Secondary Victim Claims: A patchwork quilt of distinctions...Secondary Victim Claims: A patchwork...

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.


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).



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


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


• 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: 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


• 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



• 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."


• 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


• 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.”


• 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’


"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."

https://uk.westlaw.com/Document/ICE1EA2F0E42811DA8FC2A0F0355337E9/View/FullText.html?originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)


• 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


• 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.



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

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


• 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


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


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…


“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.”


• 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."


“…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…


• 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

[email protected]

Laura Johnson

[email protected]

Emma Williams

[email protected]

June 2020

mailto:[email protected]



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