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Judge disallows claims of secondary victims who witnessed relative's death

Rebecca Drew
14/01/2022
Judges at the Court of Appeal recently sided in favour of the Royal Cornwall Hospital NHS Trust in its move to throw out the claims of relatives of a woman who collapsed and died some time after doctors failed to diagnose her heart condition.

Esmee Polmear was seen several times by her GP in 2014 with a history of strange episodes during which she could not breathe and turned blue. Investigations concluded that her symptoms were likely to be related to exertion and were physiological, 'with nothing to suggest an underlying abnormality of her cardiac rhythm'.

On 01 July 2015, Esmee had a further episode and, despite medical care, she died in hospital. The two claimants developed psychiatric injury as a result of having seen Esmee collapse and provide first aid until the paramedics arrived. The defendant Trust admitted that Esmee should have been diagnosed by mid-January 2015, leaving the door open for secondary victims to claim for the Trust's negligence in failing to do.

A secondary victim is generally someone who suffers a psychiatric injury due to witnessing the death of a loved one as a result of negligence – previously known as 'nervous shock'. The test for a secondary victim is strict and to be successful an individual must prove:

  • a close tie of love and affection with the primary victim
  • that they witnessed the event or the ‘immediate aftermath’ of the event
  • direct perception of the harm to the primary victim; and
  • suffered psychiatric injury due to a sudden shocking event.

A prime example of the circumstances in which a person would be able to claim as a secondary victim would be when they have witnessed a car accident and the death of their loved one, where the shock is instant. But in clinical negligence claims, there is often a gap in time between the misdiagnosis or non-diagnosis and the catastrophic impact – i.e. a death.

In the Polmear case, the question being considered by the Court of Appeal was whether a defendant to a clinical negligence claim can be held liable for psychiatric injury caused to a close relative of the primary victim of that negligence, days weeks or months earlier – i.e. following a gap in time so that the shock is not instant and could not therefore be considered to be in the 'immediate aftermath' of the negligence.

When handing down his judgement, Sir Geoffrey Vos, Mater of The Rolls, said he was bound by rules set down in a previous finding in the Court of Appeal, Novo:

'Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event.

But he added: '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.

He then suggested that the claimants should take their case to the Supreme Court which was in a better position to decide whether to depart from the law as stated by Lord Dyson in Novo.

While it is disappointing for potential future secondary victims claims that judgment went against the claimants in this case, it does appears that although bound by a previous decision, the judges did not necessarily agree with it, offering hope the decision will not always apply in the future.

Barristers from No 5 Chambers represented the claimants in Polmear.

Mark Bowman and Rebecca Drew have previously represented Claimant's in secondary victim claims following clinical negligence that led to the death of a loved one. The claims were successful.

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