The narrow(ing) scope of duty: clinical negligence and secondary victims after Paul and others v Royal Wolverhampton NHS Trust

Abstract

In Paul and others v Royal Wolverhampton NHS Trust the United Kingdom Supreme Court (UKSC) held that a doctor who negligently misdiagnoses a patient does not owe a duty to family members who witness their death or injury. Such claimant witnesses – or ‘secondary victims’ – have hitherto been able to claim for psychiatric injury under an exception to the rule that there is no compensable interest arising from the death or injury of another. The majority of the UKSC curtailed this exception which, to quote the dissenting Lord Burrows, ‘will mean that recovery for negligently caused psychiatric illness by secondary victims will be closed off in medical negligence cases’. This commentary explores the pragmatism adopted by the court and its application of the ‘scope of duty’ principle. Placing this principle in a critical context, I argue that the scope of duty in clinical settings risks becoming unduly narrow and will limit access to justice for families. The decision will further amplify debate about wide-scale reform of National Health Service litigation, including a move towards a no-fault system focused on learning and accident-prevention.