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Psychiatric Harm Case Update: Paul, Polmear and Purchase (2024)

Gemma Shepherd-Etchells

29th April 2024

The law on claims for psychiatric harm has developed over a number of years. Victims are classified as either primary, being within the original zone of danger or secondary, being outside this. Rescuers used to have their own category but this has been dropped, with them now having to fit within either of the aforementioned categories.

Tests based on case law on this area progressed originally from road traffic accident cases to the test seen in the case of Alcock v Chief Constable of South Yorkshire Police (1992), as a result of the Hillsborough disaster. A number of criteria were laid out in this case in order for someone to be able to be classified as a secondary victim and be able to bring a claim, these were:-

  • psychiatric harm must be reasonably foreseeable
  • there must be close ties of love and affection between the claimant and the injured party
  • there must be physical and temporal proximity between the claimant and the accident or its immediate aftermath
  • the psychiatric harm must be caused by shock
  • the claimant must suffer shock due to witnessing the accident or its immediate aftermath with their own senses

Most recently case law developments have focussed on whether someone who has witnessed and lost a loved one due to alleged medical negligence can bring a claim as a secondary victim for psychiatric harm when witnessing this death. This was the subject matter of the joint appeals in the case of Paul, Polmear and Purchase (2024) heard by the Supreme Court earlier this year. The Court of Appeal had originally dismissed their claims against the NHS as they did not agree that psychiatric injury could be born out of an event occurring separate to the original negligence, the deaths occurring some time after the initial alleged negligence in these cases, from 3 days in Purchase to 14 months in Paul.

Adopting a similar line of reasoning at the Supreme Court all of the claimants’ appeals were again dismissed as the court considered the definition of an accident. They found these to be “discrete events” occurring at particular times in particular places and they could not align this with witnessing a death caused by medical negligence as there is no actual event so to speak. Looking also at the scope of a duty of care they went back to the old definition of neighbour as seen in the case of Donoghue v Stevenson (1932) and whilst it is accepted that there is a duty of care owed from a doctor to a patient this cannot extend to relatives or others.

Wanting to limit the claims available in this area and with a reluctance to hold medical professionals further liable, it seems that the door has been shut on claims of this nature in the future. Furthermore, it would appear that the case of North Glamorgan NHS Trust v Walter (2002) which did allow for a secondary victim to claim psychiatric harm in these instance, when a loved one died due to medical negligence, was wrongly decided.

Question to consider

  • What is the difference between a primary and secondary victim?
  • What, according to the text, needs to be shown for a claim to be brought by a secondary victim for psychiatric harm?
  • What is the impact of the case of Paul, Polmear and Purchase on psychiatric harm claims in the future?

Gemma Shepherd-Etchells

Gemma is an experienced Law teacher and examiner.

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