Paul case: secondary victim claim struck out in clinical negligence

The application of Paul – strike out of a secondary victim claim in clinical negligence case

Richard Smith

MIM v Sheffield Teaching Hospitals NHS Foundation Trust [2026] EWHC 562 (KB) (17 March 2026)

This case appears to be the first reported determination of a claim seeking damages as a Secondary Victim following the judgment of the Supreme Court in Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1 (11 January 2024). The claim was struck out by HHJ Claire Evans sitting as a Deputy Judge of the High Court in Manchester on 17 th March 2026 following a hearing on 5 th March 2026.

Relevant Facts of *MIM*

MIM sought damages for a psychiatric injury that he suffered in consequence of witnessing the negligent management of his wife’s labour and subsequent delivery of their son, who was born requiring resuscitation having suffered an acute profound hypoxic brain injury. The Defendant admitted negligence and that, with earlier delivery, MIM’s son would have avoided all injury. However, the Defendant denied liability to MIM on the basis that he had not witnessed “an accident” and so could not bring a claim as a Secondary Victim.

MIM’s wife had attended the hospital for induction of labour on the evening of 30 th May 2020. Their son was born at 0947, whereas it was admitted that with a reasonable standard of care he should have been born by 0930. Delivery 3 minutes earlier, i.e. 0944, would have resulted in no hypoxic ischaemic injury. The judgment refers to MIM’s account being that he became increasingly concerned about the progress of labour as the night progressed, in particular the last 30 minutes of labour which he perceived to have been managed with confusion and panic by the Defendant’s staff. He was diagnosed as suffering an adjustment disorder as a result of what he witnessed (although the judgment is not clear as to whether, or to what extent, this injury would have been suffered if his son had been delivered 17 minutes earlier than he was).

The Defendant’s Case Relied on *Paul*

The Defendant applied to strike out the case at the close of pleadings on the basis that the Particulars of Claim disclosed no reasonable grounds for bringing the claim, or alternatively for summary judgment. The application was said to make various criticisms of the Claimant’s pleadings, but it was accepted by counsel for the Defendant that the application turned on whether MIM could establish that he witnessed an accident.

That approach derived from the clarification of the law on Secondary Victims provided by the Supreme Court in Paul and 2 other conjoined cases (Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed) . In that appeal the Appellants/Claimants brought claims for psychiatric injury as a result of witnessing the consequences of alleged or admitted negligent medical treatment of a relative. Each of the claims had been struck out (two at first instance and one in the Court of Appeal). The majority in the Supreme Court identified the critical issue in the appeals as being,

“… whether a doctor, in providing medical services to a patient, not only owes a duty to the patient to take care to protect the patient from harm but also owes a duty to close members of the patient’s family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor’s negligence.”

The Appellants argued that, for various reasons, their claims came within the definition of Secondary Victims as set out in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 .

Both of those cases arose out of the Hillsborough disaster. The plaintiffs in Alcock were family members of people at the stadium, while those in Frost were police officers who were present. Lord Oliver, in a well-known passage in Alcock, set out features which needed to be present in order for there to be sufficient proximity to create a duty of care to the Secondary Victim (the passage is broken up for clarity):

“… 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.”

These features were refined in Frost where Lords Hoffman, Steyn and Goff gave similar summaries of the requirements to establish a duty. The following is taken from Lord Hoffman’s speech (again, broken up for clarity):

“(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence.

(2) The plaintiff must have been present at the accident or its immediate aftermath.

(3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else.”

In Paul, the majority held that while the term “accident” was not used consistently in the authorities, it reflected the circumstances in all of the authorities in which damages had been awarded to Secondary Victims, in the sense that the Primary Victim had been subject to “an unexpected and unintended event which caused injury (or a risk of injury) by violent external means.” They defined the question raised in Paul as whether witnessing a negligently caused medical crisis (or its aftermath) can in principle found a claim for damages by a Secondary Victim or whether such a claim can lie only where the triggering event is an accident.

It was argued in Paul that the question was answered in the claimants’ favour by the reasoning in Alcock if the qualifying event which the Secondary Victim witnessed was a manifestation or rapid deterioration of negligently caused medical condition suffered by the Primary Victim. The majority rejected that proposition, on the basis that in such cases what was witnessed was not an accident, as defined. They identified three ways in which the occurrence of an accident is integral to imposition of a duty in Secondary Victim cases:

• An accident is a discrete event, 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 is in most cases easy to resolve.

• Witnessing an accident involving a close family member is likely to be a disturbing and upsetting event even if that person escapes unharmed, but all the moreso if they suffer physical injury or are killed.

• It is often difficult in accident cases to distinguish between Primary and Secondary Victims, given the necessary physical proximity to the accident.
  It was held that none of these features applies where the claimant suffers illness from witnessing physical injury or illness in another person, but does not witness an accident.

• In many cases there is no discrete event comparable to an accident. It was acknowledged that this is not always true and the Justices went on as follows (it might be said, unconvincingly):
  “112. … If a person suddenly and unexpectedly collapses and dies after suffering a cardiac arrest or some other medical crisis as happened in Paul and Novo, such an event can be identified with the same degree of certainty as an accident can. But the length of time for which symptoms of injury or disease last before a person recovers or dies is entirely variable. It may be minutes, hours, days or weeks. In Walters, for example, the period was 36 hours; in Shorter it was around 24 hours (measuring from first manifestation of injury rather than the inception of the underlying cause); in Sion it was 14 days. This gives rise to uncertainty about what qualifies as an “event” capable of founding a claim. We have discussed above the intractable difficulties involved in trying to answer that question in a way that is both reasonably certain and not entirely arbitrary. There are no comparable difficulties in determining whether a person has been killed, injured or put in peril in an accident.”

• The experience of a claimant witnessing the injury or illness of a close family member as a result of clinical negligence is entirely variable. It may or may not be experienced as trauma. It was said that the requirement of witnessing an accident was necessary in the law of tort to provide a limit on who is able to claim:
  “Unless the door is to be opened to claims based on direct perception of symptoms however mild, some criterion is needed to distinguish between claims which are, or are not, admissible.”

• Where the claimant is not present at the scene of an accident, as opposed to witnessing a deterioration in a relative, there is no question of them suffering psychiatric harm through fear for their own safety or bodily integrity.
  Having identified “accident” as an essential criterion for a Secondary Victim claim, the majority went on to test that conclusion against general principles in the law of clinical negligence, considering proximity between the doctor and the claimant, duties owed to non-patients generally and to family members of patients in particular. Their views on this point are encapsulated as follows:

“138. Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.

139. … we would not accept that our society has yet reached a point where the experience of witnessing the death of a close family member from disease is something from which a person can reasonably expect to be shielded by the medical profession. That is so whether the death is slow or sudden, occurs in a hospital, at home or somewhere else, and whether it be peaceful or painful for the dying person. We do not mean in any way to minimise the psychological effects which such an experience may have on the person’s parent, child or partner when we express our view that, in the perception of the ordinary reasonable person, such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition.”

The majority did not say that a claim by a Secondary Victim could never arise in a medical context and expressly declined to give a view on various hypothetical scenarios which had been canvassed in submissions (e.g. witnessing a patient being injected with the wrong drug or dose, inducing an acute adverse reaction – see para 123). However, Lord Burrows in his lengthy dissenting judgment concluded that actionable accidents in the medical context would be rare (para 205).

The Judge’s Decision in *MIM*

Leading counsel for MIM submitted that MIM had witnessed an accident as required by Paul. He was said to have described what MIM witnessed as “a continuum during which he feared the worst and eventually the worst happened”; he relied on the panicked activity of clinical professionals on the ward as constituting the external event necessary for an accident; he relied on the passage in paragraph 123 in Paul stating that claims of this sort could in theory give rise to a claim.

The Judge rejected these submissions. She began her analysis by characterising what MIM had witnessed as being “the process of labour and the birth of his son in an injured condition such that he required resuscitation – a description of a negligently caused medical crisis, rather than an accident.” This was not, she held, “an unexpected and unintended event which causes injury … to a victim by violent external means.” She did not accept that an accident as defined in Paul could encompass a continuum of events, as that suggested the opposite of a discrete event. She held, further, that the injury to MIM’s son was not an unexpected or unintended external event – the injury arose as a result of the period of hypoxia which was caused during the bodily process of labour and birth. The period of hypoxia should have been avoided, but the Judge said:

“33. … It is hard to see how it is possible to draw any distinction between the failure here to expedite delivery, which would have resulted in MIM’s son being born uninjured, and the failure to diagnose Mr Paul’s coronary artery disease which would have then avoided his fatal cardiac arrest …”

Therefore, the Judge struck out the claim under r3.4(2)(a) (no reasonable grounds for bringing the claim).

Discussion

This valiant attempt to explore the limits of potential Secondary Victim claims in a clinical negligence context ended in a way in which most practitioners would have expected. The judgment of the majority in Paul dealt a comprehensive hammer blow to the prospects of such claims.

The focus in MIM was on the requirement for there to have been an accident, which MIM witnessed. Having found that there was no accident, there was no need to discuss whether, even if what had been witnessed could have been characterised as an accident, the defendant owed MIM a duty of care as a family member of the primary victims. Had there been an accident in the labour ward, could the Defendant be found liable? That must certainly be arguable in the case of someone accompanying a labouring mother, as they would be included amongst

“… persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” per Lord Atkin in Donoghue v Stevenson [1932] AC 562

Similarly, if the example discussed in Paul of witnessing the acute and violent reaction to the wrong medication being injected were to transpire, could that found liability? There would appear to have been an accident, but is a duty of care owed to the relative?

It must be noted in that context, the majority in Paul did refer to it being undesirable for decisions about end-of-life care to be complicated by the risk of potential legal liability to family members as a result of them seeing and remaining with the patient (para 117). This might also be said to apply to things done in the labour ward, or elsewhere in healthcare settings, where it is of some benefit to the patient to be accompanied by a relative, but not necessarily essential.

Lord Burrows must be right when he said that successful Secondary Victim claims will be rare if the qualifying criteria includes witnessing an accident. However, on the right set of facts, such claims are still possible.

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Last updated on March 24, 2026