The Court of Appeal recently handed down judgment in the conjoined appeals Paul v The Royal Wolverhampton NHS Trust, Polmear v Royal Cornwall Hospitals NHS Trust & Purchase v Ahmed [2022] EWCA Civ 12
Overview:
This case concerns the requirement of proximity in secondary victim claims. In particular, what amounts to the ‘qualifying event’ for the purposes of the proximity requirement; and whether proximity can be satisfied where there is a gap in time between negligent treatment and the horrific event of injury.
Facts:
The case concerns claims brought by Mr Paul’s wife and daughters after they witnessed Mr Paul suffer a fatal heart attack in January 2014. They suffered psychiatric harm as a result and brought claims as secondary victims.
The Defendant Trust admitted they were negligent in failing to diagnose his heart condition in November 2012 when he was admitted to hospital with chest and jaw pain (14 months prior to his death).
However, the Defendant Trust applied to strike out the daughters’ claim on the basis it could not satisfy the criteria of proximity in time and space to the shocking event. Mr Paul’s death could not qualify as the relevant “event” for the purposes of the proximity requirement, since it occurred 14 months after the negligent event. There was no suggestion the daughter’s witnessed the events leading to Mr Paul’s initial hospital admission, therefore the Claimant’s were not present at the scene of the tort, and the claim fails on proximity.
First instance decision:
Master Cook held that a heart attack which occurred 14 months after the alleged negligent act could not be said to be sufficiently proximate. Therefore, he struck out the psychiatric injury claims as having no reasonable prospect of success.
Applying Taylor v Somerset Health Authority [1993] P.I.Q.R. and Taylor v A Novo [2013] EWCA Civ 194, Mr Paul’s death from a heart attack could not amount to the relevant event for the purposes of proximity.
Taylor v Somerset involved extremely similar facts; a wife who witnessed her husband’s death from a heart attack caused by an admitted negligent failure to diagnose his heart condition many months earlier. Auld J held that the death could not qualify as the relevant shocking event – it was simply a later and discrete consequence of the relevant event:
“There was no such event here other than the final consequence of Mr Taylor’s progressively deteriorating heart condition … “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” (page 267)
Auld J’s words were expressly approved by the Court of Appeal in Taylor v A Novo, a case involving an injury at work, shelves collapsing on the Claimant, which resulted in her sudden death caused by a pulmonary embolism three weeks later. Lord Dyson MR said:
“the relevant event is the accident, it is not the later consequence of the accident. Auld J put the point well in Taylor. Mrs 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”.
Following the authorities above, Master Cook held:
“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.”
“In the circumstances the Second and Third Claimants' secondary victim claims are, in my judgment, bound to fail. Mr Paul's tragic death 14 ½ 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.”
High Court judgment:
On appeal to the High Court Mr Justice Chamberlain held that Mr Paul’s death, as witnessed by the Claimant’s, was capable of amounting to a ‘qualifying event for the purposes of proximity, despite that it occurred 14 months after the negligence.
In a strike out application the court had to proceed on the factual basis most favourable to the claimants and assume that the cause of action did not accrue until the father's collapse on 26 January 2014. On that assumption, the "scene of the tort" was the pavement where he collapsed and died. The claimants were present at that scene.
Taylor v A Novo was distinguished on the basis it was a two event case, whereas the present case involved only one shocking event (the collapse and death)
“… the ratio of Taylor v A. Novo is that, in a case where the defendant's negligence results in an "event" giving rise to injury in a primary victim, a secondary victim can claim for psychiatric injury only where it is caused by witnessing that event rather than any subsequent, discrete event which is the consequence of it
… 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 1/2 months after the negligent omission which caused it does not, in and of itself, preclude liability.
Unlike in Taylor v A. Novo, in the instant case there was on the facts pleaded only one event, namely the father's collapse from a heart attack on 26 January 2014. It was the first manifest damage caused by the Defendant’s negligence, and was a sudden event, external to the secondary victims. 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 and a half months after the negligent omission which caused it did not, in and of itself, preclude liability:
“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. As I have explained, for the purposes of this strike-out application, I must assume that the present is such a case.”
Court of Appeal
This appeal concerned three psychiatric injury claims brought by secondary victims in the clinical negligence context: Paul v Wolverhampton, Polmear v Royal Cornwall and Purchase v Ahmed.
All three claimants suffered psychiatric injury after witnessing the death of their close relative (the ‘primary victim’) resulting from a negligent failure to diagnose/treat the primary’s victim’s health condition.
The question to be decided was whether the requirement for legal proximity between the defendant and the secondary victim was satisfied, in circumstances where a gap in time existed between the negligent act/omission and the horrifying event (injury to the primary victim) arising from the negligence.
As outlined by the Court of Appeal at paragraph 76:
“the true question is how the authorities are to be applied to clinical negligence cases where there is a delay between the negligent act or omission and a horrifying event caused to the primary victim by that negligent act or omission”.
Counsel for the Defendants argued that since the deaths in these cases were separated in time and space from the negligence, they cannot qualify as the “relevant event” for the purposes of the proximity requirement. They argued that the Court was bound by its own decision in Taylor v A Novo, which decided that secondary victim’s cannot claim in respect of witnessing a horrifying event once actionable damage has already been sustained by the primary victim.
Counsel for the Claimants argued that Taylor v A Novo did not preclude liability, and Chamberlain J was correct to distinguish A Novo in the way he did in Paul v Wolverhampton
Held:
The Court of Appeal found for the Defendant in each appeal striking out the claims on the basis that they were bound by an existing Court of Appeal authority Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194 (see above) that is fatal to the claims.
However, in a lead judgment by Vos MR with additional reasons by Underhill LJ the Court of Appeal recognised that the decision in Taylor developed the underlying principles described by Lord Oliver in Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310 and questioned whether the interpretation of those principles in Novo was correct.
§ Vos MR went on to say
“If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case”.
Importantly, Vos MR concluded:
“I have, as I have already said, reservations about whether Novo correctly interprets the limitations on liability to secondary victims contained in the five elements emerging from the House of Lords authorities. Subject to hearing further argument, therefore, I would be prepared to grant permission to the claimants to appeal to the Supreme Court, if sought, so that it can consider the important issues that arise in this case”.
This view was echoed by Underhill LJ:
“It follows that if the point were free from authority I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover. I do not think that recognising the necessary proximity in such cases would be contrary to the “thus far and no further” approach taken in White. It would not involve going beyond the elements established in Alcock: rather, it would represent their application in a different factual situation”.
He went on to say:
“My strong provisional view, like [Vos MR], is that the issues raised by them merit consideration by the Supreme Court”.
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