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NHS Resolution Annual report and accounts 2021/22 41

Paul v. Royal Wolverhampton NHS Trust; paramedics could not achieve any improvement. Ms
Polmear v. Royal Cornwall NHS Trust; Purchase Purchase died. Her mother sustained post-traumatic
v. Ahmed (Court of Appeal, 13 January 2022) stress disorder, severe chronic anxiety and ongoing
depression. She alleged that the GP had failed properly
Introduction
to assess and treat her daughter's symptoms.
These three cases all involved similar issues concerning
The Court reviewed the leading court decisions on
secondary victims of alleged clinical negligence.
secondary victims. On behalf of the claimants it was
A secondary victim is not someone to whom
argued that the "event" which caused the trauma to
the defendant owed a direct duty of care in the
secondary victims need not occur at the same time as
circumstances (the primary victim), but rather a person
the original negligence. However, the Court concluded
who witnessed the accident or event involving the
that it was bound by its own previous decision in Taylor
primary victim or who came upon its consequences
v. A. Novo (2013), where a mother suffered an accident
shortly afterwards. The Court had to decide whether,
at work when shelving fell onto her. Three weeks later
on the facts of each case, secondary victims might be
she collapsed and died at home, witnessed by her
able to recover damages. This ruling was not about
daughter, who was held unable to recover damages
whether the clinicians involved had been negligent.
from her mother's employers for psychiatric trauma.
Detail
The Court stated that for a secondary victim to recover
Mr Paul, who suffered from type 2 diabetes, was against a defendant whose clinical negligence had caused
admitted to hospital on 9 November 2012 complaining the primary victim injury, the horrific event "cannot be a
of chest and jaw pain. He was treated for acute separate event removed in time from the negligence".
coronary symptoms and discharged on 12 November. Consequently, these claims could not succeed. However,
On 26 January 2014, some 14 months later, he had a the Court of Appeal regarded this area of the law as
heart attack while shopping with his family and died being suitable for review by the Supreme Court and
shortly afterwards. His young daughters witnessed therefore gave the claimants permission to appeal.
his collapse and suffered psychiatric trauma. It was
Comment
alleged that Mr Paul should have been given a coronary
angiogram by the hospital in November 2012, which These are all deeply tragic cases, and everyone will feel
would have revealed coronary artery disease. huge sympathy for the secondary victims. However,
as the House of Lords made clear in the leading cases
Esmee Polmear, aged 7, was referred by her GP to the
of Alcock, which dealt with the Hillsborough disaster,
trust following episodes of not being able to breathe and
there must be boundaries to recoverability by those
turning blue. The reviewing paediatrician concluded in
who are not primary victims. Without them, defendants
January 2015 that her symptoms were likely to be related
would potentially be exposed to large numbers of
to exertion, with nothing to suggest an underlying heart
claims arising from one act of negligence. Judges
problem. However, on 1 July 2015, over five months

must determine where those boundaries should be
later, Esmee felt unwell on a school trip. Her parents
set. While it might well be foreseeable that failure to
agreed to bring her back but when they reached her
diagnose a heart condition could lead to the patient
she was lying on the ground with a staff member giving
collapsing and dying, witnessed by family members
mouth-to-mouth resuscitation. She was not breathing
who suffer psychiatric trauma as a result, that does
and died shortly afterwards. Both parents suffered post­
not necessarily mean that the witnesses can recover
traumatic stress disorder. The trust admitted negligence
damages. We must anticipate a definitive ruling from
by failing to diagnose Esmee's underlying condition.
the Supreme Court, perhaps in 2023, which will have
Ms Purchase visited her GP in January 2013 with acute important implications for both relatives and the NHS.
sinusitis. Afterwards she continued to feel unwell
and by 4 April she was weak, dizzy and had difficulty
breathing. Her mother took her to an out-of-hours GP,
who made a diagnosis of respiratory tract infection with
pleuritic pain, oral thrush and depression. He prescribed
antibiotics and antidepressants. However, her condition
remained unaltered. On 7 April, three days later, her
mother returned home to find Ms Purchase lying
motionless on her bed, staring at the ceiling, although
she looked alive. She was then joined by her other
daughter and ex-husband. A 999 operator advised the
family to give cardio-pulmonary resuscitation pending
arrival of an ambulance. This proved unsuccessful, and