Case Study: Paul, Polmear and Purchase.
On 12 January 2024, the Supreme Court handed down judgment on the conjoined appeals of Paul, Polmear and Purchase (Paul and another v Royal Wolverhampton NHS Trust [2024] UKSC 1).
About the judgment
All three Claimants brought claims for damages as ‘Secondary Victims’ – psychiatric injury suffered as a result of witnessing the death of a loved one, all in distressing circumstances and all occurring as a result of alleged medical negligence.
The Supreme Court dismissed the conjoined appeals, determining that we have not yet reached a point in society where those who witness the death or serious injury to a loved one due to the negligence of a clinician can expect to be shielded by the medical profession from suffering psychiatric illness. The Court’s view was that the uncertainty and variability of harm caused by negligence in a clinical setting would lead to arbitrary and unfair differences in the treatment of claimants.
This judgment overturns over two decades of precedent, in which it was widely accepted that there was no real distinction in how the courts treated ‘Secondary Victim’ claims in personal injury cases and medical negligence cases. The Court drew a distinction between ‘accident’ cases, such as when a parent witnesses their child being hit by a car, and ‘disease’ cases, such as where a parent witnesses the death of their child by a misdiagnosed illness. In doing so, the Court accepted that there will be very few (if any) situations in which the negligence of a medical professional in a clinical setting will be classified as an ‘accident’ case, rather than a ‘disease’ case.
Outcome of the judgment
In his dissenting judgment, Lord Burrows disagreed with the policy reasoning behind the judgment, as well as the application of the original legal test in these scenarios. He argued that this decision was an unwarranted backward step in the law. This sentiment will likely be shared by Claimant lawyers, who will view this as a decision that unfairly penalises families. For example, it is likely that traumatised parents will now be precluded from receiving damages after witnessing the death of their baby caused by negligence following childbirth. Questions still remain as to whether there can ever be an ‘accident’ in a clinical setting, what form this could take, and whether the clarified duty of doctors will still preclude victims from claiming.
From a Defendant perspective there has been a sealing of the ‘floodgates’; worries that the NHS would be put under pressure by rafts of claims have been alleviated. This judgment certainly gives an indication as to where the line is drawn in psychiatric injury claims, but whether it provides the clarity and certainty that lawyers had hoped for in the long term remains to be seen.
It will no-doubt have far reaching consequences, and what does and does not constitute an ‘accident’ will be the matter of debate for years to come.
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This case study was written by Oliver Lloyd, Paralegal in our Medical Negligence Team
