No Tortious Duty of Care for Mental Harm Owed in UK to Relatives of Patients Suffering Injury or Death in Consequence of Medical Negligence

In a recent decision of the Supreme Court of the United Kingdom – in Paul v Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [2024] UKSC 1 (11 January 2024), by a majority of six members of the court, with one dissentient – it was concluded that, in respect of psychiatric injury sustained by a close family member of the patient – in consequence of witnessing the death or medical crisis involving their the patient from a condition which the medical service or doctor negligently failed to diagnose or treat – no tortious duty of care was owed.  It need be accepted that the primary reasoning of the court turned on UK common law, which differs from Australian common law as to the prerequisites for recovery at common law apropos of such third party injury, but the ultimate decision of the court transcended such reasoning. The court concluded that while doctors and hospitals owe an actionable duty of care to protect the patient’s health, as a matter of policy they do not owe a duty of care to the patient’s close family members apropos of the risk of them suffering psychiatric illness from witnessing the patient’s death or medical crisis.  The reasons of the majority were delivered by Lord Leggatt and Lady Rose (with whom Lords Briggs, Sales, Richards and Carloway agreed). They wrote:

1. Introduction

1.  We all die and, when we do, the fact or manner of our deaths may cause harm to other people. Often such harm is readily foreseeable. We all know that the death of someone’s child, or of their partner, or of a young child’s parent, will cause grief and suffering and can have prolonged and profound effects on physical and mental health. Death may also have damaging, even ruinous, financial consequences for family members or others who were dependent economically on the deceased.

2.  Under the common law the rule was that “in a civil court, the death of a human being could not be complained of as an injury” by another person: Baker v Bolton (1808) 1 Camp 493 (Lord Ellenborough); Admiralty Comrs v SS Amerika [1917] AC 38. This is still the general rule. The same rule applies where the victim does not die but is severely injured. Essentially, the common law does not recognise one person as having any legally compensable interest in the physical well-being of another. The law affords compensation to the victim but not to others who suffer harm in consequence of the victim’s injuries or death, however severely affected they may be: see eg D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373, paras 102-105.

3.  There is a statutory exception, introduced by the Fatal Accidents Act 1846 (9 & 19 Vict c 93) and now contained in the Fatal Accidents Act 1976, which gives certain dependants of a person whose death is caused by a wrongful act, neglect or default the right to sue and recover damages from the person who (if death had not ensued) would have been liable to the deceased. Originally such damages were only recoverable to compensate dependants for financial loss resulting from the death. Since 1991, when a new provision was added to the 1976 Act, a spouse or partner or parents (if the child was an unmarried minor) of the deceased can recover damages for bereavement whether or not they were dependent on the deceased; but these damages are limited to a fixed sum (currently £15,120). No remedy under that Act is otherwise available for physical or psychological harm caused to relatives or others by the death.

4.  There is a further limited category of cases, recognised by the common law, in which damages may be recovered for personal injury consequent on the death or injury of another person. In these cases, it is not the death or injury of that person itself or the defendant’s responsibility for it which gives rise to the claim but the fact that the claimant has witnessed the wrongful death or injury (or threat of such death or injury) to someone they love. The scope of this category of cases is the subject of these appeals, and we will need to consider it in detail. But it certainly includes cases where the claimant suffers personal injury (typically, but not limited to, psychiatric illness) as a result of witnessing an accident in which a close relative is killed or injured (or put in peril of death or injury) as a result of the defendant’s negligent act or omission.

5.  The key issue raised by these appeals is whether this exceptional category of case includes – or can and should be extended to include – cases where the claimant’s injury is caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant has negligently failed to diagnose and treat.

6.  Each of the three cases under appeal involves such a claim. In two of the cases (Paul and Polmear), the claimants were present when their father (in the case of Paul) or their young daughter (in the case of Polmear) died in shocking circumstances. In the third case (Purchase), the claimant came upon her daughter in such circumstances a few minutes after her death. In each case it is the claimants’ case that the death was caused by the negligence of the defendant doctor or health authority in failing to diagnose and treat a life-threatening medical condition from which the deceased was suffering. The claimants contend that the defendant is not only responsible for the death of the person whose life was lost but is also liable to compensate them for psychiatric illness caused by their experience of witnessing the death (or its immediate aftermath).

7.  In each case the defendant has applied to strike out the claim on the ground that as a matter of law it cannot succeed. The question on these appeals is whether that is so or not.

“Essentially, the common law does not recognise one person as having any legally compensable interest in the physical well-being of another.”

2. The facts

8.  We will summarise shortly the material facts alleged by the claimants in their particulars of claim in each case. No facts have yet been proved by evidence in court. But for the purpose of deciding whether the claims are capable in law of succeeding it is necessary to assume that the facts alleged, in so far as they are not admitted, will be proved to be true.

Paul

9.  On 26 January 2014, while out shopping with his two daughters, aged 9 and 12, Mr Paul suffered a cardiac arrest and collapsed in the street. His daughters saw him fall backwards and hit his head on the pavement. They tried to call their mother on their mobile phones and to call an ambulance, which was eventually called by a passer-by. When their mother arrived, the daughters were taken to a nearby church. They heard their mother screaming their father’s name. They came out and saw an ambulance crew put a foil blanket over their father and paramedics performing chest compressions on him. Mr Paul was taken by ambulance to hospital but was declared dead on arrival.

10.  In this action Mr Paul’s daughters are each claiming damages for psychiatric illness allegedly caused by witnessing these events.

11.  It is agreed that Mr Paul’s heart attack and death were caused by occlusion of a coronary artery due to atherosclerosis. Some 14 months earlier, on 9 November 2012, he had been admitted to the defendant’s hospital complaining of chest and jaw pain. He was treated for acute coronary symptoms and discharged on 12 November 2012. The claimants allege that the defendant was negligent in failing to arrange coronary angiography during Mr Paul’s admission to hospital and that, had this been performed, it would have revealed significant coronary artery disease which would have been successfully treated by coronary revascularisation, in which case he would not have collapsed and died when he did.

Polmear

12.  In August and September 2014 Esmee Polmear, then aged six, was seen by her GP with a history of strange episodes during which she could not breathe, appeared pale and turned blue after a few minutes. She was referred to a paediatrician at the defendant’s hospital who saw her on 1 December 2014. In January 2015 some tests were carried out, but the consultant paediatrician wrongly concluded that Esmee’s symptoms were likely to be related to exertion and failed to diagnose that they were caused by pulmonary veno-occlusive disease. The defendant admits that Esmee’s condition should have been diagnosed by mid-January 2015.

13.  On 1 July 2015 Esmee died from effects of this disease in distressing circumstances. Her parents, who are the claimants in this case, were present when she died. Because she had felt unwell her father had agreed to meet Esmee at the beach where she was supposed to be taking part on a school trip, to take her back to school if required. When he arrived, he found Esmee with a teacher and another pupil looking tired, pale and breathless. Esmee wanted to sit down but was encouraged to try to walk back to the school. At one point she stopped and vomited. She had to keep stopping to rest and her father then had to carry her. Her father left Esmee at the door of the school but shortly afterwards was called back and found her lying on the floor with a member of staff administering first aid. He took over and tried to give Esmee mouth-to-mouth resuscitation. She was not breathing. Esmee’s mother ran to the school and saw her lying on the floor with members of staff attempting resuscitation which she could see was not working. Paramedics arrived and also tried unsuccessfully to revive Esmee. Both parents went with Esmee in an ambulance to hospital where she was declared dead.

14.  Esmee’s parents are each claiming damages for post-traumatic stress disorder and major depression developed as a result of their experiences on 1 July 2015. It is their case that with proper diagnosis and management Esmee would not have collapsed and died on that day.

Purchase

15.  Evelyn Purchase died on 7 April 2013 at the age of 20 from severe pneumonia. Three days before, having been unwell for several weeks and having made two previous visits to her GP, Evelyn attended the out-of-hours clinic with her mother. She was examined by the defendant, Dr Ahmed. Evelyn had difficulty walking into the clinic as a result of weakness, dizziness and difficulty in breathing, which was rapid, shallow and noisy. Dr Ahmed failed to diagnose her condition and sent her home with a prescription for antibiotics and an antidepressant.

16.  Evelyn’s condition did not improve and on 6 April 2013 she was also complaining of heart palpitations. That evening her mother attended a pre-planned event in London with her younger daughter. She returned home at 4.50 am on 7 April 2013 and found Evelyn lying motionless on her bed with the house telephone in her hand, staring at the ceiling and not moving. Her skin was slightly warm and she looked alive but was not moving or blinking. The younger daughter called 999 and the family were advised to give Evelyn cardiopulmonary resuscitation. When the mother opened Evelyn’s mouth to attempt mouth-to-mouth resuscitation, blood and bodily fluids spilled out of the mouth and nose. When paramedics arrived, their attempts at resuscitation were also unsuccessful and Evelyn was declared dead.

17.  Evelyn’s mother realised that she had a missed call and a voice message from Evelyn on her mobile phone. The voice message was the sound of Evelyn’s dying breaths which continued for four minutes and 37 seconds. The call was timed at 4.40 am and ended approximately five minutes before her mother got home and saw Evelyn.

18.  As a result of these events, Evelyn’s mother has developed post-traumatic stress disorder and severe chronic anxiety and depression for which she is claiming damages. It is her case that her daughter’s death was caused by the defendant’s negligent failure to diagnose and treat Evelyn’s symptoms when he examined her on 4 April 2013.

3. The proceedings

19.  In the case of Paul the claims of Mr Paul’s daughters for damages for psychiatric injury were struck out by Master Cook ([2019] EWHC 2893 (QB), [2020] PIQR P5), but an appeal to the judge (Chamberlain J) was allowed: [2020] EWHC 1415 (QB), [2020] PIQR P19. Following Chamberlain J’s decision in Paul, Master Cook refused the defendant’s application to strike out the parents’ claim in Polmear: [2021] EWHC 196 (QB). In Purchase the mother’s claim, brought in the county court, was struck out shortly before Chamberlain J’s judgment in Paul was handed down.

20.  The Court of Appeal heard and decided appeals in all three cases together: [2022] EWCA Civ 12, [2023] QB 149. They regarded themselves as bound by an earlier Court of Appeal decision in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, [2014] QB 150 to conclude that the claims for damages for psychiatric injury made in these cases cannot succeed. However, both Sir Geoffrey Vos MR, who gave the leading judgment, and Underhill LJ, who gave a short concurring judgment, expressed reservations about whether the earlier case was correctly decided and indicated that, if the point had been free from authority, they would probably have reached a different outcome. Nicola Davies LJ agreed with both judgments. The Court of Appeal itself granted permission to the claimants to appeal to the Supreme Court to enable this court to consider the important issues that arise in these cases.

4. The issues

21.  Under the common law a doctor responsible for providing medical care to a patient owes a duty to the patient to exercise reasonable skill and care to protect the patient’s life and health. If the patient suffers physical or psychiatric injury of a kind which the exercise of such care should have prevented, the doctor is liable to pay damages to compensate the patient for the injury. If the patient dies, such a claim can be pursued by the patient’s personal representative(s) for the benefit of his or her estate.

22.  It is not in dispute that such claims can be made in these cases. The claims in issue, however, are not claims made on behalf of the person who died for the harm suffered by that person. They are claims brought by close relatives of that person for harm which those relatives have suffered as a result of witnessing the person’s death (or its immediate aftermath). The critical question on which the validity of the claims depends is whether a doctor, in providing medical services to a patient, not only owes a duty to the patient to take care to protect the patient from harm but also owes a duty to close members of the patient’s family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor’s negligence. (We should make it clear that nothing turns for this purpose on whether the negligence consists in an act or an omission).

23.  There are two ways of approaching this question. One is by considering the basic legal principles which determine the scope of the duty of care owed by a doctor and the persons to whom this duty is owed. The other approach is to examine the cases in which courts have previously decided whether damages could be recovered by claimants who suffered injury in connection with the death or injury of another person. Historically, the leading cases have involved accidents (mostly road traffic accidents). The question then is whether the rules which have been developed in those cases either apply already or can by a permissible incremental development of the common law be extended to apply to claims of the present kind arising in the field of medical negligence.

24.  In arguing these appeals counsel for the claimants focused on the latter approach. Although invited to address the existence of a duty of care in terms of the general principles which apply to doctors, they submitted that it is unnecessary to do so because the relevant requirements for claims of the present kind have been established by case law. That can indeed be said – and has not been disputed on these appeals – as regards claims arising from accidents, using that term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means. But a critical question raised by these appeals is whether or not the rules developed in relation to accidents apply where, as a result of negligence of a doctor, a person dies or manifests injury from an illness which proper treatment would have prevented. We do not think that this question can be answered satisfactorily without considering the general principles that determine when a doctor owes a duty of care to someone other than their patient.

25.  As it reflects the way in which the appeals were presented, we will start by examining the case law directly concerned with claims for damages for personal injury suffered in connection with the death, injury or imperilment of another person. We will then test our provisional conclusions by reference to the general principles which determine when a doctor who assumes responsibility for providing medical services to a patient owes a duty of care to prevent harm to a third party.

…

8. Applying general principles

124.  As foreshadowed at the beginning of this judgment, we turn to test these conclusions by examining the general principles which govern the existence and scope of the duties of care owed by medical practitioners.

The need to establish an independent duty

125.  In Alcock [1992] 1 AC 310, 411A-B, Lord Oliver said that, although it is convenient to describe a claimant whose injury arises from witnessing the event of injury to another person as a “secondary” victim:

“that description must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him – a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant.”

The “absolute essentiality” in the present cases of establishing such a duty owed by the defendants directly to the claimants is not in dispute.

126.  At the start of the oral argument on these appeals, Mr Robert Weir KC (whose submissions on this point were adopted by counsel for the other claimants) submitted that it is nevertheless neither necessary nor relevant to analyse the present claims by reference to the general principles which determine when a duty of care is owed by a doctor (or other professional person). He submitted that, in any case where the claimant is a secondary victim, the question whether the necessary proximity between the claimant and the defendant exists is governed by the rules established by the Alcock line of authority. He cited a passage from the speech of Lord Rodger of Earlsferry in D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373, para 107, describing claims by secondary victims who suffer “nervous shock” as “a particular chapter of the law” and a “distinct line of authority”. Lord Rodger suggested that “medical mishaps” fall within this category, giving Walters as an example.

“… reasonable foreseeability of harm, although necessary, is not by itself enough to give rise to a duty of care. There must also exist the necessary “proximity” in the relationship between the parties …”.

127.  Those observations of Lord Rodger were made in passing in a case which was not concerned with a “medical mishap” and where the correctness of the decision in Walters was not questioned, as it has been in these appeals. The key question which we have to decide is whether the rules that determine when the necessary proximity exists to give rise to a duty of care owed to a secondary victim in an accident case (or analogous rules) apply in cases of medical negligence where there is no accident. That question was not considered, let alone answered, in Alcock or other cases in that line of authority. Nor for that matter was it considered in Walters where (as noted above) the issue was not raised. In these circumstances to assert, as counsel for the claimants have, that the question whether the defendants owed a duty directly to the claimants in the present cases is governed by the rules established by the Alcock line of authority begs the central question raised on these appeals by assuming an answer to the very point in dispute.

128.  It is also inconsistent with the point that Lord Oliver was making in the passage quoted at para 125 above. He was at pains to emphasise that, to justify a remedy, it is not sufficient to establish (1) a breach of a duty of care owed by the defendant to a primary victim and (2) an appropriate relationship between the primary victim and the claimant. Not only is this insufficient, but it is also unnecessary. Lord Oliver made it clear that there may in fact be no primary victim (see para 105 above). He said nothing to suggest that, for the purpose of establishing a duty of care owed by the defendant directly to the claimant, the general principles of the law of negligence that determine when the relationship between the parties is such as to give rise to a duty of care can be ignored or bypassed. Where the context is a medical crisis and the defendant is a medical practitioner, we think it essential to consider whether a duty of care is owed by reference to the general principles applicable to this type of case.

Proximity

129. As Lord Oliver emphasised, reasonable foreseeability of harm, although necessary, is not by itself enough to give rise to a duty of care. There must also exist the necessary “proximity” in the relationship between the parties to make it just to impose such a duty. The classic description of this requirement is that of Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The question is one of interpersonal justice. As Lord Nicholls of Birkenhead explained in Stovin v Wise [1996] AC 923, 932:

“Proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable [that] one should owe the other a duty of care.”

130.  The need to show not only reasonable foreseeability of harm but proximity sufficient to give rise to a duty of care applies whatever the nature of the harm suffered by the claimant – whether it be financial loss, damage to property or personal injury: see eg Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211, 235-236. Donoghue v Stevenson itself, for example, was a case of alleged personal injury caused by consuming a defective product. The House of Lords did not decide that the manufacturer of a product owes a duty of care to a person who suffers personal injury from consuming or using the product whenever such injury is reasonably foreseeable. Rather, they held that the necessary proximity in the relationship between the parties exists, not in every such case, but where the product is sold in a form which shows that it is intended to reach and be used by the ultimate consumer without alteration or the reasonable possibility of intermediate examination: see Lord Atkin at [1932] AC 562, 599; and Grant v Australian Knitting Mills Ltd [1936] AC 85.

131.  The relevant relationship between the manufacturer of a product and the ultimate consumer arises only at the point of use. Similarly, two road users one of whom injures the other by careless driving may have been complete strangers before the accident in which the injury is inflicted. Sometimes, however, proximity is established by a pre-existing relationship between the parties. A concept used to explain how such a relationship may give rise to a duty of care is that of assumption of responsibility. The core of this idea is that a person (A) who provides a service to another person (B) who reasonably relies on A’s expertise in performing the service assumes a responsibility to B to perform the service with reasonable care and skill.

132.  It is this principle which underlies the relationship of proximity between an architect or building contractor and their employer, between a lawyer or accountant and their client, and between a doctor or other medical practitioner and their patient. By providing a service, whether under a contract for reward between the doctor and the patient or – as in the case of a patient entitled to treatment under the National Health Service – where the doctor is paid by the state, the service-provider assumes a responsibility towards the person to whom the service is provided, which gives rise to a duty of care.

133.  The scope of the duty will vary with the circumstances and will depend, critically, on the purpose for which the service is provided. The recent decision of this court in Meadows v Khan [2021] UKSC 21, [2022] AC 852 illustrates the importance of this consideration in determining the scope of the duty of care owed by a doctor to a patient. The Supreme Court held that, where the purpose for which a doctor was consulted concerned a particular risk in a pregnancy (of giving birth to a child with haemophilia), the doctor was not liable for the consequence of an unrelated risk (that the child would suffer from autism). Consideration of the purpose for which services are provided is equally important in determining whether or when a duty of care is owed by a doctor to someone other than their patient.

Duties owed by doctors to non-patients

134.  There are circumstances in which the duty of care owed by a medical practitioner may extend beyond the health of their patient to include other people. For example, some commentators suggest that a doctor who negligently sent home a patient with a highly infectious disease would owe a duty of care to members of the patient’s household who contract the disease as a result: see Clerk & Lindsell on Torts, 24th ed (2023), para 9-10; Michael Jones, Medical Negligence, 6th ed (2021), paras 2-159 – 2-160. In the case cited for this proposition, however, the claim failed because on the facts the defendant local authority was found not to be vicariously liable for the conduct of the doctor: see Evans v Liverpool Corporation [1906] 1 KB 160. It is likewise arguable that a doctor who negligently fails to diagnose or treat a sexually transmitted disease may owe a duty of care to the sexual partner of a patient who, in consequence, contracts the disease. Such a claim succeeded in the Australian case of BT v Oei [1999] NSWSC 1082 where the sexual partner of a patient contracted HIV. The duty of care to the patient’s partner recognised in that case, however, was limited to a duty (owed also to the patient) to warn him of his HIV status and advise him that he had a statutory responsibility to warn prospective sexual partners of his condition. The court found that, had the patient been given such advice, he would have informed the claimant who would then have taken steps to avoid contracting HIV.

“ … a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds.”

135.  We express no view on the difficult questions raised by such cases, save to observe that, in relation to infectious disease, doctors are considered to have a responsibility to protect public health which is wider than their duty to protect the health of their patient and is reflected, for example, in statutory obligations which already existed when Evans v Liverpool Corporation was decided.

Family members who witness a patient’s medical crisis

136.  Here the question is whether a doctor who owes a duty of care to a patient also owes a duty to members of the patient’s close family to take care to protect them against the risk of illness from the experience of witnessing the medical crisis of their relative arising from the doctor’s negligence.

137.  It cannot be said that a doctor who treats a patient thereby enters into a doctor-patient relationship with any member of the patient’s family and thereby assumes responsibility for their health. As regards other factors relevant to whether the necessary relationship of proximity exists, the extent of the control which a doctor may be seen as having over the risk of injury to members of the patient’s family and the directness of the causal link between the doctor’s negligence and the materialisation of that risk will depend upon the particular facts of the case. In a case such as Paul, it may be happenstance whether, if the patient’s untreated coronary artery disease leads at some unpredictable future time to a cardiac arrest, this happens to occur in the presence of close family members or elsewhere, such as at the person’s workplace. By contrast, on the facts of Walters, the harm suffered by the claimant was a far more direct and obviously foreseeable consequence of the defendant’s negligence. The same might be said about the facts of Purchase.

138.  Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.

139.  There is no doubt that witnessing the death from disease of a close family member can have a powerful psychological impact additional to the grief and deep distress caused by the fact of the death. Whether that impact is damaging or may even help the grieving process must depend on many factors, including the vulnerability and circumstances of the individual who witnesses the event and the place, time and other circumstances in which the death occurs. The experience of seeing a person die or discovering their dead body is rarer today than it once was. Most deaths in the United Kingdom now occur in hospitals or other institutions such as care homes. But although social attitudes and expectations may be changing, we would not accept that our society has yet reached a point where the experience of witnessing the death of a close family member from disease is something from which a person can reasonably expect to be shielded by the medical profession. That is so whether the death is slow or sudden, occurs in a hospital, at home or somewhere else, and whether it be peaceful or painful for the dying person. We do not mean in any way to minimise the psychological effects which such an experience may have on the person’s parent, child or partner when we express our view that, in the perception of the ordinary reasonable person, such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition.

9. Conclusions

140.  We return to the point with which we began this judgment, that the general policy of the law is opposed to granting remedies to third parties for the effects of injuries to other people. What therefore principally requires justification is not the narrowness of the category of cases in which a claimant who suffers personal injury which is secondary to the death or injury of another person can recover damages but the fact that it exists at all. Lord Oliver made this point in Alcock, when he said, at p 410H:

“What is more difficult to account for [than the general rule] is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact.”

Lord Oliver regarded the existence of this exception as “now too well established to be called in question” and so do we.

141.  Unless the exception defined by the Alcock line of authority is to become the general rule, however, a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds. Wherever the line is drawn, some people who suffer what may be serious illness in connection with the death or injury of another person will be left uncompensated. The mother who learns in a telephone call that her child has been killed in a road accident may suffer an illness no less severe than a mother who was present at the scene and saw the accident. But there is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused and to apply restrictions which are reasonably straightforward, certain and comprehensible to the ordinary person.

142.  We have not been asked on these appeals to alter or abrogate the limits on the recovery of damages by secondary victims in accident cases established by the decision of the House of Lords in Alcock. Instead, this court is asked to recognise as analogous a category of cases in which illness is sustained by a secondary victim as a result of witnessing a death or manifestation of injury which is not caused by an external, traumatic event in the nature of an accident but is the result of a pre-existing injury or disease. For the reasons given, we do not consider that such cases are analogous. That conclusion is reinforced by our opinion that the persons whom doctors ought reasonably to have in contemplation when directing their minds to the care of a patient do not include members of the patient’s close family who might be psychologically affected by witnessing the effects of a disease which the doctor ought to have diagnosed and treated. Hence there does not exist the proximity in the relationship between the parties necessary to give rise to a duty of care.

Result

143.  No one could read or hear about the events which Saffron and Mya Paul, Lynette and Mark Polmear and Tara Purchase experienced without being moved by the terrible distress caused to them by the sudden deaths of, respectively, Parminder Singh Paul, Esmee Polmear and Evelyn Purchase and the shocking circumstances in which those deaths occurred. The thought that these tragic events could have been avoided if the hospital or doctor had exercised due care must, as in every case of wrongful death, add further to the agony and perhaps anger that they feel. The law cannot, however, impose duties and liabilities on the basis of sympathy, however strongly felt. For the reasons we have sought to explain, the claims for compensation made in these cases do not satisfy the legal requirements for the recovery of damages by secondary victims who suffer injury as a result of the death of another person. The appeals must therefore be dismissed.

(emphasis added)