It would follow that the secondary victim who saw the accident could satisfy the criterion of proximity. It may therefore typically arise in a clinical negligence action where there is negligent treatment resulting in a latent pathology, which manifests itself in the patient’s injury or death at a later time; alternatively (as alleged in the present case) a failure to diagnose and/or treat an existing condition, which failure eventually causes injury, or death. None of the above anomalies and illogicalities exists if the analysis contended for by the defendant in this case is accepted, namely that proximity between the defendant and the secondary victim must be assessed at the time of the commission of the tort against the primary victim. 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. Each month our health team will update you on key recent developments, and look ahead to what’s coming up in your sector. 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. 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 … 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. 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. 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 judge’s obiter dicta, if correct, would represent a significant extension to the scope of liability to secondary victims that has been recognised in any previous case. Change ), You are commenting using your Twitter account. However, a recent Court of Appeal decision has provided some welcome clarity and guidance as to when a 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. The Trust has indicated that it will appeal against the decision. 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 coroner’s primary duty is to decide how somebody came about his or her death. 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”. 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. Secondary victims in clinical negligence claims (Paul v Royal Wolverhampton) News. Change ), You are commenting using your Facebook account. James Marwick. for them to be Donoghue v Stevenson “neighbours”. He was therefore “worse off” than he would have been but for the defendant’s negligence; this was “damage” sufficient to complete his cause of action in anyone’s language[4]; cf Grieves v FT Everard & Sons Ltd (the pleural plaques litigation)[5] and Dryden v Johnson Matthey plc.[6]. Posted: 22/09/2017. 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. ( Log Out /  Change ). Mr Paul suffered damage caused by the defendant’s assumed negligence, at the latest, on the date when if correctly diagnosed he would have undergone successful treatment for his coronary artery disease. sufficiently horrifying) “event” (or its “immediate aftermath”) is a necessary condition for liability, the word is used, in a second and separate sense, to describe the secondary victim’s propinquity in time and space to an event which is necessary to enable the secondary victim to maintain an action against the tortfeasor, a shorthand description of which would be “proximity in fact”. 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. Even if Mr Paul’s coronary artery disease (which on the claimants’ case should have been successfully treated) had not “manifested” itself to him or anyone else, it would ex hypothesi obviously have been visible on a coronary angiogram. The case stresses the importance of parties and the court being able to identify that the fundamental principles of the MCA 2005 have been followed in expert reports, that proper steps have been taken to support P’s decision-making and engagement in the assessment, and that conclusions reached are adequately explained. Brexit and public procurement: do any major changes come into effect on 1 January 2021 once the transition period expires? 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. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. Nevertheless, there is likely to be a perception that it ‘opens the doors’ to secondary victim claims. Archive • 15.06.2020 • . Change ), You are commenting using your Google account. 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). Our expertise and experience mean that we understand the issues you face and the clear and practical advice that you require, especially as services and systems become more integrated. A secondary victim has a whole separate set of requirements to discharge, as set out below. Well here’s another one. Two daughters witnessed their father’s death from a heart attack in January 2014. The recent case of RE & others -v- Calderdale and Huddersfield NHS FT [2017] EWHC 824 (QB) provides some guidance on the exceptional circumstances in which a secondary victim claim may succeed in a clinical negligence context. The child begins to suffer alarming and distressing fits some years later. In deciding that it was, the court highlighted the following factors: Therefore, damages for psychiatric injury were recovered by both the mother and grandmother. Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. However it does not appear from the report that the particulars of claim did so aver, as opposed to alleging that Mr Paul’s collapse was the “first manifestation of the Defendant’s breach of duty”. However, a primary victim’s immediate family member may become a secondary victim, if they actually witness the negligence and then suffer psychiatric injury. 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. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and … 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. In the example of the epileptic child above postulated, why should only the first observer succeed and the others not? 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 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 court then considered whether RE’s mother and grandmother satisfied the control mechanisms for secondary victim claims. 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. Secondary victim claims were brought by her mother and grandmother, who were present throughout the delivery. 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. While it may be true that there should be limitations on claims as shocking events can affect a very wide number of potential claimants, the regime for secondary victims as it stands is ar… 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 “event” to which the claimant needed to prove proximity was (a), rather than (b). Home > News > Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. 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. Having allowed the claimants’ appeal on the narrow ground that, on the face of the claimants’ pleaded case, it was arguable that no tort had been committed prior to January 2014, the judge went on to consider what the position was if the defendant’s negligent failure of diagnosis had given rise to actionable damage at the time. 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 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 future Viscount Hailsham L.C. 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. The only issue was whether the event was sufficiently sudden, shocking and objectively horrifying. 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). 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. 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. The test for whether someone is considered a secondary victim was set out in the wake of the Hillsborough disaster, and to be successful it must proved that they have: Her action failed; there had been two distinct events, (a) the sustaining of injury in the initial accident, and (b) the subsequent pulmonary emboli which caused her death. Likewise no problem would arise in a clinical negligence action where there is no evidence that the defendant’s negligence caused any injury or damage until the later fatal event.[2]. ( Log Out /  Secondary victims of clinical negligence Background. However, the issue of what is the relevant occasion for the existence of proximity in fact in a “two event” case had been decided by the Court of Appeal, in Taylor v A.Novo (UK) Ltd. Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally. These reports are known as prevention of future deaths reports (PFDs). 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). 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. 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. 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. This is in contrast with the claimant in Ronayne who witnessed a ‘series of events which gave rise to an accumulation... of gradual assaults’ and who, at each stage in the sequence of events, had been conditioned as to what he was about to perceive, meaning there was no element of suddenness. 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. 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. ( Log Out /  Secondary victims: “control mechanisms”. Had that approach been adopted the judge should surely have concluded that the claims were bound to fail. 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. 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. In a medical perspective this would be a patient harmed by their medical 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. There are less than a handful of reported successful secondary victim claims as a result of clinical negligence. Ex Turpi Causa – Is Illegality Still a Good Defence in Civil Claims. The Regulations impose a cap of £95,000 (the cap) on exit payments in the public sector. 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. Our clinical negligence team look at the recent case of Taylor v A Novo Ltd. 4th June 2020. 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. Found in: PI & Clinical Negligence. 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 … ( Log Out /  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. The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. 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. But the issue only arises where there are two separate events, (1) the commission of the tort, and (2) the subsequent occurrence of injury or death. Take, for example, the case of a young child who suffers brain damage as … 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. 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