Giullietta Galli-Atkinson v Sudhaker Seghal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE WILSON,LORD JUSTICE THORPE,Lord Justice Latham |
| Judgment Date | 21 March 2003 |
| Neutral Citation | [2003] EWCA Civ 697 |
| Docket Number | B3/02/0770 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2003 |
[2003] EWCA Civ 697
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER WOODS)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Latham
Mr Justice Wilson
B3/02/0770
MR S MILLER Q.C. (instructed by Messrs Harris & Co., Enfield, Middlesex) appeared on behalf of the Appellant
MR T SAUNT (instructed by Messrs Edwards Duthie, Ilford) appeared on behalf of the Respondent
On 12th January 1998 Livia, the 16-year old daughter of the appellant, was killed when the respondent's car mounted the pavement and struck her. There is no doubt that the appellant suffered a significant psychiatric disorder as a result of her daughter's death for which she claims damages. Her claim was dismissed by Mr Recorder Wood in the Central London County Court. She now appeals to this court against that decision.
The accident happened when Livia was walking the half mile or so to a ballet class at about 7 pm. She had asked the appellant if she would drive her down. The appellant said no and told her she could walk. The accident itself happened at about 7.O5. An ambulance arrived reasonably promptly at just after 7.10. It was immediately apparent to the paramedic who attended her that Livia was severely injured. He summoned further assistance. A doctor subsequently arrived. Despite every effort made by the ambulance team she was pronounced dead at 7.40. The ambulance took her to the mortuary. Her injuries were horrific. The paramedic who treated her had to receive treatment afterwards as a result of the effect of the accident on him.
Livia's father returned home at about 7.45, which was about the time that her ballet class was due to end. She had not returned by 8.O5. Her father decided to drive to where the ballet class was held to collect her. He was diverted because the accident scene had been cordoned off by the police. When he got to the ballet class he expected to find Livia waiting there because she could not get past the police cordon. On discovering that she was not there he rang the appellant who, despite his protestations, said that she was coming down herself. The father then learned of Livia's death from one of the police officers at the scene. Not unnaturally he broke down. He did, however, manage to telephone home. The appellant had left by then; but Bianca, Livia's older sister, was there. He told her. Meanwhile, the appellant had reached the police cordon. She tried to cross the tape, and when confronted by a policeman told him that she was looking for her daughter. Her account was that she was then asked the name of her daughter. When she gave it and asked whether the cordon was something to do with her, the police officer said, yes, she was dead. The news had a profound effect upon the appellant. She screamed hysterically and collapsed to the ground. One of the police officers present described her screaming as unforgettable. Another described it as horrific. Her husband on hearing the screams went to the scene where he found her completely beside herself. The police tried to control her.
From the appellant's evidence the judge concluded that she was aware of police cars at the scene but not of an ambulance, and that there was no evidence that she saw anything of the consequences of the accident, apart from the cordoning tapes. The police asked the appellant and her husband whether they wanted to see their daughter. Despite her husband's objections the appellant said that she did. A police car was provided. They first went back home to find Bianca, who had herself become distraught and left home to be returned by a police car which had found her wandering in a nearby street.
The appellant, her husband and Bianca went together to the mortuary. It is clear that the appellant was, not unnaturally, in denial at that stage. They arrived at about 9.15. Livia's father went in first and identified Livia. He came out and confirmed to the appellant that it was her. The appellant fell to her knees, sobbing uncontrollably. She would not be helped to her feet but crawled to where Livia lay on the trolley bed. She pulled herself up and saw Livia's injured face and the upper part of her body, although the lower part, which was grotesquely distorted, had been covered by a blanket. She cradled her, saying that she was cold. Seeing and holding Livia's body must have been devastating to the appellant. Although the worst injuries were hidden, her face and head were disfigured.
There is no doubt that the appellant suffered an extreme reaction to Livia's death. There is no dispute that she suffered as a result a psychiatric condition which could properly found a claim for damages. She returned to the mortuary on both days before her body was taken to the funeral parlour. Since the funeral she has visited Livia's grave twice a day. A memorial garden has been created by her near the scene of the accident, which she also visits daily. Twice a month on the 12th day, the date of Livia's death, and on the 20th day, the day of her funeral, she lays flowers and lights candles and sleeps in her room after saying goodnight to her. A neighbour describes her home as a shrine to Livia. The appellant eventually had to give up work.
The respondent was convicted of causing death by dangerous driving on 6th November 1998. He was fined. The appellant feels a deep sense of injustice as a result. She told one of the psychiatrists who gave evidence before the Recorder that she considered that the respondent had got away with murder and that her life had become a crusade for justice.
The Recorder was referred, amongst other authorities, to McLoughlin v O'Brian and Others [1983] 1 AC 41O, and Alcock and Others v Chief Constable of South Yorkshire Police [1992] 1 AC 310. He decided that on the basis of those authorities the appellant could not succeed. In his view the appellant had to establish that the shock which caused the psychiatric disorder was occasioned by her seeing the accident or its aftermath. He was not prepared to accept that what happened in the mortuary could be said to be part of the aftermath. At paragraph 73 of his judgment he said as follows:
"The purpose of the visit in this case to the mortuary I find to have been identification. It matters not that Mr Atkinson first identified Livia. The claimant's reason for wanting to see Livia also, which she did, was identification and to see for herself that there was no mistake about it, as she had been hoping and suggesting in the car on the way there. I cannot see that it makes any difference in principle whether an identification by a relative at a mortuary is to satisfy the coroner's office, or the relative, or both of the identity of the deceased. It also in her case then became a matter of satisfying herself of the fact of the death."
He considered that that visit was similar to the visit to the mortuary made by the claimant in Alcock and referred to the passage in Lord Jauncey's judgment at page 423, where he said that visits to the mortuary did not form part of the aftermath of an accident. The Recorder further concluded that the shock which caused her psychiatric disorder was the result of what she had been told by the police, and not any other matter about which he had heard evidence. He said at paragraph 79:
"It is thus possible that there may be cases where a claimant is able to succeed, even if he does not see any part of a body at the scene. In this case for example in police photograph 3 one sees a solitary shoe associated either with Livia or the other person being knocked down, which arguably might be as shocking to a mother, if it was recognisably the shoe of her child, as seeing the prone body of the child wearing it, but there is no suggestion that the claimant saw this or any blood or anything shocking of that nature, and the mental shock she suffered at the scene, I find, was not caused by anything shocking which she saw, but by the shocking news she was given as soon as she reached the police tape, which the police of course put up at the scenes of accidents to keep people away from the shocking things often to be seen in the immediate aftermath of accidents."
He held that the law did not provide a remedy for shock simply caused by being told of death. Further, he held that essentially the shock which the appellant suffered was the consequence of her reaction to the fact that Livia had died. He said at paragraph 98:
"As regards the shock of being told of Livia's death on arrival at the scene, that was devastating for her, and I am prepared to hold that that was in part the cause of the claimant's psychiatric disorder. I do not however find that the fact that she was told at the scene, rather than somewhere else, made any material contribution to her psychiatric disorder. The outcome I find would not have been significantly different if, like Bianca, she had been told when she was at home, or if she had been told somewhere else."
The appellant submits —indeed, it would appear to be common ground —that to succeed she had to establish (a) that she had a close tie of love and affection with the person killed; (b) she was close to the incident in time and space, ie present at the incident or its immediate aftermath; (c) she perceived the event or its immediate aftermath rather than hearing about it by a third person; (d) the illness that followed was induced by the shock of the event or its immediate aftermath.
It is submitted that the Recorder took too narrow a view...
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