CLAIMING DAMAGES FOR PSYCHIATRIC HARM OR ILLNESS AGAINST A DEFENDANT WHOSE NEGLIGENCE CAUSED THE DEATH OF A CLOSE RELATIVE
This week’s blog covers Paul and another (Appellants) v Royal Wolverhampton NHS Trust [2024] UKSC 1, a decision from the United Kingdom Supreme Court (the “UK Court”) which discusses whether, as a question of law, a claimant can claim damages for psychiatric harm suffered as a result of witnessing the death of a close relative from a medical condition which the defendant has negligently failed to diagnose and treat.
Facts. This decision is rendered by the UK Court after hearing three conjoined cases which all dealt with the same question of law.
In the 1st case, the claimants were present when their father suffered a cardiac arrest and collapsed on the street. The father was taken to the hospital and was subsequently declared dead on arrival.
In the 2nd case, the claimants witnessed their daughter die from the effects of pulmonary veno-occlusive disease.
In the 3rd case, the claimant came upon her daughter a few minutes after the daughter’s death from severe pneumonia.
In each case, the claimants’ case was that the death was caused by the negligence of the defendant doctor or health authority in failing to diagnose or treat a life-threatening medical condition from which the deceased was suffering.
In the interests of brevity, this blog addresses the majority judgment delivered by Lord Leggatt and Lady Rose (with whom Lord Brigs, Lord Sales and Lord Richards agreed). Lord Carloway had delivered a separate judgment concurring with Lord Leggatt and Lady Rose, and Lord Burrows had delivered a dissenting judgment.
Issue. A doctor owes a duty to the patient to exercise reasonable skill and care to protect the patient’s life and health.
If the patient suffers physical or psychiatric injury because of such care (or perhaps more accurately, lack thereof), the doctor may be liable to pay damages to compensate the patient for the injury.
However, the claimants in these three cases were claiming damages for psychiatric injury after witnessing the death of another caused by medical negligence.
Violent accident cases. Historically, there is a line of English cases which allowed claims by people who suffered psychiatric injury (the “secondary victim”) after witnessing the death or injury of another person (the “primary victim”) caused by a violent accident.
The UK Court thus had to analyse and clarify how the principles developed apply in the context of medical negligence.
In violent accident cases, a secondary victim can recover damages for psychiatric injury from witnessing the death and injury of primary victim if three requirements are satisfied (at [45]):
The secondary victim has “close ties of love and affection” with the primary victim;
The secondary victim was present at the accident or its immediate aftermath; and
The psychiatric injury must have been caused by “direct perception” of the accident or its immediate aftermath, and not upon hearing about it from someone else.
There is no requirement for the psychiatric injury to be caused by a “sudden shock to the nervous system”, nor is it necessary to demonstrate the “neurological or psychological” mechanism by which the psychiatric injury was induced ([73] – [74]), nor is there additional requirement of needing to show that what occurred was a sufficiently “horrifying event” ([75] – [78]).
Requirement of an “accident” for secondary victim cases. The UK Court made clear that for claims by a secondary victim, it is necessary to show that there was an “accident”, that the secondary victim was present at the “accident”, and the secondary victim witnessed this “accident” or its immediate aftermath (at [104]).
In affirming this principle, the UK Court made clear that the occurrence or manifestation of injury is not what defines an “accident” (at [105]).
Rather, an “accident” is defined as an “external event which causes, or has the potential to cause, injury” (at [105]) and that it is a “discrete event… which happens at a particular time, at a particular place, in a particular way” (at [108]).
Witnessing the injury caused by the “accident” is neither necessary nor sufficient (at [105]).
Hence:
A claimant who witnessed the injured victim or the dead body of the victim but was not present and did not witness the “accident” (i.e. the event that caused the injury or death) cannot succeed in claiming damages.
But a claimant can succeed even if there is no injury caused to the primary victim by the “accident”. An example is that of a parent who may suffer psychiatric injury from witnessing an “negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed” (at [105]). The fact that the child ultimately escaped injury did not necessarily mean that the parent would fail if he or she decides to claim damages for psychiatric injury.
Why witnessing the accident is important. The UK Court explained that witnessing an “accident” is legally significant for three reasons:
Certainty. Whether or not someone witnessed an accident is easy to determine. Hence, this criterion provides legal certainty in determining eligibility of a person to claim compensation as secondary victim (at [108]).
Drawing a line. Drawing the line to determine eligibility to claim for illness consequent on bereavement between those who witnessed an accident and those who did not is one which the UK Court thought would be accepted by most people and is an intelligible one (at [109]).
Primary vs. secondary victim. It can be difficult or arbitrary to distinguish between primary and secondary victims in accident cases. For example, where a mother and a child were both involved in an accident, the mother may suffer psychiatric injury both from fear of herself and for her child (at [110]).
Non-accident cases. The UK Court also went to contrast accident cases with non-accident cases at [111] – [117].
Perhaps of note is that the UK Court was mindful that allowing a person to claim compensation as secondary victim just because a person witnessed the death or illness of someone else may complicate end-of-life care (at [117]).
The UK Court pointed out that in a patient’s final moments, his or her loved ones may want to be by the patient’s side, and it would be undesirable if the hospital, in fear of being exposed to potential legal liability, discourages or prevents the patient’s loved ones from seeing and remaining with the patient (at [117]).
Application to the present case. The UK Court noted that none of the three cases on appeal involves an “accident” (see [123]).
The UK Court then turned to determine if a medical practitioner owes a duty of care towards people other than the patient and held that a doctor’s duty of care to the patient does not extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or injury of the patient (at [124] – [138]).
As such, the UK Court dismissed all three claims even although it expressed its sympathy regarding the tragic circumstances of the claimants (at [143]).
Significance. While we have the deepest sympathies for the claimants, as the UK Court held at [143], “[t]he law cannot, however, impose duties and liabilities on the basis of sympathy, however strongly felt.”
Given that the UK Court has clarified the requirements for a person to claim compensation as a secondary victim, while this is not a decision of the Singapore courts, it is likely that the reasoning of the UK Court would be influential bearing in mind that it is decision rendered by a bench of 7 Law Lords. It is likely that the concerns and issues as identified by the UK Court would also be issues which a Singapore court, facing a similar situation, would have to consider and address.
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.