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||Neutral Citation Number:  EWCA Civ 697
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER WOODS)
||Royal Courts of Justice
||21st March 2003
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE LATHAM
MR JUSTICE WILSON
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MR S MILLER Q.C. (instructed by Messrs Harris & Co., Enfield, Middlesex) appeared on behalf of the Appellant.
MR T SAUNT (instructed by Messrs Edwards Duthie, Ilford) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
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- LORD JUSTICE LATHAM: On 12th January 1998 Livia, the 16-year old daughter of the appellant, was killed when the respondent's car mounted the pavement and struck her. There is no doubt that the appellant suffered a significant psychiatric disorder as a result of her daughter's death for which she claims damages. Her claim was dismissed by Mr Recorder Wood in the Central London County Court. She now appeals to this court against that decision.
- The accident happened when Livia was walking the half mile or so to a ballet class at about 7 pm. She had asked the appellant if she would drive her down. The appellant said no and told her she could walk. The accident itself happened at about 7.O5. An ambulance arrived reasonably promptly at just after 7.10. It was immediately apparent to the paramedic who attended her that Livia was severely injured. He summoned further assistance. A doctor subsequently arrived. Despite every effort made by the ambulance team she was pronounced dead at 7.40. The ambulance took her to the mortuary. Her injuries were horrific. The paramedic who treated her had to receive treatment afterwards as a result of the effect of the accident on him.
- Livia's father returned home at about 7.45, which was about the time that her ballet class was due to end. She had not returned by 8.O5. Her father decided to drive to where the ballet class was held to collect her. He was diverted because the accident scene had been cordoned off by the police. When he got to the ballet class he expected to find Livia waiting there because she could not get past the police cordon. On discovering that she was not there he rang the appellant who, despite his protestations, said that she was coming down herself. The father then learned of Livia's death from one of the police officers at the scene. Not unnaturally he broke down. He did, however, manage to telephone home. The appellant had left by then; but Bianca, Livia's older sister, was there. He told her. Meanwhile, the appellant had reached the police cordon. She tried to cross the tape, and when confronted by a policeman told him that she was looking for her daughter. Her account was that she was then asked the name of her daughter. When she gave it and asked whether the cordon was something to do with her, the police officer said, yes, she was dead. The news had a profound effect upon the appellant. She screamed hysterically and collapsed to the ground. One of the police officers present described her screaming as unforgettable. Another described it as horrific. Her husband on hearing the screams went to the scene where he found her completely beside herself. The police tried to control her.
- From the appellant's evidence the judge concluded that she was aware of police cars at the scene but not of an ambulance, and that there was no evidence that she saw anything of the consequences of the accident, apart from the cordoning tapes. The police asked the appellant and her husband whether they wanted to see their daughter. Despite her husband's objections the appellant said that she did. A police car was provided. They first went back home to find Bianca, who had herself become distraught and left home to be returned by a police car which had found her wandering in a nearby street.
- The appellant, her husband and Bianca went together to the mortuary. It is clear that the appellant was, not unnaturally, in denial at that stage. They arrived at about 9.15. Livia's father went in first and identified Livia. He came out and confirmed to the appellant that it was her. The appellant fell to her knees, sobbing uncontrollably. She would not be helped to her feet but crawled to where Livia lay on the trolley bed. She pulled herself up and saw Livia's injured face and the upper part of her body, although the lower part, which was grotesquely distorted, had been covered by a blanket. She cradled her, saying that she was cold. Seeing and holding Livia's body must have been devastating to the appellant. Although the worst injuries were hidden, her face and head were disfigured.
- There is no doubt that the appellant suffered an extreme reaction to Livia's death. There is no dispute that she suffered as a result a psychiatric condition which could properly found a claim for damages. She returned to the mortuary on both days before her body was taken to the funeral parlour. Since the funeral she has visited Livia's grave twice a day. A memorial garden has been created by her near the scene of the accident, which she also visits daily. Twice a month on the 12th day, the date of Livia's death, and on the 20th day, the day of her funeral, she lays flowers and lights candles and sleeps in her room after saying goodnight to her. A neighbour describes her home as a shrine to Livia. The appellant eventually had to give up work.
- The respondent was convicted of causing death by dangerous driving on 6th November 1998. He was fined. The appellant feels a deep sense of injustice as a result. She told one of the psychiatrists who gave evidence before the Recorder that she considered that the respondent had got away with murder and that her life had become a crusade for justice.
- The Recorder was referred, amongst other authorities, to McLoughlin v O'Brian and Others  1 AC 41O, and Alcock and Others v Chief Constable of South Yorkshire Police  1 AC 310. He decided that on the basis of those authorities the appellant could not succeed. In his view the appellant had to establish that the shock which caused the psychiatric disorder was occasioned by her seeing the accident or its aftermath. He was not prepared to accept that what happened in the mortuary could be said to be part of the aftermath. At paragraph 73 of his judgment he said as follows:
"The purpose of the visit in this case to the mortuary I find to have been identification. It matters not that Mr Atkinson first identified Livia. The claimant's reason for wanting to see Livia also, which she did, was identification and to see for herself that there was no mistake about it, as she had been hoping and suggesting in the car on the way there. I cannot see that it makes any difference in principle whether an identification by a relative at a mortuary is to satisfy the coroner's office, or the relative, or both of the identity of the deceased. It also in her case then became a matter of satisfying herself of the fact of the death."
He considered that that visit was similar to the visit to the mortuary made by the claimant in Alcock and referred to the passage in Lord Jauncey's judgment at page 423, where he said that visits to the mortuary did not form part of the aftermath of an accident. The Recorder further concluded that the shock which caused her psychiatric disorder was the result of what she had been told by the police, and not any other matter about which he had heard evidence. He said at paragraph 79:
"It is thus possible that there may be cases where a claimant is able to succeed, even if he does not see any part of a body at the scene. In this case for example in police photograph 3 one sees a solitary shoe associated either with Livia or the other person being knocked down, which arguably might be as shocking to a mother, if it was recognisably the shoe of her child, as seeing the prone body of the child wearing it, but there is no suggestion that the claimant saw this or any blood or anything shocking of that nature, and the mental shock she suffered at the scene, I find, was not caused by anything shocking which she saw, but by the shocking news she was given as soon as she reached the police tape, which the police of course put up at the scenes of accidents to keep people away from the shocking things often to be seen in the immediate aftermath of accidents."
He held that the law did not provide a remedy for shock simply caused by being told of death. Further, he held that essentially the shock which the appellant suffered was the consequence of her reaction to the fact that Livia had died. He said at paragraph 98:
"As regards the shock of being told of Livia's death on arrival at the scene, that was devastating for her, and I am prepared to hold that that was in part the cause of the claimant's psychiatric disorder. I do not however find that the fact that she was told at the scene, rather than somewhere else, made any material contribution to her psychiatric disorder. The outcome I find would not have been significantly different if, like Bianca, she had been told when she was at home, or if she had been told somewhere else."
- The appellant submits -- indeed, it would appear to be common ground -- that to succeed she had to establish (a) that she had a close tie of love and affection with the person killed; (b) she was close to the incident in time and space, ie present at the incident or its immediate aftermath; (c) she perceived the event or its immediate aftermath rather than hearing about it by a third person; (d) the illness that followed was induced by the shock of the event or its immediate aftermath.
- It is submitted that the Recorder took too narrow a view of what the event and the immediate aftermath of the event were and of what caused the shock. Properly understood, the event and its immediate aftermath comprised a whole series of events, from the moment of the accident until the appellant saw Livia's body in the mortuary. It was the whole of what she saw and was told in that period which, taken compendiously, caused the psychiatric disorder. Accordingly, the Recorder was wrong to have excluded consideration of what happened at the mortuary when determining whether or not the appellant was entitled to damages for the psychiatric illness that she had sustained.
- Further, by way of amendment, which was the result of a hearing before this court on 13th December 2002 when we adjourned the appeal for the purpose, the appellant submits that there was no evidence to support the Recorder's conclusion that the psychiatric illness suffered by the appellant was occasioned solely by what she was told.
- On the other hand, the respondent submits that the Recorder's findings are clear. Whether or not it may be possible to describe the relevant events as constituting the event or the immediate aftermath of the event, the shock causing the psychiatric disorder was caused by only one matter, namely the fact that she was told of Livia's death. It is submitted that the law does not permit recovery of damages for psychiatric disorder resulting from shock occasioned simply by the news of the death of a loved one. It is submitted that the cases of McLoughlin and Alcock, to which I have referred, make it clear that the law requires the shock to have been caused by seeing or hearing an event itself or its immediate aftermath, and it cannot be extended over a period of time, as submitted by the appellant.
- The law that we have to apply is indeed to be gleaned from the speeches of the House of Lords in these two cases. In McLoughlin the plaintiff was the mother of a child who died in an horrific accident in which her husband and two other children were injured. She was at home at the time of the accident but went to the hospital immediately when she had heard what had happened. There she saw and comforted her injured husband and children and was told of the death of her youngest child. She brought proceedings for the psychiatric effect of the shock that she sustained as a result. The Court of Appeal had dismissed her claim on the grounds that no duty was owed to her. The House of Lords unanimously allowed her appeal.
- Giving the first speech, Lord Wilberforce set out at page 418 what he considered to be the position that English law had reached in considering claims for such injury. He identified five circumstances in which such a claim could succeed:
"1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
2. A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him -- or herself but to a near relative, or by the fear of such injury.
3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v Stokes Brothers  1 KB 141 an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case.
4. An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.
5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved."
Lord Wilberforce considered that the question which had to be determined in the appeal was whether or not the House of Lords should accept point 4 as being a proper extension of the scope of the duty owed by the tortfeasor. He said that to allow Mr McLoughlin's claim would be, as he put it at page 419:
"upon the margin of what the process of logical progression would allow."
But he was satisfied that it was proper to extend the principle of recovery to her case. He made it clear, however, that in his judgment there had to be limitations upon the extent of admissible claims. At page 422 he said that there were three issues which needed to be addressed, the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock was caused.
- We are not concerned with the class of persons whose claim should be recognised. It is accepted that if in other respects a duty can be made out, the appellant clearly falls within the relevant class. As to the element of proximity, Lord Wilberforce said at page 422:
"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  VR 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'.
Finally, and by way of reinforcement of 'aftermath' cases, I would accept, by analogy with 'rescue' situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene -- normally a parent or a spouse -- could be regarded as being within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible.
Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts."
- He then went on to deal with the means by which the shock was caused:
"Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party. In Hambrook v Stokes Brothers  1 KB 141, indeed, it was said that liability would not arise in such a case and this is surely right. It was so decided in Abramzik v Brenner (1967) 65 DLR 651. The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would suffice may have to be considered."
- In the Alcock case the House had to consider just that question in claims made by the relatives and friends of spectators who were involved in the Hillsborough disaster. Two separate issues arose. First, the House had to consider the nature of the relationship between the plaintiff and the injured or deceased person, and the extent to which he or she fell within the class of persons to whom any duty was owed. The second was the issue of the scope of such duty, where the plaintiff had been aware of the disaster at which he or she knew a person was present who might therefore have been injured or killed as a result of watching the events on television. It was argued by the plaintiff that reasonable foreseeability of the risk of injury to them in the form of psychiatric illness was all that was required to bring home liability to the defendant. They relied on the speeches of Lord Salmon and Lord Bridge in McLoughlin.
- Lord Keith in his speech held that, as regards the class of persons to whom a duty may be owed, it was sufficient that reasonable foreseeability could be the guide. He considered, however, that in the case of those within the sphere of reasonable foreseeability, the proximity factors identified by Lord Wilberforce in McLoughlin must be taken into account in judging whether the duty of care existed. He said at page 397:
"The first of these is proximity of the plaintiff to the accident in time and space. For this purpose the accident is to be taken to include its immediate aftermath, which in McLoughlin's case was held to cover the scene at the hospital which was experienced by the plaintiff some two hours after the accident."
- As to the means by which the shock was suffered, he said at page 398:
"... Lord Wilberforce said in McLoughlin v O'Brian  1 AC 423 that it must come through sight or hearing of the event or of its immediate aftermath. He also said that it was surely right that the law should not compensate shock brought about by communication by a third party."
He accordingly concluded that those who had simply watched on television did not fall within the scope of the duty of care.
- Lord Ackner, concurring, at page 400 set out what he considered to be the propositions of law in the following terms:
"(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.
(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 accident 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 CLR 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."
- He agreed with Lord Wilberforce in McLoughlin that the law needed to place some limitation on the extent of admissible claims and that the three elements identified by Lord Wilberforce had to be considered. Leaving aside the first, namely the class of person to whom a duty is owed, as to the second, namely the proximity of the plaintiff to the accident, he said at page 4O4:
"It is accepted that the proximity to the accident must be close in time and space. Direct and immediate sight or hearing of the accident is not required. It is reasonably foreseeable that injury by shock can be caused to a plaintiff, not only through the sight or hearing of the event, but of its immediate aftermath.
Only two of the plaintiffs before us were at the ground. However, it is clear from McLoughlin v O'Brian  1 AC 410 that there may be liability where subsequent identification can be regarded as part of the 'immediate aftermath' of the accident. Mr Alcock identified his brother-in-law in a bad condition in the mortuary at about midnight, that is some eight hours after the accident. This was the earliest of the identification cases. Even if this identification could be described as part of the 'aftermath', it could not in my judgment be described as part of the immediate aftermath. McLoughlin's case was described by Lord Wilberforce as being upon the margin of what the process of logical progression from case to case would allow. Mrs McLoughlin had arrived at the hospital within an hour or so after the accident. Accordingly in the post-accident identification cases before your Lordships there was not sufficient proximity in time and space to the accident."
- Lord Jauncey was also of the view that the general principles of law to be applied were those set out by Lord Wilberforce in McLoughlin. He stated that in determining the extent of the duty of care, the three elements identified by Lord Wilberforce had to be considered. That included, therefore, a consideration of the means by which the shock was caused. He clearly approved at page 423 the view of Lord Wilberforce that a strict test of proximity by sight or hearing should be applied by the courts. In relation to the claim on behalf of those plaintiffs who had attended mortuaries to identify relatives or friends, he said at page 424:
"In these appeals the visits to the mortuary were made no earlier than nine hours after the disaster and were made not for the purpose of rescuing or giving comfort to the victim but purely for the purpose of identification. This seems to me to be a very different situation from that in which a relative goes within a short time after an accident to rescue or comfort a victim. I consider that not only the purpose of the visits to the mortuary but also the times at which they were made take them outside the immediate aftermath of this disaster."
- Whether we like it or not, we are constrained to approach the question of psychiatric injury in cases such as the present on the basis of what Lord Lloyd described in Page v Smith  AC 155 at 189, as the "control mechanisms" identified by Lord Ackner. This is clear from the speeches of Lord Steyn and Lord Hoffmann in Frost v Chief Constable of South Yorkshire  2 AC4 55, with both of whose speeches Lord Browne Wilkinson agreed. Both of their Lordships recognised that the law produced an unsatisfactory result. But both made it clear that the courts had to apply them, however unsatisfactory the result, unless and until Parliament intervened.
- We have to consider therefore whether the appellant's present psychiatric condition which, as I have already said, has been accepted as being a condition which is capable of founding a claim for damages, was caused by shock resulting from her appreciation of an event or its immediate aftermath in the sense intended by Lord Wilberforce in McLoughlin.
- In approaching that question, I do not consider that we are restricted by what Lord Ackner said in Alcock to a frozen moment in time. As Lord Wilberforce in McLoughlin recognised from the passage that he cited from Benson v Lee, an event itself may be made up of a number of components. This was accepted by this court in the case of North Glamorgan NHS Trust v Walters  EWCA 1792. Likewise, in my judgment, can the aftermath, provided that the events alleged to constitute the aftermath retain sufficient proximity to the event. Indeed, the decision in McLoughlin's case can itself only be justified if the events in the hospital, when Mrs McLoughlin went to the hospital, are taken together as providing the trigger, if that is the right description, for the shock which produced the psychiatric illness.
- In the present case, the immediate aftermath, in my view, extended from the moment of the accident until the moment that the appellant left the mortuary. The judge artificially separated out the mortuary visit from what was an uninterrupted sequence of events, quite unlike the visit to the mortuary under consideration in Alcock. The visit with which we are concerned was not merely to identify the body. It was to complete the story so far as the appellant was concerned, who clearly at that stage did not want - and one can understand this -- to believe that her child was dead.
- Accordingly, in my judgment the judge was wrong to have excluded what happened at the mortuary from consideration. If, therefore, it could properly be said, on the basis of the psychiatric evidence, that the whole of that sequence of events which was witnessed by the appellant played a part in producing the illness from which she undoubtedly suffered, then the appellant is entitled to succeed in her claim.
- The judge, however, as I have already related, took the view that it was only the fact that she had been told about the death that caused the illness, and that, accordingly, for two reasons she could not succeed. First, he considered that, on the authorities to which I have already referred, no claim could be based on shock caused merely by being told of the relevant events. Second, he concluded that the appellant would have suffered the same psychiatric illness whenever she had been told about Livia's death. In other words, she would have inevitably suffered from the psychiatric illness for which she now seeks compensation.
- The judge's reasoning in both respects depends upon the validity of his finding that the psychiatric illness was solely caused by her being told of Livia's death. The challenge to this finding was, as I have indicated, the subject of the amendment which we have permitted to the grounds of appeal. In order to make good that ground, we have been taken by Mr Miller Q.C. through the evidence of the two psychiatrists, Professor Weller and Dr. Fry, which was the only material upon which the judge could have relied in coming to his conclusion in the absence of any reasoning to the contrary, as to which there is none. In his report Professor Weller said:
"Whether the depression comes from the shock or from the bereavement is a difficult question to answer since the two are intertwined. If I was obliged to make some estimate on this, I would say that her depression derives 20% from Mrs Galli-Atkinson's proximity to the fatal accident and the post traumatic symptoms which arose as a consequence, and 80% as a consequence of her bereavement. It is the circumstances of her bereavement and her anger and belief than an injustice may result, which are separate from post traumatic stress disorder, which fuel her depression."
He adhered to that opinion throughout his oral evidence. In his evidence-in-chief he made it plain that in his view the circumstances surrounding the death made a material contribution to the illness from which she suffers. At page 7F he said:
"Well I would suggest that you have got an aggregation here. You have got the aggregation of the bereavement that a normal mother would feel in losing her child under unexpected circumstances plus the extreme reactions which were induced in everybody else around because of the circumstances of the death."
That is reiterated on a number of occasions during the course of his evidence. It is best underlined by the answers he gave to Mr Saunt on behalf of the respondent, when he cross-examined Profession Weller in the following passage:
"(Q) Dr Weller, there is no reason to suppose, is there, that Mrs Atkinson's grief would not have been as intense or as prolonged had she not visited the scene of the accident or seen her daughter's body in the mortuary?
(A) Well I suppose it.
(Q) You suppose it?
(A) I do.
(Q) What is the basis of your supposing it?
(A) Well the stress and the intense(sic) that she experienced at the time of visiting the accident and visiting the mortuary which is the other mental building block for her subsequent prolonged psychiatric reaction.
(Q) But if she had been informed by a police officer at her front door some hours after the accident of her daughter's death her reaction would have been likely to be very much the same would it not?
(A) No. I think I've been generous in saying 80 per cent the same. I think it could be a lot less than 80 per cent the same. I think that would be a very fair division, 80 per cent 20 per cent from the perspective of the defence. I didn't try to be excessive in my estimate of the effects of the visit of the site or the visit of the mortuary but I think that at least 20 per cent amplification is minimal."
That was an opinion that he adhered to throughout the remainder of his evidence.
- As far as Dr. Fry was concerned, who was the psychiatrist instructed on behalf of the respondent, the main thrust of his report was to challenge the psychiatric diagnosis made by Professor Weller, not on the basis that the appellant did not suffer from a psychiatric illness but in relation to the categorisation of that illness, in particular in relation to its prognosis. However, he did in his opinion have this to say about the cause of the psychiatric illness:
"The sudden shock of hearing of her daughter's death at the scene of the accident and then seeing her daughter dead in the mortuary would all be matters which in my view would be obviously very traumatic from a psychological point of view and would certainly be associated with a short term or even long term emotional reaction and with psychiatric disorder."
- Accordingly, he was not taking issue with Professor Weller as to his views as to the cause of the illness, and he did not join issue with Professor Weller on that aspect of his evidence at any stage in the course of his oral evidence. Indeed, insofar as he was asked about it at all, he accepted at page 35C that the experience of loss was intensified by the trauma. In other words, he accepted in effect that the events that were witnessed, both what the appellant saw and what she heard after the accident, made a contribution to her psychiatric condition.
- It follows, it seems to me, that the Recorder's conclusions cannot be supported on the evidence. We are not dealing here with shock caused merely by being told of the death of Livia. What the police officer said merely formed part of the immediate aftermath which caused the shock and the psychiatric illness. The evidence does not therefore support the proposition that the appellant would have suffered the psychiatric illness in any event, irrespective of her having gone to the mortuary. There would have had to have been some express expert evidence to that effect to meet the opinion of Professor Weller, supported as it was by Dr. Fry, as to the contribution to the causation of the appellant's illness of the appellant's experience at the mortuary. There was none.
- I would therefore allow the appeal.
- MR JUSTICE WILSON: I respectfully agree. Under the present law the appellant can succeed only if she was present at the accident or at its immediate aftermath and only if her psychiatric illness was caused by direct perception of it or of its immediate aftermath rather than by hearing about it: see, for example, the passage at 502G-H in the speech of Lord Hoffmann in Frost v Chief Constable of South Yorkshire.
- The accident occurred at 7.O5 pm. In my view, like that of my Lord, its immediate aftermath continued until the appellant and her husband left the mortuary soon after 9.20 pm. Until then the accident had precipitated what in effect was seamless activity, first in seeking to preserve Livia's life and then in taking essential and urgent steps referable to her body. Such a conclusion is fortified by the decision of the House of Lords in McLoughlin v O'Brian. The judgment of Stephenson LJ in the Court of Appeal in that case, reported at  1 QB 599, makes clear at 603B-C that the visit of the ultimately successful claimant to the hospital to see her injured family occurred more than two hours after the accident. Although the House of Lords has since retreated from some of its expositions of principle in McLoughlin, no doubt has been cast on the conclusion that the claimant's visit fell within the immediate aftermath of the accident: see, on the contrary, the passage in the speech of Lord Keith of Kinkel in Alcock v Chief Constable of South Yorkshire at 397G. Accordingly this appellant was present at two stages within the immediate aftermath of the accident, namely at 8.20 pm when she arrived at the scene and at 9.20 pm when she saw Livia's body in the mortuary.
- What did the appellant see upon arrival at the scene? The ambulance containing Livia's body had already been moved down the road. There had been one or two other ambulances at the scene; but the appellant told the Recorder that she did not see them. A police officer describes the scene as follows:
"It was obvious to anyone attending the scene that it was a serious accident. A section of the road had been cordoned off and there were approximately ten officers in total to include road traffic officers and local officers. There were three road traffic patrol cars. There were also local police officers. There were also flashing blue lights but these would have been turned off after the parents had been taken to the mortuary."
In my view the evidence justifies the conclusion that the appellant was aware of these features. Indeed her awareness of them was the agent of her mounting panic, shortly to be turned into hysteria.
- What did the appellant see at the mortuary? A paramedic who attended to Livia at the scene of the accident says:
"It is important to recall that she was heavily injured. She had severe injuries to the back of her skull, teeth were missing, hair had become detached from her head. She had awful maxio-facial injuries. She also had huge gaping wounds on her limbs."
The appellant's husband states that, when shown Livia's body at the mortuary, he saw horrific injuries to her face. He says that a pink cap was in place to hide the top of her head and that the rest of her body was covered by a blanket. When, shortly afterwards, the appellant entered the room, she tried to pull the blanket away from the body; but the coroner gently intervened to prevent her from doing so. The condition of Livia's face, however, she saw; and the top half of her body she attempted to hug.
- Before the Recorder, counsel for the respondent successfully contended that the appellant's sight of the body in the mortuary was in law irrelevant. Counsel based his contention on the passage in the speech of Lord Jauncey of Tullichettle in the Alcock case, quoted by my Lord at paragraph 22 above. It is clear that a visit to a hospital for the purpose of identification may well fall outside the immediate aftermath of the accident. It is arguably less easy, at first sight, to understand why, if the visit takes place within that period and has psychiatric sequelae, its purpose remains significant; and, in particular, why, if the primary victim is dead and thus not susceptible to "rescue or comfort", any such sequelae, of which the likelihood must surely be greater, are beyond recompense.
- At all events, not unreasonably in the light of the distinction drawn by Lord Jauncey, the Recorder addressed the purpose of the visit to the mortuary. He did so in paragraph 73 of his judgment, which my Lord has set out at paragraph 8 above. In my view the Recorder was compelled on the evidence to add his last sentence, namely that the purpose of the visit was also to satisfy the appellant of the fact of death. Indeed that sentence derogates significantly from the ostensibly definitive conclusion in the first sentence that the purpose was identification. It is clear that, when she went to the mortuary, the appellant was unable to believe that, even if she had been the girl in the ambulance, Livia was dead. The appellant says that her attempt to hug her at the mortuary was to warm her up. A police officer confirms that at one point the appellant suggested that the body was moving under the blanket. Another officer says that, even on the way home afterwards, the appellant asked "What if she wakes up and I am not there?" From the appellant's perspective, the visit to the mortuary was not even primarily for the purpose of Livia's identification.
- In the main part of his judgment, therefore, the Recorder proceeded to address whether it was what the appellant saw at the scene, rather than at the mortuary, which contributed to her psychiatric illness. He found that the shock which she suffered at the scene was caused not by what she saw but by what the police officer there told her. He expressly declined to find that the fact that she was told at the scene rather than elsewhere made any material contribution to her illness. Indeed, in case he had been wrong to exclude from his analysis the appellant's sight of Livia at the mortuary, he added analogously that he was satisfied that such played no part in causing her illness.
- Were such surprising conclusions open to the Recorder? There were three sources of medical evidence before him. First, there was the statement of the appellant's GP, who was not asked to attend for cross-examination and who said:
"I have no doubt that her reaction was compounded by attending the scene. She experienced the full horror of the site ... I have no hesitation at all in agreeing that her close proximity to the accident, which was unexpected and clearly horrifying, played a substantial and significant part in her psychiatric reaction."
Second, there was the evidence of Professor Weller, the consultant psychiatrist instructed forensically by the appellant. In his report he suggested that her illness was partly as a result of the circumstances in which she learned of Livia's death. In the witness-box he expanded upon that suggestion. He said for example:
"I am suggesting that there was an aggravation which continues to resonate to the present day by the two or three ambulances, the two or three police cars, the nine or ten policemen, the way that the news was broken at the scene, the state of the body because there wasn't time to prepare the body properly at the mortuary and [the appellant's] described reactions."
Later he added:
"If she had been sitting in the park and somebody had come up to her and told her this, she would remember the park and the circumstances in which she was told. But it wouldn't have the same additional emotional resonance as the circumstances in which she was actually told."
Finally there was the evidence of Dr. Fry. In his report he recited, apparently without disapproval, the GP's conclusions set out above and wrote the passage which my Lord has set out in paragraph 30 above. In his oral evidence he made his position even clearer by saying that there was no doubt that the appellant's experience of the loss was aggravated and intensified by the extremely stressful circumstances in which she made the discovery.
- Accordingly I agree that, with respect to the Recorder, it was not open to him to conclude that the appellant's direct perception at each of the two stages within the immediate aftermath of the accident had not caused her illness in the sense, approved in Vernon v Bosley (No 1)  1 All ER 577, of making a substantial contribution to it.
- LORD JUSTICE THORPE: I agree with my Lord, Lord Justice Latham, that this appeal succeeds. There is nothing that I can add to his judgment.
ORDER: Appeal allowed with costs below and costs of the appeal; no order as to costs in relation to the costs of the adjournment or of the amendment of the appellant's notice.
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