Paul

Mr Paul suffered from type II diabetes and from complications of this condition. He was admitted to New Cross Hospital in Wolverhampton for chest and jaw pain which radiated to the left arm, and was treated for acute coronary symptoms from November 9 to 12, 2012. On January 26, 2014, Mr Paul suffered a heart attack and collapsed in front of his two children (one 12 and one 9) while shopping. The children, who are the claimants, sustained psychiatric injury since that day. Mr Paul’s heart attack was caused by ischemic coronary artery  arteriosclerosis, which, in claimants' case, should have been successfully treated by coronary revascularisation if the defendant performed coronary angiography in November 2012.

Polmear

Esmee Polmear, aged 7,  had a history of strange episodes during which she could not breathe, appeared pale and turned blue after a few minutes. Esmee and claimants went to a paediatrician at the hospital on December 1, 2014, and underwent ambulatory ECG monitoring from January 21 to 22, 2015. On July 1, 2015, after a school trip, claimant carried Esmee to school, after he walked away, Esmee collapsed. The school staff, claimants, and the paramedics tried to rescue her, but they were not successful. The first claimant has developed post-traumatic stress disorder and major depression, and the second claimant has developed post-traumatic stress disorder and major depression with addictive behaviour.The defendant admits that Esmee’s condition should have been diagnosed by mid-January, 2015.

Purchase

Evelyn Purchase, aged 20, died on April 7, 2013 for extensive bilateral pneumonia with pulmonary abscesses. She was examined by the defendant on April 4, 2013,and was prescribed with antibiotics and an antidepressant. She complained of heart palpitations on April 6, 2013, and was died on April 7, 2013. Claimant has developed post-traumatic stress disorder, severe chronic anxiety and depression with continuing symptomatology. In the claimant’s case, defendant had a negligent failure to properly assess and treat Evelyn’s symptoms, since Evelyn already had severe pneumonia when seen by the defendant.

The issue here is "how the authorities are to be applied to clinical negligence cases where there is a delay between the negligent act or omission and a horrifying event caused to the primary victim by that negligent or omission."[2]

1)  Review of five elements

Firstly, the court affirms that "the five elements (‘Control System’) required to establish legal proximity in secondary victim cases apply as much to clinical negligence cases as they do to accident cases."[3]

In Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (Alcock), Lord Oliver described a "control system"limiting liability for psychiatric injury: "Firstly, 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."[4]

For the first and second elements, all three cases at hand are close relatives, and the claimed damages, which were the psychiatric injury, arise from the sudden and unexpected shock to the claimants’ nervous system (Nervous Shock). As to the fourth element, all claimants witnessed the death of the primary victim. For the fifth element, Sir Geoffrey Vos interprets that the term "event" in Lord Oliver’s fifth element was referring to "the event of injury to the primary victim" (or the aftermath of it) which was witnessed by the claimant. [5] That is to say, the "event"in  Lord Oliver’s fifth element, was referring to the "horrific event" in Sir Geoffrey Vos’s reasoning. In this connection, the injury suffered by the claimants has not only physical proximity to the horrific event, but also has a close temporal connection between the horrific event and the claimants’perception of it.

When it comes to the third element, Sir Geoffrey Vos found that such requirement originated from Lord Wiberfrce’s statement in McLoughlin v. O’Brian [1983] AC 410: judgment 6 May 1982 (McLoughlin). Lord Wiberfrce stated in McLoughlin that: "As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the ‘nervous shock.’"[6]Sir Geoffrey Vos wrote in the conjoined judgment that, if simply considering the requirements and applying to the clinical negligence situation, although the horrific event took place  later than the defendant’s negligence, the fact and consequences of the negligence was close in time and space to the moment when the claimant were caused psychiatric injury. Also, the claimants were either personally present at the scene (the horrific event) or was "in more or less immediate vicinity and witnessed the aftermath shortly afterwards."[7]

In this connection, the court found that these cases were all satisfied with the so called "control mechanism" raised in Alcock. Without regards to the authorities, the court did not find any reasonable grounds to explain why the temporal gap between the negligence and the horrific event should affect the defendant’s liability to the secondary victim.

2) The court considered counsels’ opinions regarding to the above-mentioned question.

Mr Weir, counsel for Paul claimants, suggested that a secondary victim can only claim damages for that psychiatric injury if that horrific event is the "first manifestation of damage to the primary claimant by the negligence." [8]However, Mr Bagot, counsel for the defendants, suggested that a secondary victim can only claim damages for that psychiatric injury if that horrific event is "the damage completing the primary claimant’s cause of action in negligence."[9]

Sir Geoffrey Vos rejects and suggested that it is " illogical to make the liability of a defendant for psychiatric injury caused to a secondary victim depend on whether the primary victim’s cause of action had been complete, or whether that primary victim had sustained manifest damage, before the horrific event undoubtedly caused by the defendant’s negligence." [10]"What is a relevant horrific event is not dependant either on the completion of the primary victim’s cause of action for negligence or the first manifestation of injury to the primary victim" [11]Also, Sir Geoffrey Vos followed Lord Oliver’s opinion in Alcock that "actual injury or damage to the the primary victim is not even necessary to found liability to the secondary victim."[12]He made it clear that the five elements raised in Alcock addressed the legal proximity issue between the secondary victim and the defendant. "What is important is the horrific event itself that caused the secondary victim the psychiatric injury in respect of which the claim is made."[13]

3) The Court considered the statute and precedent and found that it was unable to conclude that the five elements were satisfied.

In Novo, Lord Dyson decided that the gap between the first event (a stack of racking boards fell on claimant’s mother) and the the death three weeks later was fatal to liability. He decided that  "Novo’s negligence had two consequences which were separated by three weeks in time."[14] Lord Dyson described that had the claimant was present at the scene (when the racking boards fell on her mother), then she could have qualified as a secondary victim. However "to allow Ms Taylor to recover as a secondary victim on the facts of the present case would be to go too far."[15]

Though Novo was not a clinical negligence case, Sir Geoffrey Vos deemed that Lord Dyson would clearly approve what Auld J had decided in Somerset [16]which was a clinical negligence case. "Auld J had made clear that the five elements did not allow recovery for anything that occurred beyond the aftermath of an accident."[17]

4）Conclusion

In these circumstances, the court decided that it was bound by Novo, and claimants’ claims failed. [18]Sir Geoffrey Vos decided in the conjoined judgment that  "Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event. "[19] In the last of the judgment, he wrote that he was "prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case."[20]

Chapter VI of the "PRC Civil Code" stipulates the liability for compensation of medical damage . The "Regulations on the Administration of Medical Malpractice" defines medical malpractice, and Article 25 of the “Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Medical Damage Liability Dispute Cases (2020 Amendment)” stipulates: "After the death of a patient, his close relatives compensation for medical damages, this Interpretation shall apply; if the person who paid the patient's medical expenses, funeral expenses and other reasonable expenses requests compensation for such expenses, this Interpretation shall apply." Article 1 of the “Supreme People's Court Regarding the Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (2022 Amendment)” stipulates: "Where the compensation obligee sues the compensation obligor to compensate material and psychiatric injury due to infringement of life, body or health, the people’s court shall should be admissible."

Generally speaking, the deceased is not a person in the sense of the civil law. The law sets close relatives as the subjects of the right to claim compensation for tort death damages,"because close relatives and the deceased often have economic ties and emotional dependence. The death of the victim brought a series of damages to them: medical expenses and funeral expenses for the relatives of the victims, 'pure economic losses'such as missing work to take care of relatives; loss of support or reduction of material living standards due to the death of relatives; They experienced the greatest pain of parting from life and death, they are entitled to the above claim rights, on the basis of which they were suffered, rather than a claim for damages inherited by the deceased who is injured." [27]That is to say, the right of close relatives to claim compensation for damages is independent of the fact that the primary victim was injured. In other words, the death of the primary victim was only a legal fact, and its occurrence triggered the right of close relatives to claim damages.

Professor Zhang Xinbao differentiates compensation for psychiatric injury into "nominal mental damage" and "proven mental damage". As for the former, "the claimant does not need to prove the occurrence of the damage, as long as the tort causes the death of the direct victim or seriously injures the minor, the claimant can obtain nominal compensation." [28]The latter requires the claimant to prove the existence of significant psychiatric injury in order to obtain higher compensation.

Compared with the five elements in the UK, firstly, similarly, China limits the secondary victims who have the right to claim to "close relatives". That is, parents, spouses, children, and may extend to grandchildren and grandparents. Secondly, the claims for psychiatric injury compensation raised by close relatives are usually supported by the court.  Whether such close relatives are present at the scene or are in immediate vicinity and witnessed the aftermath, and whether they are closely related to the case in terms of time, space and feeling are not necessary elements to constitute compensation for psychiatric injury. [29]Thirdly, whether the horrific event of the primary victim (such as death) is sudden, shocking, or dramatic may affect the amount of compensation for psychiatric injury, but it will not affect the establishment of the right of close relatives to claim compensation for psychiatric injury. Finally, according to Professor Zhang Xinbao's point of view, after the death of the primary victim, close relatives will suffer psychiatric injury by default. This is a prima facie case, and there is no need to prove the occurrence of damage.

Regarding the time interval between the clinical negligence and the horrific event, the Chinese courts are also different from the British courts. Here follows a case to illustrate this point:

On August 12, 2019, Mrs Zhang was diagnosed the thyroid nodules in the hospital, so he went to a street clinic to undergo treatment. The doctor Mr. Wang in the clinic prescribed traditional Chinese medicine to Mrs Zhang. After taking the medicine, Mrs Zhang experienced symptoms such as decreased appetite and physical strength. During the follow-up visit, the doctor Wang Moumou did not remind Mrs Zhang to test his liver function. On July 17, 2020, Mrs Zhang was hospitalized in a certain people's hospital in Wuxi City due to palpitation, trembling hands, and yellow complexion. After consultation, the doctor determined that the excessive iodine content in traditional Chinese medicine aggravated the thyroid condition and caused abnormal liver function. On September 25, 2020, Mrs Zhang went to Shanghai Zhongshan Hospital for treatment, and was diagnosed with drug-induced liver failure, and died on October 19, 2020.

When hearing the case, the trial court focused on whether the medical staff member Wang Moumou had faulty behavior (qualification issues, whether there were medical records, etc.), and whether the faulty behavior had a causal relationship and participation in the death of the patient Mrs Zhang. What is the degree and so on.[30]