This article is published as part of Capsticks’ Medical Malpractice and Casualty Forward View 2023.

Will the law on psychiatric damage/ secondary victims shift again?

The Supreme Court is due to hear the Claimants’ appeal in Paul & Paul v Royal Wolverhampton NHS Trust (2021) on 23 May 2023.

Last year the Court of Appeal determined that a 14 month gap in time between the negligent treatment (for the late Mr Paul’s cardiac problems) and the horrifying event (his death from a heart attack witnessed by his daughters), meant that ‘proximity’ between the two was not established in law.

The appeals (which included two conjoined cases of Polmear and Purchase) were dismissed, based on the court being bound by its earlier decision in Taylor v A Novo Ltd (2013).

The decisions were welcome news for defendants but Underhill LJ’s obiter comment that “if the point were free from authority, I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover” suggests the law on secondary victims may be starting to shift again. If it does, a major hurdle for claimants will be removed and we may see an increase in both the number and success rate of claims.

Will the Supreme Court modify the test for vicarious liability?

The Defendant’s appeal in The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB (2021) is due to be heard in February 2023.

The Court of Appeal found the defendant vicariously liable for the rape of an adult member of the congregation at her home, by an unpaid volunteer elder.

Permission to appeal was granted in relation to the issues of whether:

• the relationship between the defendant and elder was akin to employment
• the connection between the two was sufficiently close for vicarious liability to be established.

The Supreme Court’s decision will be important not only for religious organisations, but in other settings where the wrongdoer is in a position of responsibility and moral authority. It remains imperative that any organisation whether an employer or not, should fully assess organisational risks in the context of the environment in which they operate. This includes situations which might at first sight appear to fall outside the scope of the duty of care.

In a healthcare setting private providers need to ensure clear contractual arrangements are in place to allow full recovery from an individual surgeon’s indemnifier where appropriate.

Further information on the Court of Appeal decisions in both these cases can be found in Medical Malpractice Review 2021.

Will dementia risk be considered suitable for a provisional award?

In May 2023, the claimant’s appeal in Matthieu v Hinds (2022) will be heard by the Court of Appeal. The High Court awarded provisional damages for the epilepsy risk from a traumatic brain injury, but the claim for the dementia risk was rejected as the judge considered the evidence base to be insufficient.

The need to ‘buy off’ the risk of a provisional damages award for epilepsy risk is fairly common in brain injury cases. Claims for dementia risk are a newer phenomenon, but are becoming more common. We understand that Mathieu is the first case where the issue was litigated. The decision is important for defendants and their insurers. Had a provisional award been made, wholesale review of brain injury claims reserves would have been necessary and claims values would have been likely to increase.

Further information on the High Court decision can be found in Insurance review summer 2022.

Medical Malpractice and Casualty Forward View 2023

This article is part of Capsticks’ Medical Malpractice and Casualty Forward View 2023.

Read the other articles featured in this publication below:

• Concussion in sport: the next industrial disease claim?
• Courts will continue to take a robust approach to fraud, but defendants should be rigorous when assessing the strength of their case
• Private surgeons could face Covid-19 related claims
• Covid-19 public inquiry: private hospitals may face requests for statements and documents
• Government prepares for Personal Injury Discount Rate (PIDR) review
• There could be an increase in the cost of care claims, but a decrease in the cost of accommodation claims
• Private hospitals and MedTech companies will need to keep an eye on emerging product and general liability risks
• New legislation may mean more clinical trials, but ‘lighter touch’ regulation and some simplified procedures
• Legal liabilities for transport of the future: e-scooters and self-driving vehicles
• Fixed recoverable costs (FRCs) – timetable delayed
• Civil Procedure Rules Committee (CPRC) may be the bearer of good news for defendants

Get in touch

Aiming to be the firm of choice for medical malpractice and casualty insurers, we advise and support on all aspect of claims and inquests.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan or Chery Blundell.