Paul & Anor v Royal Wolverhampton NHS Trust[2024] UKSC 1 is a UK Supreme Court majority decision in which the court ruled[a] that a duty of care was not owed by physicians to their patient's family members in order to prevent them from suffering harm as a result of witnessing the death, caused by medical negligence[b], of their relative. The court also found that psychiatric harm should not be treated any differently from physical harm in Tort Law.[7] The judgment has significant implications for the confined area of medical negligence law involving the limited factors surrounding the claims of secondary victim onlookers in that they cannot generally[c] recover damages in cases of clinical negligence unless very specific criteria apply.[9] On 11 January 2024, the Supreme Court dismissed the appeals by a majority decision of six-to-one.[10]
There were three conjoined appeals which were dealt with together.[11] Each appeal related to a secondary victim claim for psychiatric illness caused by viewing a traumatic event which was caused by negligence on the part of the respondent, which, in each case, was the Royal Wolverhampton NHS Trust. The question to be answered was whether a claim can be made for psychiatric injury when it is caused by directly observing a fatality, or other sufficiently horrifying incident, of a close family member which occurred as a result of prior clinical negligence?[12]
In Paul, the two claimants were Mr Paul's two daughters, aged 9 and 12, who were present when he suffered a cardiac arrest and died in shocking circumstances. As a result of witnessing the distressing circumstances of their father's death, his two daughters were claiming damages for psychiatric illness.[13]
In 2019, the claim's went before the High Court.[14] However, the daughter's claims for damages for psychiatric injury were struck out by Master Cook. There was a period of over 14 months between Mr Paul's death and the original negligent incident and the court felt that it could not possibly be construed as the "relevant event"[3] for deciding the essential question of proximity in order to establish liability under the accepted control mechanisms at that time.[9]
In the case of Polmear, the claimants were the parents of Esmee Polmear who died as a result of undiagnosed pulmonary venoocclusive disease.[15] The claimants witnessed the distressing circumstances of their young daughter's death and sought damages for post-traumatic stress disorder and major depression which they subsequently developed.[16]
In the case of Purchase, the claimant, a mother, came upon her daughter in disturbing circumstances a few minutes after her death from severe pneumonia. The mother sought damages after having developed post-traumatic stress disorder and severe chronic anxiety and depression as a result of the distressing experience.[17]
In all three cases, it was argued that the fatality was a result of clinical negligence on the part of the physician or health authority either by failing to recognise a life-threatening condition or not properly treating an existing one.[18][12]
Criteria for secondary claimants
...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.
However, the outcome in Paul serves to reaffirm[d] and tighten up the control mechanism established in Alcock v Chief Constable of South Yorkshire Police.[22] The "Alcock test",[23] arose from the liability of the police for the nervous shock suffered in consequence of the events of the Hillsborough disaster and set the stringent criteria for a claimant to be considered a secondary victim in psychiatric injury claims, even though the common law does not usually permit compensation for the harmful effects of losing a loved one.[24]
The limited circumstances treated as requirements for successful secondary claims are:
That the defendant owed a duty of care to the secondary victim to prevent them from being harmed by witnessing the "death, injury or imperilment" of the primary victim;[20]
That the defendant must have been reasonably capable of foreseeing[e] that the claimant could develop a recognised psychiatric illness due to the negligence which led to the primary victim's "death, injury or imperilment";[20]
The following four factors deal specifically with the required proximity:
The secondary claimant must have close ties "of love and affection" with the primary person killed, injured or imperilled;[26]
There must be sufficient proximity to the primary victim's incident or accident[f] in both time and space;[27]
The secondary claimant must have directly witnessed the incident, accident or its immediate aftermath, rather than having heard about it some other way;[28]
The secondary claimant must have developed a recognised psychiatric illness as a direct result of having perceived the incident, accident, or its immediate aftermath[29]
Dissenting opinion
Lord Burrows was the sole dissenter arguing that the appeals in the three conjoined cases should be allowed.[30] He was critical of the majority decision in that the requirements could have been construed more broadly, in that he counterargued that the claimants should have been allowed to succeed because the requirement of foreseeability and the proximity control factors were all satisfied and that he considered the "relevant event" in the three cases should be taken as the death of the primary victim.[31] Lord Burrows felt that the emphasis on external events of accidents in relation to the primary victim should shift to instead concentrate on the death of the primary victim as the relevant event in each of the three claims.[32][33]
Significance
In arriving at the ruling, the Supreme Court in effect reviewed, refined and confirmed the historic decisions on secondary victim claims to determine if the earlier criteria and mechanisms had been interpreted and applied correctly.[34] Various tests for limiting secondary claims were considered and rejected as unacceptable.[35] The court did not accept that it was a reasonable societal norm to expect the medical profession to be obligated to prevent any close relatives being harmed by observing the distressing death of their loved one.[35]
The ruling also clarified that the accident witnessed by the secondary claimant did not need to amount to a sufficiently "horrifying event" or that it had to reach the threshold of causing a "sudden shock to the nervous system".[7][4]
An article of 8 February 2024 in The British Journal of Nursing noted that the decision took into account the Supreme Court's awareness of the need to avoiding opening the floodgates of litigation, that a wider ambit would increase the number of claims in situations where a "general duty" existed to shield secondary victims from psychiatric harm.[36] In circumstances where the primary victim's death could have been averted by medical interventions given more timeously, the ruling still applies that there is no duty on medical professionals to protect the patient's relatives from the harmful witnessing of any negligent actions or from the adverse effects of the failure to diagnose a condition.[37]
The judgement was not well received by lawyers acting for claimants. It was reported in the Law Society's Gazette on 17 January 2024 that the ruling had caused "despair and consternation" among legal professionals who felt "genuine embarrassment at the state of the law".[38] One solicitor firm reported that due to the outcome of Paul, they were required to notify some of their clients, mainly fathers with active neonatal death claims, that their claims could not be progressed.[39]
On 11 March 2025, the decision in Paul was cited in a High Court judgment handed down by Senior Master Cook, where the limiting scope of secondary victim claims was referred to in the context of the Final Report of the Infected Blood Inquiry Response Expert Group[g] published on 16 August 2024. Had Paul v Wolverhampton NHST been followed by the Expert Group, many "affected persons"[h] would not be able to claim compensation in their own right as secondary victim claimants due to Paul significantly narrowing the circumstances where such claims would succeed.[43][37]
↑ irrespective of whether the doctor's negligence consisted of an act or an omission[6]
↑ A statutory exception exists in the Fatal Accidents Act 1976 where a partner or parents of the deceased are permitted to seek damages for bereavement, irrespective of dependency, although the damages are limited to a fixed award.[8]
↑ Alcock was reaffirmed by majority, rejecting any slackening in the criteria on liability.[21]
↑ Reasonable foreseeability of harm, by itself, is not sufficient to give rise to a duty of care.[25]
↑ An unexpected and unintended event which caused injury (or a risk of injury) to the primary victim by violent external means.[5]
↑ The expert group summary report made reference to Recommendation 8 of Sir Brian Langstaff's Second Interim Report[40] of 5 April 2023 concerning tariff based compensation and the taking into account of other rates but not being limited by them, and that the ruling in Paul v Wolverhampton NHST [2024] UKSC 1 was disregarded because it was decided after the report was published and because it had been proposed (in Recommendation 8) that the tariffs being established would broadly take into account, but not be limited by, the practice of the UK courts at that time.[41]
↑ The "affected" refers to the cohort linked to the infected person, either by their familial relationship which includes partners, children, parents, and siblings, or as someone providing care who has been affected.[42]
↑ "Psychiatric injury claims clarified". New Law Journal (8055). 16 January 2024. Retrieved 19 March 2025. Delivering the lead judgment, Lord Leggatt and Lady Rose said a duty of care required both reasonable foreseeability of harm and proximity in the relationship. They found insufficient proximity existed.
1 2 3 Horsey, Kirsty; Rackley, Erika (2021). Tort Law. Oxford University Press. p.125. ISBN978-0-19-886776-0. Paul v Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) ... In determining whether the death was capable of being the 'relevant event', Master Cook found that as the death occurred so long after the initial negligence, it could not be the 'relevant event' to establish sufficient proximity.
1 2 Johnson KC, Laura (15 January 2024). "Paul v Royal Wolverhampton NHS Trust [2024]". vLex. Deka Chambers. Retrieved 19 March 2025. The word "accident" is used by the Court as a "term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means".
↑ "Judgment"(PDF). supremecourt.uk. 11 January 2024. 22. Retrieved 18 March 2025. The critical question on which the validity of the claims depends is whether a doctor, in providing medical services to a patient, not only owes a duty to the patient to take care to protect the patient from harm but also owes a duty to close members of the patient's family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor's negligence. (We should make it clear that nothing turns for this purpose on whether the negligence consists in an act or an omission).
1 2 Paul & Anor v Royal Wolverhampton NHS Trust,78(UKSC 12024)("Again, this test is not one of the requirements established by Alcock and confirmed in Frost. In engrafting onto those requirements additional requirements of needing to prove that the claimant's injury was caused by the mechanism of a "sudden shock to the nervous system" and was a sufficiently "horrifying event", the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct.").
1 2 Barnes, Phil (11 January 2024). "Supreme Court ruling: Paul v Royal Wolverhampton Hospitals NHS Trust [2024] UKSC 1: Secondary Victim Claims". Shoosmiths. Shoosmiths Serious Injury. Retrieved 15 March 2025. The claim was struck out at first instance by Master Cook. He determined that "Mr Paul's tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence, I must assume occurred in the hospital, cannot possibly be said to be the 'relevant event' for deciding the proximity required to establish liability under the established control mechanisms".
↑ "Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent)"(PDF). bailii.org. 022/0049. Retrieved 19 March 2025. These are three conjoined appeals. Each appeal relates to a claim by an Appellant for psychiatric illness caused by viewing a traumatic event which was caused by a Respondent's negligence.
↑ Lintern, Shaun (3 March 2024). "Doctors made errors over their daughter's death. Should they be compensated?". The Times. Retrieved 19 March 2025. Their daughter had a rare lung condition, pulmonary veno-occlusive disease, which Royal Cornwall Hospital later admitted it should have diagnosed when she had visited the hospital with breathing difficulties the year before.
↑ Horsey, Kirsty; Rackley, Erika (30 December 2023). Casebook on Tort Law. Oxford University Press. p.85. ISBN978-0-19-887496-6. Novo was followed in Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospital NHS Trust; Purchase v Ahmed [2022] EWCA Civ 12. In each of the cases the claimant had suffered psychiatric harm as a result of a family member who had died following negligent medical care.
↑ Paul & Anor v Royal Wolverhampton NHS Trust[2024] EWHC 1 at para. 138(11 January 2024), UKSC
↑ Morgan, Jonathan (July 2024). "Prinicples, Accidents and Exceptions: Psychiatric Injury in Tort". The Cambridge Law Journal. 83 (2): 214–217. doi:10.1017/S0008197324000308. ISSN0008-1973. By contrast the majority reaffirmed Alcock, doubting the propriety of compensating secondary victims of psychiatric injury in any situation. Not only was the Supreme Court (in consequence) unwilling to consider modest relaxation of the limits on liability, but it announced a novel restriction in medical negligence cases (a distinction which Lord Burrows seemed to think "superficial and unprincipled" (at [241])).
↑ "Secondary Victims: A shift since Alcock". Forbes Solicitors. 26 February 2024. Retrieved 18 March 2025. However, the Alcock control mechanisms have been tightened up following the recent Supreme Court cases of Paul and another v Royal Wolverhampton NHS Trust [2023], Polmear and another v Royal Cornwall Hospitals NHS Trust [2023], and Purchase v Ahmed [2023].
↑ Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1, 11 January 2024, 129, retrieved 16 March 2025, As Lord Oliver emphasised, reasonable foreseeability of harm, although necessary, is not by itself enough to give rise to a duty of care. There must also exist the necessary "proximity" in the relationship between the parties to make it just to impose such a duty.
↑ Cory-Wright KC, Charlie; Formby KC, Emily; Milligan, Scarlett (15 January 2024). "The Impact of Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1"(PDF). 39essex.com. Retrieved 21 March 2025. In Frost their Lordships agreed the Alcock requirements needed to be met. Lord Steyn stated them as: – C had close tie of love and affection with person killed, injured or imperilled...
↑ Molyneux, Damian (28 January 2025). "Secondary Victim Claims in Personal Injury Cases - MP Legal". www.mplegal.im. Retrieved 21 March 2025. This requirement is explained in McLoughlin, per Lord Wilberforce: "As regards proximity to the accident, it is obvious that this must be close in both time and space. It is after all, the fact and consequence of the defendant's negligence that must be proved to have caused the "nervous shock"."
↑ Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1, 11 January 2024, 179, retrieved 16 March 2025, The claimant (the secondary victim) must suffer a recognised psychiatric illness as distinct from mental distress (which includes upset, grief and anxiety).
↑ "Judgment"(PDF). supremecourt.uk. 11 January 2024. Retrieved 21 March 2025. 251. For all these reasons, I would allow the appeals in these three conjoined cases.
↑ Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1, 11 January 2024, 198, retrieved 21 March 2025– via Bailii.org, (1) The death is the relevant event in these three cases. In my view, the correct approach is to reject the focus in the respondents' submissions on accidents or events external to the primary victim and instead to focus in these three cases on the death of the primary victim as the relevant event.
↑ Grosvenor, Andrew (4 March 2024). "Secondary victim claims following Paul v Royal Wolverhampton NHS Trust". Pump Court Chambers. Retrieved 16 March 2025. What was not anticipated was that the Supreme Court would take the opportunity to look at how some of the other control mechanisms that apply in secondary victim claims have been interpreted and applied by the courts and consider whether those decisions were right.
1 2 "Press Summary"(PDF). supremecourt.uk. 11 January 2024. Retrieved 18 March 2025.
↑ Provan, Kym (March 2024). "Secondary Victims and the impact of the Supreme Court decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC1". Issuu.com. Enable Law. Retrieved 18 March 2025. The immediate impact of Paul and beyond: We have already had to inform a number of clients, largely fathers in the context of a neonatal death claim, that their claim should be discontinued as a result of the ruling in Paul. In cases where the baby has died because of negligence during the labour itself, there is an argument that the mother is a primary victim and should therefore be able to claim for all of her physical and psychological injuries on a standard basis...
↑ Langstaff, Sir Brian (5 April 2023). "Second Interim Report"(PDF). infectedbloodinquiry.org.uk. p.96. Retrieved 16 March 2025.
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