Saffron Paul (a child, by her mother and litigation friend Balbir Kaur Paul) v The Royal Wolverhampton NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 04 June 2020 |
| Neutral Citation | [2020] EWHC 1415 (QB) |
| Date | 04 June 2020 |
| Docket Number | Case No: QA-2019-0000335 |
| Court | Queen's Bench Division |
[2020] EWHC 1415 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM MASTER COOK
CLAIM HQ17C03907
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: QA-2019-0000335
Laura Johnson (instructed by Shoosmiths LLP) for the Appellants
Charles Bagot QC (instructed by Browne Jacobson LLP) for the Respondent
Hearing dates: 13 May 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This appeal raises a difficult point of law about the circumstances in which a defendant who owes a duty of care to a primary victim may be liable to a secondary victim for a psychiatric injury suffered as a result of witnessing the death or injury of the primary victim. This type of injury is referred to in the authorities, inaptly, as “nervous shock”. Several other cases have been stayed pending the outcome of this appeal.
The issue arises in proceedings brought in respect of the death of Mr Parminder Singh Paul by his wife Mrs Balbir Kaur Paul and their daughters Saffron and Mya. On 9 November 2012, Mr Paul was admitted to New Cross Hospital in Wolverhampton, part of the Defendant Trust, after complaining of chest and jaw pain. He was discharged on 12 November 2012 after various tests and investigations. More than 14 months later, on 26 January 2014, while out on a shopping trip with Saffron (then 12) and Mya (then 9), he collapsed and died from a heart attack. The circumstances are pleaded in the Particulars of Claim as follows:
“37. On 26 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.”
Mr Paul's heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. The Claimants' case is that the failure to diagnose these conditions during Mr Paul's stay in hospital in November 2012 was negligent. In particular, it is said that the Hospital should have performed coronary angiography on Mr Paul. This, it is said, would have revealed significant coronary artery disease, which could and would have been successfully treated by coronary revascularisation. The Claimants say that, had that occurred, Mr Paul would not have suffered a cardiac event in January 2014; and Saffron and Mya would not have suffered the psychiatric injuries which they say were caused by witnessing his collapse and death. The Claimants plead that Mr Paul's collapse from a heart attack on 26 January 2014 was “the first manifestation of the Defendant's breach of duty”.
The Defendant accepts that it owed a duty of care to Mrs Paul. It does not accept that it owed a duty of care to Saffron or Mya. It therefore applied to strike out their statements of case pursuant to CPR r. 3.4(2)(a) as disclosing no reasonable grounds for bringing the claims, alternatively, for summary judgment pursuant to CPR r. 24.2(b) on the basis that the claimants have no reasonable prospect of succeeding. In a detailed judgement handed down on 4 November 2019, Master Cook held that, on the facts pleaded, Saffron's and Mya's claims were bound to fail: [2019] EWHC 2893 (QB). He therefore struck out their claims. Permission to appeal was granted by Stewart J on 14 January 2020.
The law on secondary victim claims
The relevant House of Lords authorities
When a person suffers a tortious injury, the injury often gives rise to losses on the part of others (for example, employers and family members). In general, the law does not allow recovery by such secondary victims. An exception came to be recognised in cases where secondary victims suffered “nervous shock” having witnessed the death or injury of a primary victim. The appellate courts have, however, been careful to keep recovery for this type of injury within strict limits. The first authoritative statement of these limits from the House of Lords was in McLoughlin v O'Brian [1983] 1 AC 410. By the time of that case, the law had not countenanced recovery in respect of an injury to anyone other than a spouse or child of the claimant (though there was an exception for “rescuers”); and the claimant had to see or hear the injury directly (though there was an extension allowing recovery where the claimant came upon the “immediate aftermath” of the incident). In McLoughlin, the claimant did not directly witness the accident in which her husband and three children were involved and did not come upon the scene immediately afterwards. She did, however, attend hospital a few hours later, where she saw her husband and one of her daughters covered in mud and oil and her son seriously injured. She was told that her youngest daughter had died.
The leading speech (and the most influential in terms of the subsequent development of the law) was that of Lord Wilberforce. At 419, he observed of the law in this area that “the courts have proceeded in the traditional manner of the common law from case to case upon a basis of logical necessity”. On the facts, he reasoned: “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.”
Lord Wilberforce noted at 420 that Lord Atkin's neighbour principle, enunciated in Donoghue v Stevenson [1932] AC 562, at 580, was that recovery should be limited to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected”. This was another way of saying that “foreseeability must be accompanied and limited by the law's judgement as to persons who ought, according to its standards of value or justice, to have been in contemplation”. He continued:
“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.”
Furthermore, “the statement that there is a ‘duty of care’ denotes a conclusion into the forming of which considerations of policy have entered”. Foreseeability did not, therefore, of itself lead to a duty of care. These considerations led to the adoption of a limiting principle that recovery for “nervous shock” must be limited to those “within sight and sound of an event caused by negligence or, at least, to those close, or very close, proximity to such a situation”: 421. At 422, Lord Wilberforce added:
“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’.”
Lord Wilberforce approved the finding of liability in Benson v Lee [1972] VR 879 which he said was soundly based upon
“direct perception of some of the events which go to make up the accident as an entire event, and this includes the immediate aftermath.”
The next important decision is Alcock v Chief Constable of South Yorkshire Police [1992] AC 310, which concerned claims by...
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