Secondary Victim Claims:
A patchwork quilt of distinctions
11am Webinar starting soon
Ed Bishop QC
Laura Johnson
Barristers, 1 Chancery Lane
June 2020
Introduction
June 2020
• A complex and controversial area of the law.
• 1942 to 1999: 5 HL cases
• Two more since on psychiatric illness and tortious
responsibility
• “A patchwork quilt of distinctions which are
difficult to justify” Lord Steyn in White
• “More or less arbitrary conditions which a plaintiff
had to satisfy and which were intended to keep
liability within what was regarded as acceptable
bounds” Lord Hoffman in White
• The latest patch on the quilt - Paul v Royal
Wolverhampton NHS Trust [2020]
Today’s webinar
June 2020
1. Primary or secondary victim?
2. The “control mechanisms”:
• Close ties of love and affection
• A shocking and horrifying event
• Proximity in time and space to the event
• Direct perception of the event or its
immediate aftermath
3. Causation:
• What a claimant has to prove
• Apportionment
The early days
• Dulieu v White [1901] KB 669 (pregnant barmaid, premature birth after carriage crash into pub)
• Hambrook v Stokes [1925] 1 KB 141 (lorry careers out of control towards claimant’s children)
• Bourhill v Young [1943] AC 92 (pregnant claimant, stillbirth after shock of motorcycle crash)
Foreseeability was king
Primary and secondary victims
• The birth of the control mechanisms: McLoughlin v
O’Brian [1983] AC 410, Lord Wilberforce
• The establishment of the control mechanisms: Alcock v
Chief Constable of South Yorkshire Police [1992] 1 AC
310
• The fork in the road: Page v Smith [1996] 1 AC 155
- Foreseeability of psychiatric injury removed for
primary victims
- But remains for secondary victims, along with the
control mechanisms
- Note powerful dissenting speech by Lord Goff in
White - Page is wrongly decided.
Primary and secondary victims
In most cases the distinction is obvious. But a number of cases on the margins eg:
• Young v Charles Church (1997) 39 BMLR 146 (scaffold pole electrocution of a colleague)
• Rescuers – foreseeable risk of physical injury or must reasonably believe himself/herself to be in danger (introduced in White for policy reasons).
Primary and secondary victims
Primary and secondary victims
The birth injury cases.
Some examples:
• Farrell v Merton Sutton and Wandsworth HA (2001) BMLR 158
• Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB)
• Wells v University Hospital NHS Foundation Trust[2015] EWHC 2376 (QB)
• RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB)
• YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB)
• Zeromska-Smith v United Lincolnshire Hospitals NHS
Trust [2019] EWHC 980 (QB)
June 2020
The birth injury cases - some conclusions:
• Mothers:
- If (traumatic birth and/or sight of severely injured child in immediate aftermath) causes or makes a material contribution to psychiatric injury, mother can recover.
• Potential problems:
- Late onset depression caused by looking after severely-injured child
- Apportionment if injury is “divisible”
• Partners/other family members:
- Secondary victims.
- Maybe difficulties with defining presence at the “event” if negligence pre-dates birth
Primary and secondary victims
A close relationship of love and affection will be
presumed in the cases of:
• Parent and child
• Husband and wife
Although that presumption is rebuttable
(see McLoughlin and Alcock)
Control mechanisms: Close ties
Control mechanisms: Close ties
• In other cases of family relationship / friendship the
close tie of love and affection must be proved
• Claimants will need to produce evidence, usually in the
form of a witness statement, to prove their close tie of
love and affection
• Hurdle is reasonably high:
“there can well be relatives and friends whose
relationship is so close and intimate that their love and
affection for the victim is comparable to that of the
normal parent, spouse or child of the victim and should
for the purpose of this cause of action be so treated”
(Lord Ackner in Alcock)
Bystanders
• In Alcock Lord Ackner apparently left open the
possibility of a claim by a bystander if the
circumstances were sufficiently shocking [403G]
• McFarlane v E.E. Caledonia Limited [1994] CA
• C worked on the Piper Alpha oil rig. On the night of the
disaster he was on board another vessel in the vicinity
of Piper Alpha and witnessed some of the events of the
evening
• Stuart-Smith LJ, giving the judgment of the CA, said: “In my judgement, both as a matter of principle and policy, the Court
should not extend the duty to those who are mere bystanders or
witnesses of horrific events unless there is a sufficient degree of
proximity, which requires both nearness in time and place and a close
relationship of love and affection between plaintiff and victim.”
Control mechanisms: Close ties
Control mechanisms: Shocking & horrifying
• “‘Shock’ in the context of this course of action,involves the sudden appreciation by sight or soundof a horrifying event, which violently agitates themind. It has yet to include psychiatric illness causedby the accumulation over a period of time of moregradual assaults on the nervous system.”
Per Lord Ackner in Alcock
• The event must be objectively “shocking and horrifying” as judged by “persons of ordinary susceptibility”.
June 2020
Examples:
- Ward v Leeds Teaching Hospitals NHS Trust [2004] EWHC
2106 (QB)
- Liverpool Women’s Hospital NHS Foundation Trust v
Ronayne [2015] EWCA Civ 588
- Shorter v Surrey and Sussex Healthcare NHS Trust [2015]
EWHC 614 (QB)
- Owers v Medway NHS Foundation Trust [2015] EWHC
2363 (QB)
* Note the courts’ attitude to events in hospitals
Control mechanisms: Shocking & horrifying
Control mechanisms: Proximity in time and space
• Proximity is used in two different senses
• Here concerned with the requirement that the person towhom the duty of care may be owed, be close in timeand space to the “event”
• On the face of it, that requirement appearsstraightforward
• In many accident cases it is
• Classic example is a claimant witnessing a car accident in which their loved one is injured
June 2020
Control mechanisms: Proximity in time and space
• What happens in cases where the facts are not those of a
“conventional” accident?
• Issue the court have had to grapple with is what “event”
must the potential secondary victim be proximate to?
• Examples of situations that have caused difficulty
- A drawn out event taking place over hours
- Where there is an initial minor accident and a later
major physical event
- Where there is a gap in time between the breach of
duty and the onset or appearance of injury
• Taylor v Somerset HA [1993]
- Heart attack at work
- Consequence of D’s failure to diagnose
and treat
- C told of news by telephone
- Attends hospital and told H has died
- C visits H in mortuary
Immediate aftermath exception case
Control mechanisms: Proximity in time and space
Control mechanisms: Proximity in time and space
• Auld J"There are two notions implicit in this exception cautiously
introduced and cautiously continued by the House of Lords. They are
of:
(i) an external, traumatic, event caused by the defendant’s breach
of duty which immediately causes some person injury or death; and
(ii) a perception by the plaintiff of the event as it happens, normally
by his presence at the scene, or exposure to the scene and/or to the
primary victim so shortly afterwards that the shock of the event as
well as of its consequence is brought home to him.
There was no such event here other than the final consequence of Mr
Taylor’s progressively deteriorating heart condition which the health
authority, by its negligence many months before, had failed to
arrest. In my judgment, his death at work and the subsequent
transference of his body to the hospital where Mrs Taylor was
informed of what had happened and where she saw the body do not
constitute such an event."
Control mechanisms: Proximity in time and space
• North Glamorgan NHS Trust v Walters [2002]
• Case about what amounts to a shocking and horrifying
event
• Important facts for proximity
- Baby was admitted to hospital in June 1996 with
jaundice
- Misdiagnosed – should have undergone a liver
transplant and probably would have lived
- Weekend of 26 July returned to hospital unwell
- Tuesday 30 July 1996 – mother awoke to find child
fitting
- 36 hours later he died
Control mechanisms: Proximity in time and space
• The CA had to consider whether the event, starting with
the fit and concluding with the child’s death, could
fulfill the Alcock criteria? Per Ward LJ [34]“…the law… does permit a realistic view being taken from case to
case of what constitutes the necessary “event”. Our task is not to
construe the word as if it had appeared in legislation but to gather
the sense of the word in order to inform the principle to be drawn
from the various authorities. As a word, it has a wide meaning as
shown by its definition in the [dictionary] as: ”An item in a sports
programme, or the programme as a whole”. It is a useful metaphor
or at least a convenient description for the ”fact and consequence of
defendant’s negligence”, per Lord Wilberforce, or the series of
events which make up the entire event beginning with the negligent
infliction of damage through to the conclusion of the immediate
aftermath whenever that may be. It is a matter of judgment from
case to case depending on the facts and circumstance of each case.”
Control mechanisms: Proximity in time and space
• Taylor v A Novo [2014]
- Personal injury claim
- C’s mother injured in an accident at work when
racking collapsed
- C then witnessed her mother’s death from a
complication of the accident 3 weeks later
- At first instance judge accepted that the death
could be the “event” for the purposes of
proximity
- CA decided that the relevant ‘event’ was the
initial accident and the death 3 weeks later
was not the relevant ‘event’
Control mechanisms: Proximity in time and space
"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 v Somerset] … 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."
Control mechanisms: Proximity in time and space
• Paul v Royal Wolverhampton NHS Trust [2020]
- Strike out application
- Heard by Master Cook in late 2019
- Claim was struck out
- Appeal before Chamberlain J in May 2020
Control mechanisms: Proximity in time and space
• Paul – pleaded facts:
- Attendance at hospital with cardiac symptoms in
November 2012
- Collapsed and died following heart attack in January
2014
- Cs’ case – negligent failure to diagnose and treat
coronary artery disease in 2012; with competent care
heart attack would not have occurred
- Heart attack was the first point at which the damage
occurred or negligence became manifest / evident
- Collapse and death was witnessed by P’s two
daughters aged 9 and 12 at time.
- Circumstances were shocking and horrifying and
caused them both psychiatric harm
D’s arguments were complex and technical. In a nutshell
though they were:
(a) In this case there was no “event” for the purposes of
the requirement of proximity in time and space. P’s
heart attack was simply “the final consequence of
[P’s] progressively deteriorating heart condition which
the health authority, by its negligence, many months
before, had failed to arrest” – in this regard the case
was indistinguishable from T v Somerset.
(b) If there was an event it occurred in November 2012
when P was negligently treated. The tort was
complete at that point and the Cs did not witness it.
Control mechanisms: Proximity in time and space
Control mechanisms: Proximity in time and space
Appeal before Chamberlain J:
• Detailed and thoughtful judgment
• Reviews all of the relevant case law
• Detailed analysis at
https://1chancerylane.com/wp-
content/uploads/2020/06/Briefing-Secondary-Victim-
Claims.pdf
Key question: whether P’s collapse from a heart attack 14 ½
months after the allegedly negligent treatment is capable of
constituting a relevant ‘event’?
Three possible reasons why not:
• The event has to be synchronous or approximately
synchronous with the negligence – not argued
• Liability depends on there being a negligent act not an
omission – not argued
• The Cs were absent from the “scene of the tort” – argued
and rejected
Control mechanisms: Proximity in time and space
• Although McLoughlin and Alcock were both cases wherethe negligence was close in time to the event, there isnothing in the authorities to suggest this must be so
• There is no requirement that the negligence and thedamage be synchronous. On the pleaded case the Cswere present at the “scene of the tort” – the tortbecoming complete when P suffered the heart attack
• Arguments about whether damage was sustained in
Nov 12 were contrary to C’s pleaded case and
triable issues of fact
Control mechanisms: Proximity in time and space
D’s argument that a heart attack caused by negligence many
months before could not be a relevant “event” was rejected
• It was foreseeable that a negligent failure to diagnose and
treat a heart condition could result in a sudden shocking event
that might cause psychiatric damage if witnessed by close
family members
• There was no requirement that the secondary victim must
perceive not only the injury but also that it was caused by D’s
negligence
• Taylor v Somerset was not authority for the proposition that
the event had to be external to the primary victim but
external to the secondary victim. A contrary conclusion would
mean that Walters was wrongly decided
• The ratio of Taylor v A Novo is that, in a case where D’s
negligence results in an event giving rise to injury in a primary
victim, the “event” cannot be a subsequent discrete event
Control mechanisms: Proximity in time and space
The conclusion:
“[In Novo] Lord Dyson was careful to say that “accident” cases
were “[a] paradigm example” of those in which a claimant can
recover damages as a secondary victim and that “[i]n such a case”
the relevant event is the accident, rather than a later
consequence of it. This careful formulation seems to me to allow
for non- paradigm cases where there is no “accident”, but some
other kind of event – such as in Walters. The passage… in which
Walters is distinguished appears to recognise that an event which
is external to the secondary victim, but internal to the primary
victim, could in principle qualify... This is consistent with the
express endorsement at [33] of Auld J’s reasoning in Taylor v
Somerset Health Authority only if the requirement for an
“external, traumatic event” is read as requiring an event external
to the secondary victim…
Control mechanisms: Proximity in time and space
“On this analysis, I would hold that the Master was wrong to
conclude that these claims are bound to fail... Here… there was
on the facts pleaded only one event: Mr Paul’s collapse from a
heart attack... On the facts pleaded, it was a sudden event,
external to the secondary victims, and it led immediately or very
rapidly to Mr Paul’s death. The event would have been horrifying
to any close family member who witnessed it, and especially so to
children of 12 and 9. The fact that the event occurred 14 1⁄2
months after the negligent omission which caused it does not, in
and of itself, preclude liability. Nor does the fact that it was not
an “accident” in the ordinary sense of the word, but rather an
event internal to the primary victim. In a case where such an
event is the first occasion on which damage is caused, and
therefore the first occasion on which it can be said that the cause
of action is complete, Taylor v A. Novo does not preclude
liability.”
Control mechanisms: Proximity in time and space
• This was sufficient for the appeal to succeed
• Cs’ alternative argument: that it was possible for the
claim to succeed even if the negligent failure to
diagnose had given rise to actionable damage prior to
Mr Paul’s collapse on 25 January 2014:
“in principle Taylor v A. Novo is no bar to recovery in
this case if it is shown that Mr Paul’s collapse from a
heart attack on 26 January 2014 was the first occasion
on which the damage caused by the hospital’s negligent
failure to diagnose and treat his heart condition became
manifest."
Control mechanisms: Proximity in time and space
“…there is no reason to favour a conservative
posture in which liability is accepted only where it
has already been found to exist on
indistinguishable facts. There is nothing to inhibit
the courts from aiming for maximal coherence in
the principles which govern the circumstances in
which the existing control mechanisms will be
satisfied. In doing so, they are bound by the rules
of precedent, but are otherwise unconstrained.”
Watch this space…
Control mechanisms: Proximity in time and space
• Must be within sight and hearing of the event or immediate aftermath
• Sight and hearing
- Television not sufficient – Alcock
- Note broadcast restrictions at time of Alcock; may not apply now with social media
- Different now?
• Immediate aftermath
- McLoughlin on the margins (two hours between accident and attending hospital)
- Alcock – too late (7-8 hours before family arrived at stadium to identify bodies)
- Contrast Galli-Atkinson v Seghal [2003] EWCA Civ697
Control mechanisms: Direct perception
Causation – what a claimant must prove
• A talk in itself
• Two essential elements:
• C must suffer from a recognised psychiatric injury (i.e. not grief of distress)
• Caused by the sudden appreciation of the horrific event
• Don’t lose sight of the importance of the second of these
• Consider the psych evidence carefully
Farrell v Merton [2000]
June 2020
Causation – Apportionment of damages
• The principle – Barber v Somerset [2004] UKHL 13
• Doubted in Dickins v O2 PLC [2008] EWCA Civ 1144
• Re-affirmed in BAE v Konczak [2017] EWCA Civ 1188
• So, it may be possible to separate out PTSD caused by witnessing an accident from depression caused by other factors, for example
• This in turn may depend on whether injury is “divisible”
June 2020
Lord Hoffman in White:
“It seems to me that in this area of the law the
search for principle was called off in Alcock…No
one can pretend that the existing law…is
founded upon principle”
“It is too late to go back on the control
mechanisms…Until there is legislative change,
the courts must live with them and any judicial
developments must take them into account”
The last word…
Ed Bishop QC
Laura Johnson
Emma Williams
June 2020