injury work. Matthew was promoted to Underwriting Manager and subsequently Senior Underwriting Manager taking on overall responsibility for Temple’s personal injury and clinical negligence underwriting department.

In 2022 Matt joined the board of directors as Director of ATE Partnerships. Matthew has cultivated fantastic relationships with our business partners for many years. His ability to build a clear understanding of their requirements and more importantly what is required to fulfil such requirements means he is ideally placed to support the strategic direction of the company.

Matt remains the head of the personal injury and clinical negligence department and is committed to all Temple’s business partners in order to deliver the highest level of service they expect. He is also responsible in making sure that Temple’s ATE and disbursement funding products remain competitive, but most importantly that they are fit for purpose for solicitors and their clients.


Read articles by Matthew Best Cert CII