EWJ 60 April 2025 web - Journal - Page 39
Secondary Victims Claims:
A United Approach
Nicola Edgar provides an overview of Scots law on secondary victim claims in a clinical
negligence context, following the clarity provided south of the border by the Supreme Court
last year.
It is long established that a secondary victim to an
accident can claim for psychiatric injury suffered from
witnessing an event. There are strict requirements to
be met for someone making such a claim following the
foundational ruling of Alcock v Chief Constable of South
Yorkshire Police [1992] 1 AC310. The requirements to
be met following Alcock are clear and ensure that not
all those who witness an incident are entitled to make
a claim for damages. However, there had been a
certain level of uncertainty surrounding secondary
victims in a clinical negligence context.
These cases were not being brought as solatium, loss
of society or loss of support claims that would have
been allowed under Damages (Scotland) Act 2011, but
rather as secondary victim claims. This is an attempt
to compensate for their own psychological illness that
has developed after witnessing the harrowing deaths
of their loved ones.
Issues
The central issues that the Supreme Court were
presented with include physical closeness to the event
and how far a clinician's duty of care extends.
In January 2024, the Supreme Court handed down
its judgment after hearing the cases of Paul, Polmear
and Purchase. This Supreme Court judgment
has provided clarity on secondary victim claims in a
medical negligence context, with all three appeals
being dismissed, thereby making it virtually
impossible for secondary victim claims, as a result of
medical negligence, to be successful. This article will
explore the implications of these appeals on Scots law.
Closeness to the accident or 'event'
By nature, often the fatal consequence of medical
negligence can take time to manifest, with symptoms
developing over days, months or even years. In Paul,
Mr Paul should have received his diagnosis of
atherosclerosis 14 months earlier. In Polmear, Miss
Polmear should have been diagnosed with pulmonary
veno-occlusive disease just over five months earlier. In
Purchase, Ms Purchase had been seen by the defendant just three days earlier who failed to diagnose her
severe pneumonia.
The Cases
Each case concerns an individual who has died in
particularly distressing circumstances. It was alleged
that each death was due to a missed diagnosis at an
earlier date.
The court considered that the first manifestation of
injury is not what qualifies as an event giving rise to a
claim. The court are eliminating the complex
question of what counts as a first manifestation and
therefore, what symptom must be witnessed to give
rise to a claim.
In Paul, whilst out with his two daughters (9 and 12)
Mr Paul suffered a cardiac arrest and collapsed in the
street, hitting his head. He was pronounced dead upon
arrival at the hospital. 14 months earlier, Mr Paul had
been admitted to the defender's hospital with pain in
his chest and jaw. He was treated and discharged. It
is the claimant's position that had he been treated
appropriately on this admission, he would not have
suffered the cardiac arrest when he did.
The court have referred to Alcock as authority to
conclude that witnessing an injury caused by an
accident is not sufficient in a secondary victim claim.
Witnessing the consequences of an accident does not
meet the threshold test of being present at the
accident or its immediate aftermath.
In contrast, Polmear was the case of a 6-year-old child,
Esmee Polmear who had been wrongly diagnosed
almost six months earlier, meaning she did not receive
the correct diagnostic tests and subsequent treatment.
She succumbed to her misdiagnosis of veno-occlusive
disease following failed attempts by both parents to
resuscitate her.
The court have left one area potentially open for
future claims and this was explored in paragraph 123
of the judgment. The question raised surrounded
hypothetical examples of a doctor injecting a
patient with the wrong drug or dosage, resulting in
immediate adverse reaction in the patient that is
witnessed by a close relative. The court did not
dismiss this scenario and advised that these would
have to be addressed on the actual facts if such a case
were to arise.
Finally, Purchase was the case of 20-year-old Evelyn
Purchase who passed away from severe pneumonia.
Despite two visits to her GP and a visit to the out-ofhours service, her diagnosis was missed. Evelyn's
mother found Evelyn passed away in distressing
circumstances after receiving a voicemail of her last
breaths five minutes before she arrived.
EXPERT WITNESS JOURNAL
Duty of Care
A judgment could not be made without considering
the general principles that determine when a duty of
cared is owed by clinicians and to who. The court
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