Paul v Royal Wolverhampton NHS Trust UKSC 1: no quarter for deserving claimants

I. INTRODUCTION

The Supreme Court decision in Paul v Royal Wolverhampton NHS Trust¹ arose from three conjoined cases—Paul, Polmear v Royal Cornwall Hospitals NHS Trust, and Purchase v Ahmed—each presenting tragic circumstances of familial trauma following clinical negligence. Each claimant had suffered psychiatric harm as a result of witnessing the death or immediate aftermath of their loved ones’ fatal medical crises. The Supreme Court was tasked with determining whether these claims met the established legal thresholds for ‘secondary victim’ recovery in negligence, which has long been governed by the controversial decision in Alcock v Chief Constable of South Yorkshire Police.² Through a restrictive interpretation of the Alcock ‘control mechanisms’, the decision of the Supreme Court arguably excluded many deserving claimants from being able to bring an action in negligence.

This commentary critically examines the Supreme Court's reasoning, its implications for future secondary victim claims, and the broader policy considerations underpinning the decision. It will first analyse the facts and decisions of the cases, followed by an evaluation of the Supreme Court’s treatment of proximity, the ‘immediate aftermath’ concept, and the exclusion of medical crises from recovery. Finally, it will explore the critical academic discourse surrounding the judgment, offering a principled critique of the Court’s approach and its wider ramifications for tort law.

II. FACTS AND DECISIONS OF THE COURTS BELOW

A. Paul v Royal Wolverhampton NHS Trust

Paul v Royal Wolverhampton NHS Trust involved the harrowing experiences of two young sisters, Saffron Paul and Mya Paul, who suffered psychiatric injuries, including post-traumatic stress disorder (PTSD), after witnessing the sudden death of their father, Mr Parminder Singh Paul. On 26 January 2014, Mr Paul was out shopping with his daughters, aged 12 and 9 at the time, when he suffered a fatal cardiac arrest. The two children saw their father collapse in the street, fall backward, and hit his head on the pavement. Despite the intervention of bystanders and paramedics, Mr Paul died shortly after being transported to the hospital.

The claim against the Royal Wolverhampton NHS Trust was based on medical treatment provided to Mr Paul more than 14 months earlier. On 9 November 2012, Mr Paul had been admitted to the defendant hospital with symptoms of chest and jaw pain, indicative of acute coronary syndrome. Despite these warning signs, the claimants alleged that the hospital negligently failed to arrange a coronary angiography during his admission. Such a procedure, they contended, would have prevented his cardiac arrest.

At trial, the defendant applied to strike out the secondary victim claims, asserting that they disclosed no reasonable grounds for action. Master Cook agreed, concluding that the daughters’ claims failed on the basis of legal proximity,³ particularly given the 14-month gap between the alleged negligence and Mr Paul’s death. However, on appeal, Chamberlain J reinstated the claims, reasoning that the fatal cardiac arrest constituted the “relevant event” for proximity purposes.⁴ He held that Mr Paul’s collapse was the first manifestation of the damage caused by the Trust’s negligence, and the daughters’ presence at the scene satisfied the requirement for temporal and spatial proximity.

B. Polmear v Royal Cornwall Hospitals NHS Trust

The second case, Polmear v Royal Cornwall Hospitals NHS Trust, concerned the death of a six-year-old girl, Esmee Polmear, and its devastating impact on her parents, Lynette and Mark Polmear. Esmee had experienced episodes of shortness of breath and fatigue from mid-2014, prompting her parents to seek medical assistance from their GP and the defendant hospital. In January 2015, Esmee was referred to a paediatric consultant, but her symptoms were misdiagnosed as exertional and physiological rather than pathological. The Trust admitted that Esmee’s rare but treatable condition—pulmonary veno-occlusive disease—should have been correctly diagnosed by mid-January 2015.

On 1 July 2015, Mr Polmear had come to collect Esmee from a school trip to the beach after she had complained of feeling unwell. He carried her back to the school when she became visibly pale, breathless, and weak. During the walk, Esmee vomited and eventually lost consciousness. Her father attempted mouth-to-mouth resuscitation as her condition rapidly deteriorated. Esmee’s mother arrived shortly thereafter to witness paramedics’ unsuccessful attempts to revive her daughter. Both parents later developed PTSD and depression as a result of the traumatic events surrounding Esmee’s death.

As in Paul, the defendant applied to strike out the secondary victim claims by the parents, arguing that the temporal gap between the alleged negligence and the traumatic event precluded recovery. At first instance, Master Cook declined to strike out the claims, citing Chamberlain J’s ruling in Paul as persuasive authority.⁵

C. Purchase v Ahmed

The third case, Purchase v Ahmed, involved the death of Evelyn Purchase, a 20-year-old woman who died of severe pneumonia on 7 April 2013. Evelyn had been unwell for several weeks, experiencing symptoms of weakness, dizziness, and difficulty breathing. On 4 April 2013, she attended an out-of-hours GP appointment accompanied by her mother, Tara Purchase, the claimant in the case. During the consultation, the defendant GP, Dr Ahmed, diagnosed Evelyn with a respiratory tract infection and depression but failed to recognize the severity of her condition. Dr Ahmed prescribed antibiotics and antidepressants but did not arrange further investigations or treatment.

Three days later, Evelyn suffered a fatal collapse at home. Her mother, having left the house the previous evening for a pre-arranged event, returned in the early hours of the morning to find Evelyn lying lifeless on her bed. Evelyn had attempted to call for help, leaving a voicemail recording the sound of her dying breaths. In a state of panic, Ms. Purchase attempted to resuscitate her daughter, but her efforts were futile. Paramedics arrived shortly thereafter and pronounced Evelyn dead.

Ms. Purchase developed severe psychiatric injuries, including PTSD, chronic anxiety, and depression. She accordingly brought an action in negligence against Dr Ahmed. However, District Judge Lumb struck out the claim, reasoning that the proximity requirements for secondary victim recovery were not met, particularly given the three-day gap between the alleged negligence and Evelyn’s death.⁶

D. The decision of the court of appeal

The three cases were conjoined before the Court of Appeal, which subsequently allowed the appeals in Paul and Polmear, while dismissing the appeal in Purchase. In arriving at this decision, the Court of Appeal heavily relied upon the precedent established in Taylor v A Novo (UK) Ltd⁷ The claimant’s mother had been injured in an accident at work and was seeming to make a recovery before unexpectedly collapsing and dying at home three weeks after the initial accident. A claim in negligence by the daughter, who suffered psychiatric injuries after witnessing her mother’s death, was rejected. Despite witnessing her mother’s death, the relevant ‘event’ was the accident at work. As the daughter did not witness this, she did not meet the Alcock control mechanisms.

In the conjoined Paul appeals, the Court of Appeal relied on Taylor v Novo for the proposition that to succeed, a secondary victim must establish close temporal proximity between the relevant ‘event’ and the negligence (the breach of duty).⁸ As in each case the negligent failure to properly diagnose the immediate victims occurred some time before their collapse and death, the claims failed.

III. THE SUPREME COURT DECISION AND CHANGES IN LAW

The Supreme Court, in a watershed moment in the jurisprudence of secondary victim claims, rejected all three claims. The leading judgment of the majority was delivered by Lord Leggatt and Lady Rose (Lord Carloway gave a concurring judgment and Lord Burrows dissented).

In doing so, Lord Leggatt and Lady Rose held that claims by secondary victims were a limited exception to the general rule that the death of another person cannot usually be complained of as an injury.⁹ In order to claim, the Alcock control mechanisms needed to be satisfied and these required close proximity in time and space and sight and hearing of an accident, which was used in ‘its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means’.¹⁰ Other events do not fall under this exception and so, unless another basis for one could be found, no duty of care was owed to the family members in such cases.

As such, it was concluded that events subsequent to negligence, albeit horrifying in their own right, such as Mr Paul’s fatal cardiac arrest, Esmee Polmear’s pulmonary collapse, and Evelyn Purchase’s pneumonia-induced death, did not constitute accidents. Instead, these events were categorized as ‘medical crises’—a term the Court used to distinguish them from the external and discrete events typically associated with accidents.¹¹

This distinction has effectively uprooted traditional understanding of possible secondary victim claims. By excluding medical crises from the definition of an accident, the Court precluded recovery for claimants who witness the traumatic consequences of medical negligence. As the majority, led by Lord Leggatt and Lady Rose, observed:

We do not consider that an analogy can reasonably be drawn between the situation with which McLoughlin,¹²  Alcock,¹³  and Frost¹⁴  were concerned, where illness is caused by witnessing an accident… and situations where the claimant does not witness an accident but suffers illness as a result of witnessing such a person suffering a medical crisis.¹⁵

Remarkably, this requirement overturns key precedents, most notably North Glamorgan NHS Trust v Walters.¹⁶ In Walters, the Court of Appeal allowed recovery for a mother who witnessed the deterioration and eventual death of her infant child over a 36-hour period due to medical mismanagement. The Supreme Court rejected this approach, holding that the absence of an external accident in Walters rendered it wrongly decided as it would be excessively broad, and criticizing that it had ‘taken an unfortunate turn which these appeals enable us to correct’.¹⁷

Might another basis be found to ground a doctor’s duty to family members? The majority held that the purpose of medical care is to benefit the patient, not to shield the patient’s relatives from psychological harm. ‘To impose such a responsibility on hospitals and doctors’ would, according to Lord Leggatt and Lady Rose, ‘go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role’.¹⁸

This decision effectively precludes, secondary victim claims in medical settings unless an external accident can be identified. The Court distinguished between cases where doctors owe a duty to non-patients, such as warning family members of genetic risks,¹⁹ and cases like Paul, where the harm suffered by the claimants was derivative of the patient’s injury and not the accident nor its immediate aftermath.

In the following discussion, I will argue that, although the decision resolves several contentious legal questions, it does so at the expense of imposing significant limitations on the scope of secondary claims for psychiatric injuries, leaving the law simultaneously clarified and constrained.

A. Confirmation of Taylor v Novo

A significant legal development in Paul lies in the Supreme Court’s decision to uphold the controversial reasoning in Taylor v A Novo (UK) Ltd, which in turn serves as the basis for the decision made in Paul itself.

Departing from the Court of Appeal’s reasoning in Paul, the majority in the Supreme Court held that Novo does not impose a strict requirement for proximity to the original negligence but instead emphasizes the importance of proximity to the accident itself.²⁰ The reasoning given appears rather intuitive and relied on the case of Clay v A J Crump & Sons Ltd,²¹ in which an architect who negligently left a wall standing was liable to a person injured two months later. Lord Leggatt and Lady Rose stated:

… the Court of Appeal could see no good reason why the gap in time (short or long) between the negligence and the horrific event caused by it should affect the defendant’s liability. Nor can we … we see no reason why, in a case of this kind, the gap in time between the negligence and the accident should prevent a claim by a secondary victim when it does not prevent a claim by a primary victim.²²

Ultimately, the Supreme Court’s decision in Paul solidifies the principle that secondary victims can only recover for psychiatric injuries if they witness an accident or its immediate aftermath. The law has been restored to a position of clarity and precision, prioritizing definable boundaries over expansive inclusivity.

B. Affirmation of the immediate aftermath concept

The Supreme Court also addressed the contentious doctrine of the ‘immediate aftermath,’ a concept that has been pivotal in determining proximity in secondary victim claims since McLoughlin²³ and, later, the series of cases arising out of Hillsborough Stadium disaster.²⁴

In McLoughlin, the House of Lords held that a mother who saw her injured family members in hospital shortly after a road accident could recover for psychiatric injury, as she had come upon the “immediate aftermath” of the accident. This interpretation had since been expanded, most notably in Galli-Atkinson v Seghal,²⁵ where the Court of Appeal allowed recovery for a mother who visited the mortuary hours after her daughter’s death in a road traffic accident. In Galli-Atkinson, the aftermath was treated as a ‘seamless activity’²⁶ of events stretching from the accident to the identification of the body.

In Paul, albeit in a lengthy consideration on how these principles fit into the requirement for there to be an accident, this expansive interpretation was rejected, and the reasoning in Galli-Atkinson was explicitly disapproved. The Court emphasized that the aftermath must be clearly and temporally connected to the accident itself, stating: ‘A reasonably clear line can be drawn if heed is paid to the observations of Lord Wilberforce that allowing the claim in McLoughlin²⁷  was “upon the margin of what the process of logical progression would allow”’.²⁸ Further to that was the clarification that claimants must encounter the victim in a condition that directly reflects the accident. For instance, in a state substantially unchanged from the incident itself, as in McLoughlin, where the family members ‘were still covered in mud and oil from the crash’.²⁹

This refinement of the immediate aftermath doctrine provides clarity on the threshold for recovery, particularly in medical contexts where the consequences of negligence often unfold over time. Having quashed the broad interpretation suggested in Galli-Atkinson, the Court has returned the state of the law on immediate aftermaths to a position of certainty, but curtailed the potential scope of secondary victim claims, making it more difficult for claimants to establish proximity.

C. Removal of the ‘sudden shock’ and ‘horrifying event’ requirements

In a move that both simplifies and sharpens the contours of the law, the Supreme Court in Paul decisively eliminated two of its most contentious requirements: the need for claimants to experience a ‘sudden shock’ and for the event to be deemed ‘horrifying’ by objective standards. This development, long anticipated by critics, represents a measured yet overdue acknowledgment of the evolving understanding of psychiatric harm. Indeed, the decision aligns with numerous scholarly proposals that viewed this shift not as revolutionary, but as an inevitable and rational step in the ongoing refinement of this area of tort law.³⁰

Earlier case law, particularly Alcock and Frost v Chief Constable of South Yorkshire Police, had emphasized the need for a sudden, traumatic moment to trigger psychiatric injury. Lord Ackner in Alcock described shock as ‘the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind’.³¹ However, the Supreme Court recognized that this requirement was rooted in outdated theories of psychiatric illness. As Lord Leggatt and Lady Rose observed: ‘The crude mechanical model which attributes psychiatric illness in such cases to an “assault on the nervous system” has long since been discredited’.³²

Similarly, the Court rejected the requirement that the event be objectively horrifying, describing it as ‘unnecessarily subjective’ and ‘unworkable’. In a striking description that has since been inserted into the annuls of fame, the majority wrote that ‘there is no available Richter scale of horror’.³³ Thus it is now clear that recovery should depend on the more objective factors of the claimant’s relationship with the primary victim³⁴ and closeness to the accident, rather than on an arbitrary assessment of the event’s horrifying nature.

IV. CRITIQUE

A. The accident requirement is an arbitrary line

A key difficulty with the Supreme Court’s decision is the requirement for claimants to have witnessed an accident or its immediate aftermath. According to the majority, the distinction between external events causing injury and internal processes resulting from pre-existing conditions, justified the exclusion of secondary victim claims in (most) clinical negligence cases.³⁵ The Supreme Court gave a number of reasons in favour of restricting liability to accidents. Specifically, (i) accidents are discrete events and whether someone was present at one admits a clear answer, unlike medical crises which are variable; (ii) witnessing an accident is likely to be disturbing and upsetting even if that person escapes unharmed, whereas this will not always be the case with a medical crises; and (iii) in accident cases it is difficult to distinguish primary and secondary victims (justifying expanding liability to the latter), unlike in medical crises cases where there is no question of the secondary victim being fearful for his or her own safety.³⁶

The Supreme Court’s affirmation of Taylor v Novo and the Alcock principles underscores a failure to adapt the law on secondary victim claims to distinct and evolving contexts. It is well understood that the Alcock principles emerged in response to the Hillsborough stadium disaster, shaped by significant policy pressures to limit liability to a manageable level.³⁷ These principles were crafted within a unique context, influenced by the unprecedented scale of the tragedy and the immediate, horrifying nature of the events—circumstances that are rarely mirrored in clinical negligence cases. While concerns about ‘opening the floodgates’ may explain the courts’ caution, this argument, thoroughly dissected in academic discourse, has long been revealed as more rhetorical than evidential.³⁸ The invocation of floodgates is, at best, a convenient spectre, and at worst, a poor foundation for shaping enduring legal rules. Although the Alcock principles served their purpose in forestalling a deluge of claims in the immediate aftermath of Hillsborough, these concerns do not carry as much weight in other contexts.

Scholars have been quick to observe that this rigid approach, originally designed for sudden accidents and not clinical negligence cases, prioritizes arbitrary temporal boundaries over substantive assessments of proximity and foreseeability, resulting in unjust outcomes.³⁹ The Supreme Court's approach in Paul was, to say the least, unexpected, arguably even startling, for its apparent lack of principle in addressing such a nuanced issue. Professor Rachael Mulheron aptly described it as a radical abolishment of secondary victim recovery in medical negligence cases, a decision that defied the more predictable options of either “ring-fencing” claims within the rigid confines of the Alcock principles or “unfencing” them by dismantling those strict requirements altogether.⁴⁰ Instead, the Court opted for an unprincipled compromise (albeit not entirely devoid of reasoning): it drew an arbitrary line in the sand, declared the matter settled, and left the complexities of medical negligence secondary victim claims blowing in the wind.

The inherent arbitrariness of the ‘accident’ requirement becomes especially apparent when applied to the domain of clinical negligence, where medical crises often unfold as the culmination of a negligent omission rather than as singular, discrete events. In cases such as Paul, the harm emerges from a chain of causation, beginning with a negligent act and concluding in a traumatic outcome. The temporal gap between the negligence and the eventual crisis is an inescapable characteristic of medical cases, yet it does nothing to lessen the foreseeability or gravity of the harm suffered by secondary victims in innumerable situations. To that tune, Lord Burrows condemned this distinction as one that ‘needlessly denies recovery in cases where the psychiatric harm is entirely foreseeable’.⁴¹ It is difficult to reconcile this exclusion with the fundamental principles of tort that are constructed around foreseeability.

The irony of the majority’s reasoning lies in the inherent inconsistency of its approach. On the one hand, the Court appears to be perfectly capable of rejecting the idea of a ‘Richter scale of horror’, reflecting their enlightened recognition that the severity of trauma cannot be objectively quantified or tethered to specific, dramatic events. On the other hand, the imposition of the ‘accident’ requirement effectively constructs a new scale—one that prioritizes the formal nature of the event over the actual impact experienced by the victim. The privileging of accidents rests, to some extent, on ideas that they are invariably more traumatic than other forms of events. Thus, the ‘give and take’ of the majority’s reasoning leaves the law in a state of flux—progressive in its rejection of certain antiquated elements, yet constrained by the persistence of formalistic definitions that remain at odds with the complex and multifaceted reality of psychiatric harm. As Lord Burrows noted in his dissent, the majority’s approach ‘risks ossifying the law on secondary victim claims and creating arbitrary distinctions that are difficult to justify in a modern context’.⁴²

Paul can be regarded as a missed opportunity to consolidate the law in a manner that harmonizes the clinical realities of medical practice with established tort principles. Critics of this area of law, both pre-Paul and in its aftermath, have been far from idle, and have offered thoughtful and principled proposals aimed at circumventing the persistent shortcomings of the current approach:

Rachael Mulheron advocates for retaining recovery in medical negligence cases by expanding the definition of ‘immediate aftermath’ or focusing on the consequences of negligence rather than requiring victims to witness the negligent act itself .⁴³

Imogen Goold and Catherine Kelly propose abandoning the Alcock control mechanisms altogether in favour of a more principled, negligence-based approach, treating secondary victim claims as independent duties rather than parasitic on the primary victim.⁴⁴

Harvey Teff, meanwhile, argued for eliminating the distinction between primary and secondary victims, focusing instead on whether the psychiatric harm was reasonably foreseeable. He also suggests removing arbitrary constraints, such as the need for sudden shock (which has been eliminated) or physical proximity, and incorporating close ties of love and affection into the broader question of foreseeability to reduce the emotional burden on claimants.⁴⁵

Lord Burrows, prior to his appointment to the Supreme Court, has called for a simplified approach that prioritizes causation and the existence of a recognized psychiatric illness, arguing that these factors alone are sufficient to limit liability without relying on restrictive rules.⁴⁶

There is no shortage of reasonable avenues for a more principled approach to secondary victim claims. Yet, strikingly, the law will now permit a secondary victim to succeed in their claim after witnessing a relatively minor accident and deny recovery to another secondary victim who endures the psychological toll of witnessing a far more harrowing ‘medical crisis’. This gives rise to a ‘hierarchy of trauma’, where the classification of the event, rather than the gravity of the harm, its foreseeability or its cause, dictates the claimant’s fate. Thus, to illustrate, it is now the state of the law that it is sufficient for a secondary victim claimant to have suffered recognized psychiatric harm through witnessing a loved one covered in mud and oil from an accident, but not for them to have suffered the same harm through witnessing a family member suffer a heart attack that results in a tragic fall that obliterates their skull on the pavement.

B. The limits of compassion: families and the doctor-patient relationship

The law does not impose a doctor’s duty of care on third parties who may suffer psychiatric harm due to a patient’s treatment or deterioration, as long as these unfortunate consequences are sufficiently remote from the initial incident—even for those closely connected to the patient. On this point, Robert Stevens incisively observes: ‘Paul itself involved what was, straightforwardly, a failure to prevent others to whom no duty had been voluntarily assumed from suffering injury’.⁴⁷

This conservative stance may be hard to reconcile with modern medical practice, where the welfare of a patient’s family is often inextricably bound to the patient. This observation is not without support. Advancements in disaster psychology provide compelling evidence that aggrieved family members of primary victims may endure psychiatric harm more profound than those who directly witness the precipitating event.⁴⁸ This perspective finds incremental reinforcement within the law itself, albeit at a lower level, as demonstrated by cases such as ABC v St George’s Healthcare NHS Trust,⁴⁹ which signal a prior gradual recognition of the interconnectedness between a patient’s care and the well-being of their close relatives.

Furthermore, the majority suggested that a duty might be owed to non-patients in circumstances where a doctor negligently sends home a patient with a highly infectious disease, as illustrated by the case of Evans v Liverpool Corporation.⁵⁰ A duty is arguably owed to the patient’s household who contract the infection as a result.⁵¹ Distinguishing these cases, the majority stated:

We express no view on the difficult questions raised by such cases, save to observe that, in relation to infectious disease, doctors are considered to have a responsibility to protect public health which is wider than their duty to protect the health of their patient and is reflected, for example, in statutory obligations which already existed when Evans v Liverpool Corporation was decided.⁵²

But this is an awkward basis for dividing these scenarios, given the important principle that it is ‘difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide’.⁵³ The doctor’s duty of care at common law is derived from the professional relationship rather than statutory duties to protect public health.⁵⁴

It may be, as the majority suggest, that there is no such duty. However, in Luk Mary v Hong Kong Baptist Hospital,⁵⁵ the Court of First Instance in Hong Kong refused to strike out such a case. Notably, even in the wake of the COVID-19 pandemic, this reasoning has not triggered a deluge of claims overwhelming either the Courts or the public health system. While it is true that the nature of the harm in infectious diseases provides a more tangible basis for secondary claims than those psychiatric injuries, it could result in just as wide a pool of claimants, as the number of people infected by COVID-19 vividly illustrates. It may be that there is a convincing way of separating these scenarios in a manner that does not stigmatize mental illness or treat psychiatric injuries as lesser than physical ones. Until such reasoning is supplied, it is hard to see why duties to secondary victims who have suffered psychiatric harm should be excluded.

Speaking of the Hong Kong courts, it is worth noting the psychiatric injury case of Lee Wah v Lok Wai Wa.⁵⁶ The secondary victim, a mother, returned home from work at approximately 5:00pm to find a note on her door informing her that her son had been involved in an accident. Upon arriving at the hospital, she was unable to see her son while resuscitation efforts were being carried out. Her son was subsequently pronounced dead at 9:39pm. This case did not involve a medical crisis, yet the success of her claim reflects a notably generous application of the Alcock control mechanisms. Even though Hong Kong is no longer constitutionally bound to follow authority from the UK, it has been observed that, ‘in the absence of good reason, the common law in Hong Kong should not part company with that prevailing in England and Wales.’⁵⁷ Thus, the question inevitably arises: should Paul be followed in other common law jurisdictions? Claims for psychiatric injuries are a relatively rare feature in the reported case law in Hong Kong. Whatever one thinks of the floodgates arguments, it might be argued that the policy, highlighted by Lord Wilberforce in McLoughlin, that there is ‘a real need for the law to place some limitation upon the extent of admissible claims’,⁵⁸ does not necessarily apply with the same urgency outside of the UK. While it should not necessarily be overstated, the practice in Hong Kong for greater involvement of families in medical decision-making provides an important counterweight to the more restrictive interpretation of the doctor-patient relationship in Paul and might supply a reason for it not to be followed in other common law jurisdictions.⁵⁹

The intention here is not to undermine the legitimate policy objective of shielding medical practitioners from overreaching liability.⁶⁰ Indeed, such concerns are grounded in tangible realities—excessive exposure to liability risks could undoubtedly lead to undesirable consequences, such as the adoption of defensive medical practices.⁶¹ However, the courts have an equal duty to craft a framework that strikes an equitable balance between these considerations and the demands of justice. It is arguable that the current state of the law does not achieve this and excludes deserving claims on dubious grounds.

V. CONCLUSION

By correcting the Court of Appeal’s mistaken interpretation of Taylor v Novo, the Supreme Court decision in Paul brings no small measure of clarity to the law. The same could also be said about its excision of the requirement for claimant’s to demonstrate that they have been subject to a horrifying event. Yet these welcome developments are overshadowed by its restrictive approach to clinical negligence claims in this context. One arbitrary line (horrifying events) is replaced by another (accidents). The law may be clearer, but, as I argued in this commentary, it comes at the expense of excluding many deserving claims. In this commentary, I also questioned whether the Supreme Court’s reasons for excluding a duty of care owed by doctors to a patient’s family members were convincing. Such scepticism is particularly acute in other common law jurisdictions, particularly in Asia, where the family play an important role in medical decision-making and where floodgates is less of an issue in psychiatric injury cases. Given the shortcomings with the majority’s approach, it is likely that this area of law will remain troublesome.

Footnotes

ACKNOWLEDGMENTS

Special Thanks to Dr Craig Purshouse.

Conflict of interest: None declared.

FUNDING

None declared.