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Advising on a secondary victim claim? December 2014 produced a trio of new cases

If you are struggling to pin down the relevant principles when advising in a secondary victim case this should be no surprise. As Lord Hoffmann observed: “It seems to me that in this area of the law, the search for principle was called off in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle.” in White v Chief Constable of South Yorkshire [1999] 2 AC 455 (the police officers’ claims arising out of the Hillsborough disaster).

In 2013, the Court of Appeal looked again at secondary victim claims and reiterated that the control mechanisms set out in Alcock should be applied by Judges to limit the ambit of permissible secondary victim claims unless Parliament intervenes to change the law: Lord Dyson MR in Taylor v Novo (UK) Ltd. [2014] QB 150, [2013] EWCA Civ 194.

December 2014 produced a trio of decisions arising from a variety of tragic circumstances which illustrate the approach the Courts will take in the light of Taylor v Novo. Firstly, Wild v Southend NHS; secondly, Brock v Northampton NHS; and thirdly, Berisha v Stone Superstore.

Wild v Southend Hospital NHS Trust [2014] EWHC 4053 (QB) is thought to be the first application of Taylor v Novo in the clinical negligence context.

The Claimant, Mr Wild, was present with his wife at hospital on their baby’s due date when it was discovered that their unborn son had died in the womb. This was due to the hospital’s admitted clinical negligence in connection with the noting and recording of the baby’s rate of growth at ante natal appointments. The baby was delivered stillborn the following day. It was agreed that, but for the hospital’s negligence, labour would have been induced in time for the baby to have been born alive. Mr Wild sustained psychiatric injury due to the shock of being present when the baby’s death in the womb was discovered and at the subsequent stillbirth of his son.

The Judge dismissed the claim on the basis that the Claimant did not satisfy the control mechanisms in Alcock case and applying the Court of Appeal’s decision in Taylor v Novo. It was not enough for the Claimant to have been a witness to the manifestation of the consequences of the Defendant’s negligence, i.e. the retrospective discovery that the baby had died in the womb. That does not equate with actually witnessing horrific events leading to a death or serious injury.

In Brock v Northampton General Hospital NHS Trust & another [2014] EWHC 4244 (QB), the Court had to decide whether parents could recover damages for seeing their seriously ill daughter, Rachel, in hospital.

Rachel was treated over a period of days in two separate hospitals following an overdose of paracetamol. There came a point where Rachel developed high pressure in the brain and an intracranial pressure monitoring bolt was inserted. Later, it was discovered that, negligently, the bolt was placed too far into the brain. This caused a brain haemorrhage from which Rachel died. A claim by her estate and a fatal accident claim failed on grounds of causation. She would have died in any event within days because she needed an urgent liver transplant but none was available in the short timescale needed, so that negligence was not causative.

But the Court had to go on to consider her parents’ secondary victim claims for the trauma of witnessing the events after the bolt was negligently inserted too far. In fact, on the evidence, the Judge found that nothing overtly traumatic occurred at that time. No one realised until later that anything untoward had happened. Her parents were later called back to her bedside but neither Claimant alleged that what they saw after being called back caused their psychiatric illness. On the authorities, the grief and loss caused to a parent when a child dies is insufficient to found liability. There has to be a traumatic experience akin to witnessing an accident. There was nothing “wholly exceptional” here, however dreadful the experience must have been. Hence the parents’ claims failed.

In Berisha v Stone Superstore Ltd (2014) LTL, 2nd December (Manchester CC; DJ Hassall), the Court had to decide whether to grant summary judgment to a Defendant in a claim on grounds that there was no real prospect of the Claimant showing that she witnessed the “immediate aftermath” of an accident.

The Claimant, Ms Berisha, was informed by police that her partner had suffered a serious accident at work. She arrived at the hospital five hours after the accident to be with her partner, who by then was on a life support machine having suffered a severe brain injury. She was at his bedside continuously for around 36 hours thereafter, holding his hand and observing his face swelling and becoming disfigured, until with her agreement, the life support was switched off and he passed away.

The Court considered the cases of McLoughlin v O’Brian [1983] 1 AC 410 and Galli-Atkinson v Seghal [2003] EWCA Civ 697 which appeared to be the only two reported cases where a Claimant who attended hospital or a mortuary, after a serious accident to close relative, had successfully brought a claim as a secondary victim for what they had witnessed in hospital. The Court also considered Taylorson v Shieldness Produce Ltd [1994] PIQR P329 where parents had unsuccessfully brought secondary victim claims for seeing their gravely injured son in hospital following an accident.

The Court concluded that Ms Berisha’s claim was weaker than the comparable claims that had succeeded or no stronger than the comparable claims that had failed. She had no real prospect of establishing that she witnessed the immediate aftermath of the accident. The injuries and death of her partner were not part of a single drawn-out event or “seamless tale”. Ms Berisha had witnessed the consequences of the accident, but not the immediate aftermath of the accident. She could not establish the control mechanism of proximity in sight and sound to the accident or its immediate aftermath.

The Judge granted summary judgment to the Defendant and dismissed Ms Berisha’s claim.

If you are advising in a secondary victim claim where questions of “proximity”, the extent of the “immediate aftermath” or “event”, or whether there was the necessary “shock” in law arise, in an accident or clinical negligence context, you should find some helpful guidance in the judgments in this trio of December 2014 cases or indeed in Taylor v Novo itself.

Charles Bagot was Counsel for the successful parties in Taylor v Novo; Wild v Southend NHS Trust; and Berisha v Stone Superstore.