“37. On26 January 2014 the Deceased was out shopping with his daughters, the Second and Third Claimants. He mentioned that he felt ill and both the Second and Third Claimant thought he was joking initially. The Second Claimant was walking slightly behind her father and the Third Claimant slightly in front, because they had had a minor argument and she was angry. The Third Claimant turned and initially saw her father leaning against the wall momentarily; she saw his eyes roll back. Both girls saw him fall backwards and hit his head on the floor. The Second and Third Claimant were alone with their father in the street. The Second Claimant tried to ring her mother and then an ambulance but in her distress, was unsuccessful. There was no one immediately around and she began shouting for help until eventually a lady came and used her telephone to call an ambulance. The Third Claimant managed to make contact with her mother but was too distressed to be understood. The Second Claimant took the telephone and told her mother what had happened. Both girls saw a man holding their father’s head and there was blood on his hands. The Second and Third Claimants were ushered into a nearby church by members of the public that had come to help, as the children were very distressed by what they were witnessing. The First Claimant arrived at the scene shortly thereafter. The Second and Third Claimants remember hearing their mother outside screaming their father’s name and going back outside to be with her. The Second and Third Claimant saw the ambulance crew who had arrived by this time put a foil blanket over their father. They were doing chest compressions. There was a crowd of people including the police. The Second and Third Claimants were taken to an aunt and uncle’s house.” 38. The ambulance arrived at 15.57 and left the scene at 16.28, arriving at hospital at 16.43 but further resuscitation was felt to be futile and the deceased was declared dead at 16.51. As such, the second and third claimants witnessed the final event.”
“If one continues to follow the process of logical progression, it is hard to see why the present plaintiff also should not succeed,” given that the scene at the hospital was only incrementally less immediate than that which she would have seen if she had come upon the aftermath on the highway. As to the process by which the case fell to be decided, Lord Wilberforce said this: “To argue from one factual situation to another and to decide by analogy is a natural tendency of the human and the legal mind. But the lawyer still has to inquire whether, in so doing, he has crossed some critical line behind which he ought to stop.”
“Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, as a formula adopted by English law, not merely for defining, but also for limiting, the persons to whom duty may be owed, and the consequences for which an actor may be held responsible.”
“As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the ‘nervous shock’.”
“Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, as a formula adopted by English law, not merely for defining, but also for limiting, the persons to whom duty may be owed, and the consequences for which an actor may be held responsible.”
“As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the ‘nervous shock’.”
“in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty.”
“‘Shock,’ in the context of this course of action, involves the sudden appreciation by site or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”
“Although it is convenient to describe the plaintiff… as a ‘secondary’ victim, that description must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him – a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant. The difficulty lies in identifying the features which, as between two persons who may suffer effectively identical psychiatric symptoms as a result of the impression left upon them by an accident, established in the case of one who was present at or near the scene of the accident a duty in the defendant which does not exist in the case of one who was not. The answer cannot, I think, lie in the greater foreseeability of the sort of damage which the plaintiff has suffered. The traumatic effect on, for instance, a mother on the death of her child is as readily foreseeable in a case where the circumstances are described to her by an eyewitness at the inquest as it is in a case where she learns of it at a hospital immediately after the event. Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by a policeman hours after the event may be a sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene. The answer has, as it seems to be, to be found in the existence of a combination of circumstances from which the necessary degree of proximity between the plaintiff and the defendant can be deduced. And, in the end, it has to be accepted that the concept of ‘proximity’ is an artificial one which depends more upon the court perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction. The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J in the instant case and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff’s perception of it combined with a close relationship of affection between the plaintiff and the primary victim.”
“No case prior to the hearing before Hidden J from which these appeals arise has countenanced an award of damages for injuries suffered where there was not at the time of the event a degree of physical propinquity between the plaintiff and the event caused by the defendant’s breach of duty to the primary victim nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a relatively short interval of time. The necessary element of proximity between plaintiff and defendant is furnished, at least in part, by both physical and temporal propinquity and also by the sudden and direct visual impression on the plaintiff’s mind of actually witnessing the event or its immediate aftermath.”
“To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along the road which must ultimately lead to virtually limitless liability… further pragmatic extensions of the accepted concept of what constitutes proximity must be approached with the greatest caution. McLoughlin v O’Brian[1983] 1 AC 410 was a case which itself represented an extension not, as I think, wholly free from difficulty and any further widening of the area of potential liability to cater for the expanded and expanding range of the media of communication water, in my view, to be undertaken rather by Parliament, with full opportunity for public debate and representation, than by the process of judicial extrapolation.”
“in the case of secondary victims, foreseeability of injury by shock is not enough. The law also requires a degree of proximity… this means not only proximity to the event in time and space, but also proximity of relationship between the primary victim and the secondary victim. A further control mechanism is that the secondary victim will only recover damages for nervous shock if the defendant could have foreseen injury by shock to a person of normal fortitude or ‘ordinary phlegm’.”
“My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury… But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm… [P]recedent rules out this course and, in any event there are cogent policy considerations against such a bold innovation. In my view the only sensible strategy for the court is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case… and Page v Smith… as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.”
“It is too late to go back on the control mechanisms as stated in the Alcock case… Until there is legislative change, the courts must live with them and any judicial developments must take them into account.”
“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, which your Lordships have to accept, is founded upon principle. I agree with Jane Stapleton’s remark that ‘once the law has taken a wrong turning or otherwise falling into an unsatisfactory internal state in relation to a particular course of action, incrementalism cannot provide the answer:’ see The Frontiers of Liability.”
“The question for the court is whether Mrs Taylor’s involvement, as I have summarised it, in and within about an hour after her husband’s death brings her within the ‘immediate aftermath’ – the fourth – principle formulated by Lord Wilberforce in McLoughlin v O’Brian…”
“All their Lordships in Alcock, in considering the application of the immediate aftermath test to the various claims before them, did so, understandably in the circumstances of the case, by reference to the accident, the disaster in the stadium. But regardless of the particular circumstances of that case, all their lordships clearly regarded some external, traumatic, event in addition to its primary consequence of injury or death as a necessary starting point when considering what Lord Oliver described, at p. 410, as ‘the essential but elusive concept of “proximity” or “directness”’.”
“It is of course correct that in most of the decided cases there has been a sudden and violent incident resulting from a breach of duty, but it is the sudden awareness, violently agitating the mind, of what is occurring or has occurred that is the crucial ingredient of shock… I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.”
“In my judgement the law as presently formulated 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 appeared in legislation but to gather the sense of the word in order to inform the principal to be drawn from the various authorities… it is a useful metaphor or at least a convenient description for the ‘fact and the consequence of the 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 maybe. It is a matter of judgement from case to case depending on the facts and circumstances of each case. In my judgement on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child’s life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and it subsequently recollected it was undoubtedly one drawn-out experience.”
“Like Gibson LJ in Sion I see no reason why liability for nervous shock in medical negligence cases involves any new application of principle. The same principle is being applied even if the facts to which it is applied are new. To act within the parameters of principle does not involve an incremental step.” 24Clarke LJ added at [48] that “[a]though… it is too late to go back on the control mechanisms stated in Alcock, I do not think that those mechanisms should be applied too rigidly or mechanistically”
“37… Even with the benefit of hindsight his injury was not reasonably foreseeable. He cannot bring himself within the category of people who suffer shock as a result of seeing or hearing a tragic event or its immediate aftermath. This is because in my judgement the relevant event for the purposes of this case is the incident with the barrier. “38. I agree with [counsel for the respondent] that one cannot simply ignore the incident in which injury was actually and negligently caused to the primary victim. Mrs White’s cause of action based on the respondent’s negligence arose at that time. Had Mr White come across the accident and his wife’s car and suffered shock as a result, he would no doubt have had a claim. But he did not. It took a second event six months later for that to happen. This was not a combination of circumstances making up one event or even one series of events of a seamless nature. Nor was there an inexorable progression. The shocking event in this case was a completely distinct event, a second event separated in time and space from the accident. … 40. It follows from what I have said that I do not accept that the decision in Walters extends the law in the way that [counsel for the Claimant] might wish. In Walters it is clear from the judgement that the event with which the court was concerned was the fit suffered by the baby and its aftermath. The defendant’s negligence caused the fit, which caused the brain damage, which in turn led to the death. Thus the event or series of events began with the fit, “the negligent infliction of damage” and continued “through to the conclusion of its immediate aftermath”
“In my view, the effect of the judge’s approach is potentially to extend the scope of liability to secondary victims considerably further than has been done hitherto. The courts have been astute for the policy reasons articulated by Lord Steyn to confine the right of action of secondary victims by means of strict control mechanisms. In my view, the same policy reasons militate against any further substantial extension. That should only be done by Parliament.”
“32. 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 inTaylor v Somerset Health Authority[1993] PIQR P262: see para 11 above. 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. 33. I turn to the authorities relied on by Mr Bartley Jones. It follows from what I have said that in my view the reasoning of Auld J in the Taylor case was correct. As I have explained at para 13 above, the observations of Peter Gibson LJ inSion v Hampstead Health Authority[1994] 5 Med LR 170were obiter dicta and they are therefore not binding on this court.”
“The court was able on the facts of that case to hold that the event was a ‘seamless tale with an obvious beginning and an equally obvious end… played out over a period of 36 hours’. It was ‘one drawn-out experience’. I do not see how this sheds any light on the question that arises in this case where the injuries and death suffered by Mrs Taylor were certainly not part of a single event or seamless tale. The judge held (correctly) that the sustaining of the injuries and the death were distinct events. The question whether the death, being a separate event, was a relevant event for the purposes of a claim by a secondary victim did not arise in the Walters case.”
“209. Cases of clinical negligence present particularly difficult problems. The factual background of cases can be very different and often quite complex. The nature and timing of the ‘event’ to which the breach of duty gives rise will vary from case to case. In Taylor v Somerset Heath Authority, the claimant’s husband’s heart attack and death occurred as a consequence of negligent treatment which had occurred many months before. The claimant did not observe the occurrence of the heart attack or death. She came onto the scene an hour later and viewed her husband’s body at the mortuary. The trial judge found that there was no ‘qualifying event’, just the final consequence of her husband’s progressively deteriorating heart condition which the defendant, by its negligence many months before, had failed properly to treat. It was not the kind of external, traumatic event which, when perceived by a secondary victim, would give rise to a successful claim for damages. He further found that, even if the heart attack and death were to be treated as a qualifying ‘event’, the claimant did not see her husband’s body soon enough after his death to convey to her the shock of the heart attack as well as its consequence. 210. In the case of Walters, it is not clear how long prior to the baby’s seizure the negligence had taken place. It is, I suppose, arguable that the negligence continued from the point when the wrong diagnosis was made right up to the time of the seizure. However, in that case, the Court of Appeal made clear (paragraph 34 of Ward LJ’s judgment) that the ‘event’ was a convenient description for ‘the fact and consequence of the defendant’s negligence’ and that it had begun ‘with the negligent infliction of damage’, i.e. at the time of the baby’s convulsion. That was the time when the consequence of the negligence first became evident. There would of course have been ongoing consequences affecting the baby’s biological processes for some time previously but it was only at the time of the convulsion that those consequences became evident and impacted on the claimant. The Court of Appeal found that the ‘event’ began at that time and continued for the 36 hours up to the baby’s death.”
“In the case of Walters, the trial judge and the Court of Appeal laid considerable emphasis on the start of the ‘event’, when the mother awoke to find her baby rigid and choking after a convulsion, with blood pouring out of his mouth. Ward LJ likened that to the ‘assault upon her senses’ the mother would have suffered if she had seen her child bleeding in a seat after a road traffic accident. That sort of ‘assault upon the senses’ is, it seems to me, of a very different order to the scene in the A & E Department at [the hospital] on 12 May. Indeed, even if Mrs Sharma had for a short time been in the state described by the Claimant, I do not consider that the sight would have come within the type of ‘event’ described in Walters and the other relevant authorities. Mrs Sharma’s condition was fluctuating; she did not have obvious injuries; she was not – or at least did not appear at that stage to be – in any obvious or immediate danger.”
“I consider it telling that there is, so far as the experienced counsel who appeared before us were aware, only one reported case in which a claimant has succeeded at trial in a claim of this type in consequence of observing in a hospital setting the consequences of clinical negligence. That is in my view unsurprising. In hospital one must expect to see patients connected to machines and drips, and as [counsel for the defendant] put it, expect to see things that one may not like to see. A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing.”
“the only event capable of constituting the relevant event in law is the tortious omission by [the GP]… to refer [the claimant’s brother] for urgent treatment. That omission caused immediate harm to [the claimant’s brother] by allowing his condition to advance and further deteriorate and treated. That consultation was not of itself a shocking and horrifying event it was not therefore capable of causing psychiatric injury in [the claimant].”
“In the circumstances the Second and Third Claimants’ secondary victim claims are, in my judgment, bound to fail. 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. It follows that the Defendant’s application must succeed and the secondary victim claims of the Second and Third Defendants will be struck out. They will of course retain their loss of dependency claims under theFatal Accidents Act 1976 .”
“emphasises the lack of proximity between the death, and the Appellants’ witnessing of it, on the one hand, and anything the Respondent Trust should or could have had in its contemplation at the time of its act (or omission) 14.5 months earlier, in November 2012, on the other. Equally, and by the same token, the respondent trust had no proximity, in the sense of presence at or – causation questions apart – relationship to, the deceased’s collapse and death 14.5 months later. The fact that in terms of causation the two events are linked is not relevant to this issue.”
“If the law allows recovery for post-traumatic stress disorder caused by witnessing a sudden death, and science tells us that the occurrence of the same disorder is equally foreseeable in one who witnesses a drawn-out death, principle dictates liability in the latter case.”