Pushing the Limits of Negligence
When a court judgment starts with the words “We all die…”, you know it’s going to be a banger.
On this week’s episode of the podcast, we cover a case where that is exactly how things begin.
The context is a number of people who sadly passed away in a sudden and horrifying manner following a misdiagnosis by doctors.
We know from people with terrible fringes that if you are involved in an accident that isn’t your fault, then you may be able to claim compensation under the tort of negligence.
The question for the Supreme Court in Paul v Royal Wolverhampton NHS Trust was whether family members who had suffered psychiatric illness as a result of witnessing these terrible results of medical negligence could themselves claim compensation.
When it comes to these ‘secondary victims’, the leading case remains Alcock v Chief Constable of South Yorkshire Police [1992].1 There it was decided that a claimant would have to satisfy a number of conditions before a judge would find in their favour:
A close relationship with the primary victim.
Directly witnessed the event or its aftermath.
A direct perception of the harm to the primary victim.
Foreseeability that a person of reasonable fortitude would suffer psychiatric injury after witnessing such an event.
Based on these criteria alone, one would be tempted to think that the claimants in Paul would prove successful. However, there were a couple of other factors that the justices had to consider and which meant that this case would not be open and shut.
For example, these claims by secondary victims have traditionally revolved around the central idea of an 'accident'. Normally some tragic event occurs such as a road crash and this creates a focal point for the law to work around. In the medical context, there is not generally one, single moment like this. Instead, a misdiagnosis and the effects of any disease may be prolonged over a period of days, weeks or months.
Another factor for the Supreme Court to think about is the rather nebulous concept of policy. When the top court in the land makes a decision, it has to not only think about the case in front of it, but also the impact that any judgment will have on the real world. If the claimants were successful, what impact would that have on healthcare policy, the medical profession, and individual doctors?
This was a difficult decision for the Justices not only because of the tragic personal circumstances involved but also the tricky legal issues. The court failed to reach a unanimous decision, and in the podcast episode I cover both sides. Let me know in the comments your thoughts about this fascinating case.
Episode link: https://uklawweekly.com/2024-uksc-1/
[1992] 1 AC 310.