Secondary Victim Claims following a Paul accident

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.

“Accident” as defined by Paul

Para 52 says a road accident “is perhaps the paradigm”.

Para 105:

“An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event.”

Para 108:

an accident is, by definition, a discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place, in a particular way.

Situations affecting large numbers might be called disasters (underline added):

“but nothing turns on that linguistic difference. In each case the event was not “accidental” in the sense that no one was to blame for it since it was caused by the defendant’s negligence; but it was an “accident” in the sense already mentioned that it was an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims.”

NB – it is not the case that “only an accident can be a qualifying event capable of giving rise to a claim for damages by a secondary victim.” (para 57)

The law on qualifying events is not fixed in stone and is to be considered on a case by case basis.

HOWEVER, a death or illness caused by medical negligence is “generally not an accidentin the sense described by the Supreme Court. Such a death or illness is referred to as “a “medical crisis”” (para 53).

Witnessing such a death/injury/illness/threat thereof/aftermath thereof is one of the vicissitudes of life.

Further, no duty of care is owed to witnesses of the fatal or serious injury consequence of medical negligence, as the HCP owes a duty of care to the primary victim only. Thus the secondary victim witnessing a medical crisis event will be outside the scope of the tortfeasor’s duty.

Aftermath cases remain possible but they will be more difficult post Paul – see paras 105 and 122. McLoughlin was, we are told, on the margin of what the law allows. There is a suggestion that what is witnessed in the aftermath should resemble that which would have been witnessed had the witness been present at the accident – if there has been a clean up, the secondary victim claim may be less likely to succeed.

Necessary Ingredients for a Secondary Victim Claim post Paul

  1. A witnessed death or injury or the witnessed threat of such a death or injury that is:
    1. Wrongful – this means caused by negligence (duty of care owed by the defendant to the dead or injured person plus BOD which can be an act or an omission plus causation) or, presumably, assault; AND
    2. The result of an accident as defined by Paul (see above).

NB – It is not the death or injury which gives rise to a claim but the witnessing of it.

  1. The witness to the wrongful death/injury/threat thereof. This witness will be the claimant and we’ll call the witness “the claimant” from here on in.


  1. A personal injury sustained by the claimant which has been caused by witnessing the wrongful death/injury/threat thereof which met the definition of accident. The personal injury can be:
    1. Physical; or
    2. Psychiatric in which case it must be a recognised psychiatric injury.


  1. The secondary victim claim requirements are (this quote is from Frost per Lord Steyn at p496 at para 45 of Paul expressly approved at para 73):

(i) that [the claimant] had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person.”

    1. Plus, it is necessary for the secondary victim to demonstrate (like any other claimant) that it was reasonably foreseeable that the defendant’s negligence (ie negligence in respect of the primary victim) might cause her injury (para 75).
    1. There is no requirement for the secondary victim to prove:
      1. a special causation mechanism for a psychiatric injury, see para 74:

With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.

      1. A horrifying event (para 78);
      2. That what the claimant witnessed was one event (paras 79 – 82);
      3. That the accident witnessed by the secondary victim was close in time to the defendant’s negligent act or omission (paras 94-96);
      4. That the accident witnessed by the secondary victim was the “first manifestation” of the  effect of the defendant’s negligence on the dead/injured primary victim (paras 100 and 103).


Katie Gollop KC 15.1.24