The Supreme Court confirms that persons who suffer psychiatric injury after witnessing the death or injury of a close relative, not in an accident, but from an illness or disease which proper medical treatment would have prevented do not satisfy the legal requirements for the recovery of damages as a secondary victim.

Paul v another (Appellants) v Royal Wolverhampton NHS Trust [2024] UKSC 1.

Three conjoined appeals reached the Supreme Court, each claim was for psychiatric injury caused by witnessing the death of a loved one or its immediate aftermath and in circumstances where the death was allegedly caused by the earlier clinical negligence of a medical practitioner. The time between the alleged act of negligence and the death ranged from 3 days to 14 months.

To the extent that 'secondary victim' claims can be made they are (and were recognised by the Supreme Court as) 'exceptional cases'. Such damage is typically irrecoverable because the person injured is not within the area of danger which the wrongdoer has in contemplation. The cases which do qualify for financial recovery following Alcock and White are those made by persons who suffer injury as a result of witnessing an accident (or its immediate aftermath) in which a close relative is killed or injured by the defendant's negligence.

The Supreme Court held, by majority, that the claims made were not analogous to the 'accident' cases. No accident had occurred, rather a medical crisis (the progression of an underlying medical problem which, if not for negligence, would have been addressed) and, in the absence of an accident, damages should not be recoverable. That determination was, in the opinion of the court, supported to be correct by an acceptance that the established doctor-patient relationship did not extend to protecting members of the patient's close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. The claims made were, on their facts, not therefore able to succeed.

The Supreme Court declined to say whether the rules governing claims by secondary victims arising from accidents could ever apply in a medical setting e.g. in a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. It left those claims to be addressed 'where they actually arise on the facts'.

The matter is not therefore wholly settled. However, absent an assault, it is difficult to envisage when the definition applied to an accident in Paul – being an 'unexpected, unintended event' which causes injury by 'violent external means' – could ever occur in a medical environment.


Gemma Nicholson

Senior Associate