This article was written by Liam Ryan.
The law relating to secondary victim psychiatric injury has long occupied a difficult and turbulent area of the law of negligence. Following the Supreme Court decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, the legal landscape was reconfigured. By a majority of six to one, the Court reaffirmed that secondary victim claims are confined to those arising from the witnessing of an “accident”, defined as “an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means” (paragraph 24).
MIM v Sheffield Teaching Hospitals NHS Foundation Trust [2026] EWHC 562 (KB) represents one of the first reported applications of the Paul principles in the High Court. Despite the admitted negligence of the defendant Trust, HHJ Evans, sitting as a judge of the High Court, struck out the claim on the ground that what the claimant witnessed did not constitute an “accident” within the meaning of Paul.
The Facts
The claimant’s wife was admitted to the Jessop Wing of the Royal Hallamshire Hospital on the evening of 30 May 2020 for induction of labour. Syntocinon was administered on the evening of 31 May 2020 and labour progressed through the night into the early hours of 1 June 2020. By 06:50, the claimant’s wife wished to begin pushing. The CTG trace deteriorated from 08:10 onwards, on the claimant’s case. The baby was ultimately born by spontaneous vaginal delivery at 09:47, requiring immediate resuscitation and therapeutic cooling in the neonatal intensive care unit following an acute profound hypoxic brain injury. The claimant developed an adjustment disorder as a result of what he witnessed.
The defendant admitted negligence in the management of the labour, delivery should have taken place by 09:30 rather than 09:47, and delivery between 09:41 and 09:44 would have avoided all injury.
The claimant remained present throughout. His experience, as pleaded in the Particulars of Claim, included the fetal monitor alarming repeatedly with staff silencing it, apparently irritated by its frequency, a consultant advising that he would wait a further fifteen minutes before intervening, confusion among staff as to responsibility for care, and the claimant describing the final thirty minutes as “horrendous” and “panic stations”. His pleaded case was that what he witnessed amounted to an “external, traumatic, event which immediately caused injury to his son”.
The defendant applied to strike out the claim on the basis that the facts as pleaded disclosed no legally recognisable secondary victim claim, and that Paul was fatal to it. Miss Jones, for the defendant, accepted that if the claimant could establish that he had witnessed an “accident”, the application would fail.
The Law
The requirements for a secondary victim claim derive from Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and the subsequent trilogy of House of Lords authorities. A claimant must establish a close tie of love and affection with the primary victim, presence at the scene of the accident or its immediate aftermath, direct perception of the event through their own unaided senses, and a recognised psychiatric illness caused by the shock of what they witnessed.
In Paul, the Supreme Court confirmed that an “accident” is a necessary precondition of any secondary victim claim, defined as “an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means” (paragraph 24). The Court identified three features of accident cases that justify treating them as a distinct and bounded category. Most relevant to MIM was the first: that an accident is a discrete event, “something which happens at a particular time, at a particular place, in a particular way” (paragraph 108), thereby providing the legal certainty required to determine whether a secondary victim was present and directly perceived the qualifying event. The third was that in accident cases it is often difficult or arbitrary to distinguish between primary and secondary victims, a consideration that does not arise in pure medical treatment scenarios (paragraph 110).
The Court further held that claims arising from a “medical crisis”, where death or injury results not from an external traumatic event but from pre-existing injury or disease are not analogous to accident cases and cannot succeed (paragraph 142). North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, in which the claimant mother had succeeded after witnessing her baby suffer an epileptic seizure, receive a negligent misdiagnosis, and die thirty-six hours later, was held to have been wrongly decided on this point (paragraph 120).
Lord Burrows dissented. He considered that the majority’s insistence on an “accident”, an event external to the primary victim was an unjustified restriction that contradicted the weight of the medical negligence authorities, in particular Walters. He emphasised that the Government, in response to the Law Commission’s 1998 report, had explicitly declined to legislate and had passed responsibility for developing this area of law back to the courts in those circumstances, the Supreme Court was obliged to move the law forward incrementally rather than to ossify it. He was unpersuaded by the concern as to NHS liability, observing at paragraph 249 that this “is not the type of socio-economic policy argument that the courts are well-equipped to assess”. He would have overruled Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 and treated the death of the primary victim as the relevant event in each of the three conjoined appeals.
The Judgment in MIM
The claimant advanced two arguments. First, that what the claimant witnessed did amount to an “accident”, characterised as a “continuum” running from the point at which the claimant observed staff appearing not to know what was going on, through the repeated alarms, and culminating in delivery (paragraph 22). Second, and in the alternative, relying on paragraph 57 of Paul, he submitted that an accident is not the only route to a secondary victim claim. He further submitted that the temporal proximity between negligence and injury distinguished MIM from the conjoined cases in Paul, and that everything done in the management of the mother was external to the baby.
HHJ Evans rejected each argument. On the alternative route to liability, she concluded at paragraph 21 that applying the judgment of Paul as a whole, “in order to succeed a secondary victim must have witnessed an accident which caused (or had the capacity to cause) injury to the primary victim”.
On the central question, HHJ Evans began by standing back and asking how the ordinary person would characterise events, concluding at paragraph 28 that “the ordinary person would not say that what happened here was that MIM witnessed an accident which caused injury to his son” but rather that he “witnessed the process of labour and the birth of his son in an injured condition” being a negligently caused medical crisis, rather than an accident.
Applying the Paul definition, HHJ Evans held at paragraph 32 that the matters pleaded could not constitute “a discrete event, happening at a particular time, at a particular place, in a particular way”. The claimant’s own use of the word “continuum” was forensically self-defeating as a “continuum” is by definition incapable of being pinpointed, and the discreteness requirement exists precisely to provide the legal certainty that Paul demands.
The Hillsborough analogy advanced by the Claimant was roundly rejected at paragraph 31. HHJ Evans observed that the example conflated the accident with the breach of duty. In Hillsborough the accident (the crush) was itself a discrete event. The claimant in MIM was conflating the negligence (failure to expedite delivery) with an accident, but there was no accident as the injury arose from internal physiological processes during labour, not from any external event.
At paragraph 33, HHJ Evans held that the monitor alarm was not an unexpected or unintended event causing injury by external means. It was a manifestation of injury, not its cause. The injury arose from the period of hypoxia during the bodily process of labour and birth. She could identify no principled distinction between the failure to expedite delivery and the failure to diagnose Mr Paul’s coronary artery disease, both permitted a physiological or pathological process to proceed unchecked.
The argument that everything done in the management of the mother was “external” to the baby was also rejected at paragraph 35. There was no accident to the mother, and the ordinary internal workings of the mother’s body having an effect on the unborn child could not, in any normal sense, be described as an accident. The temporal proximity between negligence and injury added nothing, given that Paul expressly holds there is no requirement of closeness in time between breach and accident (at paragraphs 95 and 96).
HHJ Evans struck out the claim under rule 3.4(2)(a) CPR, concluding at paragraph 37 that the facts as pleaded could not amount to the witnessing of an accident as required by Paul. She closed at paragraph 38 by expressing her sympathy to the claimant and his family, making clear that striking out the claim was “not to minimise in any way the seriousness of the Defendant’s negligence”.
Conclusion and Practical Implications
MIM confirms that Paul imposes a formidable and in most clinical negligence cases an insurmountable threshold for secondary victim claims. Three points warrant particular attention for practitioners.
First, creative pleading cannot convert a medical crisis into an accident. The “continuum” argument, though forensically astute, failed because it misunderstood what Paul requires. A court must assess the character of events as a whole and ask whether the ordinary person would call it an accident. A succession of clinical failings during labour will rarely satisfy that test.
Second, temporal proximity between negligence and injury is legally irrelevant to the secondary victim analysis. Paul sets out that there is no requirement of closeness in time and space between breach and accident. The fact that a claimant witnesses negligence and its consequences in real time does not bring the claim within the accident category.
Third, the question left open at paragraph 123 of Paul, whether a doctor administering a wrong drug causing an immediate adverse reaction witnessed by a family member could constitute an “accident” remains unresolved. HHJ Evans acknowledged at paragraph 36 that Paul “does not preclude a secondary victim from ever succeeding in a claim arising out of clinical negligence” and that “whether what a claimant witnessed amounted to an accident or a medical crisis will be a question to be decided on the facts of each individual case”. In the right factual circumstances a discrete, unexpected, external clinical act causing immediate and observable harm, such a claim may remain arguable.
The decision in MIM, whilst significant and difficult for those advising claimants in negligent birth injury cases, faithfully applies the framework laid down by Paul. Within it lies the essential and unresolved tension at the heart of this area of law: the disparity between the need for legal certainty and the devastating human impact that clinical negligence continues to have, not only on primary victims, but on those who love them.
As clinical practice evolves and the courts encounter increasingly varied factual scenarios, there will be cases that test the boundaries of the definition more acutely than MIM was able to do. More broadly, the tension identified by Lord Burrows in his dissent between an incrementally developing common law and the rigid certainty demanded by the majority has not been resolved, but rather deferred.
Practitioners need to be clear with clients about the distance that now exists between what a person suffers as a secondary victim of clinical negligence and what the law is presently willing to remedy. The human cost of that distance is not abstract. It falls on real families, at moments of devastating vulnerability, at exactly the point when the legal system might reasonably be expected to stand behind them. Whether the legislature will act or if the law will continue to develop case by case remains to be seen. What is clear is that secondary victims in clinical negligence cases deserve better than a framework which, as currently applied, leaves most of them without a remedy regardless of how proximate, foreseeable and profound their suffering has been.
