Judgment was handed down on 18 March 2013, by the Master of the Rolls in the appeal in Taylor v A.Novo (UK) Ltd  EWCA Civ 194. This case concerned a psychiatric “secondary victim” claim (i.e. a claim where the claimant suffered psychiatric injury as a result of a physical injury of another): specifically the requirements of proximity (as between the secondary victim and the original tortfeasor), in the context of the special “control mechanisms” for secondary victim claims.
In this case the claimant’s mother died three weeks after an accident at work. The claimant witnessed her mother’s death but had not been present at the accident itself, or its immediate aftermath. The Claimant successfully sued for damages. She succeeded at first instance on the basis that on the facts of this case the death was the (or, at least, a) relevant event for proximity purposes. The Court of Appeal overturned that judgment on the basis that the necessary “proximity”between the Claimant and the Defendant was not made out, because although the daughter had witnessed the death, she hadn’t witnessed the accident.
The Court of Appeal’s judgment not only affirms the strict application of the control mechanisms laid down in Alcock v Chief Constable of South Yorkshire (the 1992 House of Lords appeal arising out of claims for psychiatric injury made by relatives of the Hillsborough stadium disaster victims). It also makes it clear that it is not appropriate, in the context of what might be called “two event” cases, to assess proximity simply by reference to the second event; what is required remains, even in such cases, an assessment of the proximity of the secondary victim to the tort itself and the tortfeasor.
In allowing the appeal the Master of the Rolls held (at 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.”, and (at para 32) “…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. …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 clarifies the law in “two-event” secondary victim claims. It is likely to have particular ramifications in the clinical negligence context, where shocking consequences of negligent acts or omissions (and any psychiatric damage inflicted on family members and the like as a result) may well post-date the original negligence (and the injury caused to the patient, the primary victim), by weeks, months or even years.
Charlie Cory-Wright QC (leading Charlie Bagot) was instructed for the Defendant/Appellant and its insurers, the Generali, by Hill Dickinson, solicitors.
For the full judgment please click here.