Mrs Balbir Kaur Paul (on her own behalf and as Administratrix of the estate of Parminder Singh Paul) v The Royal Wolverhampton NHS Trust
| Jurisdiction | England & Wales |
| Judge | Master Cook |
| Judgment Date | 04 November 2019 |
| Neutral Citation | [2019] EWHC 2893 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17C03907 |
| Date | 04 November 2019 |
[2019] EWHC 2893 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Cook
Case No: HQ17C03907
Laura Johnson (instructed by Shoosmiths LLP) for the Claimants
Charles Bagot QC (instructed by Brown Jacobson LLP) for the Defendant
Hearing date: 11 October 2019
Judgment Approved
This is an application by the Defendant made under CPR r 3 and CPR r 24 of the CPR to strike out the claims of the Second and Third Claimants it being alleged that the statement of case discloses no reasonable grounds for bringing the claims or alternatively that the claims have no real prospects of success.
The parties are agreed, for the purpose of this application, there is no appreciable difference between the tests under CPR r 3 and CPR r 24. I must be satisfied that the Second and Third Claimants' claims are bound to fail if the Defendant is to succeed on its application, see Farah v British Airways [1999] WLUK 155.
The Second and Third Defendants' claims are what have come to be known as “secondary victim” claims. They seek damages for psychiatric injury caused by witnessing the death of their father Mr Paul. For present purposes I must take the facts to be those alleged by the Claimants and summarised in Ms Johnson's skeleton argument.
The facts
Mr Paul had Type II diabetes and, with this, a number of complications. In 2010 he suffered a transient ischaemic cerebral attack. In 2012 he was noted to have high blood pressure and he developed chronic kidney disease. In November 2012 he was admitted to New Cross Hospital in Wolverhampton as an emergency complaining of chest and jaw pain. He was given treatment for acute coronary syndrome but no cardiac investigations were performed apart from echocardiography. An outpatient exercise test and dobutamine stress echocardiogram were performed. The exercise test was positive but the dobutamine stress echocardiogram was negative, showing normal left ventricular function and no evidence of ischaemia.
In June 2013 Mr Paul was placed on dialysis. On 3 August 2013 he was admitted to New Cross Hospital with a two to three-week history of breathlessness. Haemodialysis was commenced on 6 August 2013.
On 30 September 2013 Mr Paul was seen by Dr Nicholas, Consultant Nephrologist, who noted he was established on haemodialysis and felt better. Renal transplantation was discussed. Dr Nicholas noted “his ECG does show significant abnormalities, which would be of great concern to the Transplant Surgeons”. Mr Paul was referred to Dr Horton, Consultant Cardiologist. He was seen on 9 January 2014 and an elective coronary angiography was recommended. Mr Paul died less than three weeks later when he collapsed in the street when on a shopping trip with his two daughters.
It is the Claimants' case that there were failures in the care given to Mr Paul when he was seen at New Cross Hospital for cardiac symptoms in November 2012. Inpatient coronary angiography should have been arranged during this emergency admission. Had this occurred it would almost certainly have demonstrated significant coronary artery disease. It is likely he would have been offered coronary revascularisation. Had coronary revascularisation been performed in 2012 it is unlikely the fatal event in January 2014 would have occurred.
What the Claimant's children witnessed is fully set out in the particulars of claim and can be summarised as follows:
a) Sadly for nine year old Mya she had had a minor argument with her father shortly before he died, so she was walking slightly in front of him. Saffron was walking slightly behind.
b) Mr Paul said he felt ill.
c) Mya turned and saw her father lean against the wall momentarily and then his eyes roll back.
d) Both girls saw him fall backwards and his head hit the floor.
e) The girls were alone with their father who was unconscious or dead in the street. They were so distressed and frightened they had difficulty calling for help.
f) Eventually a woman responded to their shouts and called an ambulance.
g) The girls contacted their mother. They were so distressed that Mya managed to call her mother but could not be understood. 12 year old Saffron broke the news to her mother that her father had collapsed.
h) Both girls saw a man holding their father's head as he lay on the floor and there was blood on the man's hands from the injury sustained when Mr Paul's head hit the ground.
i) The girls were taken into a nearby church for a short time because of what they had been witnessing. Whilst they were there their mother arrived and they heard her screams, screaming their father's name.
j) The girls went back outside and saw their father under a foil blanket receiving chest compressions from paramedics. There was a crowd of people there including the police. They were then taken away to a relative's house.
k) The timings are: the ambulance arrived at 15.57 and left the scene 30 minutes later at 16.28. Mr Paul arrived at hospital at 16.43 but further resuscitation was felt to be futile and he was declared dead at 16.51.
l) The children therefore witnessed their father's final event.
It is the Claimants' case that Mr Paul's collapse was the first appreciable manifestation of the Defendant's breach of duty (in other words the point at which the damage became evident).
The Second and Third Claimant's secondary victim claims were supported by reports from Dr Oppenheim, a consultant psychiatrist, who concluded that they each presented with symptoms of PTSD (ICD10 F43.1) caused by witnessing the events set out above.
The parties' submissions
Mr Bagot QC on behalf of the Defendant submitted that the Second and Third Claimants cannot be described as secondary victims because there is no relevant event and no proximity. Putting flesh on the bare bones of this submission he started with Lord Oliver's classic formulation of secondary victim claims in the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310;
“Although it is convenient to describe the plaintiff in such a case as a “secondary” victim, that description must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him — a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant…In the end, it has to be accepted that the concept of “proximity” is an artificial one which depends more upon the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction. The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J. in the instant case and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff's perception of it combined with a close relationship of affection between the plaintiff and the primary victim. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim.”
Mr Bagot QC submitted that in the case of secondary victims who sustain psychiatric injury as a result of witnessing death or injury to another, the secondary victim establishes legal proximity and therefore the duty of care owed by a Defendant tortfeasor by satisfying the following “ control mechanisms”:
a) It must be reasonably foreseeable that a person of “ normal fortitude” or “ ordinary phlegm” might suffer psychiatric injury by shock: per Lord Lloyd in Page v. Smith [1996] AC 155 at [197F]. In addition, there must in fact have been a recognised psychiatric injury suffered.
b) There must be a close relationship of love and affection between the person killed or injured (“the primary victim”) and the Claimant (“the secondary victim”) (Lord Oliver in Alcock [411F]).
c) The Claimant must be in close proximity in space and time to the relevant event (if there is one) or its immediate aftermath: Lord Oliver in Alcock [411G].
d) The psychiatric injury must result from a “ sudden and unexpected shock”: Lord Oliver in Alcock at [411F]. Lord Ackner in Alcock[401F] defined it as: “ (5) “Shock”, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the...
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Saffron Paul v The Royal Wolverhampton NHS Trust
... ... , by their mother and litigation friend Balbir Kaur Paul), issued a claim form claiming damages ... 12 and 9, the death of their father, Parminder Singh Paul, as a result of negligent care and ... (s) for the benefit of his or her estate. 22 It is not in dispute that such claims can be ... in issue, however, are not claims made on behalf of the person who died for the harm suffered by ... ...
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Saffron Paul (a child, by her mother and litigation friend Balbir Kaur Paul) v The Royal Wolverhampton NHS Trust
...judgement handed down on 4 November 2019, Master Cook held that, on the facts pleaded, Saffron's and Mya's claims were bound to fail: [2019] EWHC 2893 (QB). He therefore struck out their claims. Permission to appeal was granted by Stewart J on 14 January 2020. The law on secondary victim c......