By Koh Jia Hao
Introduction
In Paul v Royal Wolverhampton NHS Trust[1] (“Paul”), the UK Supreme Court took the opportunity to re-examine the rules regarding psychiatric harm to secondary victims in the context of medical negligence, particularly whether doctors owe a duty of care to close relatives of the patient, for harm that they have suffered as a result of witnessing the patient’s death, or its immediate aftermath. By a majority of six to one, the court seems to have ‘in practice’, ‘block[ed] off medical negligence as an area where, subject to rare exceptions, there can be no liability for psychiatric illness suffered by secondary victims’.[2] In this article I will explore how the decision in Paul improved the law by removing the “sudden shock” requirement laid down in Alcock v Chief Constable of South Yorkshire[3] (“Alcock”). However, the addition of the requirement of an “accident” in Paul is hard to justify. Lastly, the policy reasoning behind the decision in Paul reflects a pragmatic approach in imposing a duty of care, moving away from ‘theory’ and towards a ‘rough and ready logic’.[4] Rather, it may have been preferable for the court to rule on a narrower ground by framing it as an omissions case. In comparison, Singapore courts have taken a more flexible interpretation of the sudden shock requirement, butrequirement but have stopped short of its removal.
The court began by stating ‘the general rule that the law does not grant remedies for the effects - whether psychological, physical or financial - of the death or injury of another person,’[5] to which there were only two exceptions: (1) statutory exception under the Fatal Accidents Act 1976 allowing for a claim for loss of support or bereavement of dependants; and (2) where the claimant suffers personal injury as a result of witnessing an accident (or its immediate aftermath) in which a close relative is killed or injured as result of the defendant’s negligent act or omission. The majority took the opportunity to remove the previous requirements of a “sudden shock” and a “horrifying event”, as well as introducing the new language of an “accident”.
Removal of previous requirements of a “sudden shock” and a “horryifying event”
Previously, in Alcock, the House of Lords introduced several specific requirements to determine proximity, now widely referred to as the Alcock “control mechanisms”. Lord Oliver identified five common features, one of which was the ‘sudden shock’ requirement, expecting requiring that ‘the injury for which damages were claimed [arise] from the sudden and unexpected shock to the plaintiff’s nervous system’.[6] Elaborating on the requirement of ‘sudden shock’, Lord Ackner clarified that it does not include ‘an accumulation over a period of time of more gradual assaults on the nervous system’, but involves the ‘sudden appreciation’ of a ‘horrifying event, which violently agitates the mind’.[7] Subsequently, in Sion v Hampstead Health Authority and Glamorgan NHS Trust v Walters, lower courts have applied this requirement of a sudden onset.
However, in Paul, the House of Lords criticised the “sudden shock” requirement as a ‘crude mechanical model’[8] which was ‘not necessary to the decision of the House of Lords in Alcock and … [does not] establish an additional restriction of the recovery of damages by secondary victims’.[9] This is a welcome change, given the unsatisfactory nature of the sudden shock requirement, which draws an artificial and arbitrary line among secondary victims. It is unclear why it matters if the psychiatric injury is suffered through a sudden onset or if it took a longer time to manifest, with the Law Commission doubting the distinction between (a) the mother who suffers psychiatric illness as a result of seeing her son’s sudden death; and (b) the mother who suffers psychiatric illness as a result of watching her son slowly die in hospital.[10]
Additionally, on an abstract analysis, the fact that one claimant’s experience is more protracted than another’s will usually mean that he or she will have suffered more.[11] Hence, it is perplexing why secondary victims who suffer psychiatric injury through a sudden onset are more entitled to compensation than those who do not. Furthermore, the court rightly rejected the requirement for the event to be ‘horrifying’, criticising it as ‘unavoidably subjective’ since there exists ‘no available Ritcher scale for horror’.[12] Hence, the question of whether an event is sufficiently ‘horrifying’ is ‘invidious and not susceptible to any proper answer’.[13]
Paul: No duty of care for doctors towards secondary victims
Although it seems straightforward that on the facts, all the Alcock “control mechanisms” are satisfied,[14] the court nonetheless held that the doctors did not owe the relatives a duty of care.
1. New requirement of an “accident”
Firstly, the court introduced the new language of an “accident”, which ‘refer[s] to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means’.[15] Examining past cases, the court identified “accidents” as a common feature among those which have succeeded, which could be said to constitute a further implicit requirement. Applying this to the facts, cases where doctors fail to treat a disease do not involve accidents, but a natural progression of the disease. Hence, the doctor is under no duty towards secondary victims since it fails to meet the “accident” requirement.
However, the court fails to provide a convincing justification as to why the accident must be an event external with respect to the primary victim. As Lord Burrows highlights in his dissent, the requirement of an external accident is an ‘arbitrary line’ to draw.[16] From the perspective of the primary victim, their death is not an external event. However, if one takes the perspective of the secondary victim and define an accident as an event external to the secondary victim, the death of the primary victim is indeed an accident. Therefore, Lord Burrows criticises the definition of ‘accident’ (as an event external to the primary victim) and questions the justification for adopting that definition and not another.’[17]
2. Policy
Secondly, in holding that doctors and close relatives of their patients are not sufficiently proximate vis-a-vis each other, the court also provides a policy justification, that this would demand too much of doctors. Doctors’ ‘responsibilities’ and ‘purpose’ do not ‘extend to protecting … close family from exposure to the traumatic experience of witnessing [their] death’.[18] The court’s policy reasoning reveals a pragmatic, rather than principled, approach to delineating the limits of liability, utilising a ‘rough and ready logic’, justified ‘not by any theory…, but rather the need to restrict the class of eligible claimants’.[19] On this view, the majority’s decision is understandable in seeking to ‘keep the liability of negligent actors for secondary harm within reasonable bounds’ by drawing often arbitrary lines that lack robust justification. Hence, one may argue that Paul represents a substitution of one arbitrary criteria (“sudden occurenceoccurrence”) with another (“accident”) to prevent a flood of litigation that may result from an overly liberal approach.
An omissions case?
Rather than claiming that its decision flowed from ordinary principles, it may have been better for the court to frame the issue more explicitly as an omission case involving an assumption of responsibility. Ordinarily, we do not owe duties of care to protect others from harm. A fortiori, we do not owe duties of care to protect their close relatives either. However, in the medical context, hospitals assume a duty of care to take care of their patients, and only their patients. Although the majority hints at this, they adopt a broader approach, basing their decision on ordinary principles which require an “accident”. As Robert Stevens observes, Paul was ‘straightforwardly a failure to prevent others to whom no duty had been voluntarily assumed from suffering injury.’ Adopting this narrower line of reasoning avoids the arbitrariness of the definition of “accident” (as Lord Burrows highlights) and also avoids stating the general principles too broadly. The majority holds that the general rule (and its exceptions) applies regardless of whether the defendant committed an act or omission. As Nicholas McBride points out, under the majority’s general rule, there may be cases where a defendant may be held liable for failing to save a claimant from suffering psychiatric injury even without the special circumstances that would normally give rise to a duty of care. He gives the example of a shopowner who negligently failed to repair his roof, which subsequently collapses, killing the claimant’s mother. The claimant, who was sitting outside the shop during the accident, develops psychiatric injury as a result. The shopowner would not normally owe a duty of care to the claimant to take positive steps to protect her from psychiatric harm. However, under the majority’s reasoning, the shopowner may be liable since it was an “accident” case and clearly satisfied the other requirements. Therefore, the majority’s broad and simple rationalisation of the law may be too bold and yield surprising results.
Singapore’s Approach
In the case of Pang Koi Fa v Lim Djoe Phing,[20] Amarjeet Singh JC adopted a rather flexible and liberal interpretation of the sudden shock requirement, allowing a claim for a mother suffered from PTSD after witnessing her daugher die slowly after three months as a result of a negligently performed surgery. Although he recognised that medical negligence cases are different from usual cases of nervous shock, he argued that ‘it is not so different as to compel the law to shut its eyes to a situation which so obviously needs redress’.[21] Hence, he allowed the claim to succeed despite the absence of the element of suddenness, which he deemed was ‘not crucial’.[22] Although he recognised the weight of the decision in Alcock, he determined that Lord Ackner’s comment in Alcock – that “shock” has yet to include a gradual accumulation – did not preclude such a development. In doing so, he relies (surprisingly) on the American case of Gloria Ochoa et al v The Superior Court of Santa Clara County, which held that the “sudden occurrence” requirement is unwarranted since ‘such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates the goal of compensation the very purpose which the cause of action was meant to further’.[23]
However, in the later case of Ngiam Kong Seng v Lim Chiew Hock,[24] although the Court of Appeal recognised the criticisms of the Alcock control mechanisms, it declined to remove the sudden shock requirement, observing that such an issue should be left to the legislature rather than the courts, with Phang J.A. concluding that reform lies ‘wholly outside the expertise of the court and relate to policy matters which require the Legislature’s consideration’.[25] Following the decision in Paul, one may hope that Singapore courts follow suit and remove the ‘most unfair and unnatural of legal contrivances - the rule that psychiatric harm will be recoverable only if it flows from a single shocking event’.[26]
References
[1] [2024] UKSC 1 (“Paul”)
[2] Ibid. [207] (Lord Burrows, dissenting)
[3] [1992] 1 AC 310
[4] Ibid. [141]
[5] [48]
[6] Ibid, 411 (emphasis added)
[7] Ibid, 401
[8] Paul [72]
[9] Ibid. [73]
[10] Law Commission Consultation Paper No. 137 (1995) para. 5.38
[11] K J Nasir, ‘Nervous Shock and Alcock: The Judicial Buck Stops Here’ (1992) 55 MLR 705, 709
[12] Paul [76]
[13] Paul [77]
[14] Ibid. [199] (Lord Burrows, dissenting)
[15] Ibid. [24] (emphasis added)
[16] Ibid. [211] (Lord Burrows, dissenting)
[17] Ibid. [211] (Lord Burrows, dissenting)
[18] Ibid. [138]
[19] Ibid. [141]
[20] [1993] 3 SLR 317 (“Pang Koi Fa”)
[21] Ibid [56]
[22] Liu Hern Kuan, 'Nervous Shock - Extending the Boundaries' (1994) Sing J Legal Stud 171, 176
[23] Gloria Ochoa et al v The Superior Court of Santa Clara County 39 Cal. 3d 168
[24] [2008] SGCA 23 (“Ngiam”)
[25] Ibid. [120]
[26] Margaret Fordham, ‘Psychiatric Injury, Secondary Victims and the ‘Sudden Shock’ Requirement’ (2014) Sing J of Legal Stud (July 2014) 41, 58