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Secondary Victims and Psychiatric Injury - Ruling May Herald a Change in the Law

If you witness the traumatic death of or another shocking event afflicting a close relative, which in turn results from earlier clinical negligence, are you entitled to compensation for any psychiatric injury you suffer? In considering that burning issue, the Court of Appeal may well have paved the way for a change in the law.

The Court considered three cases in which negligent failures to diagnose patients' life-threatening conditions were alleged. Some time after those alleged failures, the patients suffered traumatic deaths. In two of the cases, the deaths occurred in the presence of close relatives. In the third, a close relative came upon the patient immediately after her death. The issue in each case was whether the relatives were entitled to seek compensation for psychiatric injury as secondary victims of the alleged clinical negligence.

In all three cases, the Court concluded that it was bound by authority to find that none of the relatives had a viable claim. It ruled that, for a secondary victim to be sufficiently proximate to claim for psychiatric injury, the relevant horrific event cannot be a separate incident removed in time from the negligence. Only where the negligence and the horrific event are part of a continuum can the necessary proximity exist.

The Court acknowledged that there was no logical reason for such a restrictive approach. It could quite see why the relatives in the three cases ought to be viewed as sufficiently proximate to the alleged negligence to qualify as secondary victims. The Court's strong provisional view was that the issues raised by the case merited consideration by the Supreme Court.

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