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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] 2 WLR 917, [2022] PIQR P8, [2022] WLR(D) 47, [2022] EWCA Civ 12, (2022) 184 BMLR 20, 184 BMLR 20, [2023] QB 149 |
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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 |
||
B e f o r e :
VOS,
MASTER OF THE ROLLS
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: |
||
| (1) LYNETTE POLMEAR (2) MARK POLMEAR |
Claimants/Respondents |
|
| - and - |
||
ROYAL CORNWALL HOSPITAL NHS TRUST | Defendant/Appellant |
|
AND BETWEEN: |
||
| TARA PURCHASE |
Claimant/Appellant |
|
| - and - |
||
| MAHMUD AHMED |
Defendant/Respondent |
____________________
Paul
and Polmear, and respondent in Purchase
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
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Sir Geoffrey
Vos,
Master of the Rolls:
Introduction
victim
of that negligence. The basic facts in each of the cases are that the defendant is alleged to have failed to diagnose the primary
victim's
life-threatening condition. Some time after that negligent omission, the primary
victim
suffered a traumatic death. In two of the cases (
Paul
and Polmear), the shocking death occurred in the presence of the close relatives, causing them psychiatric injury. In the case of Purchase, the close relative came upon the primary
victim
immediately after her death, again causing her (the mother in that case) psychiatric injury. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative (often referred to as the secondary
victim).
v.
Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (Alcock), where Lord Oliver described the common features of the reported cases at that time at page 411F-H. It was from the following five elements that the essential requirement of proximity had to be deduced:
[F]irst, that in each case there was a marital or parental relationship between the plaintiff and the primaryvictim;
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 primaryvictim".
victim":
for example: "a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed".
Paul,
is a second appeal, where Mr Justice Chamberlain held that Master Cook had been wrong to conclude that the claims were bound to fail. The necessary proximity to Mr
Paul's
children could be established on the basis that Mr
Paul's
collapse and death, which was the shocking event (I shall generally use the term "horrific event") the children had witnessed, was the first manifest damage caused by the defendant's negligent failure to diagnose his heart condition. The question, according to Chamberlain J, was whether Mr
Paul's
death was capable of constituting a relevant event. He held that it was. Chamberlain J distinguished the two cases that Master Cook had relied upon: Taylor
v.
Somerset Health Authority [1993] PIQR 262 (Auld J) (Somerset) and Crystal Taylor
v.
A. Novo (UK) Ltd [2013] EWCA Civ 194 (Court of Appeal) (Novo). Somerset was a clinical negligence case with facts similar to
Paul,
but Novo was an accident case, where the claimant had been shocked by the traumatic death of the primary
victim
three weeks after her injury in the accident.
Paul.
Master Cook said that the parties were agreed that the question on the strike out was whether the claimant parents had a reasonably arguable case that the relevant event required to satisfy the control mechanism of proximity was the collapse and death of the primary child
victim,
Esmee (5 or 7 months after the negligent failure to diagnose). He followed Chamberlain J and held that it was possible to identify a qualifying horrific event and that that horrific event did not have to coincide with or immediately precede the first actionable damage to the primary
victim.
victims
for psychiatric injury are available in clinical negligence cases. They submit, however, that the deaths in each of these cases were separated in space and time from the negligence that occurred in a hospital or primary care setting. They cannot, therefore, be said to be "the relevant event for deciding the proximity required to establish liability under the established control mechanisms". In essence, they submit that this court is bound by its own decision in Novo, which decided that a secondary
victim
cannot claim in respect of psychiatric injury sustained by witnessing any horrific event once actionable damage has already been sustained by the primary
victim
on an earlier occasion. Moreover, Novo approved Somerset whose facts were on all fours with these cases.
Paul
claimants, submitted that Chamberlain J was right to distinguish Somerset and Novo. They argued that the relevant event or trigger for the liability to the secondary
victim
had to be a single event "that was the damage that it was the duty of the defendant to protect the primary
victim
against when the damage first becomes manifest or evident".
victim
was sufficient to give rise to legal proximity and liability to a secondary
victim
satisfying Lord Oliver's five elements, whether or not damage to the primary
victim
had occurred or manifested itself at an earlier time.
victim
who has suffered psychiatric injury by witnessing the death or other horrific event affecting the primary
victim
and caused by the negligence: (a) only when that horrific event is the damage completing the primary
victim's
cause of action in negligence, or (b) only when that horrific event is the first manifestation of damage to the primary
victim
caused by the negligence, or (c) whenever that horrific event occurs. The defendants say that the answer is (a). The
Paul
claimants say that the answer is (b). The Polmear and Purchase claimants say that the answer is (c).
victim
cases apply as much to clinical negligence cases as they do to accident cases. The question of what is a relevant horrific event is not dependent either on the completion of the primary
victim's
cause of action for negligence or the first manifestation of injury to the primary
victim.
For a secondary
victim
to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary
victim
injury, the horrific event cannot be a separate event removed in time from the negligence. If the negligence and the horrific event are part of a continuum as they were in Walters, there is sufficient proximity. Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event. I accept that, although there is no logical reason for these rules, they are the way Auld J in Somerset and the Court of Appeal in Novo built upon the five elements and adapted them to the clinical negligence context. If I were starting with a clean sheet, I can quite see why secondary
victims
in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case.
The basic facts of the three cases
Paul
suffered a heart attack and collapsed on 26 January 2014 when shopping with the second claimant (aged 12) and the third claimant (aged 9). His daughters saw him fall backwards and hit his head on the floor. The second claimant was so distressed that her attempts to ring her mother and an ambulance failed. A member of the public called an ambulance. The third claimant contacted her mother but could not be understood due to her distress. Both claimants saw a man holding their father's head; there was blood on his hands. Their mother subsequently arrived. The second and third claimants heard their mother screaming their father's name. They saw the ambulance crew put a foil blanket over him. Paramedics were performing chest compressions. The ambulance arrived at 15.57. It left the scene at 16.28. Mr
Paul
was declared dead at hospital at 16.51. Mr
Paul's
heart attack was caused by ischemic coronary artery atherosclerosis.
Paul
suffered from type II diabetes and from complications of this condition. On 9 November 2012 he was admitted to New Cross Hospital in
Wolverhampton
complaining of chest and jaw pain which radiated to the left arm. He was treated for acute coronary symptoms and was discharged on 12 November 2012. It is the claimants' case that the defendant was negligent in failing to perform coronary angiography in November 2012 which would have revealed the coronary artery disease and which could have been successfully treated by coronary revascularisation.
Polmear
veno-occlusive
disease.
vomited.
The first claimant joined them. The second claimant resumed the walk to the school but Esmee seemed frightened at the thought of walking and had to stop frequently, causing him to carry Esmee to the school. She was white and clammy with some blueness around her lips. At the door of the school, Esmee said that she felt faint. The second claimant reassured and comforted her. He walked away but received a call asking him to return. On doing so, he saw Esmee lying on the floor and a member of staff providing first aid. The second claimant took over and attempted to give Esmee mouth-to-mouth resuscitation. She was not breathing. The first claimant ran to the school and saw Esmee lying on the floor with members of staff attempting resuscitation which she could see was not working. Paramedics arrived and attempted resuscitation, which was witnessed by both claimants. The claimants went with Esmee in an ambulance to hospital. Attempts to revive Esmee continued at the hospital but they were unsuccessful.
Purchase
visited
her GP with acute sinusitis. In February Evelyn continued to feel unwell. She lost her appetite, resulting in weight loss. On 28 March 2013, Evelyn
visited
her GP and was prescribed medication for oral thrush and for a skin infection. She subsequently developed a cough and mouth ulcers. She lost her appetite and stopped eating. By 4 April 2013, Evelyn was weak and generally unwell. The claimant took Evelyn to the out-of-hours clinic where she was examined by the defendant. Evelyn had difficulty walking into the clinic as a result of weakness, dizziness and difficulty in breathing which was rapid, shallow and noisy. The diagnosis made was respiratory tract infection with pleuritic pain, oral thrush and "depressed". Antibiotics and an antidepressant were prescribed. Evelyn was advised to contact her own GP if the problems did not resolve.
vain,
the claimant attempted resuscitation until the arrival of paramedics. The paramedics' attempts at resuscitation were unsuccessful and the claimant was told that her daughter had died.
voice
message. It was the sound of Evelyn's dying breaths which continued for four minutes and 37 seconds. This caused the claimant to run out of the house and stand screaming in the street. The call was timed at 4.40am, and concluded approximately five minutes before the claimant saw Evelyn.
The relevant authorities in chronological order
McLoughlin
v.
O'Brian [1983] AC 410: judgment 6 May 1982 (McLoughlin)
value
or justice, to have been in contemplation". Lord Wilberforce said expressly at page 421B that he had to bear in mind that cases of nervous shock and the possibility of claiming
Alcock: judgment 28 November 1991
victim,
and (b) whether there existed between the defendant and each claimant that degree of directness or proximity necessary to establish liability.
victim"
being actually witnessed by the claimant. The answer was to be found in the existence of a combination of circumstances, namely the five elements already mentioned, from which the necessary degree of proximity between the claimant and the defendant could be deduced (page 411D-E).
victim"
(or the aftermath of it) which was witnessed by the claimant. Thus, the fifth element has to be read as requiring that "there was not only an element of physical proximity to the event [of injury to the primary
victim]
but a close temporal connection between the event [of injury to the primary
victim]
and the plaintiff's perception of it". That is further confirmed by his reference in the fourth element to the injury needing to arise from "witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary
victim".
The word "event" in the fifth element referred back to the event at which the claimant had witnessed the death of, extreme danger to, or injury and discomfort suffered by the primary
victim.
That is what I have referred to above as the horrific event. The remainder of Lord Oliver's speech dealt with the relationship between the primary and secondary
victims,
a question that does not arise in these cases. Lords Jauncey and Lowry concurred without further elaborating on the points of importance to these cases.
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 orviolent
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".
victim
in the sense of an outside impact or accident, either in the context of the aftermath principle or at all. It seems to me that the judges in McLoughlin and Alcock were doing no more than explaining the principles in the context of cases where such external traumatic events or accidents had in fact occurred. As I have already mentioned, Lord Wilberforce expressly said that cases of nervous shock were not confined to those arising out of accidents. I will return to this question.
Sion
v.
Hampstead Health Authority [1994] 5 Med LR 170 (Sion): judgment 27 May 1994
violently
agitates the mind" (Lord Ackner at page 401 in Alcock) rather than "an accumulation of more gradual assaults on the nervous system over a period of time" (page 176). He did not, however, agree with the defendant's submission that the claim could not succeed because the injuries to or the death of a primary
victim
in themselves did not qualify as the horrifying event causing the shock needed for a
valid
claim. He did not agree with Auld J in Somerset where he had "accepted an argument on similar lines":
"It is of course correct that in most of the decided cases there has been a sudden andviolent
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".
victim.
But equally, I do not think it can be taken as Court of Appeal authority approving what I have cited above from Peter Gibson LJ's judgment (with which Lord Dyson later disagreed in Novo).
Page
v.
Smith [1996] 1 AC 155 (Page): judgment 11 May 1995
victim
(see, for example, Lord Lloyd at page 197E-F).
White
v.
Chief Constable of South Yorkshire Police [1999] 2 AC 455 (White) (also known as Frost): judgment 3 December 1998
victims
of the Hillsborough disaster failed to recover damages for the resulting psychiatric injuries they had sustained, on the grounds that they did not satisfy the control mechanisms.
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.
view
being taken from case to case of what constituted the necessary event. It is worth noting, however, that, although Ward LJ cited at [29] what Peter Gibson LJ had said in Sion, he did not allude to Auld J's holding in Somerset that there needed to be a traumatic event external to the primary
victim.
Nor was any mention made of the gap between at least the start of the negligent failure to treat the primary
victim
and the onset of the horrifying event.
visual
impression on the claimant's mind of actually witnessing the event or its immediate aftermath there was no liability. The elements of proximity and causation were closely linked together. In Walters, on the evidence, Ward LJ held that the claimant's psychiatric condition was caused by shock.
Novo: judgment 18 March 2013
vein
thrombosis and consequent pulmonary emboli, which were caused by the injuries sustained in the accident. The claimant daughter suffered significant post-traumatic stress disorder as a result of witnessing her mother's death. HHJ Halbert gave judgment for the claimant, but the Court of Appeal (Lord Dyson MR, Moore-Bick and Kitchin LJJ) allowed the defendant's appeal.
v.
Essex County Council [2001] 2 AC 592 (Essex), Walters, and Galli-Atkinson
v.
Seghal [2003] Lloyds Rep Med 285 (Galli-Atkinson) in that order.
victim
[26]. If so, the claim "would not founder on the rock of any of the control mechanisms". Lord Dyson then pointed out that proximity had been used by Lord Oliver in Alcock in two senses. First, as a legal concept and shorthand for Lord Atkin's famous neighbour principle. Secondly, proximity was used as one of the control mechanisms to mean the physical proximity in time and space to an event. The correct question in Novo was whether the claimant and defendant were in a relationship of proximity in the legal sense. The difficulty was that, in the context of claims by secondary
victims,
the concept of proximity depended more on the court's perception of what was the reasonable area for the imposition of liability than any process of logic. The control mechanisms were the judicial response.
"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 secondaryvictim
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".
victim
cannot reasonably be stretched this far, and (ii) to allow liability would extend the scope of liability to secondary
victims
considerably further than has been done up to that time. That should only be done by Parliament.
"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 secondaryvictims
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".
victim
and witnessed by the claimant. In such a case, the relevant event was the accident, not a later consequence of the accident.
"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 primaryvictim
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 primaryvictim'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".
victim
if she had suffered shock and psychiatric illness as a result of seeing her mother's accident, but that she could not recover damages for the shock and illness that she suffered as a result of seeing her mother's death three weeks after the accident.
violence
or suddenness, such as where the wrong medicine was negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence had fatal results and a
visiting
close relative, wholly unprepared for what has occurred, found the body and thereby sustains a sudden and unexpected shock to the nervous system. Lord Dyson disagreed. That disagreement is significant for these cases, because the facts that Peter Gibson LJ postulated are close to the circumstances of them. The Court of Appeal seems expressly to have disapproved the concept of a claim for psychiatric injury by a close relative being allowable where clinical negligence caused later fatal results that the relative witnessed.
victim's
injury and death was "certainly not part of a single event or seamless tale". Lord Dyson explained that: "[t]he 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".
victim.
He held it was not because the second consequence of the negligence (the mother's death) was removed in time from the first consequence (the injury caused by the collapse of the racking boards). That gap in time was fatal to the establishment of legal proximity. What was lacking was, as Auld J had put it, a perception by the claimant of the (first) event as it happened, by presence at or exposure to the scene 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.
view,
entirely clear what Lord Dyson meant by his approval of Auld J's statement in Somerset that there needed to be an external traumatic event immediately causing the primary
victim
injury or death. I do not think Lord Dyson can have meant to say that an external traumatic event caused to the primary
victim
was always necessary, since he did not disapprove Walters where no such external event occurred.
victims
of clinical negligence claims, something that was not directly in issue in Novo.
Liverpool Women's Hospital
NHS
Foundation
Trust
v
Ronayne [2015] EWCA Civ 588 (Ronayne): judgment 17 June 2015
various
machines, and the second was post-operative, when she was unconscious, connected to a
ventilator
and being administered four types of antibiotic intravenously. The wife was swollen and her husband described her as looking like "Michelin Man". The main issue in the appeal was whether the events concerned were of a nature to be capable of founding a secondary
victim
case in that they were in the necessary sense horrifying. The Court of Appeal decided they were not.
v.
Surrey & Sussex HC
NHS
Trust
[2015] EWHC 614 (QB) at [214]:
"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 secondaryvictims'
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".
victim
in a clinical negligence context.
The reasoning of the courts below
Paul's
case on the first appeal. At [63], he noted that the key question was whether Mr
Paul's
collapse from a heart attack 14½ months after the allegedly negligent treatment was capable of constituting a relevant event. The first possible reason why not was that the event had to be approximately synchronous with the negligence giving rise to it. Chamberlain J said that there was nothing in McLoughlin and Alcock to suggest that was the case.
victim"
(emphasis added),[2] not the breach of duty itself. As Ms Johnson had submitted to him, there was nothing in any of the House of Lords authorities considering the control mechanisms to suggest that a claim for psychiatric injury suffered as a result of witnessing a person's death or injury caused by (for example) the collapse of negligently erected scaffolding, or electrocution as a result of negligent wiring, would be affected by the date of the negligence. Novo did not suggest that it would. In that case, Lord Dyson had made clear at [29] that the secondary
victim
would have been able to recover if she had witnessed the accident with the racking boards. There was, decided Chamberlain J, nothing to suggest that the position would have been any different if their collapse had been caused by being negligently stacked months or years beforehand.
"… 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: MrPaul'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".
victim.
He said this at [43]:
"On the facts pleaded, Esmee's collapse was a sudden event, external to the secondaryvictims,
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, whichviolently
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".
very
much on its own facts. The subsequent cases of Novo and Ronayne demonstrated that even a relatively short time period of somewhere between 36 and 54 hours was not in itself sufficient to establish proximity in time. Novo was binding authority that could only be overturned by the Supreme Court or by Parliament changing the law.
Determination of the issue
The three situations
victim
by that negligent act or omission.
victim
creating the horrific event occur at much the same time. Secondly, cases such as these, where the negligence occurs at an earlier time than the horrific event caused by that negligence. Thirdly, there are the cases, like Novo, where the negligence causes two distinct potentially horrific events separated in time.
victim,
and, on the other hand, the second type of case where there is a gap between these two events. In clinical negligence cases, it is
very
common for a misdiagnosis to occur at one time and for the death or serious injury to the patient caused by that misdiagnosis to occur much later. But medical negligence is not the only type of case where that can occur. In argument, the court postulated the case of a negligent architect designing a door in a load-bearing wall without specifying an RSJ, causing masonry to fall on a primary
victim's
head years later.
victim's
death or injury that it caused.
Paul
claimants suggests that the law is that a secondary claimant, who sustains psychiatric injury as a result of witnessing the horrific event suffered by a close relative, can only claim damages for that psychiatric injury if that horrific event is the first manifestation of damage to the primary claimant by the negligence. Mr Bagot for the defendants suggest that the law is that the secondary claimant can only claim damages for psychiatric injury if the horrific event is the damage completing the primary claimant's cause of action in negligence.
victim
or when such damage first manifested itself. There is nothing in any of the cases to suggest that this is the distinction that is to be drawn. I would suggest that it is also illogical to make the liability of a defendant for psychiatric injury caused to a secondary
victim
depend on whether the primary
victim's
cause of action had been complete, or whether that primary
victim
had sustained manifest damage, before the horrific event undoubtedly caused by the defendant's negligence. This is even more illogical when one understands that actual injury or damage to the primary
victim
is not even necessary to found liability to the secondary
victim,
as Lord Oliver made clear in Alcock.
victim.
What is important is the horrific event itself that caused the secondary
victim
the psychiatric injury in respect of which the claim is made.
How do the five elements apply to the second situation (negligence and horrific event separated in time)?
vicinity
and witnessed the aftermath shortly afterwards, (iv) the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary
victim,
(
v)
there was not only an element of physical proximity to the event but a close temporal connection between the event and the claimants' perception of it.
victim"
(or the aftermath of it) which was witnessed by the claimant. Thus, the fifth element is to be read as requiring that there is an element of physical proximity to the event of injury to the primary
victim,
and a close temporal connection between the event of injury to the primary
victim
and the claimant's perception of it. Satisfaction of the fourth and fifth elements are not the real dispute here.
vicinity,
or to witness the aftermath shortly afterwards is to be interpreted in the context of clinical negligence cases. That requirement comes, in part at least, from Lord Wilberforce's statement in McLoughlin that the fact and consequence of the defendant's negligence (the accident causing the horrific event) had to be close in time and space to the moment when the claimant was caused the nervous shock.
victim
was caused the psychiatric injury, and (b) the secondary
victim
was either personally present at the scene of the horrific event or accident or was in the more or less immediate
vicinity
and witnessed the aftermath shortly afterwards.
Do subsequent authorities prevent the court concluding that the five elements are satisfied in the second situation (negligence and horrific event separated in time)?
victim
so shortly afterwards that the shock of the event as well as of its consequence is brought home to him. That condition was not satisfied in the clinical negligence case of Somerset itself where the consequence of heart injury and death was many months after the negligence. Lord Dyson thought that the collapse of the racking boards causing injury to the primary
victim
could have constituted a sufficient horrific event to give rise to a claim by a close relative witnessing it, but what happened three weeks later could not.
victim
to recover damages for psychiatric illness if the horrific event occurred months, and possibly years, after the accident. Lord Dyson did not need to say expressly what would have been the case if the "accident" had occurred some time after the negligence, because he was not dealing with a case in which those were the facts (such as these clinical negligence cases). In my judgment, however, he clearly approved what Auld J had decided in Somerset which was a clinical negligence case. Auld J had made clear that the five elements did not allow recovery for anything that occurred beyond the aftermath of an accident. More specifically he held that there was no qualifying horrific event where the primary
victim's
heart condition caused death months after the health authority's negligence.
victim
where the negligence and the horrific event caused by it are removed in time.
victim's
cause of action) is found in the cases. Chamberlain J suggested that the first damage could constitute a relevant event even if it did not occur until 14½ months after the negligence, but that, as I have said is inconsistent with the decision in Novo, by which this court is bound.
victim
cases apply as much to clinical negligence cases as they do to accident cases. The question of what is a relevant horrific event is not dependent either on the completion of the primary
victim's
cause of action for negligence or the first manifestation of injury to the primary
victim.
The primary
victim's
cause of action is not the critical thing; there may not always be one. For a secondary
victim
to be sufficiently proximate to claim for psychiatric injury against the defendant whose clinical negligence caused the primary
victim
injury, the horrific event cannot be a separate event removed in time from the negligence. If the negligence and the horrific event are part of a continuum as seems to me the best possible explanation of Walters, there is sufficient proximity. It may be that the negligence was continuing in Walters at the time the 36-hour shocking event began. Either way, Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event.
victim.
Conclusions
Paul
and Polmear, and dismiss the appeal in Purchase.
victims
contained in the five elements emerging from the House of Lords authorities. Subject to hearing further argument, therefore, I would be prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case.
Lord Justice Underhill,
Vice-President
of the Court of Appeal (Civil Division):
victim
which (or the immediate aftermath of which) was witnessed by the claimant and caused the psychiatric illness complained of – occurred appreciably after the omissions which constitute the defendants' negligence. The issue is whether that means that the injury to the claimant is not sufficiently "proximate" to the breach of duty.
victim,
which (or the immediate aftermath of which) was the shocking event witnessed by the secondary
victim,
was broadly contemporaneous with the breach of duty; and it was unnecessary to consider what the position would be if it had occurred some time later. However, I find it hard to see a principled reason why there should be the requisite proximity in the one kind of case but not the other. The arbitrariness of the distinction is illustrated by the example given by Peter Gibson LJ in Sion: why should the doctor who negligently prescribes a fatal medicine be liable to the secondary
victim
if the patient takes it, and dies (in the requisite shocking circumstances) straightaway, but not if they do so only a few days or weeks later? As the Master of the Rolls demonstrates, Lord Oliver's references in Alcock to the need for "physical and temporal propinquity" are not directed to the relationship between the breach of duty and the shocking event but rather to the need for the claimant to be close in space and time to the shocking event.
v
A. Novo. I have not found it easy to identify the precise ratio of that decision. There are some parts of the reasoning in paras. 29 and 30 of Lord Dyson's judgment that suggest that he saw the crucial feature of the case as being that there had been an initial "accident" which could in principle have constituted a shocking event, if witnessed, and that that meant that any subsequent such event could not be regarded as sufficiently proximate: that was Chamberlain J's analysis. But I have come to the conclusion that if the judgment is read as a whole the ratio is wider than that. At para. 33 Lord Dyson said that "it follows from what I have said above" that the reasoning of Auld J in Taylor
v
Somerset Health Authority was correct, and he rejected Peter Gibson LJ's contrary observations in Sion on the basis that they were obiter dicta. The essence of the reasoning which he was thereby endorsing was that there could be no liability for psychiatric injury to the claimant caused by witnessing her husband's death "long after the negligence which had caused it", as opposed to injury caused by a traumatic event occurring at the time of the breach of duty (see the passage quoted at para. 11). Against that background, the fair reading of paras. 29 and 30 seems to be that the ultimately decisive feature was simply that there had been an interval of time between the breach of duty, whether or not it occasioned any injury at the time, and the shocking event. In Taylor
v
A. Novo itself the interval was three weeks, but the principle must be the same whatever the interval, provided it is not part of the same sequence of events as in cases of the Walters kind.
view,
like his, is that the issues raised by them merit consideration by the Supreme Court.
Lady Justice Nicola Davies:
Vice
President of the Civil Division of the Court of Appeal, Lord Justice Underhill, and agree with each of them.
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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