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Cite as: [1994] EWCA Civ 26

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JISCBAILII_CASE_TORT

BAILII Citation Number: [1994] EWCA Civ 26
No. QBENI 93/0122/E

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(ON APPEAL FROM THE HIGH COURT OF JUSTICE)
(QUEEN'S BENCH DIVISION)
(MR. JUSTICE BROOKE)

Royal Courts of Justice
Strand, London, W.C.2
27th May 1994

B e f o r e :

LORD JUSTICE STAUGHTON
LORD JUSTICE WAITE
and
LORD JUSTICE PETER GIBSON

____________________

SION
Appellant
-v-
HAMPSTEAD HEALTH AUTHORITY
Respondents

____________________

John Larking, Chancery House, Chancery Lane, London, WC2.
Telephone: 071 - 404 7464
Official Shorthand Writers to the Court
____________________

MR. D. BRENNAN QC and MR. I. GOLDREIN (instructed by Messrs. Pannone & Partners, London) appeared on behalf of the Appellant.
MR. A. WHITFIELD QC and MR. A. HOPKINS (instructed by Messrs. Beachcroft Stanleys, London) appeared on behalf of the Respondents.
Handed Down Judgment by:
John Larking, Chancery House, Chancery Lane, London, WC2.
Telephone: 071 - 404 7464
Official Shorthand Writers to the Court
JUDGMENT

____________________

HANDED DOWN HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Staughton

    A young man called Lionel Sion was injured in a motor-cycle accident on 2nd September 1988. He was twenty three years old at the time. He was taken to the Royal Free Hospital in North London, which is administered by the Hampstead Health Authority. His father, then aged 56 and also called Lionel Sion, went to the hospital to be with him. I shall call the father "Mr Sion". He is the plaintiff in this action. For fourteen days he stayed at his son's bedside, watching him deteriorate in health and fall into a coma. Then on 16th September the son died.

    Mr Sion's case is that the staff of the hospital were negligent. In particular, they failed to diagnose substantial and continuing bleeding from the left kidney, which resulted in his son entering a coma on 5th September. The allegations of negligence are denied. But as this is a striking-out appeal, we must assume them to be true for present purposes.

    This action was started by Mr Sion on 28th August 1991 in the Westminster County Court, and has since been transferred to the High Court. Originally he claimed damages under the Fatal Accidents Act 1976, and also under the Law Reform (Miscellaneous Provisions) Act 1934. Those claims are no longer in issue. There remains the case that Mr Sion puts forward in respect of his own personal injury, loss and damage as the result of the negligence of the hospital staff in caring for his son. In a word, it is said that he has suffered from psychiatric illness ever since. If there is liability, the damages are likely to be substantial, for Mr Sion has given up work and may not be able to work again.

    The hospital applied for Mr Sion's claim to be struck out as disclosing no cause of action. That application by-passed the Queen's Bench Master and came before Brooke J. On 18th December 1992 it was decided in favour of the hospital; and Mr Sion now appeals, by leave of the judge.

    There are two subsidiary points of law which I will consider before embarking on the main issue. The first concerns the circumstances in which it is appropriate to strike out a case as disclosing no reasonable cause of action. At one time it seemed that we would listen once again to the authorities noted with admirable impartiality in the Supreme Court Practice - both those which say that striking out is only appropriate in plain and obvious cases and those which say something different. But fortunately counsel were able to agree the test which is appropriate for this case. It is to be found in the speech of Lord Bridge of Harwich in Lonrho PLC v. Fayed (1992) 1 AC 448 at p.470. The health authority must show that Mr Sion's claim is obviously doomed to fail.

    The second subsidiary point of law arises in this way. At the hearing before Brooke J., Mr Sion's advisers sought to amend their statement of claim. That was resisted on the ground that the amendment would introduce a new cause of action after the relevant period of limitation had expired. In reply, Order 20 rule 5(5) provides that such an amendment may be allowed

    "if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."

    To that there is the rejoinder, that the amendment is only necessary if the original statement of claim disclosed no cause of action; and in that event the condition imposed by rule 5(5) is not fulfilled.

    One has to admire the ingenuity of the argument; but it cannot be right. If a statement of claim fails to disclose a cause of action, but by some amendment can be made to do so on the same facts or substantially the same facts as those already pleaded, I cannot believe that the Rule Committee intended that, if the limitation period had expired, there should be no discretion to allow the amendment. It may be that in some cases it should not be allowed; perhaps a plaintiff whose original claim was manifest nonsense should not be allowed to cure it after the limitation period had expired, even if he can do so on substantially the same facts. For example, a plaintiff who pleads that the defendant ran him down in his car, and claims damages for libel, might not be allowed to amend "libel" to "personal injury" after the expiry of the limitation period. But that would be an exercise of discretion, and is not remotely like this case. In my judgment rule 5(5) should be ready as referring to

    the same facts or substantially the same facts as an alleged cause of action in respect of which relief has already been claimed ...

    It was argued that there was an alternative route to the same conclusion. Order 18 r.19 provides that the court may order a pleading to be struck out or amended if it discloses no reasonable cause of action. It is said that this power is not subject to the fetter imposed by Order 20 r.5(5) when the limitation period has expired.

    There is no need to express a concluded view; but the argument seems to me distinctly implausible. It would be odd if the power to allow amendment in O.18 r.19 were wider than O.20 r.5(5); and positively bizarre that a plaintiff should be in a better position as regards amendment merely because the defendant had been so rash as to apply to strike out the Statement of Claim. Furthermore the rule-making power, in section 35(4) of the Limitation Act 1980, states that Rules of Court may provide for a time-expired claim to be introduced by amendment only in the circumstances set out in subsection (5). Those circumstances are reflected in 0.20 r. 5(5).

    The Statement of Claim

    In the light of my conclusion on the amendment issue, this appeal is to be judged as if the amendment had been allowed; as so amended, the Statement of Claim contains what Mr Sion puts forward as his better case. If it can stand, then both the appeal and the amendment must be allowed. If on the other hand it is still obviously doomed to fail, then there is no point in allowing the amendment; the appeal must be dismissed.

    The circumstances of the son's treatment at the hospital are pleaded at some length. Salient points on which Mr Brennan, for Mr Sion, particularly relies are as follows:

    (1)On 4th September, two days after he went into hospital, there was a serious deterioration in the son's respiratory condition.
    (2)On the next day, there was respiratory arrest and cardiac arrest.
    (3)The son thereupon went into a coma and was transferred to the intensive care unit.
    (4)On 16th September the son died.

    Mr Brennan's submission was, that those four events were potentially traumatic events likely to cause shock.

    Next it is pleaded that the hospital owed Mr Sion a duty of care. There are then extensive particulars of negligence in the treatment of the son, which I need not set out. Finally one comes to -

    PARTICULARS OF PAIN, SUFFERING AND LOSS OF AMENITY
    In the premises he suffered a very severe, prolonged and persistent grief reaction, characterised by profound depression, disturbed sleep, impaired appetite and loss of weight. He also has constant intrusive memories of all aspects of the deceased's life, in particular the circumstances of his death and his own experiences at the bedside of the deceased in the last two weeks of his life. In addition he had experienced marked feelings of guilt in relation to the deceased's death. A major factor in this guilt reaction appears to be his rationalisation that his son might have survived if the medical management had been different, and that therefore there was a remote and ill -defined possibility that he himself might in some way have influenced treatment policy. The Plaintiff's prolonged physical proximity to the deceased throughout the time he was in hospital with the resultant observation of his deteriorating condition was probably a contributing factor to an abnormal bereavement reaction. It is likely to be a very long time (certainly a matter of years) before the Plaintiff shows any substantial improvement or any sign of a convincing return to his previous personality. The Plaintiff's psychiatric symptoms are a direct result of the deceased's death and the events leading to it which would not have occurred had the deceased been properly treated. In the premises the Plaintiff's case is that he was exposed directly to events caused by medical negligence which produced nervous shock leading to his present psychiatric illness.

    Order 18 rule 12(1A) provides that the plaintiff in an action for personal injuries shall serve a medical report with his statement of claim, and by paragraph (1B) that is to be a report substantiating all the personal injuries which the plaintiff proposes to adduce in evidence as part of his case at the trial.

    There has been some argument as to whether, for the purpose of an application to strike out the statement of claim, it is to be assumed that the plaintiff's whole case is that set out in the report. Or is the report of no relevance for that purpose? I would not myself adopt either of those extremes. In paragraph 18/12/4A of the Supreme Court Practice it is said that the medical report "will operate as particulars." But in my opinion the plaintiff is not wholly and rigidly confined to what is said in the report; it should be treated as a general outline of the plaintiff's case. I would allow it to be taken into account on a striking out application, but only to that extent.

    A comprehensive report of Dr Bennett, consultant psychiatrist to the Wessex Regional Health Authority, was served on 13th September 1991. It is accepted that the report puts forward a case of psychiatric illness, which is one of the essential elements of Mr Sion's claim. It does not in terms mention nervous shock, or contain any mention of shock; but it may be that psychiatrists consider nervous shock to be a lawyer's term, and do not themselves use it. I must return to the report in more detail later.

    Before Brooke J. there was agreement as to what the law required Mr Sion to prove in order to establish his cause of action. I shall return to that too. The judge's conclusion was as follows:

    When I apply the agreed statement of the law and link it with the fact[s] on which Mr Sion relies, as set out most descriptively in the medical report, I cannot see how those facts could substantiate a finding that Mr Sion had suffered nervous shock for which damages are recoverable as the law now stands following its exposition by the House of Lords in the Alcock case.

    The Law

    It is, I think, recognized almost universally that the common law ought to impose some limit on the circumstances in which a person can recover damages for the negligence of another. Suppose that a driver negligently causes the death of a pop star, or an operatic tenor, or a captain of industry, or the leader of a political party. There may be thousands, even millions of people who are afflicted by profound feelings of gloom, who are deprived of pleasure, or whose financial circumstances are adversely affected. All that may have been readily foreseeable by the negligent motorist. (Of course he may not have known who was in the other car, but that is no avail to him when faced with a vast dependency claim.) There will be varying degrees of proximity between the victim and the defendant, and varying means by which the loss came about. The common law has to choose a frontier, between those whose claims succeed and those who fail. Even the resources of insurance companies are finite, although some jurists are slow to accept that. Nor is it in the public interest that every misfortune in this life, even if caused by the negligence of another, should lead to litigation and damages.

    For the present the frontier for one type of claim is in my judgment authoritatively and conclusively fixed by the House of Lords in Alcock v. Chief Constable of South Yorkshire (1992) 1 AC 310. Lord Ackner said (at p.400):

    It is now generally accepted that an analysis of the reported cases of nervous shock establishes that it is a type of claim in a category of its own. Shock is no longer a variant of physical injury but a separate kind of damage. Whatever may be the pattern of the future development of the law in relation to this cause of action, the following propositions illustrate that the application simpliciter of the reasonable foreseeability test is, to-day, far from operative.
    (1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock ...
    (5) "Shock", in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.

    As was pointed out by Lord Oliver of Aylmerton (at p.407), this was said in the context of cases in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.

    We are not here considering psychiatric illness caused directly to a plaintiff by negligent treatment, for example by his own psychiatrist. Although the words are not wholly appropriate, these are cases of a primary victim and a secondary victim, the latter being the plaintiff.

    Similar thinking is to be found in the case of Jaench v. Coffey (1984) 155 CLR 549, decided by the High Court of Australia. Brennan J. said (at p. 564):

    Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct ... A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by "shock". Psychiatric illness caused in other ways attracts no damages ...

    And at p.567:

    I understand "shock" in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness.

    In the light of those cases it is scarcely surprising that the law was agreed by counsel before Brooke J., in the following terms:

    Two propositions are agreed between Counsel. The first is that the term "nervous shock" is shorthand for psychiatric illness caused by shock. Secondly, that to succeed in a claim for such an injury the Plaintiff must prove five things: first, that he suffered not merely grief, distress or sorrow but a psychiatric illness; secondly, that this resulted from shock -- i.e. the sudden and direct appreciation by sight or sound of a horrifying event or events -- rather than from stress, strain, grief or sorrow or from gradual or retrospective realisation of events; thirdly, that there was propinquity in time or space for the causative event or its immediate aftermath; fourthly, the injury was reasonably foreseeable; and fifthly, that the relationship between the Plaintiff and the Defendant was sufficiently proximate.

    In this court, however, Mr Brennan sought to resile from that agreement; and we readily allowed him to do so. He now submits that Mr Sion does not need to prove sudden shock (or "an external traumatic event", to use the language of Auld J. in Taylor v. Somerset Health Authority (1993) 4 Med LR 34 at p.37), or any shock.

    In support of that submission we were referred to a passage in the dissenting judgment of Sir Thomas Bingham MR in M v. London Borough of Newham (1994) 2 WLR 554 at p.573. However, that was not a case of a claim by a secondary victim. Both the child and her mother were primary victims of the psychiatrist's negligence.

    What gives me more concern is the suggestion that the House of Lords has only settled the law for the time being, and may change it in the future. As Sir Thomas Bingham pointed out, there is support for that notion in the speech of Lord Ackner in Alcock's case and of Lord Bridge of Harwich in McLoughlin v. O'Brian (1983) AC 410 at p.443.

    We were referred also to Tort Liability for Psychiatric Damage by Mullany & Handford, both Australian lawyers. As Sir Thomas Bingham states in his foreword, the authors believe that the barriers to recovery should be lowered and psychiatric damage treated like any other personal injury.

    If there is to be such a development in the common law, it is from Australia that I would expect it to come, or else from the United States. The authors have the distinguished support of Justice Kirby, President of the Court of Appeal of New South Wales, in Campbelltown City Council v. Mackay (1989) 15 NSWLR 501.

    No doubt it is true that there is little logic in distinguishing between psychiatric illness caused by sudden shock and any other psychiatric injury. In Davies v. Taylor (1974) AC 207 at p.213 Lord Reid said that he did not see much difference between a probability of 49 per cent and a probability of 51 per cent. But if there has to be a boundary, borderline or frontier, it is almost certain to be illogical. That was the notion which I tried to express in R v. Westminster City Council (1990) 1 QB 87 at p.121.

    I cannot say whether the present law on this topic will be changed in the future. If it is changed, all experience shows that this will be done by extending the area of liability rather than reducing it, although I understand that one school of though would favour abolishing liability for any psychiatric illness in a secondary victim, as preferable to the present situation. But for the present this court must in my judgment accept the state of the law as declared by the House of Lords, even in a striking out application. It would not be right for us to impose on the parties the burden of a trial which can only have one conclusion on the present law, against the possibility that this may prove to be a case where the law in changed. In my judgment this application is properly to be determined by the law as it was agreed to be, correctly, before Brooke J.

    Conclusion

    I have to return to the report of Dr Bennett, as providing the general outline of Mr Sion's case but not necessarily containing every detail. As part of the narrative there is this passage:

    During the last three of four days of his son's life he realised that it was almost certain that he would not survive, but he decided to continue to stay in the I.C.U. just in case there was some improvement. By the time his son did actually die on 16 September, he was not surprised, and felt that in a way he had been preparing himself for this to happen. In retrospect he cannot be sure whether he knew at exactly what point his son had died, but feels that intuitively he must have been aware of it. He cannot say exactly when the respiration ceased, as by this time this function was carried out entirely by the machine.
    He felt uneasy about various points relating to his son's death. In particular he could not see why his son had been fully conscious, alert and lucid for some two and a half days after admission, as he had been told by the Consultant in charge that there was evidence of possibly quite severe brain damage. This was not actually found to be so at the post mortem examination, a fact which I understand emerged clearly at the inquest.
    It was only following the inquest, which took place several months later, that Mr. Sion began to experience real doubts, and to question whether his son's treatment had been competent and satisfactory.

    To add to Mr Sion's grief, his wife discovered his suspicion of negligence by the hospital, or may have done, and committed suicide a few days before Christmas 1989.

    Under the heading "Sequelae":

    Following his son's death Mr Sion became extremely depressed. He felt that life had virtually lost all its purpose, he was consistently low spirited, with frequent thoughts of suicide. He was understandably very distressed when his wife committed suicide, but in retrospect he feels that his depression was not increased. "I was so depressed by that time that although I was terribly upset by her death, it just wasn't possible for the depression itself to get any worse." He felt severe feelings of guilt. These did not arise until after his realisation that there may have been Medical Negligence. ... For about three days after he knew his son was dead he "went numb, I just couldn't think about everything, I felt drained."

    Then under the heading "Summary and Opinion":

    1.Following his son's tragic death, Mr Sion has experienced a very severe, prolonged, and so far persistent grief reaction, characterised by profound depression, disturbed sleep, impaired appetite and loss of weight, almost constant intrusive memories of all aspects of his son's life, in particular the circumstances of his death and his own, i.e. Mr Sion's experiences at his son's bedside.
    .....
    3.I think it is more probable than not that his prolonged physical proximity to his son throughout the time he was in hospital, with the resultant observation of his deteriorating condition, may well have been a contributory factor to what I would view as an abnormal bereavement reaction.

    .....

    5.In view of their nature and timing I consider his psychiatric symptoms to be a direct result of his son's death, and I think it extremely unlikely that he would have experienced any of these emotional difficulties if his son had survived.

    In my opinion there is no trace in that report of "shock" as defined by Lord Ackner, no sudden appreciation by sight or sound of a horrifying event. On the contrary, the report describes a process continuing for some time, from first arrival at the hospital to the appreciation of medical negligence after the inquest. In particular, the son's death when it occurred was not surprising but expected.

    It is true that the proposed amendment to the statement of claim twice mentions nervous shock. But the medical report makes it plain that the case is not one of nervous shock as required by established law. It is in my judgment obviously doomed to fail.

    I would dismiss this appeal.

    Lord Justice Waite

    I agree that the appeal should be dismissed for the reasons given in both judgments, to which I do not feel it necessary to add anything.

    Lord Justice Peter Gibson: Mr. Brennan Q.C. for the Appellant Plaintiff criticised Brooke J.'s judgment on 3 grounds:

    (1)The Judge misapplied the principles which govern the striking out of pleadings: he should have allowed the proposed amendment to the Statement of Claim.
    (2)The Judge wrongly took into account the medical report of Dr. Bennett as determinative of the cause of action.
    (3)On the original or amended pleadings or on the medical report, the Plaintiff had an arguable case that the Defendant's negligence caused him to suffer shock-induced psychiatric illness.

    He added a fourth ground on which also, he said, the appeal should be allowed: if the third submission failed, it is arguable that there is no need to prove a sudden or any shock, provided that the Plaintiff can show that he suffered a psychiatric illness as a result of the Defendant's negligence.

    I shall consider these grounds in turn.

    (1) It is apparent from the terms of O.18 r.19(1) itself that the Court may order any pleadings to be amended and that accordingly it is right for the Court, before striking out a pleading, to consider whether it might be saved by amendment. But that is what the Judge did in the present case. He considered the proposed amendment but accepted the submission of Mr. Whitfield Q.C. for the Defendant that the amendment should not be allowed because it was doomed to failure. He correctly directed himself that it is only in an extremely clear case that the Judge should strike out a Statement of Claim. I detect no error in the Judge's approach. I would add that in my opinion and in agreement with Staughton L.J. the Judge was also right to reject the submission of Mr. Whitfield that there is no jurisdiction under O.25 r.5(5) to allow an amendment outside the limitation period to add or substitute a new cause of action arising out of the same or substantially the same facts as those which are already pleaded but which disclose no sustainable cause of action. In this context it is relevant to note that under s.35(4) and (5)(a) Limitation Act 1980 the rules may provide that a new claim can be allowed after the expiry of the limitation period "if the cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action". I would not read O.20 r.5(5) as requiring a more stringent test.

    (2) The application to strike out was made under O.18 r.19(1)(a) (no reasonable cause of action) and (d) (abuse of the process), and by O.18 r.19(2) no evidence is admissible under the former head. Under O.18 r.12 (1A) and (1C) a plaintiff in an action for personal injuries is required to serve with his Statement of Claim a medical report substantiating all the personal injuries alleged in the Statement of Claim which the Plaintiff proposes to adduce in evidence as part of his case at the trial. Mr. Brennan pointed to the limited function of the medical report: it was to substantiate not the cause of action but the pleaded injuries. As he rightly said, it is open to the Plaintiff to put in a further medical report to deal with the issue of causation. He submitted that it was wrong for the Judge to rely on that report to strike out the Statement of Claim.

    I cannot accept that submission. O.18 r. 12 is headed "Particulars of pleading" and it is clear that such a report is intended to provide particulars of the pleaded injuries sustained. But it would be unreal for the Court not to be allowed to refer to the whole report in deciding whether or not a plaintiff's case is doomed to failure. Of course the Court must bear in mind that there may be a further report which may alter the position, but unless the plaintiff gives the Court sufficient indication of the respects in which the further report will differ from the report served pursuant to O.18 r.12(1A), the Court is bound to reach a decision in the light of the only material available to it, viz. the pleadings (including the proposed amendments) and the served report. I would add that in the present case, Dr. Bennett makes clear in his detailed report, running to 23 pages, on what he based that report, and there is no reason to doubt that, as the Judge said, they are the facts on which the Plaintiff relies. Dr. Bennett said that he had examined the Plaintiff on 13 September 1991 for 1 hours, that before examining the Plaintiff he had received full instructions, including a statement dated 8 August 1990 by the Plaintiff, copies of General Practice notes, copies of full hospital notes relating to the Plaintiff's psychiatric treatment covering the period from 13 March 1990 to 5 September 1991, and that the report was based on those sources, the Plaintiff's statement to him and his own observations during the examination.

    (3) It is unnecessary to refer to the original pleadings as it is the amended pleadings on which the Plaintiff wishes to go to trial. In paragraph 4 of the Statement of Claim it is pleaded that the Defendant owed to the Plaintiff a duty of care in relation to the treatment afforded by the Defendant to the Plaintiff's son in that it was reasonably foreseeable that in the event of such treatment being negligently administered, the Plaintiff would suffer psychiatric injury and the treatment was in fact negligent. Thus far the Statement of Claim is not demurrable. The dispute between the parties arises over the pleading that the Plaintiff has suffered psychiatric injury as a result of the alleged negligence. As particulars of pain, suffering and loss of amenity it is pleaded:

    "Because of the negligence the Plaintiff was caused nervous shock leading to psychiatric illness.
    a) he was present in the hospital from shortly after the deceased's admission up to the death for about 18 hours day.
    b) he was present at the bedside for most of the time when the deceased was in the Intensive Treatment Unit.
    c) nobody gave to him any or any adequate explanation as to his son's deterioration at any material time or at all.
    d) he saw things which with proper treatment for the deceased he would not have seen, such as the episode of severe respiratory depression on the 3rd September and deterioration from the 3rd to the 5th September, the cardiac arrest and the entire period in the ITU (including a wholly unnecessary operation on the 9th September 1988)."

    Further particulars are then given which Staughton L.J. has already set out in his judgment and I need not repeat.

    Mr. Brennan has taken three of the items specifically referred to in paragraph d of those particulars (viz. the deterioration in breathing, the heart attack and the period in the Intensive Treatment Unit) and added the coma and death of the Plaintiff's son, and he described them as events leading to the shock suffered by the Plaintiff whose psychiatric illness was caused by him being present at those events.

    The law relating to nervous shock has largely been determined by considerations of policy. As Lord Wilberforce said in McLoughlin v O'Brian [1983] 1 AC 410 at p.421 "there remains, in my opinion, just because "shock" in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims." The Courts have chosen not to allow all of those who may be termed the secondary victims of negligence, which has caused death or injury to the primary victim, to recover for damage caused to them. Such secondary victims are those who are injuriously affected by what has happened to the primary victim, but only indirectly, not being themselves involved in the circumstances causing death or injury to the primary victim. They are mere witnesses, through sight or sound or touch, of those circumstances or of the consequences to the primary victim. It is not enough that injury should be caused to the secondary victims by the negligence and that their injury should be reasonably foreseeable. That injury must go beyond mere mental suffering: a psychiatric illness is required. This must have been induced by shock. In the context of an accident, this has been said to be "the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind" (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 at p.401 per Lord Ackner). That psychiatric illness caused not by a sudden shock but by an accumulation of more gradual assaults on the nervous system over a period of time is not sufficient was held not only by Lord Ackner (ibid.) but also by Lord Keith (at p.396). So too Lord Oliver (at p.411) referred to the "sudden and unexpected shock to the plaintiff's nervous system". Other pragmatic limitations on recoverability for nervous shock are to be found in the requirements as to the class of persons whose claims the law recognises and in particular the relationship of the secondary victim to the primary victim, as to the proximity, in time and space, of the secondary victim to the events causing the shock and as to the means by which the shock is caused, direct sight or hearing or touch being required. All these limitations were authoritatively laid down or confirmed by the House of Lords in the Alcock case only 3 years ago.

    Mr. Whitfield submitted that the Plaintiff's claim could not succeed because the injuries to or the death of a primary victim in themselves or itself do not qualify as the horrifying event causing the shock needed for a valid claim. He said that it was a precondition of a claim that the incident which resulted from a breach of duty should have characteristics of suddenness and violence additional to the injuries or death of the primary victim, and contended that this was demonstrated by the doctrine that a plaintiff may recover if affected by the immediate aftermath of the horrifying event. He relied for those submissions on Taylor v Somerset Health Authority [1993] 4 Med. L.R. 34 at p.37 where Auld J. accepted an argument on similar lines. I am not persuaded by this argument. It is of course correct that in most of the decided cases there has been a sudden and violent incident resulting from a breach of duty, but it is the sudden awareness, violently agitating the mind, of what is occurring or has occurred that is the crucial ingredient of shock. In the McLaughlin case Lord Wilberforce (at pp. 417,8) said that the critical question to be decided was whether the wife and mother, who had not been present at the scene of grievous injuries to her family but who in hospital came upon those injuries at an interval of time and space, could recover damages for nervous shock, and he held that she could. I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.

    In Jaensch v Coffey (1984) 155 C.L.R. 549 at p.567 Brennan J. gave his understanding of "shock": "the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness". That, in my respectful opinion, encompasses the essential elements of "shock" and does not include the additional elements for which Mr. Whitfield contended.

    But I accept Mr. Whitfield's primary submission that the Judge was right to find that on the facts of the present case as appearing from the proposed amended pleadings when read with Dr. Bennett's report the Plaintiff suffered no sudden and unexpected shock to his nervous system. Instead it is clear that the Plaintiff, very understandably, suffered an abnormal grief reaction to his son's death. Staughton L.J. has set out the most relevant parts of that report and it is not necessary for me to repeat them. I agree with him that the Plaintiff's claim is doomed to fail.

    (4) Mr. Brennan's submission that it is arguable that it is unnecessary to prove a sudden or any shock is based on the remarks of Sir Thomas Bingham M.R. in M (A Minor) v Newham London Borough Council [1994] 2 W.L.R. 554 at p.573. But the Master of the Rolls distinguished the "nervous shock" cases from the Newham case by pointing out that they were concerned with a problem of demarcation between those of the secondary victims to whom redress should be afforded and those to whom redress should be denied, whereas in the Newham case he was concerned only with primary victims who were alleged to have suffered a positive psychiatric illness. Although there are dicta in the McLaughlin case and the Alcock case suggesting that the law in this area may be further developed, in the light of the Alcock case there is in my judgment no prospect whatever of the Plaintiff succeeding in an argument that there is no need to prove a sudden or any shock.

    For these reasons, despite the sympathy that I feel for the Plaintiff in the tragedy that has befallen him, I too would dismiss this appeal.

    (Appeal dismissed. Legal Aid Taxation)

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