PI & Clinical Negligence analysis: In a seminal judgment, the UK Supreme Court by a 6–1 majority (Lord Burrows dissenting) has dismissed the claimants’ conjoined appeals against the strike out of their psychiatric injury claims from witnessing the death of close relatives from the defendants’ alleged (or admitted) clinical negligence. The Supreme Court has decided that a claimant cannot recover damages as a secondary victim unless the claimant witnessed an accident (or its immediate aftermath) caused by the Defendant’s negligence. A claim cannot succeed where what is witnessed is a negligently caused medical crisis (or its immediate aftermath) which involves the suffering or death of a close relative from illness, but no external accident. Central to the decision was the Supreme Court Justices’ view that it cannot be right to attribute to a doctor who enters into doctor-patient relationship, an assumption of responsibility for the health of members of the patient’s family. Written by Charles Bagot KC, barrister, Gatehouse Chambers, who represented all the respondent/defendants.

The general rule—no compensation unless there is a recognised psychiatric illness It is common for accident victims to suffer considerable distress as a result of their accident or injury, particularly if the accident itself was very serious or if a fatality occurred. Generally speaking, such distress will not entitle them to bring a claim for psychiatric injury as a separate head of loss unless that injury amounts to a recognised psychiatric illness. As such, whether or not a claimant has suffered a recognised psychiatric injury is a particularly important issue. There are two benefits to resolving this question quickly: • firstly, it allows the claim to proceed on the correct basis and the claimant to be compensated in full, and • secondly, it means that the rehabilitation code can be used to help a claimant who will benefit medically from psychological or psychiatric intervention to receive it as soon as possible For further information on the Rehabilitation Code, see Practice Note: Rehabilitation Code 2015. The different factual situations where a claim for psychiatric injury

This case tracker reviews the case law which has been decided since the lead case of Alcock v Chief Constable of Yorkshire Police in 1991. Subsequent case law developed the concept of secondary victims and explored the extent that courts would allow personal injury claims on behalf of secondary victims. However, the decisions were inconsistent, causing confusion. The landmark Supreme Court judgment in the case of Paul v Royal Wolverhampton NHS Trust has now clarified the law after considering in detail the previous case law that had developed and is authority on the area. Some cases were expressly stated to have been wrongly decided, others were stated to be correctly decided but for the wrong reasons and these have been flagged. It remains to be seen how the case law develops in relation to accidents in a clinical negligence context. A secondary victim is someone who has suffered psychiatric injury not by being directly involved in an accident but by witnessing it or its immediate aftermath. The Supreme Court case of Paul v Royal

The development of the law The case of Alcock v Chief Constable of South Yorkshire Police has long been the lead authority for claims made by secondary victims. The law developed after Alcock, often with inconsistent judgments. The Supreme Court in Paul v Royal Wolverhampton NHS Trust brought about a number of changes to the law and much-needed clarity for practitioners. It is important to understand the position both prior to and post the case of Paul as there has been refinement and clarification of the principles, although not every aspect has been changed. This Practice Note is therefore split into pre-Paul and post-Paul sections. The changes made by Paul are explicitly highlighted in the Practice Note. For further analysis of the case, see News Analysis: Landmark Supreme Court decision on secondary victims (Paul v Royal Wolverhampton NHS Trust). It is crucial to understand that secondary victim claims constitute an exception to the general rule that at common law one person has no legal right of redress (compensation) in connection with the physical well-being

Liability for psychiatric injury is dependent in part on the nature of the injuries suffered and the manner in which they were sustained. Classifying the victim Where a claimant suffers both physical and psychiatric injury (even if the physical injury was very minor), they will be entitled to recover damages in the usual way subject to issues of causation etc. There will in such a case be no need to prove the foreseeability of the psychiatric injury if the physical injury was itself foreseeable. The complexity arises where a claimant has suffered psychiatric injury but is physically unharmed. In cases where claimants have suffered ‘pure’ psychiatric injury as a result of an accident or event, the law draws a distinction between: • primary victims—see below • secondary victims—see below Primary victims Primary victims are directly involved in the event and usually, but not necessarily, have physical injuries as well as psychiatric injuries. For further guidance, see Practice Note: Psychiatric injury—primary victims. Establishing liability—common law To establish liability at common law a primary victim

For information on McKenzie friends generally, see Practice Note: Litigants in person—terminology and representation. Under section 6 of the Employment Tribunals Act (ETA 1996), a party is entitled to be represented at a hearing by the person of their choice. For more information, see the section Appearance and representation of Practice Note: Conduct of employment tribunal hearings—general. There is no general entitlement to be accompanied during a tribunal hearing for the purposes of support rather than representation. However, in Andrews v Bryson Charitable Group the Court of Appeal in Northern Ireland held that, although the applicable (Northern Ireland) Practice Note did not strictly apply in the tribunal, there was a presumption that an unrepresented litigant is afforded reasonable assistance from a layperson (sometimes referred to as a 'McKenzie friend') where this is sought. For more information, see Accompaniment: Harvey on Industrial Relations and Employment Law [773.01]. Disability A tribunal

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Defining the primary victim A primary victim is a claimant who was directly involved as a participant in the incident that caused their psychiatric injury. Classes of primary victim Lord Oliver in Alcock v Chief Constable South Yorkshire provided three examples of claimants who he would classify as primary victims: Direct involvement The claimant was within the actual area of physical danger when the accident occurred or reasonably believed at the time that they were in danger. Rescue The House of Lords in White v Chief Constable of South Yorkshire Police clarified that rescuers are not a special category of primary victim. If the claimant was a rescuer who went to the aid of others involved in an accident, they will only be defined as a primary victim if they were, or reasonably believed themselves to be, in danger. If a rescuer does not meet this test, then they will be classified as a secondary victim and will therefore need to satisfy the control mechanisms before they can recover damages for psychiatric injury.

When considering the question of capacity to conduct litigation, it must be ascertained whether or not the individual in question is capable of understanding information relevant to the litigation, retaining that information evaluating the information and communicating a decision (Masterman-Lister v Brutton & Co). In civil proceedings, CPR 21 applies where a person lacks capacity to conduct proceedings (see also CPR PD 21), and if proceedings are to be conducted in the County Court, High Court, Family Court or Court of Protection a litigation friend must be appointed to give instructions and otherwise conduct the proceedings on their behalf. As per CPR 21, the test for capacity, which applies only in relation to section 2(1) of the Mental Capacity Act 2005 (MCA 2005)

Secondary victims A secondary victim is one who suffers psychiatric injury not by being directly involved in the incident but by witnessing it and either: • seeing injury being sustained by a primary victim, or • fearing injury to a primary victim For further guidance, see Practice Note: Psychiatric injury—secondary victims. Case law McLoughlin v O'Brian In this case the claimant’s husband and three children were involved in a road accident caused by the negligence of the defendants. One of the claimant’s children was killed and its husband and other two children were severely injured. At the time of the accident the claimant was at home two miles away. The claimant claimed damages against the defendants for the nervous shock, distress and injury to its health caused by the defendants' negligence. The House of Lords held that the test of liability for damages for nervous shock was reasonable foreseeability of the claimant

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