The Honourable Mr Justice Chamberlain has today overturned Master Cook’s decision on 4 November 2019 to strike out the secondary victim claims brought by the children of Mr Paul, bringing some clarity on the application of the proximity test to secondary victim claims where there is a gap in time between the breach of duty, and the subsequent manifestation of the damage or injury caused by the negligence.
On 9 November 2012 Mr Paul was admitted to New Cross Hospital in Wolverhampton after complaining of chest and jaw pain. Mr Paul had Type II diabetes and was given treatment for acute coronary syndrome and save for echocardiography no cardiac investigations were performed. In September 2013 Mr Paul was referred to a cardiologist and was seen on 9 January 2014. An elective coronary angiography was recommended.
On 26 January 2014 some 14 months after being admitted to hospital and before the angiography was performed, Mr Paul (aged 44 at this time) was out shopping with his daughters aged 9 and 12 when he suffered a heart attack causing him to collapse, fall backwards and strike his head on the floor. His daughters witnessed the collapse and the unsuccessful cardio pulmonary resuscitation by the paramedics.
Mr Paul’s heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. If a coronary angiography had been performed on Mr Paul it would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation. These actions would have avoided the heart attack.
A claim in negligence is being pursued against the defendant hospital (Defendant) on behalf Mr Paul’s estate under the Law Reform (Miscellaneous Provisions) Act 1934, and on behalf of Mr Paul’s dependants under the Fatal Accidents Act 1976. Secondary victim claims were also brought on behalf of the children (referred to as the Claimants in this article) for psychiatric injuries suffered from witnessing the collapse and death of their father.
Secondary victim claims
Secondary victim claims are claims from someone who suffers psychiatric injury as a result of witnessing the injury or endangerment of the primary victim. In this case Mr Paul was the primary victim and his children the secondary victims.
A secondary victim will only recover damages for psychiatric injury if they can establish the control mechanisms, which are:
- the psychiatric injury was reasonably foreseeable;
- there is a close tie of love and affection to the primary victim;
- they were close in time and space to the incident or to its immediate aftermath, referred to as proximity in time and space;
- the incident was shocking ie a sudden and direct appreciation by sight or sound of a horrifying event. The ingredients necessary to establish the event was suitably shocking are that it must be (a) exceptional, and (b) sudden and (c) horrifying. This will be judged by objective standards by reference to persons of ordinary susceptibility. In a hospital setting one must expect to see things that one may not like to see;
- witnessing the incident caused the psychiatric illness. The psychiatric illness also must be a recognisable one.
Some of these control mechanisms are notoriously complex and have not always been applied by the courts in a consistent way, making it difficult to assess whether a secondary victim claim is likely to be successful.
The Defendant represented by Browne Jacobson and Charles Bagot QC, applied to strike out the secondary victim claims on the basis that they failed the proximity test, ie they failed to establish they were in “close proximity in space and time to the relevant event or its immediate aftermath”.
The Defendant argued that the “relevant event” for the purposes of the proximity test was the alleged negligent omission to arrange a coronary angiography and instead discharging Mr Paul on 12 November 2012, not Mr Paul’s collapse from heart attack some 14.5 months later. “Some damage to Mr Paul was occasioned to him on [the day he was discharged] by the failure to improve or stabilise his condition, or, at the very least, to prevent him worsening” This meant that the heart attack was the later consequence of the infliction of damage and could not qualify as the relevant event. It also meant the Mr Paul’s children were absent from the “relevant event” and it would not have been considered a shocking event in law.
The Defendant relied on the approach taken in the case of Taylor v Somerset Health Authority (1993) (Somerset) which they asserted was expressly approved by the Court of Appeal case of Taylor v A Novo (UK) Ltd (2013).
In Taylor v Somerset, Mr Taylor suffered a heart attack at work, caused by the defendant’s negligent failure, many months before, to diagnose and treat his serious heart disease. He died shortly after being taken to hospital. Mr Taylor’s wife went to the hospital, where she was told of her husband’s death and identified his body. This occurred about an hour after her husband’s death. The question for the court was whether the wife’s involvement within about an hour after her husband’s death met the proximity test i.e., was it in close proximity in space and time to the relevant event or its immediate aftermath. The court held that that Mr Taylor’s death was the ‘final consequence of his progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. His death at work and the subsequent transference of his body to the hospital where the [wife] was informed what happened and where she saw the body did not constitute such an event’. The court were also of the opinion that even if the fatal heart attack could be considered an event to which the ‘immediate aftermath’ applied, the doctor’s communication to Mr Taylor’s wife of that fact would not come within the extension.
In Taylor v A Novo, Mrs Taylor sustained an injury to her head and foot at work when a fellow employee caused a stack of racking boards to fall on her. She seemed to be making a good recovery but 3 weeks later whilst at home and in front of her daughter, she collapsed and died as a result of an embolism. The embolism occurred as a result of the accident at work. This was a two-event case, the first event being the accident when the racking boards fell on Mrs Taylor causing injury and the second event the collapse and death that was witnessed by her daughter. The Court held that the daughter witnessed a consequence of the accident, not the accident itself. The claim failed because the event witnessed by the daughter was not the event where the negligence took place and (importantly) the loss or damage occurred.
The Claimants represented by Phil Barnes, Head of Medical Negligence at Shoosmiths and Counsel Laura Johnson of 1 Chancery Lane Chambers, argued that there was no requirement to establish proximity between the negligence and the ‘relevant event’. The proximity required is between the secondary victim and the relevant event. In conventional accident claims such as a car accident there is usually no gap between the negligence and the ‘relevant event’ as the damage or injuries start on impact. But even in accident claims it is ‘perfectly possible to imagine liability for nervous shock where a secondary victim witnessed the death or injury of a close family member caused by a collapse of scaffolding caused by its negligent erection some months earlier’.
In support of this argument the Claimants relied on the decision in North Glamorgan NHS Trust v Walters (2002). In this case the North Glamorgan NHS Trust negligently failed to diagnose that Mrs Walter’s baby was suffering from acute hepatitis. The negligence occurred on or around 17 June 1996 when the baby was noted to be jaundiced and admitted to hospital. The consequence of that negligence manifested itself some weeks later on 30 July 1996 when the baby had a seizure. Mrs Walters, who was sharing a hospital room with her baby, was wakened by her baby having the fit. She was then told, wrongly, that the baby had not suffered any serious damage as a result of the fit. The baby was later transferred to another hospital, where Mrs Walters learnt that her baby had suffered catastrophic brain damage. The baby died in her arms on the following day. The Court of Appeal took the seizure, which was the first clear manifestation of the breach of duty, as the starting point of the “event” and not the failure to diagnose the acute hepatitis, the breach of duty, which occurred some weeks before.
It was also argued by the Claimants that the case of Taylor v Somerset and Taylor v A Novo could be distinguished from this case and Walters. The Taylor cases did not decide that secondary victim claims can only arise where the breach of duty coincides with the injury.
On 4 November 2019 Master Cook struck out the nervous shock claims brought by the children of Mr Paul on the basis that the claims were bound to fail. He concluded that:
“To focus simply on the death of Mr Paul as being the first point at which the consequence of the Defendant’s negligence became apparent is not an approach which is supported by the authorities. To do so overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event. It is this proximity in space and time that allowed Lord Oliver to impose the duty of care in Alcock and was described by Lord Dyson MR in Taylor v A Novo as “a necessary, but not sufficient, condition of legal proximity”. It is this proximity which has been found to exist in all successful secondary victim claims including Walters and it is the lack of such proximity which explains why the claims in cases such as Taylor v Somerset Health Authority and Taylor v A Novo failed.”
“Mr Paul’s tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence, I must assume occurred in the hospital, cannot possibly be said to be the ‘relevant event’ for deciding the proximity required to establish liability under the established control mechanisms”
Permission to appeal Master Cook’s decision was granted and an appeal hearing took place on 13 May 2020 before His Honourable Mr Justice Chamberlain.
Mr Justice Chamberlain’s judgment has provided much welcomed clarification of what can count as a ‘relevant event’ for the purposes of the proximity test in secondary victim claims.
He held that “the Master was wrong to conclude that these claims are bound to fail on the facts pleaded. Here, unlike in Taylor v A. Novo, there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack on 26 January 2014. 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 ½ 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.
The following principles can be derived from the judgement:
- There is nothing in the previous authorities to suggest that the “relevant event” must be synchronous with the negligence that gives rise to it. In Alcock v Chief Constable of South Yorkshire Police (1991), Lord Oliver said that the “temporal propinquity” required was between the psychiatric injury and “the event caused by the defendant’s breach of duty to the primary victim” not the breach of duty itself.
- In cases where there is a separation in time between the negligence and the damage, the relevant “event” for the purposes of applying the proximity test is the point at which the damage first occurred, the point when the tort becomes actionable or complete.
- As to the time gap between the negligence and the damage, “there is nothing to suggest that there would be any reason to deny recovery simply because the accident or event occurred months or years after the negligence which caused it”.
Mr Justice Chamberlain also dismissed the Defendant’s arguments at the appeal that:
- “It was not foreseeable that psychiatric injury would result from witnessing the consequences many months later, of a negligent omission in the clinical setting”. His reasoning being that “Lord Wilberforce in McLoughlin v O’Brien (1983) set out that, foreseeability in this context involves “a hypothetical person, looking with hindsight at an event which has occurred”. There is no dispute that it is foreseeable that a negligent failure to diagnose a heart condition could result in a heart attack. Heart attacks can happen in many ways. Not all of them are sudden and shocking events, but some are. I would regard it as eminently foreseeable that a negligent failure to diagnose and treat a heart condition might result in a sudden and shocking event that, if witnessed by close family members, might occasion psychiatric damage”.
- There is a requirement that at the time of the event that the claimant must perceive not only injury to the primary victim but be aware that it was caused by the Defendant. He found no support for this proposition in the authorities and no justification for its requirement.
These inconsistencies in the case law and the application of the principles and control mechanisms to the facts makes this a very complex area of the law to apply.
Recently, we have seen several strike-out applications involving secondary victim claims, possibly driven by the fact that if the defendant is successful, qualified one-way costs shifting is lost and they will recover their costs.
In my view, this judgment confirms that it is not suitable for these issues to be determined at strike out applications. There are a number of cases that have been stayed pending the outcome of this appeal and cases that have been struck out since Master Cook’s decision, which will no doubt be revisited.