The UK Supreme Court’s (UKSC) decision in Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1 (Paul) represents one of the clearest modern statements on the limits of nervous shock claims made by secondary victims in a clinical negligence context.
The UKSC, by its decision in Paul, created a sudden shift in UK law expressly stating there exists a difference between an accident and a medical crisis, which makes it difficult for any secondary victims to claim damages for nervous shock as a result of their family member’s (the primary victim) injury or death caused by a medical crisis.
In clear terms, the UKSC said that extending liability in these circumstances would dramatically and unjustifiably expand nervous shock claims. It held that foreseeability of psychiatric harm to family members was not enough. The door was closed.
This decision is unlikely to change the approach that Western Australian courts take to determining secondary victim claims at common law, but it is an interesting development in the UK law nonetheless.
Paul encompassed a group of claims brought by close family members (secondary victims) of patients (primary victims) who died after serious medical conditions went undiagnosed or untreated. In each case, the alleged negligence occurred well before the patient’s death, often months or years earlier. The patients later suffered fatal sudden collapses, sometimes at home or in public, and died in front of their relatives.
Those relatives developed recognised psychiatric illnesses after witnessing their family members collapse or die. The family members did not sue as representatives of the deceased. Instead, they made claims in negligence against the treating hospitals, alleging that the hospital owed them, as secondary victims, a direct duty of care to avoid causing psychiatric injury as a result of harm done to their family member, and that the moment of collapse (or death) of the family member constituted the necessary “shock”.
The UKSC examined the question of whether witnessing a negligently caused “medical crisis” (or the immediate aftermath) can be the basis of a claim by that family member as a secondary victim, or if the family member can only claim when there is an “accident”, in the sense of an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to their family member.
The UKSC rejected the secondary victims’ claims and held that a duty of care does not extend to the witnessing of a “medical crisis,” which it said included the consequences of disease, even where that disease has been negligently managed. It drew a distinction between what was an accident, and a medical crisis, and said that it was necessary for a family member to witness an accident to claim for nervous shock, and that a medical crisis is not sufficient. When determining whether the alleged negligence in each case constituted an “accident”, the court found that the negligence was an omission to act – whereas an “accident” is a sudden external event which causes, or has the potential to cause, injury. It therefore found that the collapse and death of family members were the result of a natural progression of illness, an were more appropriately described as a “medical crisis”, and not an ”accident”.
In Paul, the UKSC was explicit that recharacterising a patient’s medical collapse as an “accident” would undermine the coherence of the law, and found that it was better characterised as a separate event, such as a ”medical crisis”.
In Paul, the UKSC reiterated the general principles for duties owed by doctors (citing Meadows v Khan [2022] AC 852) and said that the purpose for which medical services are provided by the doctor to the patient is equally important in determining if and when a duty of care will arise from a doctor to someone other than their patient (a secondary victim):
“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.
Although Paul has drawn a distinction between “accident” and a “medical crisis”, this distinction is unlikely to be applied in Australia.
In Australia, in relation to secondary victims, the High Court firmly rejected the concept of a limit based on proximity, sudden shock or direct perception in Tame v New South Wales. It stated that the duty of care owed to secondary victims depended only on foreseeability of psychiatric injury and the existence of a sufficient relationship. In other words, the ordinary common law test as to whether a duty of care is owed applies to claims for nervous shock or psychiatric injury to secondary victims.
The approach taken by the UKSC can be contrasted with the ACT Court of Appeal decision in Dorothy Vesna Skea v NRMA Insurance [2005] ACTCA 9.
Skea arose from a catastrophic motor vehicle accident caused by mechanical failure. Mrs Skea was called to the scene believing her husband and children might be dead. The Court of Appeal accepted that Mrs Skea suffered a recognised psychiatric illness caused by nervous shock (being at the scene). Importantly, it also accepted that her condition was later aggravated by the ongoing stress of caring for her severely injured family members. That aggravation remained compensable because it flowed from the original shock (of the accident).
Skea established that when a distressing event leads to a psychiatric injury, and that injury is further aggravated by the responsibility of caring for an injured family member, the additional harm may be compensable if:
At the same time, the Court of Appeal reaffirmed the limit. It said that psychiatric injury caused solely by the burden of caring for injured relatives is not compensable. Grief, sorrow and caregiving stress do not sound in damages unless anchored to a qualifying shock (from an accident).
Australian law endorses the view that liability for psychiatric injury can extend to secondary victims in a medical negligence context and should be determined by applying the foreseeability test. If, in all circumstances, psychiatric damage to the plaintiff is reasonably foreseeable as a result of the defendant’s actions, then there should be a duty of care, unless policy reasons compel a different conclusion. While shock is a relevant consideration, the absence of shock or the absence of an “accident” does not immediately result in a finding that injury was not foreseeable and a duty of care was not owed in the circumstances.
In response, many states have introduced legislative tests in their civil liability legislation to try and place some limits on claims by secondary victims.
There have been other (including some recent) cases considering the issue of liability to secondary victims for claims for psychiatric injury that examine reasonable foreseeability in different settings, including:
Paul is an interesting development in the world of clinical negligence claims; however, it does not apply in Western Australia when examining the duties owed to secondary victims and the issue of foreseeability in claims for nervous shock. In Western Australia, the focus is on what could reasonably have been anticipated, not what is apparent after the fact. The test under section 5S of the Civil Liability Act 2002 (WA) is whether or not a psychiatric injury was foreseeable in “the circumstances of the case”. It goes on to suggest what examining the circumstances of the case entails. And while the existence of a sudden shock is a relevant factor for the Court to consider, it is not a necessary element. Neither is the occurrence of an “accident”.
It is therefore unlikely that Western Australian courts will adopt the doctrine of Paul given the current landscape is subject to the statutory regime set out in the Civil Liability Act 2002 (WA).
What is clear is that the UKSC’s reasoning could fit comfortably with existing Australian legal principles if the statutory test of reasonable foreseeability was ever to be abandoned.
Should you wish to discuss this update, or any related issues, please contact our team.
This article was written by, Chiara Benino, Solicitor Insurance.