Jenny Nicholson-White

The judgment of the Supreme Court in the conjoined appeals known as Paul & Anr v Royal Wolverhampton NHS Trust [2024] UKSC 1 has had a material impact on claims for damages in respect of psychiatric injury by “secondary” victims arising out of alleged medical negligence.

Prior to the Supreme Court’s decision in Paul, the Court of Appeal’s decision in North Glamorgan NHS Trust v Walters [2002] EWCA Civ1972, was persuasive authority in Scotland for the proposition that where a person suffered a recognised psychiatric injury as a result of injury (or death) to their loved one due to a “single horrifying event”, during which the claimant had been present, that psychiatric injury would sound in damages. Many cases of this nature, particularly those where parents witnessed the deterioration and death of their children, proceeded on the basis that the claimant had witnessed a “single horrifying event”. Success depended on the facts and circumstances of each case.

However, it was held in Paul (see para 121) that the case of Walters was incorrectly decided and should not be followed. The Supreme Court held (see para 107) that “the occurrence of an accident is integral both to the reasons for recognising the category of claims by secondary victims arising from an accident and in defining the limits of this category” (my emphasis).

I will consider when a medical professional might owe a duty of care to someone who is not their patient, with particular focus on an expectant father present during labour, for the birth of his baby. I will then consider what might constitute an “accident” per Paul, in the context of labour.

Who are “primary” and “secondary” victims?

It may be useful to remind ourselves what is meant by the terms “primary” and “secondary” victim. The classification of victims as “primary” or “secondary” was introduced by the House of Lords in the decision of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. In essence, a “secondary” victim is someone whose injury arises from witnessing an event which has caused injury to another person: a “secondary” victim is a person who has suffered “harm brought about indirectly by injury caused to another person” (see para 51 of Paul). A “primary” victim is someone who has been directly involved in an incident which has caused him or her injury.

The definitions refer to persons directly or indirectly suffering injury. But what about cases involving injury or death to a loved one who is not a legal person, namely, babies in utero? It is well-settled law that an expectant mother, whose unborn baby dies as a result of negligence, is a “primary” victim (Bourhill v Young 1941 S.C. 395 and 1942 S.C. (H.L.) 78) and, accordingly, her claim is unaffected by the decision in Paul.

Babies who die in utero, even if they are full term and die during labour, are not deemed to have legal personality. As they have never lived independently outside their mother’s womb, the law does not consider them to be a legal person. Prior to and until being born alive, babies of whatever gestation (even full term) are considered to be part of their mother. The Nasciturus Fiction doctrine allows a child born alive to acquire certain rights from the time of conception but has no application where a child dies in utero. Where a baby dies before birth, that loss, injury and damage is essentially deemed, in law, to have been suffered by its mother. Further, a doctor owes a duty of care to a labouring mother as the mother is a patient of that doctor.

As a “primary” victim, a mother does not require to satisfy certain threshold criteria (per Alcock and approved in Paul) that a “secondary” victim must (those criteria will be discussed further below).

When might a medical professional owe a duty of care to someone who is not a patient and are expectant fathers “primary” victims in certain circumstances?

The starting point in consideration of this issue is that it is established in law that a duty of care is not normally owed by a medical professional to someone who is not his or her patient (see, for example, D v Berkshire Community Health NHS Trust [2005] 2 AC 373).

However, the Supreme Court in Paul acknowledged (see para 134) that there “are circumstances in which the duty of care owed by a medical practitioner may extend beyond the health of their patient to include other people….It is likewise arguable that a doctor who negligently fails to diagnose or treat a sexually transmitted disease may owe a duty of care to the sexual partner of a patient, who, in consequence, contracts the disease. Such a claim succeeded in the Australian case of BT v Oei [1999] NSWSC 1082 where the sexual partner of a patient contracted HIV…”.

The Supreme Court went on to say that whether a duty of care to a member of the patient’s family is owed (having regard to important factors such as the necessary relationship of proximity and the directness of the causal link between the doctor’s negligence and the materialisation of the risk of injury) “will depend on the particular facts of the case”. The particular facts of an expectant father, present during labour, for the birth of his unborn child, seem to me to be circumstances in which the duty of care should extend beyond the health of the patient (whether the patient is defined as the (i) unborn baby or (ii) mother or (iii) mother and unborn baby as one entity) to the father directly. A father who is present during labour for the birth of his child, is, on one view, in a particular and unique circumstance. In this particular situation, a medical professional ought reasonably to have in contemplation a father as so closely and directly affected to be at likely risk of injury if acts or omissions in the care of his unborn baby during labour (or the conduct of labour itself) are not avoided. Fathers who are present during labour for the birth of their children, are a limited class of persons. Accordingly, there can be no real concern that the floodgates are opened by such an extension of the duty of care to this limited class.

Expectant fathers today are very often involved in attending antenatal appointments and scans during pregnancy and are likely to be present in hospital at the birth of their child. 100 years ago there were no antenatal scans and fathers were unlikely to be present at the birth of their children. As societal norms and attitudes change with time, a just and fair common law responds and develops. Interestingly, around 100 years ago, the neighbourhood principle, which is accepted today as embedded within the law of delict, was not clearly established. Donoghue v Stevenson famously changed that in 1930 although, in the years leading up to the House of Lords’ decision, there was considerable debate and hesitancy about whether the law should be extended in this way. Nevertheless, as the Scottish Law Commission stressed in its report No 30: Liability for Antenatal Injury, (para 10: p5) “……the law of delict has developed in Scotland by the application of old principles to new situations and represents an adjustment between conflicting interests, having regard to what is thought reasonable at the present time. As Lord Macmillan emphasised in Donoghue v Stevenson: “the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgement must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed….” In my opinion, an ordinary person in today’s society would not think it “reasonable at the present time” that a mother of a baby who dies in utero during labour due to medical negligence should be treated differently by the law than the father of that baby who was present during labour. Such a person would, it seems to me, have difficulty understanding why one parent could make a claim for the loss of their unborn child and the other could not. In 2024, there requires to be symmetry in the legal treatment of parents of a baby who dies in utero, as a result of medical negligence, during labour at which an expectant father has been present.

In the context of labour, what might constitute an “accident” in a medical setting?

In the absence of “primary” victim status, are there circumstances in which an expectant father present for the birth of his child, could potentially succeed as a “secondary” victim where his baby has died during labour?

It was held in Paul (at para 73) that “the requirements established by the decision in Alcock were, in our view, accurately and authoritatively summarised in Frost. They do not include a requirement that the claimant’s psychiatric injury must have been caused by a “sudden shock to the nervous system”… concentrate on the requirement that the plaintiff should have suffered from a recognised psychiatric illness”. Therefore (in addition to demonstrating (as any claimant must do) that injury was a reasonably foreseeable consequence of the defender’s negligence) the threshold criteria for establishing a “secondary” victim claim are that:

1. ​there require to be close ties of love and affection between the claimant and the person killed, injured or imperilled;
2. ​the claimant was close to the incident in time and space (present at the accident or its immediate aftermath);
3. the claimant directly perceived the incident rather than, for example, hearing about it from a third person and the psychiatric injury was caused by such direct perception.

Paul affirmed that Alcock remains good law but only applies to “accident” cases. As is well-understood, the cases in Paul were cases of omission. Where the claimant’s injury is caused by witnessing the death or injury of a close relative from a medical condition which the defendant has negligently failed to diagnose and treat, there is no remedy for a “secondary” victim. To consider a hypothetical example, in the case of labour, where a baby becomes compromised in utero, due to, say, bradycardia, but there is a negligent failure to diagnose or treat this condition and the baby dies, this would not appear to fall within the definition of an “accident” and there would be no claim available to a “secondary” victim (cf. where “primary” victim status can be established, as discussed above).

In relation to the definition of an “accident”, at paras 105 and 108, of the judgement in Paul, the Supreme Court said:

​“An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event…..First, an accident is, by definition, a discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place in a particular way. Whether someone was present at the scene and whether they directly perceived an accident are in the most cases questions which admit of a clear and straightforward answer. These criteria for determining whether a person is eligible to claim compensation as a secondary victim therefore have the great merit of providing legal certainty.”

It is clear from this passage that the Supreme Court in Paul was seeking to provide clarity and legal certainty to the law of “secondary victims” in the context of medical negligence. Therefore, it seems to me that, had the court wanted to hold that “secondary” victim claims in this context should not exist, at all, it would have said so, in the interests of clarity and legal certainty. The possibility of claims by secondary victims arising from accidents in a medical setting was not excluded (see para 123). For that reason, I would not agree with a suggestion that the Supreme Court has shut down all claims by “secondary” victims arising from accidents in a medical setting. It is probably true to say that the judgement has the effect of restricting the availability of such claims (in what was already a restricted and difficult area) but there must surely be facts and circumstances from which stateable claims will arise.

The Supreme Court declined to comment on what might constitute an accident in a medical setting and this is understandable as each case must turn on its own facts and circumstances. However, personal injury lawyers working in this area, both for pursuers and defenders, will inevitably require to assess potential claims and consider what might constitute an “accident”. For this reason, I set out my thoughts on this question, in case they are helpful, acknowledging of course, that each case does depend on its own facts and circumstances. I start by applying the Supreme Court’s definition of an accident. Was it an external event which caused injury? Was it a discrete event? Was it something that happened at a particular time, at a particular place in a particular way? The following examples of positive actions or interventions, during labour, causative of fetal demise prior to birth, may conceivably fall within the definition of an accident given in Paul: (i) the excessive and inappropriate use of force during delivery of the baby; (ii) the mis-use of medical instruments, such as forceps during delivery; (iii) other procedures, such as actions to artificially augment labour unnecessarily, which are deemed by an appropriately qualified skilled witness to be actions which no ordinarily competent clinician would have carried out if acting with ordinary skill and care (per Hunter v Hanley 1955 SC 200) in the particular circumstances of a case.

Jenny Nicholson-White is an advocate in the Ampersand stable