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|Neutral Citation Number:  EWCA Civ 194
|Case No: B3/2012/1365
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WARRINGTON COUNTY COURT
HIS HONOUR JUDGE HALBERT
|Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
LORD JUSTICE MOORE-BICK
LORD JUSTICE KITCHIN
(Transcript of the Handed Down Judgment of
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Mr Charles Cory-Wright QC and Mr Charles Bagot (instructed by Hill Dickinson LLP) for the Appellant
Mr Edward Bartley Jones QC and Mr Simon Earlam (instructed by Watsons Solicitors) for the Respondent
Hearing date: 13 February 2013
HTML VERSION OF JUDGMENT
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Master of the Rolls:
- On 27 February 2008, Cindy Taylor (Mrs Taylor) was injured in an accident at work as a result of which she sustained injuries to her head and left foot. She was injured when a fellow employee caused a stack of racking boards to tip over on top of her. The accident was caused by the admitted negligence of the appellant her employer (Novo). She was apparently making a good recovery when on 19 March 2008 she suddenly and unexpectedly collapsed and died at home. Her sudden collapse and death were due to deep vein thrombosis and consequent pulmonary emboli, which themselves were due to the injuries that she had sustained in the accident. Her daughter, Crystal Taylor (Ms Taylor) did not witness the accident, but she did witness her mother's death. It is not in dispute that, as a result of witnessing her mother's death, she suffered significant post traumatic stress disorder (a well known psychiatric injury). The only issue at the trial before HHJ Halbert was whether Ms Taylor was entitled as a matter of law to claim damages from Novo as a "secondary victim" of the accident to her late mother (Mrs Taylor being the "primary victim"). The judge held that she was. The issue before this court is whether he was right to do so.
- In a careful and thoughtful judgment, the judge helpfully said that it was clear from the case-law that, in order to succeed as a secondary victim, Ms Taylor had to satisfy the following seven requirements: (i) her injury was reasonably foreseeable; (ii) she was a close relative of and had a close emotional relationship with the primary victim; (iii) she had suffered a recognised psychiatric injury; (iv) the injury was caused by the actions of the defendant; (v) the injury was caused by "shock" as a result of a sudden perception of the death of, or risk to or injury to the primary victim; (vi) she was either present at the scene of the accident which caused the death or must have been involved in its immediate aftermath (both physical and temporal proximity being required); and (vii) she must have perceived the death, risk of injury with her own senses.
- Novo accepted that all these requirements were met save for (vi). Its case was and remains that proximity was lacking because Ms Taylor was not present at the scene of the accident and was not involved in its immediate aftermath. She suffered the shock which led to her illness at her mother's home twenty one days later. On behalf of Ms Taylor, it was submitted to the judge (and on appeal to this court) that the "event" which should be considered for the purposes of deciding whether she is a secondary victim is not the original accident, but the collapse and death that resulted from it. If the latter is the relevant event, proximity is established, since Ms Taylor was present and witnessed the collapse and death of her mother.
The law on secondary victims
- The classification of primary and secondary victims appears to have derived originally from the speech of Lord Oliver in Alcock v Chief Constable of South Yorkshire Police  1 AC 310. The plaintiffs in that case alleged that the impact of what they saw and heard at the Hillsborough stadium disaster had caused them nervous shock resulting in psychiatric illness. At p 407D-E, Lord Oliver said:
"Broadly [the cases] divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others."
- He proceeded to refer to these two categories of plaintiff respectively as "primary" and "secondary" victims. In the case of secondary victims, the starting point is whether psychiatric injury caused to the claimant was a reasonably foreseeable consequence of the defendant's negligence; and in addition to the requirement of reasonable foreseeability of psychiatric illness, there must be a relationship of proximity between the claimant and the alleged tortfeasor.
- He explained at p 410D that the reasonable foreseeability test had been described by Lord Atkin in Donoghue v Stevenson  AC 562 at 580 as "demonstrably too wide" and was refined by him into the more restricted "neighbour" test which introduced the "essential but illusive (sic)" concept of proximity. Lord Oliver then said this at p 410E:
"The failure of the law in general to compensate for injuries sustained by persons unconnected with the event precipitated by a defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of "policy" which draws a line as the outer boundary of the area of duty. Nor can it rationally be made to rest upon such injury being without the area of reasonable foreseeability. It must, as it seems to me, be attributable simply to the fact that such persons are not, in contemplation of law, in a relationship of sufficient proximity to or directness with the tortfeasor as to give rise to a duty of care, though no doubt "policy," if that is the right word, or perhaps more properly, the impracticability or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity, necessarily plays a part in the court's perception of what is sufficiently proximate.
What is more difficult to account for 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. That such an exception exists is now too well established to be called in question. What is less clear, however, is the ambit of the duty in such cases or, to put it another way, what is the essential characteristic of such cases that marks them off from those cases of injury to uninvolved persons in which the law denies any remedy for injury of precisely the same sort. Although it is convenient to describe the plaintiff in such a case 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 difficulty lies in identifying the features which, as between two persons who may suffer effectively identical psychiatric symptoms as a result of the impression left upon them by an accident, establish in the case of one who was present at or near the scene of the accident a duty in the defendant which does not exist in the case of one who was not. The answer cannot, I think, lie in the greater foreseeability of the sort of damage which the plaintiff has suffered. The traumatic effect on, for instance, a mother on the death of her child is as readily foreseeable in a case where the circumstances are described to her by an eye witness at the inquest as it is in a case where she learns of it at a hospital immediately after the event. Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by a policeman hours after the event may be as sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene. The answer has, as it seems to me, to be found in the existence of a combination of circumstances from which the necessary degree of "proximity" between the plaintiff and the defendant can be deduced. And, in the end, it has to be accepted that the concept of "proximity" is an artificial one which depends more upon the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction. The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J. in the instant case and in which the plaintiff succeeded in establishing liability are, first, 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. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim."
- The five common features identified by Lord Oliver have since been referred to as the "control mechanisms" for limiting the class of persons who can recover damages for psychiatric illness as secondary victims: see per Lord Lloyd in Page v Smith  1 AC 155, 197E-H. There follows a detailed consideration by Lord Oliver of some of the cases culminating in his conclusion at p 415G that there is no "logic and no virtue in seeking to lay down as a matter of "policy" categories of relationship within which claims may succeed and without which they are doomed to failure in limine". At p 416D, he summarised the position in these words:
"But in every case the underlying and essential postulate is a relationship of proximity between plaintiff and defendant and it is this, as it seems to me, which must be the determining factor in the instant appeals. No case prior to the hearing before Hidden J. from which these appeals arise 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. The necessary element of proximity between plaintiff and defendant is furnished, at least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the plaintiff's mind of actually witnessing the event or its immediate aftermath. To use Lord Wilberforce's words in McLoughlin's case  1 AC 410, 422-423:
"As regards proximity to the accident, it is obvious that this must be close in both time and space. . . . The shock must come through sight or hearing of the event or of its immediate aftermath."
Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point. In my opinion, the necessary proximity cannot be said to exist where the elements of immediacy, closeness of time and space, and direct visual or aural perception are absent."
- Frost v Chief Constable of South Yorkshire Police  2 AC 455 was another case arising from the Hillsborough disaster. The plaintiffs were police officers who brought claims for psychiatric injury suffered as a result of tending victims of the tragedy. It was held by the House of Lords that the general rules restricting the recovery of damages for pure psychiatric harm applied to the plaintiffs' claims as employees. Lord Steyn made some important observations about the law governing recovery for pure psychiatric harm. At p 493A-494G, he explained why, on policy grounds, the courts had adopted a restrictive approach to this area of the law. He identified four features of claims for psychiatric harm which in combination may account for the different treatment. One factor was that the abolition or a relaxation of the special rules governing the recovery of damages for psychiatric harm would "greatly increase the class of persons who can recover damages in tort". Another factor was that the imposition of liability for pure psychiatric harm in a wide range of situations "may result in a burden of liability on defendants which may be disproportionate to tortious conduct involving perhaps momentary lapses of concentration, eg in a motor accident". Lord Steyn's overall conclusion was set out at p 500B:
"Thus far and no further
My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. The case for such a course has been argued by Professor Stapleton. But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. They would allow claims for pure psychiatric damage by mere bystanders: see (1997) 113 L.Q.R. 410, 415. Precedent rules out this course and, in any event, there are cogent policy considerations against such a bold innovation. In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case  1 AC 310 http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=4&crumb-action=replace&docguid=I546B3320E42711DA8FC2A0F0355337E9 and Page v. Smith  AC 155 as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform."
- At p 501C, Lord Hoffmann embarked on a comprehensive review of the case law relating to recovery for psychiatric injury. He noted at p 502D that in Alcock, the House of Lords decided that liability for psychiatric injury should be restricted by "control mechanisms", which he said were "more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds". He noted that the control mechanisms had been criticised as drawing distinctions which the ordinary man would find hard to understand. Having referred to various proposals for reform, he said none of them was open to the House. He added:
"It is now too late to go back on the control mechanisms as stated in the Alcock case  1 AC 310. Until there is legislative change, the courts must live with them and any judicial developments must take them into account."
- Finally, at p 511B, he said:
"It seems to me that in this area of the law, the search for principle was called off in [Alcock]. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle. I agree with Jane Stapleton's remark that 'once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular cause of action, incrementalism cannot provide the answer:' see The Frontiers of Liability, vol 2 p 87."
Lord Browne-Wilkinson agreed that the appeals should be allowed for the reasons given by Lord Steyn and Lord Hoffmann. Lord Griffiths agreed that the appeals should be allowed, but made no general comments and Lord Goff dissented.
- It might be thought that, for the purposes of determining the issues that arise in the present case, it is unnecessary to consider any more of the case law. But in the light of the submissions of Mr Bartley Jones QC, I need to refer to several other authorities. The first is Taylor v Somerset Health Authority  4 Med LR 34. The plaintiff's husband suffered a heart attack whilst at work and died shortly after being taken to the defendant's hospital. The plaintiff went to the hospital within an hour and was told of his death by a doctor about 20 minutes after her arrival. She was shocked and distressed. She then went to the mortuary and identified her husband's body. The defendants had been treating him for many months and negligently failed to diagnose or treat his serious heart disease. It was admitted that she had suffered nervous shock (ie psychiatric illness) as a result of what she had heard and seen at the hospital. Auld J held that the death was the final consequence of negligence by the defendants many months earlier. The "immediate aftermath" extension had been introduced as an exception to the general principle established in accident cases that a plaintiff could only recover damages for psychiatric injury where the accident and the primary injury or death caused by it occurred within his sight or hearing. He continued:
"There are two notions implicit in this 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 Mr. Taylor'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 Mrs. Taylor was informed of what had happened and where she saw the body do not constitute such an event."
- The next authority is Sion v Hampstead Health Authority  5 Med LR 170. This was a strike-out case. A father claimed damages against the defendant health authority in respect of psychiatric illness allegedly caused to him by the negligence of hospital staff in caring for his son. The son was injured in a motor-cycle accident. He was taken to hospital and his father stayed with him for fourteen days watching him deteriorate, fall into a coma and die. The claim was that the son's death was caused by the negligent failure to diagnose internal bleeding. The judge struck the claim out as disclosing no cause of action. The plaintiff's appeal was dismissed by the Court of Appeal. Staughton LJ held that there was no trace in the plaintiff's medical report that the plaintiff had suffered a shock. On an application of Alcock, the claim was therefore bound to fail. Waite LJ agreed that the appeal should be dismissed for the reasons stated in the judgments of Staughton and Peter Gibson LJJ. Peter Gibson LJ agreed that the claim was bound to fail because there was no evidence of nervous shock. But he also dealt with the defendant's submission that the claim could not succeed because the injuries and /or death of the plaintiff's son did not qualify as a relevant event for the purposes of a valid secondary victim claim. The defendant relied on the decision of Auld J in Taylor. Peter Gibson LJ said that he was not persuaded by this argument. He acknowledged that in most of the decided cases there had been a sudden and violent incident resulting from a breach of duty. But, he said "it is the sudden awareness, violently agitating the mind, of what is occurring or has occurred that is the crucial ingredient of shock". He then said:
"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."
- But since he agreed with Staughton LJ that there was no evidence of nervous shock, what Peter Gibson LJ said in relation to Taylor was not necessary for his decision (ie was obiter dicta).
- The next authority is W v Essex County Council  2 AC 592, which is another strike-out case. Parents signed an agreement with the council to become foster parents. Following assurances from the council that they would not place a sexual abuser with them and following a false representation by the council's social worker that G was not a known sexual abuser, they agreed to foster him. The parents later discovered that G had sexually abused their children. They alleged that as a result of the abuse of their children, they had suffered psychiatric illnesses. They commenced proceedings claiming damages in negligence. The judge struck the claim out and the Court of Appeal upheld the decision. The House of Lords allowed the parents' appeal. Lord Slynn gave the only substantive speech. He reviewed the leading authorities relating to secondary victims. At p 600B, he noted that in McLoughlin v O'Brian  AC 410 at p 430C-E, Lord Scarman recognised the need for flexibility in dealing with new situations not clearly covered by existing decisions and that in this still developing area the courts must proceed incrementally. At p 601A, he said: "the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases finally closed. It is a concept still to be developed in different factual situations." At p 601 F he said:
"Whilst I accept that there has to be some temporal and spatial limitation on the persons who can claim to be secondary victims, very much for the reasons given by Lord Steyn in the Frost case, it seems to me that the concept of "the immediate aftermath" of the incident has to be assessed in the particular factual situation. I am not persuaded that in a situation like the present the parents must come across the abuser or the abused "immediately" after the sexual incident has terminated. All the incidents here happened in the period of four weeks before the parents learned of them. It might well be that if the matter were investigated in depth a judge would think that the temporal and spatial limitations were not satisfied. On the other hand he might find that the flexibility to which Lord Scarman referred indicated that they were."
- The next case is North Glamorgan NHS Trust v Walters  EWCA Civ 1792,  PIQR P16 which is the authority on which Mr Bartley Jones places most reliance. The claimant suffered a pathological grief reaction (a recognised psychiatric illness) as a result of witnessing the consequences of the negligent treatment of her son (E) including his death. As a result of negligent misdiagnosis, E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E's brain damage was so severe that he would have no quality of life. The claimant and her husband then decided that E's life support should be terminated and E died in her arms approximately 36 hours after the seizure. The expert evidence was that she had suffered shock as a result of what she had witnessed. The judge held that she fell within the existing categories of secondary victims who were entitled to recover damages for psychiatric harm. The defendant appealed on the ground that the 36-hour period could not in law amount to a single horrifying event and that the judge had expanded the established control mechanisms for claimants with psychiatric injuries with insufficient regard to the recognised policy constraints against innovation in this field of the law.
- Ward LJ gave the leading judgment and at para 34 said:
" In my judgment the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary "event". Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: "An item in a sports programme, or the programme as a whole". It is a useful metaphor or at least a convenient description for the "fact and consequence of the defendant's negligence", per Lord Wilberforce [in McLoughlin], or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be. It is a matter of judgment from case to case depending on the facts and circumstance of each case. In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience."
- Clarke LJ agreed with the reasoning of Ward LJ. At para 48 he said that he recognised that, as Lord Hoffmann had said in Frost, the search for principle in this area had been called off in Alcock and that it was now too late to go back on the established control mechanisms. Nevertheless, he did not think that these mechanisms should be applied "too rigidly or mechanistically". At para 50, he said that this was a "developing area of the common law". Sir Anthony Evans agreed with both judgments.
- The final case is Galli-Atkinson v Seghal  Lloyds Rep Med 285. As a result of the defendant's negligent driving, the claimant's daughter was killed at 7.05 pm on 12 January 1998. The claimant learnt of the accident and visited the scene one hour later. Subsequently, she and her husband went to the mortuary and arrived there at 9.15 pm the same day. As a result, the claimant suffered a psychiatric illness. The judge dismissed her claim for damages on the ground that what happened in the mortuary could not be said to be part of the immediate aftermath of the accident. The Court of Appeal disagreed. Applying the approach adopted in Walters, the court said that an event might be made up of a number of components as could the aftermath "provided that the events alleged to constitute the aftermath retain sufficient proximity to the event" (para 25 of the judgment of Latham LJ). On the facts, the immediate aftermath extended from the moment of the accident until the claimant left the mortuary: there was an uninterrupted sequence of events.
The judgment of HHJ Halbert
- The judge carefully considered the authorities and concluded that the point at issue had not been previously decided. He had to apply the principles established in the authorities to a novel factual situation. He said that the event which caused damage to Ms Taylor was the sudden death of her mother and there was no gap between this event and the injury that she suffered. This sudden and horrifying event was caused by the first event and the injury suffered by Ms Taylor was the reasonably foreseeable consequence of Novo's negligence. The judge summarised his conclusion at para 5.12 in these terms:
"However, taking a commonsense view, this was not a gradual decline leading to death, it was a sudden collapse. It was on any practicable view a new "event" and a very traumatic one for CT. In reality, to argue that it was not a separate event is an artificial construct. It is an attempt to establish a defence based on the ALCOCK (sic) "control mechanisms" in a situation where they really do not apply. The operative "event" which traumatised the Claimant was sudden and horrifying. She was present at the scene and witnessed it with her own senses. The fact that there was an earlier incident caused by the same negligent act is irrelevant. The fact that the second event would not have occurred but for the first adds nothing."
Novo's challenge to the decision of HHJ Halbert
- Mr Cory-Wright QC submits that the judge misunderstood the test for proximity. He erred in seeking to characterise the issue as being what was the proximate "event", instead of looking at the proximity of the relationship between the parties. In most cases, the relationship of proximity will be satisfied by proving physical and/or temporal proximity to a relevant event and its aftermath, whether it is a car crash, a crowd being crushed in a stadium or a hospital accident. That is because in most cases, there is only one relevant event. But it is incorrect to elevate proximity to a relevant event so as to be the test. It distracts attention from the fact that what is required is proximity between the secondary victim and the tortfeasor. Once it is appreciated that the correct question is whether the parties were in a sufficiently proximate relationship, it becomes clear that the answer must be no. That is because Ms Taylor was not present at the scene of her mother's accident at work or any scene that might sensibly be thought to be part of its immediate aftermath. In short, on any sensible application of Lord Atkin's neighbour principle, Ms Taylor was not Novo's neighbour.
Summary of the submissions of Mr Bartley Jones
- Mr Bartley Jones accepts that the collapse and death of Mrs Taylor were not part of the "immediate aftermath" of the first event. He submits, however. that the judge reached the right conclusion for the right reasons. In short, the death of Mrs Taylor was the relevant event in the present case and her daughter was physically proximate in time and space to that event. He relies on the short passage in the speech of Lord Wilberforce in McLoughlin v O'Brian at p 422D cited by Lord Oliver in Alcock. I should set it out again, although a slightly extended version of it:
"As regards proximity to the accident, it is obvious that it must be close in both time and space. It is after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock.' Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the 'aftermath' doctrine one who from close proximity, comes very soon upon the scene should not be excluded."
- I should interpolate that this was said in the context of a single event case. The plaintiff's daughter had been killed and other members of her family injured in a road accident. The plaintiff heard about the death and saw the injuries and as a result suffered psychiatric illness. But Mr Bartley Jones submits that the reasoning of Lord Wilberforce should also be applied to a second event case and the control mechanisms should be applied in the same way in both cases. Novo's negligence caused the second event and caused Ms Taylor's nervous shock and the control mechanisms do not exclude proximity in this case.
- In his skeleton argument, he argued that certain clinical negligence cases "mandated [the judge's] conclusion at least at Court of Appeal level". The cases to which he referred were Sion v Hampstead Health Authority and Walters v North Glamorgan NHS Trust. He argued, for example, that if Novo's submissions were correct, the plaintiff could not have succeeded in Walters. During the course of oral argument, however, Mr Bartley Jones moderated his position somewhat, but continued to rely on these authorities. He also relied on what Lord Slynn said in W v Essex and the decisions in Walters and Galli-Atkinson as evidence of a trend towards a more liberal approach in this area of the law.
- The broad distinction between primary and secondary victims propounded by Lord Oliver in Alcock (see para 7 above) has been criticised as unhelpful: see, for example, The Law Commission Paper The Liability for Psychiatric Illness (Law Com No 249) at paras 5.45 to 5.53. In particular, it is said that the authorities provide little guidance as to where the line between primary and secondary victims should be drawn. But the distinction is well established in our law and the relevant principles were stated by the House of Lords in Alcock and Frost. For the reasons stated in Frost, however, the courts should not seek to make any substantial development of these principles. That should be left to Parliament, although the case law shows that some modest development by the courts may be possible.
- This case does not raise questions of the kind which typically arise in secondary victim cases such as whether the claimant (i) had a close tie of love and affection with the primary victim; or (ii) was close in time and space to the incident for which the defendant was negligently responsible; or (iii) directly perceived the incident rather than, for example, hearing about it from a third person. The issue raised in this case is whether the death of Mrs Taylor was a relevant incident for the purposes of Ms Taylor's claim as a secondary victim. If it was, then her claim would succeed because, on this hypothesis, it would not founder on the rock of any of the control mechanisms.
- I accept the submission of Mr Cory-Wright that, in order to succeed, Ms Taylor must show that there was a relationship of proximity between Novo and herself. The word "proximity" has been used in two distinct senses in the cases. The first is a legal term of great importance in the law of negligence generally. It is used as shorthand for Lord Atkin's famous neighbour principle. Used in this sense, it is a legal concept which is distinct from and narrower than reasonable foreseeability. It describes the relationship between parties which is necessary in order to found a duty of care owed by one to the other. In his speech in Alcock Lord Oliver refers to proximity in this sense more than once in the passages which I have cited above. Lord Atkin's neighbour principle itself is concerned with the relationship between parties. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure "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." Lord Bridge made the same point in Caparo v Dickman  2 AC 605 at 617H:
"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood'…."
- But in secondary victim cases, the word "proximity" is also used in a different sense to mean physical proximity in time and space to an event. Used in this sense, it serves the purpose of being one of the control mechanisms which, as a matter of policy, the law has introduced in order to limit the number of persons who can claim damages for psychiatric injury as secondary victims or to put it in legal terms, to denote whether there is a relationship of proximity between the parties. In a secondary victim case, physical proximity to the event is a necessary, but not sufficient, condition of legal proximity.
- I accept the submission of Mr Cory-Wright that the correct question is whether Ms Taylor and Novo were in a relationship of proximity in the legal sense. The difficulty in answering this question is that, as Lord Oliver said, the concept of proximity depends more on the court's perception of what is the reasonable area for the imposition of liability than any process of logic. In the context of claims by secondary victims, the control mechanisms are the judicial response to how this area should be defined. This has involved the drawing of boundaries which have been criticised as arbitrary and unfair. But this is what the courts have done in an area where they have had to fix the ambit of liability without any guiding principle except Lord Atkin's famous, but elusive, test.
- In the present case, Novo'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 Mrs Taylor's head and arm; and the second (three weeks later) was her death. There was clearly a relationship of legal proximity between Novo and Mrs Taylor. Moreover, if Ms Taylor 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 Ms Taylor 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.
- First, it seems to me that, if the judge is right, Ms Taylor would have been able to recover damages for psychiatric illness even if her mother's death had occurred months, and possibly years, after the accident (subject, of course, to proving causation). This suggests that the concept of proximity to a secondary victim cannot reasonably be stretched this far. Let us now consider the situation that would have arisen if Mrs Taylor died at the time of the accident and Ms Taylor did not witness the death, but she suffered shock when she came on the scene shortly after the "immediate aftermath". In that event, Ms Taylor 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 Ms Taylor 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 Frost 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 Novo for Ms Taylor's psychiatric illness. I do not consider that there is any authority which compels such a conclusion. I explain below why I do not accept the submission of Mr Bartley Jones that any of the authorities on which he relies supports the decision reached by the judge in the present case.
- The second reason is closely connected with the first. In Frost, the House of Lords recognised that this area of the law is to some extent arbitrary and unsatisfactory. That is why Lord Steyn said "thus far and no further" in Frost and Lord Hoffmann and Lord Brown-Wilkinson agreed with him. It is true that the issue in Frost was very different from that with which we are concerned in the present case. But that does not detract from the force of the general point that their Lordships were making. In my view, the effect of the judge's approach is potentially to extend the scope of liability to secondary victims considerably further than has been done hitherto. The courts have been astute for the policy reasons articulated by Lord Steyn to confine the right of action of secondary victims by means of strict control mechanisms. In my view, these same policy reasons militate against any further substantial extension. That should only be done by Parliament.
- It follows that, in my view, the judge was wrong to hold that the death of Mrs Taylor was the relevant "event" for the purposes of deciding the proximity question. A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident. Auld J put the point well in Taylor (see para 11 above). Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother's accident. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother's death three weeks after the accident.
- I turn to the authorities relied on by Mr Bartley Jones. It follows from what I have said that in my view the reasoning of Auld J in Taylor was correct. As I have explained at para 13 above, the observations of Peter Gibson LJ in Sion were obiter dicta and they are therefore not binding on this court.
- W v Essex is a strike out case. All that the House of Lords decided was that the claim should not have been struck out because it raised an arguable case. For that reason alone, it is of limited value. More importantly, Lord Slynn was saying no more than that, accepting that there had to be some temporal and spatial limitation, the concept of "the immediate aftermath" of an incident had to be assessed "in the particular factual situation" and possibly more flexibly than previously. I accept that there has been a tendency in the more recent case law to adopt a somewhat more relaxed approach to what constitutes the immediate aftermath of an incident. But that is not relevant to the present case. This is not a case in which the judge adopted a generous approach to the issue of what constituted the immediate aftermath. He did not need to adopt that approach because he decided that the relevant incident or event was Mrs Taylor's death. There could be no issue as to the physical proximity of Ms Taylor to that event.
- In Walters the court had to decide what was the event for the purposes of establishing a right of action as a secondary victim. The court was able on the facts of that case to hold that the event was a "seamless tale with an obvious beginning and an equally obvious end...played out over a period of 36 hours". It was "one drawn-out experience". I do not see how this sheds any light on the question that arises in this case where the injuries and death suffered by Mrs Taylor were certainly not part of a single event or seamless tale. The judge held (correctly) that the sustaining of the injuries and the death were distinct events. The question whether the death, being a separate event, was a relevant event for the purposes of a claim by a secondary victim did not arise in Walters. For the same reason, I would distinguish Galli-Atkinson as well.
- There is therefore nothing in the authorities to which our attention was drawn which compels or even supports the judge's conclusion which, for the reasons that I have given, I respectfully consider to have been wrong. I would allow the appeal.
Lord Justice Moore Bick
- I agree.
Lord Justice Kitchin:
- I also agree.
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