Paul v Royal Wolverhampton NHS Trust
Polmear v Royal Cornwall Hospital NHS Trust
Court of Appeal
Citations:  EWCA Civ 12;  2 WLR 917.
The claimants were relatives of individuals who died several months after a medical professional had misdiagnosed them. They suffered psychiatric injury as a result of watching their relatives die. The claimants sued the defendant hospitals in negligence.
To establish the Alcock criteria for secondary victims of pure psychiatric harm, the claimants had to prove they were sufficiently physically proximate in time and space to a ‘horrific event’. They also had to prove that they witnessed the accident or its aftermath with their own unaided senses.
The court was asked to decide what constituted the relevant event and/or accident: the death of the relative, or the initial misdiagnosis (i.e., the breach of duty). The High Court held that the breach of duty was the relevant event, and the claimants were not sufficiently proximate to it. The claimants appealed.
- What constitutes ‘the event’ for the purposes of the Alcock criteria?
The Court of Appeal dismissed the appeal. The ‘horrific event’ referred to the first instance of injury to the primary victim, which the claimants witnessed. However, the authorities dictated that the claimants could not rely on a horrific event which is removed in time from the breach of duty. Since the claimants relied on the horrific event of seeing their relatives die, and this was removed in time from the misdiagnosis, the claims failed.
This Case is Authority For…
Sir Geoffrey Vos: ‘The question of what is a relevant horrific event is not dependent either on the completion of the primary victim’s cause of action for negligence or the first manifestation of injury to the primary victim…For a secondary victim to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary victim injury, the horrific event cannot be a separate event removed in time from the negligence.’
The Court of Appeal identified three kinds of case:
- Cases where the breach and injury essentially occurred at the same time. For example, McLoughlin v O’Brian  1 AC 410, Alcock v Chief Constable of South Yorkshire  1 AC 310. In these cases, there is no complication in assessing whether the claimant has sufficient proximity, since the breach and the injury are part of the same event.
- Cases where the breach of duty occurred some time before the horrific event, and the claimant was only present for the latter. In these cases, the claimant is only physically proximate if the horrific event and the breach are part of a continuum. See, for example, North Glamorgan NHS Trust v Walters  PIQR P232. The Court of Appeal thought the facts of this case fell within the second category.
- Cases where the breach caused two separate horrific events separated in time. In these cases, the claimant must be physically proximate to the first horrific event. Being proximate to the second is not enough. For example, Taylor v A Novo (UK) Ltd  EWCA Civ 194.
The Court of Appeal felt bound by authority to reach the conclusions they did. However, they noted that there is no logical reason for the law to operate how it currently operates. The court suggested that the Supreme Court should review this area of law.