Court Of Appeal Judgment In Paul V Royal Wolverhampton NHS Foundation Trust – Litigation, Mediation & Arbitration

The Court of Appeal judgment has been handed down this morning
in the important secondary victim case of Paul v Royal
Wolverhampton NHS Foundation Trust and the two linked cases of
Polmear v Royal Cornwall Hospital NHS Trust and
Purchase v Ahmed.  Laura Johnson of 1 Chancery Lane
acts for the Claimants in Paul, led in the Court of Appeal
by Rob Weir QC and instructed by Phil Barnes of Shoosmiths
LLP.  All three cases are concerned with the longstanding
difficult question of when a defendant to a clinical negligence
case can be held liable for psychiatric injury caused to a close
relative of a patient (primary victim) who witnesses a shocking and
horrifying event to the primary victim as a result of that
negligence.  The key question in the appeals was whether the
necessary legal proximity existed between the defendant and the
close relative (secondary victim) where a gap in time exists
between the negligent treatment and the horrifying event of
injury.

The Court of Appeal has found for the Defendant in each appeal
striking out the claims on the basis that they are bound by an
existing Court of Appeal authority (Taylor v. A. Novo (UK)
Ltd [2013] EWCA Civ 194) that is fatal to the claims. 
However, in a lead judgment by Vos MR with additional reasons by
Underhill LJ the Court of Appeal recognised that the decision in
Taylor developed the underlying principles described by
Lord Oliver in Alcock v. Chief Constable of the South Yorkshire
Police [1992] 1 AC 310 and questioned whether the
interpretation of those principles in Novo was
correct.

With that observation in mind Vos MR went on to say “If I
were starting with a clean sheet, I can quite see why secondary
victims in these cases ought to be seen to be sufficiently
proximate to the defendants to be allowed to recover damages for
their psychiatric injury. Since, however, this court is bound by
Novo, it is for the Supreme Court to decide whether to
depart from the law as stated by Lord Dyson in that
case”.  Importantly, Vos MR concluded “I  have,
as I have already said, reservations about whether Novo
correctly interprets the limitations on liability to secondary
victims contained in the five elements emerging from the House of
Lords authorities. Subject to hearing further argument, therefore,
I would be prepared to grant permission to the claimants to appeal
to the Supreme Court, if sought, so that it can consider the
important issues that arise in this case”.  This view was
echoed by Underhill LJ: “It follows that if the point were
free from authority I would be minded to hold that on the pleaded
facts the Claimants in all three cases should be entitled to
recover.   I do not think that recognising the necessary
proximity in such cases would be contrary to the “thus far and
no further” approach taken in White.  It would
not involve going beyond the elements established in
Alcock: rather, it would represent their application in a
different factual situation”.  He went on to say “My
strong provisional view, like [Vos MR], is that the issues raised
by them merit consideration by the Supreme Court”.

The Claimants in all three cases have applied to the Court of
Appeal for permission to appeal to the Supreme Court.  The
application is opposed by the Defendants.

Download the judgment here.

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