Saffron Paul v The Royal Wolverhampton NHS Trust
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Underhill,Lady Justice Nicola Davies |
| Judgment Date | 13 January 2022 |
| Neutral Citation | [2022] EWCA Civ 12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal Nos: B3/2020/1333, B3/2021/0328, and B3/2021/0572 |
[2022] EWCA Civ 12
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Underhill, VICE PRESIDENT OF THE COURT OF APPEAL
(CIVIL DIVISION)
and
Lady Justice Nicola Davies
Appeal Nos: B3/2020/1333, B3/2021/0328, and B3/2021/0572
Case Nos: QA-2019-0000335, QB-2019-003553, and Case No: C86YX712
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
AND ON APPEAL FROM THE COUNTY COURT SITTING AT BIRMINGHAM
Mr Justice Chamberlain [2020] EWHC 1415 (QB), Master Cook, and District Judge Lumb
Royal Courts of Justice
Strand
London WC2A 2LL
Charles Bagot QC and Charlotte Jones (instructed by Browne Jacobson LLP and Bevan Brittan LLP) for the defendants/appellants in Paul and Polmear, and respondent in Purchase
Robert Weir QC and Laura Johnson (instructed by Shoosmiths LLP) for the claimants/respondents in Paul
Henry Pitchers QC and Oliver May (instructed by Wolferstans LLP) for the claimant/respondent in Polmear
David Tyack QC and Esther Gamble (instructed by Talbots Law Ltd) for the claimants/appellants in Purchase
Hearing dates: 14 and 15 December 2021
Sir Geoffrey Vos, Master of the Rolls:
Introduction
These three cases raise the question of the circumstances in which a defendant to a clinical negligence claim can be held liable for psychiatric injury (or what used to be called nervous shock) caused to a close relative of the primary victim of that negligence. The basic facts in each of the cases are that the defendant is alleged to have failed to diagnose the primary victim's life-threatening condition. Some time after that negligent omission, the primary victim suffered a traumatic death. In two of the cases (Paul and Polmear), the shocking death occurred in the presence of the close relatives, causing them psychiatric injury. In the case of Purchase, the close relative came upon the primary victim immediately after her death, again causing her (the mother in that case) psychiatric injury. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative (often referred to as the secondary victim).
This question of legal proximity was dealt with authoritatively in Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310 ( Alcock), where Lord Oliver described the common features of the reported cases at that time at page 411F-H. It was from the following five elements that the essential requirement of proximity had to be deduced:
[F]irst, 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” (emphasis added).
These five elements have come to be known as “control mechanisms” limiting liability for psychiatric injury. I do not find that terminology particularly helpful, since it is inapt to describe Lord Oliver's five elements from which the essential requirement of proximity had to be deduced. Thus, whilst the cases I shall cite use the term “control mechanisms”, I will refer instead to Lord Oliver's five elements, whilst acknowledging that Lord Ackner also made the same points in his speech in Alcock. Having referred to the five elements, Lord Oliver said that, in addition to legal proximity, reasonable foreseeability was necessary on the part of the defendant that “in that combination of circumstances [the five elements] there was a real risk of injury of the type sustained by the particular [claimant] as a result of his or her concern for the primary victim”.
Lord Oliver made clear at page 412A (and this is important here for a reason I will come to in due course) that liability of this kind can arise even where there is no “primary victim”: for example: “a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed”.
The first case before us, Paul, is a second appeal, where Mr Justice Chamberlain held that Master Cook had been wrong to conclude that the claims were bound to fail. The necessary proximity to Mr Paul's children could be established on the basis that Mr Paul's collapse and death, which was the shocking event (I shall generally use the term “horrific event”) the children had witnessed, was the first manifest damage caused by the defendant's negligent failure to diagnose his heart condition. The question, according to Chamberlain J, was whether Mr Paul's death was capable of constituting a relevant event. He held that it was. Chamberlain J distinguished the two cases that Master Cook had relied upon: Taylor v. Somerset Health Authority [1993] PIQR 262 (Auld J) ( Somerset) and Crystal Taylor v. A. Novo (UK) Ltd [2013] EWCA Civ 194 (Court of Appeal) ( Novo). Somerset was a clinical negligence case with facts similar to Paul, but Novo was an accident case, where the claimant had been shocked by the traumatic death of the primary victim three weeks after her injury in the accident.
The second case before us, Polmear, was decided by Master Cook after he had been reversed by Chamberlain J in Paul. Master Cook said that the parties were agreed that the question on the strike out was whether the claimant parents had a reasonably arguable case that the relevant event required to satisfy the control mechanism of proximity was the collapse and death of the primary child victim, Esmee ( 5 or 7 months after the negligent failure to diagnose). He followed Chamberlain J and held that it was possible to identify a qualifying horrific event and that that horrific event did not have to coincide with or immediately precede the first actionable damage to the primary victim.
The third case before us, Purchase, was decided by District Judge Lumb in favour of the defendant a month before Chamberlain J's decision. DJ Lumb held that he was bound by Novo, which meant that the claim was doomed to fail.
In each of the three appeals, Mr Charles Bagot QC and Ms Charlotte Jones, counsel for the defendants, accepted that claims by secondary victims for psychiatric injury are available in clinical negligence cases. They submit, however, that the deaths in each of these cases were separated in space and time from the negligence that occurred in a hospital or primary care setting. They cannot, therefore, be said to be “the relevant event for deciding the proximity required to establish liability under the established control mechanisms”. In essence, they submit that this court is bound by its own decision in Novo, which decided that a secondary victim cannot claim in respect of psychiatric injury sustained by witnessing any horrific event once actionable damage has already been sustained by the primary victim on an earlier occasion. Moreover, Novo approved Somerset whose facts were on all fours with these cases.
Mr Robert Weir QC and Ms Laura Johnson, counsel for the Paul claimants, submitted that Chamberlain J was right to distinguish Somerset and Novo. They argued that the relevant event or trigger for the liability to the secondary victim had to be a single event “that was the damage that it was the duty of the defendant to protect the primary victim against when the damage first becomes manifest or evident”.
Mr Henry Pitchers QC and Mr Oliver May, counsel for the Polmear claimants, and Mr David Tyack QC and Mrs Esther Gamble, counsel for the Purchase claimant, took a different stance as to the relevant event. They submitted that any horrific event caused by a breach of duty to the primary victim was sufficient to give rise to legal proximity and liability to a secondary victim satisfying Lord Oliver's five elements, whether or not damage to the primary victim had occurred or manifested itself at an earlier time.
In these circumstances, we have to decide whether a claimant, who sustains psychiatric injury as a result of witnessing the death or other horrific event suffered by a close relative as a result of earlier clinical negligence, can claim damages for that psychiatric injury. The question turns on the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant. The parties have put forward three possible answers. They suggest that, as a matter of law, a defendant to a claim for damages for clinical negligence can be liable to a secondary victim who has suffered psychiatric injury by witnessing the death or other horrific event affecting the...
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