Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024]

Summary

This case has three appellants, Paul, Polmear, and Purchase, who went before the Supreme Court as a Conjoined appeal.

The appellants all witnessed the death, or immediate aftermath, of their close relatives and sought compensation for the resulting psychiatric injury caused by this. 

This case sought to answer whether an individual can claim psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence. Such a question hinges on the Duty of Care owed by medical professionals. Due to the complexity required, the appellants could appeal their cases to the Supreme Court.

The Facts

Paul:

The case of Paul is based on the alleged clinical negligence of the respondent, Royal Wolverhampton NHS Trust, who failed to arrange the correct and necessary tests during a hospital admission. Mr. Paul had been admitted to the hospital in question on the 9th of November, 2012, with chest and jaw pain, treated for acute coronary symptoms, and discharged three days later. Approximately 14 months after the hospital visit, Mr Paul suffered a cardiac arrest and collapsed whilst he was out with his two daughters. His daughters saw him collapse and strike his head on the pavement and attempted to call their mother and an ambulance. They were taken to a nearby church when their mother arrived, but they heard their mother screaming and watched the ambulance performing compressions. Mr Paul was declared dead on arrival at the hospital. 

The two daughters claimed damages for psychiatric illness allegedly caused by witnessing these events. Alleging that the defendant was negligent for failing to arrange the necessary tests upon his original hospital visit, as had it been performed, it would have revealed his significant coronary artery disease, which would have led to Mr Paul being treated at that time. 

Purchase:

This case was based on the alleged clinical negligence of the respondent, Dr Ahmed, who failed to diagnose Evelyn Purchase with Pneumonia when she visited the clinic with severe symptoms on April 4th, sending her home with antibiotics and antidepressants on her third return visit to the clinic. Three days (7 April 2013.) after visiting Dr Ahmed at the out-of-hours clinic, she died. Her mother, the appellant, found her dead when returning home. When the mother found her daughter, under the advisement of 999, she opened Evelyn’s mouth to attempt resuscitation, where blood and bodily fluids spilt out of her mouth and nose. Paramedics arrived and declared Evelyn dead. 

Evelyn’s mother, the appellant, had a voicemail of Evelyn’s dying breaths on her phone approximately five minutes before she arrived home.

The result of the proceedings of Evelyn’s death caused her mother, the appellant, post-traumatic stress disorder and severe chronic anxiety and depression, causing her pursuit for damages. Her case stems from her daughter’s death being a direct result of clinical negligence for failure to diagnose and treat Evelyn.

Polmear:

Finally, the Polmear case is based on the respondent’s (Royal Cornwall Hospitals NHS Trust) alleged clinical negligence.

 In August 2014, Esmee Polmear, aged six, saw her GP after experiencing episodes of not being able to breathe, turning pale, and going blue after several minutes. She was referred to a paediatrician at the respondent’s hospital and was seen on December 1st, 2014. They carried out some tests in January 2015 and wrongly decided the symptoms were due to exertion and did not correctly diagnose her with pulmonary veno-occlusive disease. After her death, the respondent admitted this point should have diagnosed it.

On July 1st, 2015, Esmee died on a school trip. Her father, one of the appellants, was there at the beach, should she have been too unwell to continue. When he arrived, she was tired, pale, and breathless. She wanted to sit down but was encouraged to continue. She did so, but she vomited and stopped. Eventually, her father had to carry her, he left Esmee at the door of the school but shortly afterward was called back and found her lying on the floor with a member of staff administering first aid. He tried to resuscitate her, but she was not breathing. Esmee’s mother ran to the school and saw her lying on the floor with members of staff failing to resuscitate her.  Paramedics arrived and failed to revive Esmee. Both parents travelled with Esmee via ambulance to the hospital, where she was declared dead. Esmee’s parents claimed damages for post-traumatic stress disorder and major depression developed from the events of their daughter’s death, founded on the case that with proper diagnosis and management, Esmee would not have died.

Legal Issues

Previous dismissals for these cases relied on the common law rules that the death of a human being cannot be complained of as an injury by another person (Baker v Bolton 1808). With the general idea that common law doesn’t recognise a person having a legal, compensable interest in the physical well-being of another person. Common law recognises a doctor’s responsibility and duty of care for providing medical care, owing a duty to their patients to exercise reasonable skill and care for their life. It remains that as such, any patient who suffers a physical or psychiatric injury at the fault of a failure to exercise such care, the doctor would be liable for damages.  In the event of a patient’s death, such claims can still be pursued by the deceased patient’s representative. However, the cases in question, Paul, Polmear, and Purchase, sought to claim compensation for the psychiatric injury caused to them by witnessing the death of a family member. The deaths of said families were the alleged result of medical negligence. 

The core of this is whether a doctor’s duty of care for a patient is to protect from harm and also owes a duty to the patient’s family to protect against the risk of injury suffered from witnessing the death of their family member caused by the doctor’s negligence.

In this case, the courts analysed the basic legal principles, such as the scope of the duty of care a doctor holds and to the persons that it is owed. In addition, the court must compare previous cases where claimants have pursued damages when they’ve suffered an injury in connection to death or injury from another person. The question begs whether those cases have developed rules that apply in this case or can be applied to claims of relatives in medical negligence cases.

History of cases in previous courts

The existing laws, set forth by Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, concluded that claims for damages for psychiatric injury in these cases were not viable. Due to these laws, the Paul and Purchase case claims were dismissed in the High Court and County Court but permitted to appeal. 

Following Paul, an application to dismiss the claim in Polmear was rejected, and permission was given to appeal.

In The Court of Appeal, all three cases were consolidated and ruled on together. Within the appeals, Sir Geoffrey Vos MR and Underhill LJ discussed the former case (Taylor v A Novo) that bound them to dismiss the appeal. However, both expressed doubts about this decision’s correctness, suggesting that a different outcome might have been reached if the issue had been unencumbered by precedent. Upon agreement by Nicola Davies LJ, the Court of Appeal granted the claimants permission to appeal to the Supreme Court due to the complexity of the proceedings in these cases.

Judgment

Lord Leggatt and Lady Rose gave judgment, dismissing the appeals with a majority of six to one, Lord Burrows dissenting.

The court discussed the conjoined cases of Paul, Purchase, and Polmear, which concern similar cases, and their relevance to this matter.

They looked at McLoughlin v O’Brian 1983, which established requirements for successful claims by those suffering psychiatric illness in connection with the death or injury of another person. Then, Alcock v Chief Constable of South Yorkshire Police 1992 furthered the requirements for claims by secondary victims in cases involving psychiatric injury. Frost v Chief Constable of South Yorkshire 1999 was useful regarding claims for psychiatric injury by secondary victims. Bourhill v Young 1943 and Taylor v A Novo Ltd 2014 addressed the foreseeability of damage and the proximity between parties in the context of establishing liability for injury.

Lord Leggatt and Lady Rose’s judgment, at its core, requires an external accident for recovery in cases of negligently caused psychiatric illness by secondary victims. Lord Burrows discusses that doing so would mean overturning past decisions and closing off recovery options in most medical negligence cases. In addition, it would leave open the question of liability in cases where there’s a medical accident. Their approach could limit recovery for psychiatric illness in medical negligence cases, except in rare situations.

Lord Carloway (with whom Lord Sales agrees) stated that he agreed with the judgment of Lord Leggatt and Lady Rose based on English common law. However, Lord Carloway also added the importance that English law generally doesn’t allow claims for damages caused by the death of another person. Scots law has historically permitted such claims by close relatives. Lord Carloway concluded that based on the main judgment, no such duty exists and therefore, would also dismiss the appeals.

Commentary

The case presented a significant challenge to existing laws governing medical negligence and the duty of care. The proceedings’ reliance on key precedent-setting cases underscored the importance of maintaining established legal principles. However, there was notable debate, particularly in the Court of Appeal, regarding the validity of certain precedents, with suggestions that some should be overruled due to flaws. In particular, the decision regarding Novo was contentious, with arguments that it should be overruled due to perceived errors. 

The judgment’s impact on legal development is substantial. While no new precedents were explicitly created, the deliberations prompted a critical reevaluation of existing case law. From the writer’s perspective, the Court of Appeal’s stance on Novo appears justifiable, as it seeks to rectify potential inaccuracies and maintain legal coherence. However, criticisms could be levelled at the court for not decisively addressing the perceived flaws in the law, which may later cause confusion and hinder the clarity needed in legal matters.

Overall, the case underscores the ongoing evolution of legal principles in medical negligence cases and highlights the need for continuous scrutiny and refinement of established precedents to ensure fairness and consistency in the legal system. However, it did not evolve the scope of duty of care for doctors, to extend to close family members of patients who witnessed trauma.

Written by Lana Wilks