Enter your email address to follow this blog and receive notifications of new posts by email. “What is required in order to found liability is something which is exceptional in nature” (Liverpool Women’s Hospital NHS Foundation Trust v Ronayne[2015] … Surely each has a distinct cause of action independent of the others. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. The ratio decidendi of this decision is, therefore, that in secondary victim cases proximity must be proved at the date of the event which completes commission of the tort (which may conveniently be described as the “scene of the tort”), and proximity at the date of subsequent injury is insufficient. Secondary victims are defined as those who witness a medical accident, which results in their suffering of a psychiatric injury. Take, for example, the case of a young child who suffers brain damage as … James Marwick. The dispute between the parties in the present case was as to the point in time at which proximity in fact needed to be established. Our clinical negligence team look at the recent case of Taylor v A Novo Ltd. The We are the NHS: People Plan for 2020/21 sets out a range of detailed actions to support essential transformation throughout the NHS and in partnership organisations, such as social care, local government and the voluntary and independent sectors. Secondary Victims in Clinical Negligence (again): Shorter v Surrey Posted on April 28, 2015 | Leave a comment In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). The law on secondary victims, namely those people who were not injured themselves (commonly known as primary victims), but who observed a loved one sustaining injury and suffered psychiatric injury as a result, is governed by principles set down in the cases following the … ( Log Out /  Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally. Secondary victim refers to someone who witnesses a traumatic event, such as the death of a loved one, and is psychologically harmed by the experience. In Ronayne, the claimant was refused damages for nervous shock after witnessing his wife on a ventilator, looking like ‘the michelin man’, following post-operative complications. The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. We act for more than 100 NHS bodies and are on all of the national framework agreements – NHS SBS, NHS CPC, HealthTrust Europe, NHS Resolution, NHS Commercial Alliance and CCS. Although the owner’s cause of action in contract arose when the work was negligently performed, his cause of action in tort did not arise until he drove the car off the cliff. Change ), You are commenting using your Facebook account. Chamberlain J, at [79], suggested not, stating “If it is necessary to identify a stopping point after which the consequences of a negligent act or omission can no longer qualify as an ‘event’ giving rise to liability for psychiatric damage in a secondary victim, the most obvious candidate is the point when damage to the primary victim first becomes manifest or, as Swift J put it in Shorter, ‘evident’”. Now, Chamberlain J has conducted a detailed review of numerous recent authorities and, in allowing the claimants' appeal against strike out, has provided some welcome clarity. As it was expressed in Liverpool Women’s Hospital NHS Foundation Trust -v- Ronayne 2015 - ‘a visitor to a hospital is necessarily to a certain degree conditioned as to what to expect... what is required in order to found liability is something which is exceptional in nature.’. Change ). Found in: PI & Clinical Negligence. This question will arise in cases where the secondary victim sustains psychiatric injury in consequence of perceiving not the commission of the tort, or the primary victim’s initial injury (either or both of which might be described as the “accident”), as opposed to some later “event”. The law around secondary victims of medical negligence is not straightforward, so it is important that you seek specialist advice. Change ), You are commenting using your Twitter account. So it would not arise in a case where, for example, a garage negligently serviced a car, which negligence caused the brakes to fail and the owner to drive the car off a cliff some time later. Ex Turpi Causa – Is Illegality Still a Good Defence in Civil Claims. The claimants, as secondary victims, had to satisfy the criteria for the imposition of liability formulated by the House of Lords in McLoughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. She was born in very poor condition; flat and not breathing, with a purple and swollen head. It is also difficult to see why, in principle, successive secondary victims could not succeed if each witnessed a different sufficiently horrifying event caused by the defendant’s tortious act. Accordingly if the particulars of claim had averred that Mr Paul had suffered no damage prior to his heart attack, the court would have been required to assume that this averment was true. Particular consideration should be given to whether the claimant witnessed the event that led to the primary victim’s injury (Wild -v- Southend Hospital NHS Trust 2014); whether the event is exceptional in nature, akin to witnessing an accident (Brock -v- Northampton General Hospital NHS Trust and another 2014); and whether there is a seamless single horrifying event (Shorter -v- Surrey and Sussex Healthcare NHS Trust 2015).In conclusion, whilst the decision in RE is significant and provides a degree of clarification, its scope is limited and it will remain difficult for purported secondary victims of clinical negligence to overcome the strict control mechanisms. In a medical perspective this would be a patient harmed by their medical treatment. Nevertheless, there is likely to be a perception that it ‘opens the doors’ to secondary victim claims. It is also difficult to see why, in principle, successive secondary victims could not succeed if each witnessed a different sufficiently horrifying event caused by the defendant’s tortious act. The criteria for bringing a secondary victim claim was set out following the Hillsborough disaster, when Primary victims were defined as those directly involved in the events that had caused life threatening injuries. The scope for claiming nervous shock as a secondary victim in clinical negligence cases, in light of a recent Court of Appeal decision regarding injury sustained during childbirth. The claimants’ case was that coronary angiography should have been performed, which would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation, and that had this taken place he would not have suffered the cardiac event in 2014. Psychiatric injury—secondary victims Practice notes. The decision in Taylor v Novo should have bound the judge to hold that to be the moment at which the proximity test needed to be satisfied, but could not be. The deceased, who suffered from ischaemic heart disease and occlusive coronary artery atherosclerosis, had been admitted to the defendant’s hospital in November 2012 and discharged without appropriate cardiac investigations being undertaken. This month, you’ll hear from Esther in health commercial, Louise in health advisory, and Monia in health litigation. You can also access our webinar resources which are designed specifically for our health clients - covering topics that may affect you. In the example of the epileptic child above postulated, why should only the first observer succeed and the others not? The coroner’s primary duty is to decide how somebody came about his or her death. Secondary victims in clinical negligence claims (Paul v Royal Wolverhampton) News. The court then considered whether RE’s mother and grandmother satisfied the control mechanisms for secondary victim claims. In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. This was therefore plainly a two event case. This intent is expressed in a report, ‘Integrating care: Next steps to building strong and effective integrated care systems across England’ developed by NHSE/I as a result of discussions with ‘the NHS and its partners’ over the last year and is accompanied by four consultation questions. Having considered the consultation responses the NDG has decided to: Each month our Health team will update you on recent key developments, and look ahead to what’s coming up in your sector. It describes the relationship between parties which is necessary in order to found a duty of care owed by one to the other, i.e. In fact, as appears from the judgment of Master Cook, it does not seem to be the case that Mr Paul’s collapse in 2014 was the first “manifestation” on any view. It is not a later consequence of the accident. When determining the merits of any potential secondary victim claim, it is important not to overlook the recent string of unsuccessful cases and consider whether there are any similar features. In deciding that it was, the court highlighted the following factors: Therefore, damages for psychiatric injury were recovered by both the mother and grandmother. COVID 19 Vaccine – questions of safety and civil liability, Informed consent in children and young people, R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46, Michelle Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB). Ultimately, the court pinpointed the relevant point in time as when the negligence occurred, which, in this case, began when RE’s body remained in the birth canal. He was then “worse off” than he would have been but for the defendant’s negligence. A review following the decision in RE and others -v- Calderdale and Huddersfield NHS FT [2017]. The defendant argued that the mother was a secondary victim since RE survived and the cause of RE’s permanent injuries was the negligent treatment following her birth. This report examines psychiatric damage claims for secondary victims, who face restrictive controls which have limited the amount of meritorious claims significantly. ), writing in Punch magazine, described a decision of the Court of Appeal as “a strange example of the blindness which sometimes descends on the best of judges”. A person who is injured or even killed by another’s negligence is a primary victim. It is of particular relevance that RE’s condition on birth was a sudden and unexpected event, for which the claimants had no prior ‘conditioning’ or warning. The principles of secondary victim claims apply to clinical negligence cases as they do to other accident cases, but the factual circumstances are often very different. Her daughter, who suffered psychiatric injury as a result of witnessing the death, sued as a secondary victim. He opined that the answer was that the claimants could still succeed because the qualifying “event” (which was the point at which proximity needed to be established) would still be the collapse in 2014, and not the damage which completed Mr Paul’s cause of action, because the relevant “event” only occurred when the same became “manifest” or “evident.”  He therefore distinguished Taylor v Novo on the ground that in that case, unlike the present, there had been an “evident“ event (the collapse of the shelving on to Mrs Taylor) at the scene of the tort, whereas in the present case there had not. A secondary victim has a whole separate set of requirements to discharge, as set out below. Maintained • . Secondary victims in clinical negligence. Nevertheless, Chamberlain J allowed the claimants’ appeal from the decision of Master Cook[3] striking out the claims on the ground that they were bound to fail. This Practice Note reviews the lead case of Alcock v Chief Constable of Yorkshire Police and considers the criteria which secondary victims must satisfy to successfully obtain damages following an accident involving the primary victim. It would follow that the secondary victim who saw the accident could satisfy the criterion of proximity. True it of course is, that on a strike out application under CPR 3.4(2)(a) the court is limited to considering whether the statement of case discloses reasonable grounds for bringing the claim. Public sectors bodies within the scope of the Regulations include the NHS, as well as local authorities, maintained and academy schools, fire authorities, the civil service and the police. The Regulations impose a cap of £95,000 (the cap) on exit payments in the public sector. The editors reserve the right to delete comments without notice and accept no responsibility for the content of comments. The issue does not arise where the qualifying event (injury to or death of the primary victim) is synchronous with the commission of the tort, as will be the position in most accidental injury cases. On the claimants’ case, when he left hospital he had partially blocked coronary arteries, with consequent risk of cardiac failure, whereas had he been treated with due care, these blockages would have been wholly or partially eliminated. (1) The psychiatric injury arose from witnessing the injury or death of, or extreme danger or discomfort to, the primary victim (2) The injury arose from sudden and unexpected shock (3) There were close ties of love and affection between the primary and secondary victims (4) The claimant was present at the scene of the event or witnessed the aftermath a short time later (5) Injury … ..Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother’s accident. The Trust has indicated that it will appeal against the decision. Home > News > Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. The Restriction of Public Sector Exit Payments Regulations 2020 (the Regulations) were made on 14 October 2020 and came into force on 04 November 2020. Two daughters witnessed their father’s death from a heart attack in January 2014. The accident, injury and/or death will all have been sufficiently close in time to form part of a single “event” to which the secondary victim may or may not be in a position to prove proximity – which depends upon his having witnessed the event or its immediate aftermath. After a year in which the COVID-19 pandemic has underlined the importance of collaborative working across health and care, 2021/22 look set to be the years in which NHS England/Improvement’s plans to formally secure Integrated Care System coverage nationwide crystallise through new legislation and guidance. The Caldicott principles set out how the NHS should handle confidential information about service users. It follows that reference to passages in the speeches in those cases to “proximity to the accident” or “proximity to the event” tells us nothing about what the answer should be where the qualifying event relied upon by the secondary victim post-dates the “accident” or commission of the tort. Secondary victim claims in clinical negligence actions In this article, Ronald Walker QC gives his thoughts on why he considers that the recent appeal case of Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 was wrongly decided. Secondary victim claims were brought by her mother and grandmother, who were present throughout the delivery. Adam Hodson, Clinical Negligence Specialist at Sydney Mitchell LLP For nearly 30 years, the law has sought to constrain the ability of secondary victims (those who suffer psychiatric injury not by being directly involved in an incident but by witnessing (or fearing) injury to a primary victim) to make personal injury claims for themselves. What if it could not be proved which of them was the first to witness a fit? Accordingly, she was not a separate legal entity and the mother was a primary victim. Secondary victims: “control mechanisms”. However, a primary victim’s immediate family member may become a secondary victim, if they actually witness the negligence and then suffer psychiatric injury. The decision in RE should not come as a surprise to those familiar with the similar case of Tredget -v- Bexley Health Authority 1994, in which both parents were awarded damages for nervous shock after witnessing their son’s traumatic birth and death two days later. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother’s death three weeks after the accident. Change ), You are commenting using your Google account. Ex parte Blackburn (No.2) [1968] 2 QB 150. Key points from the Court of Appeal judgment (which overturned the award of compensation to Mr Ronayne made by an experienced clinical negligence trial Judge) were: To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was … Secondary victims in medical negligence; Secondary victims in medical negligence October 15, 2016. However, a recent Court of Appeal decision has provided some welcome clarity and guidance as to when a We hope you find this of interest. The following PI & Clinical Negligence practice note Produced in partnership with Andrew Wilson provides comprehensive and up to date legal information covering: Psychiatric injury—secondary victims Also, supposing medical evidence established that the child must have had an earlier, unwitnessed, fit. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. The “event” to which the claimant needed to prove proximity was (a), rather than (b). Secondary Victims in Clinical Negligence (again): Shorter v Surrey In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In clinical negligence claims, the law makes a distinction between ‘primary’ and ‘secondary’ victims. The decision in AMDC -v- AG & Anor [2020] sets out the importance of implementing a thorough and structured process in dealing with capacity assessments and reports. It was not in dispute that they each had a close tie of love and affection with RE; that they perceived the event directly; and that they were sufficiently close to the event in space and time. The decision of the Court of Appeal in Taylor and another v A Novo (UK) Ltd EWCA Civ 194 was binding upon the judge. [4] It is a moot point whether the cause of action arose when Mr Paul should have been, but was not, advised of his disease and the need for remedial treatment, or on the date when, if correctly advised, he would have undergone the successful treatment. His reason for so doing was that, for the purposes of the strike out application, he had to proceed on the factual basis most favourable to the claimants, which was that Mr Paul had suffered no damage prior to the moment of his heart attack, which was itself therefore the “scene of the tort”; in other words this was arguably not a “two event” case. Secondary victim claims in clinical negligence actions 24 Jun 2020 In 1968 Quintin Hogg Q.C. If you have any comments, please do let us know. Case Note on Paul & Anr v … ( Log Out /  In detail: Most patients who bring claims in medical negligence are primary victims – ie the health care provider has negligently breached the duty of care that was owed to them as an individual patient. The High Court and Court of Appeal have recently considered again the application of the secondary victim (SV) ‘control mechanisms’ to claims arising from clinical negligence. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and … Clinical Negligence and the Secondary Victim – A call to Defendants to be prepared United Kingdom 24.06.2020 The case of Paul v Royal Wolverhampton NHS Trust finds that loved ones of a primary victim can bring a successful secondary victim claim, over a year after the period of alleged clinical negligence. It did not, therefore, arise in any of the House of Lords cases, McLoughlin, Alcock, Page v Smith, Frost v Chief Constable of South Yorkshire Police, in which the elements of secondary victim liability had been judicially defined. But, while this may be a pragmatic solution, it is difficult to identify any principle underlying it. The damage causes no immediately evident signs or symptoms but in fact gives rise to a significant epilepsy risk (so that the tort is complete). clinical negligence context and, in particular, to the issue of whether it is fatal to a secondary victim claim if there is a delay between an initial tort (arising for example from a failure to diagnose or a failure to treat a patient) and a claimant’s subsequent experience of shock. A Step Forward for Secondary Victims of Clinical Negligence I have written previously (perhaps too often) about the difficult issue of secondary victim claims arising out of clinical negligence. Take, for example, the case of a young child who suffers brain damage as a result of the defendant’s clinical negligence. In this article, Ronald Walker QC gives his thoughts on why he considers that the recent appeal case of Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 was wrongly decided. Nor is it easy to understand, for the purpose of distinguishing Taylor v Novo,  the principled distinction between injury which is “manifest” or “evident”, (presumably to the naked eye), and one which is visible only via an angiogram or EEG or some other form of scan. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. It was agreed between the parties that the only issue was whether they could satisfy the criterion of “proximity”. He had been admitted to hospital in September 2013 with a two to three week history of breathlessness and had undergone an ECG which showed significant abnormalities. RE’s mother brought a claim as a primary victim on the basis that RE was injured before delivery and had no separate legal entity whilst she remained in utero. The primary victim was the claimant’s mother, who had suffered injuries to her head and foot when some boards fell on to her while she was at work, due to the negligence of her employer, the defendant. Law on secondary victims in clinical negligence claims pushes the existing boundaries even further. This may be termed “proximity in law”. (the future Viscount Hailsham L.C. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and following her delivery. Secondary Victims – Medical Negligence The Court of Appeal case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne EWCA Civ 588 is the latest high profile decision in the area of secondary victims of nervous shock when losing a loved one in a medical negligence context. Master Cook confirmed that secondary victim claims in cases of Clinical Negligence require proximity to the “relevant event”, not simply proximity to the final consequence of the negligence. The claimants’ case was that this was the occurrence of the qualifying “event” (in the present case the collapse and death of their father); the defendant’s case was that it was the occasion of commission of the tort, which was when the primary victim first suffered actionable damage (this being on or soon after failure to diagnose or treat his vascular disease). Be that as it may, even if Chamberlain J’s decision on the strike out application might have been justified, it is difficult to see how, if he was applying the “scene of the tort” test, he could have failed to conclude that the defendant was entitled to succeed on its summary judgment application under CPR 24.2, i.e. Each month our health team will update you on key recent developments, and look ahead to what’s coming up in your sector. On 20 November 2020, NHS England wrote to all NHS trusts with a clear instruction to implement a plan to vaccinate their workforce. 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