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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> North Glamorgan N.H.S. Trust v Walters  EWCA Civ 1792 (06 December 2002)
Cite as:  PIQR 232,  EWCA Civ 1792
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Thomas)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
SIR ANTHONY EVANS
| North Glamorgan N.H.S. Trust||Appellant|
|- and -|
|Ceri Ann Walters ||Respondent|
Robert Weir (instructed by Hugh James) for the Respondent
Hearing dates : 9th July 2002
Crown Copyright ©
Lord Justice Ward :
"7. The claimant was at that time sleeping in the same room as Elliot at the Prince Charles Hospital. She awoke at about 3 a.m. to hear Elliot making small choking noises in his cot; the claimant saw that there were large amounts of what she described as "a coffee ground blood substance"; his body was stiff. She took Elliot to a nurse. The nurse told the claimant that Elliot was having a fit, though she did not appreciate that the fit had lasted an hour. The hospital notes record Elliot as being in a Grade 3 coma, responding only to deep pain. Elliot was transferred to the Intensive Care Unit of the Prince Charles Hospital at 4.15 a.m. The claimant was told by a doctor at 4.45 a.m. that it was very unlikely, and it would be very unlucky, if Elliot had any serious damage as a result of the fit. After speaking to the doctor she thought that Elliot might at worst be slightly brain damaged; she did not think it was life threatening. In fact Elliot had suffered a major epileptic seizure leading to a coma and irreparable brain damage.
8. At about 11 a.m. that day the claimant was told by a doctor at the Prince Charles Hospital after a CAT scan that there was no damage to Elliot's brain, but that he wanted him transferred to Kings College Hospital, London for a liver transplant. Eventually later that day the ambulance arrived and a medical team took Elliot to London where he was admitted at 6.30 p.m.; a further CAT scan was carried out which showed universal attenuation in both cerebral hemispheres; it was interpreted as showing diffuse brain injury consistent with a profound hypoxic ischaemic insult.
9. The claimant had followed the ambulance in a car with Elliot's father and arrived at Kings College Hospital at about 9 p.m. that evening. She was seen by three doctors. They told her that Elliot had suffered severe brain damage as a result of the fit and he was on a life support machine. They told her that if a liver transplant was undertaken, the chances of survival were only 50-50 and he would be severely handicapped. The claimant described her feelings as being numb, panic stricken and terrified at the sudden turn of events; she had been told at the Prince Charles Hospital that he could have a liver transplant and she had been told then he could not. The consultant paediatric heptologist at Kings College Hospital described her as "stunned".
10. On the following day, Wednesday 31st July 1996, Elliot underwent a further CAT scan. A consultant neurologist told the claimant that Elliot's brain was damaged so severely that he would not have any sort of life or be able to recognise his parents; he would have no quality of life. This shocked her greatly. They were asked whether or not they felt it was in Elliot's best interests to continue with life support. She discussed this with Elliot's father and they decided that they would terminate the life support. Shortly thereafter, the life support machine was turned off and Elliot died in the claimant's arms at approximately 4.30 p.m. She was told after his death that if Elliot had been transferred for a liver transplant at any time before 30th July 1996, he would have stood a far better chance of survival."
"This phrase has stayed in my mind ever since. At the time, his remarks were very encouraging, although he spent only a few moments with me. After speaking with him, I did not think the situation was life threatening in any way. At worst, I thought Elliot might be slightly brain damaged."
"It was such a complete turnaround. When we had stepped out of the car, we had been saying to each other that we would have our work cut out bringing Elliot back and forth to the hospital for treatment and so on and were planning our future. We were not for a second thinking that we would leave without Elliot. I felt panic stricken, numb and terrified all at once. It did not make sense. We had been told at Prince Charles Hospital that Elliot could have a liver transplant and now we were being told that he couldn't. I had the impression that everything had been decided before we arrived and just felt numb."
"When it was explained to Ceri that her son was seriously ill and that he would not be suitable for a liver transplant, Ceri responded as if half in a dream. … Ceri was in a state of emotional shock typical of many parents with children admitted urgently to P.I.C.U. [the Paediatric Intensive Care Unit]."
"This was a complete shock. I knew that there was a problem with him going for a liver transplant but what she was saying was so final and severe. The whole episode seemed unreal, as though I was watching it on television and it was not happening to me. … I was empty and numb. The situation was unreal. Approximately half an hour after this, Doctor Baker turned off the ventilator and very soon Elliot died in my arms."
"My recall is that they found it particularly devastating because they thought they had been reassured prior to Elliot's transfer that his condition was treatable."
Is it agreed that the claimant has suffered from a recognised psychiatric illness or condition?
We agree that the claimant has suffered from a recognised psychiatric illness, namely pathological grief reaction.
Have the alleged events that were witnessed, experienced and participated in by the claimant over the two days, caused or materially contributed to any recognised psychiatric condition or illness identified by you (as opposed to the symptoms caused by the understandable grief of losing her child)?
Yes, the alleged events witnessed and experienced caused a pathological grief reaction which differs from the normal grief reaction, both by reason of its severity of symptoms and the duration of those symptoms.
To what extent have the psychiatric symptoms been contributed to by what was allegedly witnessed, experienced and participated in by the claimant over the two days (as opposed to the symptoms caused by the understandable grief of losing her child)?
We agree that without these events, the pathological grief reaction would not have occurred.
What adverse psychological/psychiatric symptoms does the claimant currently have and what is the prognosis for them?
She continues to have symptoms of an unresolved pathological grief reaction, including intrusive thoughts about the deceased, yearning for the deceased and loneliness as the result of the death. She also experiences feelings of futility and purposeless, subject to feelings of numbness and detachment. She has difficulty in acknowledging the death and occasionally feels that life is empty and meaningless. She has an altered world view manifest by rational concerns about her daughter and has undertaken harmful behaviours following the death, mainly alcohol ingestion. These symptoms have lasted for some years now. The symptoms cause clinically significant impairment in social, occupational and other important areas of functioning. Recently, the symptoms have been exacerbated and medication has been prescribed by her general practitioner. While the prognosis for the mood symptoms is good, the prognosis for direct symptoms of grief remains poor.
To what extent, if at all, is the claimant's employability affected and what is the prognosis as far as her employability is concerned? Specifically, is the claimant at a disadvantage in the labour market, and if so, to what extent? If her employability is no longer affected, for how long was it affected, if at all?
We acknowledge that we are not experts in employment issues. We agree that the claimant's employability is impaired to some extent but note that she is also the mother of a young child and has relatively low qualifications for employment. We agree that she is at a disadvantage in the labour market and has been significantly disadvantaged until 1998 and moderately disadvantaged thereafter. She will continue to be disadvantaged by reason of her having a psychiatric history in the years to come.
Is there any psychiatric significance in the fact that the claimant was exposed to distressing circumstances for two days rather than a shorter period?
Yes. The psychiatric impact is more severe than if the child had died suddenly, as it was compounded by uncertainties over the diagnosis and re-admission to various hospitals. Also, the couple had to make a decision about withdrawal of life support.
Has the claimant suffered shock due to what was witnessed, experienced and participated in by her?
There are no substantial areas of disagreement between us in this case."
"Q: When they began their consideration of the events of those two days, which was the first event in time that the psychiatric experts considered to have been relevant to the claimant's pathological grief reaction?
A: Shortly before admission on 17th June 1996 when the deceased was noted to be jaundiced, the claimant began to become emotionally disturbed.
Q: If the relevant events included the claimant witnessing the seizure suffered by Elliot at 3.20 a.m. on 30th July 1996 did this materially contribute to the onset of the claimant's psychiatric symptoms or is it rather to be regarded as one of a series of materially contributory events that occurred over the period of two days?
A: It should be as one of a series of materially contributory events."
"33. It seems to me that the essence of what the claimant must show is that the psychiatric illness was brought about through the sudden appreciation by sight or sound of a horrifying event that affected her mind. Although the psychiatrists are agreed that she suffered "shock" and I am satisfied that her mind was violently agitated, the question is whether what happened was a sudden appreciation by sight or sound of a horrifying event rather than an accumulation over a period of time of more gradual assaults on the nervous system and that it was that sudden appreciation that caused the pathological grief reaction."
"34. It is clear therefore that although the psychiatrist remained of the opinion that what occurred on 30 and 31 July 1996 caused her pathological grief reaction, the claimant could not show that her awakening to find that Elliot had suffered a seizure was the cause of her illness. That incident could not be viewed on its own as a horrifying event which caused her illness, as it was what happened over the 36 hour period that caused that illness."
"35. It therefore was the essence of the claimant's case that the 36 hour period beginning with the moment at which the claimant was awakened by her son's fit until the moment at which the life support machine was switched off could be looked on as a horrifying event which she suddenly appreciated in contradistinction to the accumulation over a period of time of more gradual assaults on the nervous system."
"The courts should look realistically at what happened and that an event can extend over a short period of time such as the 48 hours in that case."
"39. On the facts of this case the claimant was present by her son's bedside when he suffered the fit. She clearly appreciated that something serious had happened. She was told initially at the Prince Charles Hospital that Elliot would be unlucky not to be all right; that was plainly negligent advice. She had to leave her son while he was transferred to London, but immediately on arrival she was told of the true significance of what had happened. The following day she made the decision to switch off the ventilator. It seems to me that the period of 36 hours from the moment at which the epileptic fit started, the misdiagnosis by the Prince Charles Hospital, the correct diagnosis by King's College Hospital and the decision to turn off the life support machine because of the irreparable damage caused by the fit can be looked on in law as a horrifying event properly so called. Her appreciation of the horrifying event was sudden within the temporal context in contradistinction to more gradual assaults on her mind. It was that sudden appreciation of that event that caused the pathological grief reaction.
40. I do not consider that it makes a difference that the claimant, although present when Elliot had his fit shortly after 3 a.m. on 30 July 1996, did not understand for herself the full significance of that fit. That had to be explained to her by the medical staff. Nonetheless, she experienced the happening of the fit when she was awakened; she remained with him thereafter except when he was being taken separately to London in the ambulance. Given the very young age of her son, the fact that a CAT scan was needed and had to be interpreted to her by the consultants did not mean she did not appreciate what happened by sight and sound. It is a case quite different from the parent who was not present at the scene of the accident and learnt of it from another; the claimant was in the same room as her son and awoke to find he had had a fit; what followed in the hours immediately thereafter were the attempts by the hospitals to evaluate his condition and explain it to her. Looked at overall and reviewing the factors referred to by Lord Ackner (p. 400-1 and 405) and Lord Oliver (p. 411) in Alcock v Chief Constable of South Yorkshire  AC 310, 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."
So he concluded that on the unusual facts of this case the claimant was entitled to recover as she had suffered shock as that term has been defined in the cases.
The grounds for appeal and for upholding the order.
i) The judge erred in law in holding that the 36 hour period could properly be held in law to be one horrifying event.
ii) The judge further erred in holding that the claimant's appreciation of the 36 hour period was sudden within that temporal context in contradistinction to a more gradual assault of the mind over a period of time.
iii) The appellant contended that the judge had expanded the established control mechanisms with insufficient regard to the recognised policy constraints against innovation in this field of the law.
iv) By her respondent's notice Ms Walters contended that if we do not uphold her primary case that the judge had correctly applied the law to the facts, then we should not flinch from taking "a small incremental step" in the development of the law so as to give this claimant relief. That small step would be to replace the shock requirement and substitute a requirement that the psychiatric illness need only be caused by directly witnessing or experiencing some trauma.
"It is 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."
Accordingly I find it necessary only to give a short summary of the development of the law in this uncertain area.
"There can be no doubt that these circumstances, witnessed by the appellant, were distressing in the extreme and capable of producing an effect going well beyond that of grief and sorrow."
That effect was described as "severe shock, organic depression and a change of personality".
"As regards proximity to the accident, it is obvious that this 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. In my opinion the result in Benson v Lee  V.R. 879 was correct and indeed inescapable. It was based, soundly upon
"direct perception of some of the events which go to make up the accident as an entire event, and this includes … the immediate aftermath". (p. 880)."
That passage serves to confirm that the "fact and consequence of the defendant's negligence" is made up of a series of "events". One looks to the totality of the circumstances which bring the claimant into proximity in both time and space to the accident. It seems to me, therefore, to be implicit in his judgment read as a whole that when he said at p. 423:-
"The shock must come through sight or hearing of the event or of its immediate aftermath"
he was not intending to confine "the event" to a frozen moment of time.
"(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. …
(2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the incident are not recoverable. In Bourhill v Young  AC 92 103, Lord Macmillan only recognised the action lying where the injury by shock was sustained "through the medium of the eye or the ear without direct contact". Certainly Brennan J. in his judgment in Jaensch v Coffey, 155 C.L.R. 549, 567, recognised:
"A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential." …
(5) "Shock", in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."
"The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are , on the one hand, psychiatric illness and, on the other, shock which causes it. … I understand "shock" in this context to mean the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential."
I infer Lord Ackner had this passage in mind because he quoted the last sentence to support his second proposition. Before passing from that case it is at least interesting to note the facts. The wife of the injured motor cyclist was not at the scene of the accident which occurred in the early evening. The plaintiff was brought the news by police officers and taken to the hospital where she saw her husband in severe pain. She saw him taken into and brought back from the operating theatre and taken in again. Later that evening she was told to go home to sleep but also told that her husband was "pretty bad". The doctor telephoned at 5.30 a.m. to tell her her husband had been placed in intensive care. Three hours later she was told there was a change for the worse and she was asked to get to the hospital as soon as possible. She stayed with him much of that day and saw him with "all these tubes coming out of him". She said she was "scared he was going to die and … resentful to the other person that caused the accident". When she left hospital that evening she thought her husband was going to die. She realised he would survive three or four weeks after the accident. She recovered damages.
"In my opinion the viewing of these scenes cannot be equiparated with the viewer being within "sight or hearing of the event or its immediate aftermath", to use the words of Lord Wilberforce  1 AC 410, 423B, nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system".
"The common features of all the reported cases of this type … 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 injuries 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 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."
"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 the 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 oral perception are absent. … As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined consequences giving rise to great concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously absorbed image. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem an analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability."
The subsequent application of these principles.
"I can 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."
Peter Gibson L.J. also agreed that on the medical evidence there was no such sudden and unexpected shock to the father's nervous system. An accumulation of more gradual assaults on the nervous system over a period of time was not sufficient. It was a very different case to this.
"It is unrealistic to separate out and isolate the delivery as an event, from the other sequence of happenings from the onset of labour to Callum's death two days later, as a whole. … Although lasting for over forty-eight hours from the onset of labour to the death, this effectively was one event. … The law should be, and in my judgment is, "fluid enough" simply to recognise one type of traumatic event and shut its eyes to another such as that upon which this claim is founded whether or not it is necessary – and in my judgment it is not – to pray in aid the concept of the "aftermath."
The first issue in this appeal: did the judge err in holding that the 36 hour period beginning with Elliot's epileptic fit and ending with his dying in his mother's arms was one horrifying event?
"There can be no doubt that these circumstances, witnessed by the [respondent], were distressing in the extreme and capable of producing an effect going well beyond that of grief and sorrow."
The second issue: was the judge wrong in holding that the claimant's appreciation of events was sudden in contradistinction to it being a more gradual assault on her mind over a period of time?
The third issue: has an incremental step been taken advancing the frontiers of liability?
"We must then consider the policy argument. In doing so we must bear in mind that cases of "nervous shock", and the possibility of claiming damages for it, are not necessarily confined to those arising out of accidents on public roads. To state, therefore, a rule that recoverable damage must be confined to persons on or near the highway is to state not a principle in itself, but only an example of the more general rule that recoverable damages must be confined to those within sight and sound of an event caused by negligence or, at least, to those in close, or very close, proximity to such a situation."
Finally, are we to be constrained by policy considerations to allow this appeal?
"… if asked where the thing is to stop, I should answer, in an adaptation of the language of Lord Wright (in Bourhill v Young  AC 92, 110) and Stephenson L.J.  Q.B. 599, 612, "where in the particular case the good sense of the judge, enlightened by a progressive awareness of mental illness, decides."
Lord Justice Clarke:
Sir Anthony Evans: