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Taking a look at secondary victim claims 'de Novo'

This article was first published in the Personal Injury Law Journal

The period since December 2014 has produced a quartet of new cases considered by
Charles Bagot of Hardwicke.

This article looks at some recent secondary victim cases to see what we can learn from first instance Judges applying the principles post Taylor v Novo.

The Taylor v Novo decision

As a reminder, Taylor v Novo (UK) Ltd [2014] QB 150, [2013] EWCA Civ 194, was the first secondary victim claim to go to the Court of Appeal for ten years when it was decided in 2013. The Master of the Rolls, Lord Dyson, looked again at secondary victim claims and reiterated that the strict control mechanisms set out by the (then) House of Lords in the post-Hillsborough disaster decision of Alcock, in 1992, should be applied by Judges to limit the ambit of permissible secondary victim claims unless Parliament intervenes to change the law: see paragraph [31].

The Claimant in Taylor v Novo was not present when her mother sustained an ankle injury in an accident at work caused by the Defendant employer’s negligence. But she was present three weeks later when her mother, who was thought to be making a good recovery, suddenly collapsed and died at home of a pulmonary embolism caused by the original injury. The Claimant carried out CPR until paramedics arrived. She sustained a psychiatric injury from the shock of witnessing her mother’s death and being unable to save her.

The issue for the Court was whether the Claimant being proximate to her mother’s death, caused by the original negligent work accident, but separated in time from it by three weeks, was sufficient to establish a secondary victim claim. Lord Dyson MR highlighted that proximity has two meanings in these cases, being both the legal test for determining whether a Defendant owes a duty of care to the secondary victim at all (i.e. a short hand for the neighbourhood test applicable in any tort case), as well as being one of the individual control mechanisms, i.e. whether a secondary victim can show sufficient proximity in space and time to the relevant event. The Court of Appeal considered that if the Claimant’s argument, that proximity to the death three weeks later was sufficient, it would make no difference if the death had occurred months or even years later. But the concept of proximity to a secondary victim could not reasonably be stretched that far without significantly extending the law. Earlier House of Lords decisions had made it clear that any significant further extension of the boundaries of secondary victim claims should be left to Parliament.

The Court of Appeal also thought it would also produce unreasonable results if the Claimant on the above facts could recover for witnessing a death three weeks post-accident, whereas had the Claimant’s mother died in the negligent work accident itself and the Claimant had arrived on the scene of that accident and suffered shock, but just outside the "immediate aftermath", she would not have succeeded in her claim. The reasonable person would find that incomprehensible in Lord Dyson’s view and fairness between different classes of Claimant mattered.

Advising clients in secondary victims claims

So, where does this leave practitioners seeking to give advice to clients in such cases? If you are struggling to pin down the relevant principles when weighing the merits of a potential 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.”

That observation was made over 15 years ago, in White v Chief Constable of South Yorkshire [1999] 2 AC 455 (the police officers’ claims arising out of the Hillsborough disaster), but the position remains the same today. In fact, some of the decisions in the 21 years between Alcock and Taylor v Novo are difficult to reconcile with one another and have made it harder to find a consistent thread through this line of cases.

Bringing matters up to date, the period since December 2014 has produced a quartet 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; thirdly, Berisha v Stone Superstore; fourthly, Shorter v Surrey & Sussex NHS. Thankfully, these decisions are broadly consistent with one another.

Although three of these decisions are in the clinical negligence context, it should be remembered that the same principles are applied in both cases arising from accidents and clinical negligence cases. There are no special rules or exceptions.

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 had been 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 5 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.

Shorter v Surrey & Sussex Healthcare NHS Trust [2015] EWHC 614 (QB), was another instance where the Court had to consider whether a close relative could recover as a secondary victim for the psychiatric injury sustained due to witnessing the result of the Defendant Trust’s negligent treatment of (in this case) her sister.

The Claimant’s sister was admitted to hospital with a severe headache following a collapse. A CT scan was done and she was wrongly told that she had not suffered a haemorrhage. After being discharged, she was re-admitted a week later with further head pain and was told that she had suffered a haemorrhage a week earlier. The Claimant was called and visited her sister, knowing that there was a risk of a further haemorrhage and claimed she saw her sister in considerable pain and distress. Some hours later she was called back to hospital again having been told her sister had started fitting. She arrived to see her sister on life support and was told by her brother-in-law that her sister had "gone". The Claimant’s sister died a short while later. The Claimant suffered a major depressive disorder. It was admitted that the Claimant’s sister would probably have survived but for the negligent failure to diagnose the original haemorrhage at the time.

Whilst the Judge, Swift J, accepted that the incidents over this two day period had contributed to the psychiatric illness sustained by the Claimant, there had not been a seamless single horrifying event but a series of events. Whilst the Claimant had been proximate to some of the events, most of her fear, panic and anxiety had been caused by things she was told by telephone or face-to-face. None of the individual events within the series actually witnessed had amounted to a sudden and direct appreciation of a horrifying event (the necessary ingredient of ‘shock’ required); nor were they sudden or unexpected. The Judge held that the series of events gave rise to an accumulation during that period of gradual assaults on the Claimant’s mind causing her illness. By way of reminder, the authorities are clear that this sort of gradual process is not sufficient to amount to the necessary "shock" in law.

Another point which arose was whether the Claimant’s employment as a specialist (nursing) Sister in a Neuro-care ward, giving her professional expertise in the relevant area of medicine and, she contended, greater insight into the gravity of her sibling’s state of health, made the events more horrifying for her. Swift J held that the test to be applied was whether the event was one that would be recognised as horrifying by a person of ordinary susceptibility; i.e. applying an objective standard. It was not desirable for secondary victim claims to become embroiled in a debate about an individual Claimant’s level of medical knowledge and its effects upon whether an event should be classified as horrifying.

Conclusion

Some of the decisions in the 21 years between Alcock in 1992 and Taylor v Novo in 2013 are difficult to reconcile with one another and have made it harder to find a consistent thread through this line of cases. But following the guidance in Taylor v Novo, there has been a greater degree of consistency between the various reported decisions.

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 quartet of cases since December 2014 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.