The impact of witnessing the sudden death of a loved one can never be underestimated, and in such instances people may be compelled to seek legal redress if they feel the death has been caused by another. A Supreme Court ruling has highlighted, however, how difficult it can be to pinpoint blame when it comes to cases where the claimant is a 'secondary victim'.
Three cases came before the Court conjointly, each involving damages claims for psychiatric illness caused by the experience of witnessing the death of a close family member in distressing circumstances. In all three cases the death in question was alleged to have been caused by the negligence of a doctor or health authority in failing to diagnose and treat a life-threatening medical condition. The cases had previously been dismissed by the Court of Appeal.
The appeals to the Supreme Court hinged on whether or not a doctor owes a duty of care to members of a patient's close family to protect them against the risk of harm arising from witnessing the death or injury of their relative caused by the doctor's negligence.
The Court acknowledged that witnessing the death from disease of a close family member can have a powerful psychological impact, in addition to the grief and deep distress caused by the death. On an in-depth exploration of case law, however, the appeals were dismissed by a majority of six to one.
Setting out its decision, the Court explained that the law allows a person to claim compensation for personal injury caused by witnessing an accident, or the immediate aftermath of an accident, brought about by a defendant's negligence, in which a close family member is killed or injured, or put at risk of death or injury. However, the Court concluded that no analogy could reasonably be drawn between cases involving accidents and cases where the claimant suffers illness as a result of witnessing a death or injury brought about by an untreated disease. The Court was also not persuaded that a doctor's responsibilities extended to protecting members of a patient's close family from exposure to the traumatic experience of witnessing the death or illness of their relative.