Taylor v A Novo (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Moore Bick,Lord Justice Kitchin |
| Judgment Date | 18 March 2013 |
| Neutral Citation | [2013] EWCA Civ 194 |
| Docket Number | Case No: B3/2012/1365 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2013 |
[2013] EWCA Civ 194
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WARRINGTON COUNTY COURT
HIS HONOUR JUDGE HALBERT
1WA00438
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Moore-bick
and
Lord Justice Kitchin
Case No: B3/2012/1365
Mr Charles Cory-Wright QC and Mr Charles Bagot (instructed by Hill Dickinson LLP) for the Appellant
Mr Edward Bartley Jones QC and Mr Simon Earlam (instructed by Watsons Solicitors) for the Respondent
Hearing date: 13 February 2013
Approved Judgment
1. On 27 February 2008, Cindy Taylor (Mrs Taylor) was injured in an accident at work as a result of which she sustained injuries to her head and left foot. She was injured when a fellow employee caused a stack of racking boards to tip over on top of her. The accident was caused by the admitted negligence of the appellant her employer (Novo). She was apparently making a good recovery when on 19 March 2008 she suddenly and unexpectedly collapsed and died at home. Her sudden collapse and death were due to deep vein thrombosis and consequent pulmonary emboli, which themselves were due to the injuries that she had sustained in the accident. Her daughter, Crystal Taylor (Ms Taylor) did not witness the accident, but she did witness her mother's death. It is not in dispute that, as a result of witnessing her mother's death, she suffered significant post traumatic stress disorder (a well known psychiatric injury). The only issue at the trial before HHJ Halbert was whether Ms Taylor was entitled as a matter of law to claim damages from Novo as a “secondary victim” of the accident to her late mother (Mrs Taylor being the “primary victim”). The judge held that she was. The issue before this court is whether he was right to do so.
2. In a careful and thoughtful judgment, the judge helpfully said that it was clear from the case-law that, in order to succeed as a secondary victim, Ms Taylor had to satisfy the following seven requirements: (i) her injury was reasonably foreseeable; (ii) she was a close relative of and had a close emotional relationship with the primary victim; (iii) she had suffered a recognised psychiatric injury; (iv) the injury was caused by the actions of the defendant; (v) the injury was caused by “shock” as a result of a sudden perception of the death of, or risk to or injury to the primary victim; (vi) she was either present at the scene of the accident which caused the death or must have been involved in its immediate aftermath (both physical and temporal proximity being required); and (vii) she must have perceived the death, risk of injury with her own senses.
3. Novo accepted that all these requirements were met save for (vi). Its case was and remains that proximity was lacking because Ms Taylor was not present at the scene of the accident and was not involved in its immediate aftermath. She suffered the shock which led to her illness at her mother's home twenty one days later. On behalf of Ms Taylor, it was submitted to the judge (and on appeal to this court) that the “event” which should be considered for the purposes of deciding whether she is a secondary victim is not the original accident, but the collapse and death that resulted from it. If the latter is the relevant event, proximity is established, since Ms Taylor was present and witnessed the collapse and death of her mother.
The law on secondary victims
4. The classification of primary and secondary victims appears to have derived originally from the speech of Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. The plaintiffs in that case alleged that the impact of what they saw and heard at the Hillsborough stadium disaster had caused them nervous shock resulting in psychiatric illness. At p 407D-E, Lord Oliver said:
“Broadly [the cases] divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.”
5. He proceeded to refer to these two categories of plaintiff respectively as “primary” and “secondary” victims. In the case of secondary victims, the starting point is whether psychiatric injury caused to the claimant was a reasonably foreseeable consequence of the defendant's negligence; and in addition to the requirement of reasonable foreseeability of psychiatric illness, there must be a relationship of proximity between the claimant and the alleged tortfeasor.
6. He explained at p 410D that the reasonable foreseeability test had been described by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580 as “demonstrably too wide” and was refined by him into the more restricted “neighbour” test which introduced the “essential but illusive (sic)” concept of proximity. Lord Oliver then said this at p 410E:
“The failure of the law in general to compensate for injuries sustained by persons unconnected with the event precipitated by a defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of “policy” which draws a line as the outer boundary of the area of duty. Nor can it rationally be made to rest upon such injury being without the area of reasonable foreseeability. It must, as it seems to me, be attributable simply to the fact that such persons are not, in contemplation of law, in a relationship of sufficient proximity to or directness with the tortfeasor as to give rise to a duty of care, though no doubt “policy,” if that is the right word, or perhaps more properly, the impracticability or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity, necessarily plays a part in the court's perception of what is sufficiently proximate.
What is more difficult to account for is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact. That such an exception exists is now too well established to be called in question. What is less clear, however, is the ambit of the duty in such cases or, to put it another way, what is the essential characteristic of such cases that marks them off from those cases of injury to uninvolved persons in which the law denies any remedy for injury of precisely the same sort. Although it is convenient to describe the plaintiff in such a case 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, establish 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 eye witness 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 as 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 me, 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's 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...
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