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Charles Bagot succeeds in Court of Appeal secondary victim case re-visiting the Hillsborough cases

Judgment was handed down on 18 March 2013, by the Master of the Rolls in the appeal in Taylor v A.Novo (UK) Ltd [2013] EWCA Civ 194. The Court of Appeal has re-affirmed the strict application of the Alcock control mechanisms. Alcock v Chief Constable of South Yorkshire was the 1992 House of Lords appeal arising out of claims for psychiatric injury made by relatives of the Hillsborough stadium disaster victims. 

In the Taylor v Novo case, the Claimant’s mother died 3 weeks after an accident at work for which the Defendant admitted it was liable. The death was caused by the injuries sustained in the work accident. The Claimant sustained a psychiatric injury from witnessing her mother’s sudden death, but was not present at the original accident at work. The issue was whether the Claimant could recover damages as a secondary victim or not, i.e. was it sufficient that she was proximate to the death rather than the original accident? The trial judge held in the Claimant's favour, but the Court of Appeal has allowed the Defendant's appeal.

Master of the Rolls held (para 31):

"The courts have been astute for the policy reasons articulated by Lord Steyn [in White/Frost] to confine the right of action of secondary victims by means of strict control mechanisms. In my view, these same policy reasons militate against any further substantial extension. That should only be done by Parliament."

In allowing the appeal, the Master of the Rolls also held (para 32):

"It follows that, in my view, the judge was wrong to hold that the death of Mrs Taylor was the relevant “event” for the purposes of deciding the proximity question.  A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant.  In such a case, the relevant event is the accident.  It is not a later consequence of the accident.  Auld J put the point well in Taylor (see para 11 above).   Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother’s accident. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother’s death three weeks after the accident."

This judgment should provide clarity where novel claims arise in this area.

Charles Bagot was instructed for the Defendant/Appellant and its insurers, the Generali, by Gordon Davidson of Hill Dickinson LLP. He was led in the Court of Appeal by Charles Cory-Wright QC.