Supreme Court judgment handed down on Paul, Polmear, and Purchase
On 11 January 2024 judgment was handed down by the Supreme Court in the conjoined appeals by three secondary victims whose claims had been struck out by the Court of Appeal as having no reasonable prospect of success. As these were strike outs, it was assumed that the claimant’s pleaded case was correct, without this having to be determined.
The outcome of the appeals is of very considerable importance and has been keenly awaited. By a majority of 6 to 1 the appeals were dismissed.
In the majority judgment the court took as the starting point a limited category of cases which have been developed as an exception to the general principle, when damages can be recovered when a claimant suffered personal injury (typically, psychiatric injury), as a result of directly witnessing an accident (or its immediate aftermath) in which a close relative is killed or injured, or put in peril of death or injury, as a result of a negligent act or omission by a defendant. The key issue for the Court was whether this limited category included or should be extended to include cases where the claimant’s injury was caused by witnessing the death of or traumatic injury to a close relative not in an accident, but from a medical condition which the defendant has negligently failed to diagnose and treat.
That was the position in all three appeals – the claimant’s psychiatric injury had resulted from witnessing the death of a close relative, the relative’s death being consequent upon the defendant’s negligence – the issue for the court was as a matter of law, could such a case succeed?
The conclusion was that the claims for compensation in the three cases did not satisfy the legal requirements for the recovery of damages by secondary victims who suffered injury as the result of the death of another person, even if a close relative. The appeals therefore had to be dismissed.
Key to the decision was whether the doctor who provided medical treatment to his/her patient owed not only a duty to provide reasonable care to the patient, but also a duty to close relatives to take care to protect them against the risk of injury which they might suffer from the experience of witnessing the death or injury of the patient from illness caused by negligent treatment.
In determining this issue, the court reviewed the extensive case law, including the key authorities of McCloughlin, Alcock and Frost, all having involved injury to a relative as a result of having witnessed an accident (or its immediate aftermath) to a close relative. It also considered the nature of the duty of care owed by a doctor to his/her patient and whether this extended beyond this to a close relative.
The court held that what was required to satisfy the legal requirements was two fold:
- the happening of an accident, in terms of a traumatic, violent, unexpected, discrete, external event, which was external to the primary victim and which immediately caused or had the potential to cause injury to him/her; and
- the witnessing of the accident by a close relative of the person involved in the accident and the suffering of a psychiatric injury as a result of having witnessed it.
In contrast, when what was witnessed happening to the primary victim was a medical crisis, this did not satisfy the legal requirements for a claim for injury suffered by the close relative who witnessed for example a child, a father or daughter suffering such a crisis and suffered injury as a result.
The conclusion reached was that whilst a duty of care was owed to the patient, the responsibility of a medical practitioner did not extend to protecting the patient’s close family from witnessing a death or other traumatic experience relating to their relative: this would go beyond what was or should reasonably be regarded as the nature and scope of the doctor’s role.
The appeals therefore had to be dismissed.
Charlotte Jones was instructed on behalf of the Respondents by Browne Jacobson LLP and Bevan Brittan LLP.
A link to the judgment will be found here.
