(the future Viscount Hailsham L.C. Also, supposing medical evidence established that the child must have had an earlier, unwitnessed, fit. 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]. 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. 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. 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. Ultimately, the court pinpointed the relevant point in time as when the negligence occurred, which, in this case, began when RE’s body remained in the birth canal. [4] It is a moot point whether the cause of action arose when Mr Paul should have been, but was not, advised of his disease and the need for remedial treatment, or on the date when, if correctly advised, he would have undergone the successful treatment. 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. Secondary victim claims were brought by her mother and grandmother, who were present throughout the delivery. Well here’s another one. ), writing in Punch magazine, described a decision of the Court of Appeal as “a strange example of the blindness which sometimes descends on the best of judges”. Secondary victims are defined as those who witness a medical accident, which results in their suffering of a psychiatric injury. 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 Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) Chamberlain J allowed the claimants’ appeal from the order of Master Cook [2019] EWHC 2893 (QB) striking out their claims for damages for psychiatric injury allegedly suffered when they witnessed the collapse of their father in the street following a fatal heart attack in January 2014. 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. The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. 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. on the ground that the claimants had no real prospect of succeeding. 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. If you have any comments, please do let us know. Essentially, only the patient will qualify as a primary victim. 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. 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. Take, for example, the case of a young child who suffers brain damage as a result of the defendant’s clinical negligence. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. 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. Posted: 22/09/2017. 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. Well here’s another one. Found in: PI & Clinical Negligence. The decision in RE should not come as a surprise to those familiar with the similar case of Tredget -v- Bexley Health Authority 1994, in which both parents were awarded damages for nervous shock after witnessing their son’s traumatic birth and death two days later. 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. With a team of over 200 lawyers and national coverage, we are one of the leading firms providing legal advice and support to the NHS and independent healthcare organisations. ( Log Out /  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. Change ). Accordingly, she was not a separate legal entity and the mother was a primary victim. Secondary victims of clinical negligence Background. Psychiatric injury—secondary victims Practice notes. 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. But, while this may be a pragmatic solution, it is difficult to identify any principle underlying it. Secondary Victims – Medical Negligence The Court of Appeal case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne EWCA Civ 588 is the latest high profile decision in the area of secondary victims of nervous shock when losing a loved one in a medical negligence context. Our clinical negligence team look at the recent case of Taylor v A Novo Ltd. ..Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother’s accident. The Caldicott principles set out how the NHS should handle confidential information about service users. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. The only issue was whether the event was sufficiently sudden, shocking and objectively horrifying. 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). It was held that the event was not exceptional, sudden or objectively horrifying; reinforcing the strict control mechanisms set out in Alcock -v- Chief Constable of South Yorkshire Police 1992. The ratio decidendi of this decision is, therefore, that in secondary victim cases proximity must be proved at the date of the event which completes commission of the tort (which may conveniently be described as the “scene of the tort”), and proximity at the date of subsequent injury is insufficient. 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. Ex Turpi Causa – Is Illegality Still a Good Defence in Civil Claims. 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. It is not a later consequence of the accident. Two daughters witnessed their father’s death from a heart attack in January 2014. Accordingly if the particulars of claim had averred that Mr Paul had suffered no damage prior to his heart attack, the court would have been required to assume that this averment was true. The child begins to suffer alarming and distressing fits some years later. If, instead, they are witness to the immediate aftermath, it becomes a question of whether there has been a ‘seamless tale’ which can be classed as a single horrifying event (as held in North Glamorgan NHS Trust -v- Walters 2002), rather than a process of gradual realisation. 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. In fact, as appears from the judgment of Master Cook, it does not seem to be the case that Mr Paul’s collapse in 2014 was the first “manifestation” on any view. In Ronayne, the claimant was refused damages for nervous shock after witnessing his wife on a ventilator, looking like ‘the michelin man’, following post-operative complications. 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. Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally. 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. Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. This report examines psychiatric damage claims for secondary victims, who face restrictive controls which have limited the amount of meritorious claims significantly. 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. 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. It was agreed between the parties that the only issue was whether they could satisfy the criterion of “proximity”. Her daughter, who suffered psychiatric injury as a result of witnessing the death, sued as a secondary victim. Law on secondary victims in clinical negligence claims pushes the existing boundaries even further. The Regulations impose a cap of £95,000 (the cap) on exit payments in the public sector. 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. 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. Nor is it easy to understand, for the purpose of distinguishing Taylor v Novo,  the principled distinction between injury which is “manifest” or “evident”, (presumably to the naked eye), and one which is visible only via an angiogram or EEG or some other form of scan. 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