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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 (13 January 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/12.html Cite as: [2022] PIQR P8, [2022] 2 WLR 917, [2023] QB 149, 184 BMLR 20, [2022] EWCA Civ 12, (2022) 184 BMLR 20, [2022] WLR(D) 47 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
AND ON APPEAL FROM THE COUNTY COURT SITTING AT BIRMINGHAM
Strand London WC2A 2LL |
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B e f o r e :
LORD JUSTICE UNDERHILL, VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
and
LADY JUSTICE NICOLA DAVIES
____________________
(1) SAFFRON PAUL (2) MYA PAUL (a child by her mother and litigation friend Balbir Kaur Paul) |
Claimants/Respondents |
|
- and - |
||
THE ROYAL WOLVERHAMPTON NHS TRUST |
Defendant/Appellant |
|
AND BETWEEN: |
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(1) LYNETTE POLMEAR (2) MARK POLMEAR |
Claimants/Respondents |
|
- and - |
||
ROYAL CORNWALL HOSPITAL NHS TRUST |
Defendant/Appellant |
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AND BETWEEN: |
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TARA PURCHASE |
Claimant/Appellant |
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- and - |
||
MAHMUD AHMED |
Defendant/Respondent |
____________________
Robert Weir QC and Laura Johnson (instructed by Shoosmiths LLP) for the claimants/ respondents in Paul
Henry Pitchers QC and Oliver May (instructed by Wolferstans LLP) for the claimant/respondent in Polmear
David Tyack QC and Esther Gamble (instructed by Talbots Law Ltd) for the claimants/appellants in Purchase
Hearing dates: 14 and 15 December 2021
____________________
Crown Copyright ©
Sir Geoffrey Vos, Master of the Rolls:
Introduction
[F]irst, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff's perception of it combined with a close relationship of affection between the plaintiff and the primary victim" (emphasis added).
These five elements have come to be known as "control mechanisms" limiting liability for psychiatric injury. I do not find that terminology particularly helpful, since it is inapt to describe Lord Oliver's five elements from which the essential requirement of proximity had to be deduced. Thus, whilst the cases I shall cite use the term "control mechanisms", I will refer instead to Lord Oliver's five elements, whilst acknowledging that Lord Ackner also made the same points in his speech in Alcock. Having referred to the five elements, Lord Oliver said that, in addition to legal proximity, reasonable foreseeability was necessary on the part of the defendant that "in that combination of circumstances [the five elements] there was a real risk of injury of the type sustained by the particular [claimant] as a result of his or her concern for the primary victim".
The basic facts of the three cases
Paul
Polmear
Purchase
The relevant authorities in chronological order
McLoughlin v. O'Brian [1983] AC 410: judgment 6 May 1982 (McLoughlin)
Alcock: judgment 28 November 1991
Somerset: judgment 11 January 1993
"… first that there was no event on the facts of this case to which the proximity test could be applied … the test required some external, traumatic, event in the nature of an accident or violent happening. Here … Mr. Taylor's death long after the negligence which had caused it was the culmination of the natural process of heart disease, and the death, however unexpected and shocking to Mrs. Taylor when she learned of it, was not in itself an event of the kind to which the immediate aftermath extension could be attached.
… secondly that, if Mr. Taylor's death at work could be considered an event of the kind to which the immediate aftermath extension can be attached, Mrs. Taylor's discovery of it at the hospital from a doctor and subsequent identification of the body did not satisfy the [requirement] as to the means by which the shock is caused. Such means, he submitted, lacked the immediacy or directness required to come within that extension".
Sion v. Hampstead Health Authority [1994] 5 Med LR 170 (Sion): judgment 27 May 1994
"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 McLoughlin 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".
Page v. Smith [1996] 1 AC 155 (Page): judgment 11 May 1995
White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455 (White) (also known as Frost): judgment 3 December 1998
Walters: judgment 6 December 2002
46. Thomas J had concluded at first instance at [40] (see [17] on appeal) that "[l]ooked at overall and reviewing the factors referred to by Lord Ackner … and Lord Oliver in [Alcock], there was a very strong element of physical proximity to the event which the claimant witnessed, a very close temporal connection between the event and the claimant's perception of it, the event was horrifying and her appreciation of it sudden in contradistinction to an accumulation of gradual assaults on her mind". The two main grounds of appeal were that a 36-hour period could not properly be regarded as one horrifying event, and that the claimant had really suffered from a gradual assault of the mind rather than any sudden event.
Novo: judgment 18 March 2013
"In the present case, [the defendant's] negligence had two consequences which were separated by three weeks in time. The judge described them as two distinct events. The use of the word "event" has the tendency to distract. In reality there was a single accident or event (the falling of the stack of racking boards) which had two consequences. The first was the injuries to [the mother's] head and arm; and the second (three weeks later) was her death. There was clearly a relationship of legal proximity between [the defendant and the mother]. Moreover, if [the daughter] had been in physical proximity to her mother at the time of the accident and had suffered shock and psychiatric illness as a result of seeing the accident and the injuries sustained by her mother, she would have qualified as a secondary victim on established principles But in my view, to allow [the daughter] to recover as a secondary victim on the facts of the present case would be to go too far. I have reached this conclusion for two inter-related reasons".
"Let us now consider the situation that would have arisen if [the mother] died at the time of the accident and [the claimant daughter] did not witness the death, but she suffered shock when she came on the scene shortly after the "immediate aftermath". In that event, [the claimant daughter] would not have been able to recover damages for psychiatric illness because she (possibly only just) would have failed to satisfy the physical proximity control mechanism. The idea that [the claimant daughter] could recover in the first situation but not in the others would strike the ordinary reasonable person as unreasonable and indeed incomprehensible. In this area of the law, the perception of the ordinary reasonable person matters. That is because where the boundaries of proximity are drawn in this difficult area should, so far as possible, reflect what the ordinary reasonable person would regard as acceptable. This is the idea that Lord Hoffmann was expressing in [White] in the context of distinguishing between different categories of secondary victims in that case. Accordingly, unless compelled to do so by previous authority, I would refuse to hold that it is reasonable to impose liability on [the defendant] for [the claimant daughter's] psychiatric illness".
"There are two notions implicit in this exception [i.e. the aftermath exception] cautiously introduced and cautiously continued by the House of Lords. They are of:
(i) an external, traumatic, event caused by the defendant's breach of duty which immediately causes some person injury or death; and
(ii) a perception by the plaintiff of the event as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event as well as of its consequence is brought home to him.
There was no such event here other than the final consequence of [the primary victim's] progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. In my judgment, his death at work and the subsequent transference of his body to the hospital where [the claimant wife] was informed of what had happened and where she saw the body do not constitute such an event".
Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 (Ronayne): judgment 17 June 2015
"I consider that the "event" must be one which would be recognised as "horrifying" by a person of ordinary susceptibility; in other words, by objective standards. After all, certain people would find it more frightening to have no medical knowledge and not to know what was going on; they may feel helpless and isolated. Others may have armed themselves in advance with medical information from the internet which leads them to feel far greater fear than is in fact justified. It would be unfortunate if secondary victims' claims were to become embroiled in debates about an individual claimant's level of medical knowledge and its effects upon whether an "event" should be classified as "horrifying"."
"It follows that this was not in my judgment a case in which there was a sudden appreciation of an event. As Swift J found in Shorter, there was a series of events which gave rise to an accumulation during that period of gradual assaults on the Claimant's mind. Ward LJ in Walters contrasted what there occurred with a "gradual dawning of realisation that her child's life had been put in danger by the defendant's negligence," which would not have amounted to a sudden and unexpected assault on her mind. That in my judgment is an apt description of what here occurred – a gradual realisation by the Claimant that his wife's life was in danger in consequence of a mistake made in carrying out the initial operation".
The reasoning of the courts below
"… I would hold that the Master was wrong to conclude that these claims are bound to fail on the facts pleaded. Here, unlike in [Novo], there was on the facts pleaded only one event: Mr Paul's collapse from a heart attack on 26 January 2014. On the facts pleaded, it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul's death. The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and 9. The fact that the event occurred 14½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an "accident" in the ordinary sense of the word, but rather an event internal to the primary victim. In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete, [Novo] does not preclude liability".
"On the facts pleaded, Esmee's collapse was a sudden event, external to the secondary victims, and it led very rapidly to her death. The event would have been horrifying to any close family member who witnessed it, and especially to the parents. In the circumstances the question is why should the fact that Esmee had suffered non-fatal episodes on previous occasions rule out the secondary victim claims of her parents. It seems to me that Esmee's final episode can be appropriately described as a fact and consequence of the Defendant's negligence".
"The death of Evelyn and the aftermath of the discovery of her body cannot be the relevant event for the purposes of deciding the proximity question. It does not make any difference that Mrs Purchase was present at the consultation with the Defendant on the 4 April as that was not the start of a shocking event as defined as "a sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind". It also does not even come within the hitherto excluded category of an accumulation over a period of time of more gradual assaults on the nervous system".
Determination of the issue
The three situations
How do the five elements apply to the second situation (negligence and horrific event separated in time)?
Do subsequent authorities prevent the court concluding that the five elements are satisfied in the second situation (negligence and horrific event separated in time)?
Conclusions
Lord Justice Underhill, Vice-President of the Court of Appeal (Civil Division):
Lady Justice Nicola Davies:
Note 1 One might query whether Lord Oliver really meant “elusive” rather than “illusive”. [Back] Note 2 This is not actually quite what he said. In fact, he said that “No case prior to the hearing before Hidden J … has countenanced an award of damages for injuries suffered where there was not at the time of the event a degree of physical propinquity between the plaintiff and the event caused by the defendant’s breach of duty to the primary victim nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a relatively short interval of time”.
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