See Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1

The common law general rule is that “the law does not grant remedies for the effects – whether psychological, physical or financial – of the death or injury of another person.” (para 48)

Therefore, to establish a claim in the tort of negligence, a secondary victim needs to bring themself within the common law exception to the general rule.

Note about terms: at para 51, the primary/secondary victim distinction is said to be “difficult” and para 110 tells us that distinguishing between the two is often difficult/arbitrary. At para 105 we are reminded that there may, in fact, be no primary victim. That said, the terms “primary victim” and “secondary victim” remain current and are used by the Supreme Court throughout.

Case law relating to the exception to the general rule (Alcock,McLoughlin,Frost) was long understood as requiring a secondary victim to satisfy a number of threshold criteria.

Paul tells us that this was a misunderstanding. It does away with many of the criteria.

If the words sudden appreciation by sight or by sound of a shocking and horrifying event have been dinned into your ears, din them out.

1. It has taken the Supreme Court eight months to decide what to do about claims for psychiatric injury by secondary victims in clinical negligence cases. By a majority of six to one they have decided that nervous shock has no place in clinical negligence cases:

“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.”

2. The Supreme Court found that Taylor v Novo was correctly decided (as before that was Taylor v Somerset HA).

1. This is another decision from Mr Justice Ritchie which, like CNZ v Bath, focusses on consent in an acute setting rather than the more leisurely context of the outpatient clinic.

2. The Claimant suffered spinal cord injury as a result of the penetration of her spinal cord by an anaesthetic needle.

3. An epidural had been recommended to provide post-operative pain relief following major bowel surgery. There were alternatives to an epidural, including patient controlled analgesia. The Claimant’s case was that it was a breach of duty to recommend epidural without giving any alternatives.

4. Doctors made a total of 10 attempts at placing the epidural. The first three attempts were made whilst the Claimant was conscious. There was no criticism of these attempts.

5. After these initial attempts the Claimant was distressed and in pain. Seven further attempts at placing the epidural were made after general anaesthesia had been induced.  The last four of these were by a second anaesthetist. One of the seven ‘unconscious’ attempts led to the spinal cord injury.

1. If you ever worry that you find it hard to get your head around material contribution then stop. You are not alone.

2. The Court of Appeal has now given welcome clarification and explained:
   1. That material contribution causation applies both to divisible and indivisible injuries.
   2. That this area of law “has been bedevilled by apparent inconsistency and imprecision at the highest level on multiple occasions.” [in other words it wasn’t just you and you weren’t imagining it].

McCulloch v Forth Valley Health Board

Mr McCulloch died in April 2012 after suffering a cardiac arrest. He had reported chest pain and received treatment at Forth Valley Hospital. His treating cardiologist, Dr Catherine Labinjoh, decided that his presentation was inconsistent with pericarditis. He was discharged a few days later, but then readmitted. Dr Labinjoh saw him the following day. Her evidence was that he was walking around the ward and looking well. He denied chest pain. She decided not to offer or prescribe non-steroidal inflammatory drugs (“NSAIDs”) but said in evidence that if he had complained of chest pain, she would have prescribed NSAIDs. The following day, he suffered a fatal cardiac arrest.

His widow brought a medical negligence claim against the Health Board on several grounds, but the primary argument  was Dr Labinjoh’s alleged failure to discuss reasonable alternative treatments for pericarditis. It was agreed at the court of first instance that the standard treatment for pericarditis was NSAIDs. Dr Labinjoh’s position was that she did not discuss the option of NSAIDs as, at the time of the second admission, his presentation was  not consistent with pericarditis. Mr McCulloch did not have chest pain and her practice was only to prescribe NSAIDs for pericarditis when pain was reported. Her actions/decision-making was supported by the expert cardiology witness for the Health Board.