Most readers will have noted with interest the recent decision of the UK Supreme Court in three linked cases, referred to in abbreviated form as Paul, Polmear and Purchase (Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1). 

In each of those three cases the claimants were close family members of a deceased individual. In each case the deceased individual had unfortunately been the victim of medical negligence (which had not been witnessed by the claimants) that had ultimately caused their deaths (which had been witnessed by the claimants in circumstances which had caused them psychiatric injury). 

The Supreme Court was faced with the difficult task of deciding whether the claimants, as secondary rather than primary victims, could make claims against the relevant hospital and its negligent staff. There was conflicting authority on the issue. The Supreme Court resolved that conflict by creating new precedent in which it firmly limited the basis on which a secondary victim claim could be made. Now, a secondary victim claim can be brought only if the claimant can satisfy two tests:

1. The claimant must have a close bond of love and affection with the primary victim
2. The claimant must have been present at the scene of the material accident or its immediate aftermath

As none of the secondary victim claimants in Paul, Polmear or Purchase was present at the scene of the material accident, which in every case was negligent treatment in hospital, they could not succeed with their claims.

So far, so clear, and in the UK one can readily see parallels for potential claims by parents where their children have been abused by a third party which they subsequently find out about. 

Following the Supreme Court decision such a claim would not succeed. However, that is not the position in every jurisdiction. In the Australian case, RWQ v The Catholic Archdiocese of Melbourne & Ors. the father of a deceased abuse victim had discovered for the first time that his son had been abused by the infamous cleric George Pell only after his son had died of a heroin overdose precipitated, it was contended, by the son’s inability to cope with the abuse and its effects. On learning of the abuse, the father suffered a psychiatric reaction. He sued the diocese for compensation for the injury that he had suffered, arguing that it flowed directly from the abuse that Pell had committed. 

At first instance, the father succeeded. Statute in the state of Victoria, in which the abuse had occurred, permitted claims for personal injury ‘founded on or arising from’ abuse without apparent limit on the classification of who could claim. The father could proceed with his claim. Furthermore, the diocese was now obliged to nominate a proper defendant to incur any liability (which had previously been a loophole through which certain non-governmental organisations had attempted to avoid a potential civil liability).

The diocese’s application for permission to appeal was dismissed on the grounds that there were insufficient prospects of success (The Catholic Archdiocese of Melbourne v RWQ (a pseudonym) [2023] VSCA 197). Undeterred, the diocese tried again. It asked the High Court of Australia for special leave to appeal. On 8 February 2024 we had the High Court’s answer. Permission to appeal has, yet again, been refused on the grounds of insufficient prospects of success.

The diocese’s race is run, at least on liability. It will have to defend RWQ’s secondary victim claim but on causation and quantum only.

Organisations and their insurers that face secondary victim claims in different territories now face something of a jurisdictional lottery. In the UK, for example, the legal limits are now clearly delineated and will undoubtedly restrict the scope of future secondary victim claims. However, in places like the state of Victoria it can confidently be predicted that for every abuse claim by a primary victim there is the very real potential that one or more secondary victim claims will follow.