Nervous shock and delayed injury

Written by: John de Bono KC
Published: 3 January 2018

  1. There is no doubt that it is harder for a claimant to win a nervous shock claim now than 3 years ago. The bar for what is a ‘shocking event’ is higher following decisions in favour of defendants in Ronayne and Shorter. Defendants have been encouraged by success to fight more cases to trial.  What though of cases where there is a delay between the breach of duty and the primary victim suffering any injury?
  2. Many have assumed that cases of delayed injury lack the proximity required by Lord Oliver in Alcock. This assumption is based on the Court of Appeal decision in Taylor v Novo. I disagree. In my view the question of whether there can be sufficient proximity between a secondary victim and the defendant in cases where there is a material gap in time between the breach of duty and any injury to the primary victim remains unanswered. I see no reason in principle why such claims should not succeed.
  3. The issue is particularly relevant to clinical negligence cases. In Shorter v Surrey and Sussex NHS Trust [2015] EWHC 614 (QB). Mrs Justice Swift, very experienced in clinical negligence cases, recognised this when she said (§208 & § 209):

“The early claims by secondary victims mainly concerned accidents, most often road traffic accidents. In those cases, it was comparatively easy to identify the relevant “event” (the accident) although, as the authorities show, it was often more difficult to determine precisely what constituted the “immediate aftermath” of an event.

“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.” 

  1. Let me give four examples of cases where I am currently instructed for claimants where there is a material gap in time between breach of duty and any injury:

1. primary victim is negligently discharged from psychiatric hospital and 5 days later kills himself, he is found hanging by family members who suffer psychiatric injury;

2. primary victim is negligently prescribed the wrong asthma inhaler and 7 days later suffers a cardiac arrest at home, his mother tries to administer CPR but he dies and she suffers psychiatric injury;

3. primary victim is negligently discharged from hospital despite having a serious cardiac condition, he collapses a week later at home and his partner tries to resuscitate him, he survives but she suffers psychiatric injury;

4. primary victim is negligently managed for his vascular condition over many months; he suffers a dramatic haemorrhage at home with blood spraying over the living room walls. His stepson suffers psychiatric injury.

The control mechanisms & proximity

  1. In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 the House of Lords considered whether there was some fair way of identifying where the line should be drawn between those entitled to compensation for psychiatric injury and those who were not. It settled on the general concept of ‘proximity’ and then looked back at previous cases to see whether proximity could be incorporated into a test. See Lord Oliver at 410:

“…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.”

Proximity is a good and effective, if rough and ready, way of limiting the number of successful secondary victims. The overall aim of reducing the number of successful secondary claims is not undermined by requiring proximity to the consequent injury rather than the breach of duty.

  1. It is noteworthy that in Alcock, Lord Oliver’s requirement was for proximity to the ‘accident’, not the breach of duty. His third requirement was that the claimant:

“… 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.”

  1. Lord Alcock’s fifth and final criteria was:

“…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…”

  1. I suggest that when Lord Oliver refers to an ‘event’ he is referring to the fact and consequence of the breach of duty i.e. what follows as a result of the breach of duty, rather than to the breach of duty itself. Any other interpretation would be odd – how could a breach of duty alone, an uncompleted tort, give rise to a nervous shock claim?
  2. This interpretation, that it is the consequence of the breach rather than the breach itself which is the relevant trigger for a nervous shock claim, is consistent with authority. See in particular Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792. In that case neither the Thomas J at first instance nor the Court of Appeal considered the significance of the timing of the breach of duty. Baby Elliot was admitted to hospital on 17th July and there appears to have been an on-going failure to diagnose liver disease from admission until his fit in the early hours of 30th July. The mother’s claim required proximity to the ‘event’ which started with his fit and culminated with his death after 36 hours. There is no reference in the judgments at first instance or on appeal to her proximity to any breach of duty.
  3. On the contrary Ward LJ’s focus was on the consequence of the breach of duty. In order to explain why an event was not a moment ‘frozen in time’ he went back to Lord Wilberforce in McLoughlin v O’Brian [1983] AC 410:

“That passage serves to confirm that the ‘‘fact and consequence of the defendant’s negligence’’ is made up of a series of ‘‘events’’. One looks to the totality of the circumstances which bring the claimant into proximity in both time and space to the accident. It seems to me, therefore, to be implicit in his judgment read as a whole that when he said at 423:

‘‘The shock must come through sight or hearing of the event or of its immediate aftermath’’

he was not intending to confine ‘‘the event’’ to a frozen moment of time.”

Taylor v Novo

  1. In Taylor v Novo [2013] EWCA Civ 194 the Court of Appeal overturned an award to the claimant who had suffered PTSD after witnessing her mother drop dead at home from a fatal pulmonary embolus. The dramatic collapse happened 21 days after the mother had suffered injury at work when some shelves had collapsed on her as a result of the breach of duty of her employer.
  2. I suggest that some defendants are misreading Taylor as authority for the proposition that where there is a gap in time between breach of duty and injury there cannot be a nervous shock claim. That is not what the Court of Appeal said.  Rather, Lord Dyson MR, as he then was, concluded simply that on the facts of the case the death of Mrs Taylor was not the relevant ‘event’:

“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.”

  1. In identifying the paradigm Lord Dyson is not suggesting, nor could he have done, that only paradigm cases could succeed. Interestingly Lord Dyson did not suggest that proximity was required to the breach of duty but to the ‘event’. Had the claimant been present when the shelves collapsed she could have recovered damages.
  2. As it happens the shelves injured the claimant’s mother because they were tipped over by a fellow employee. It is interesting to consider what would have happened if instead they had collapsed because of inadequate maintenance work a week previously. Would the Court of Appeal have suggested in those circumstances that a claim by the daughter for psychiatric injury having witnessed the shelves collapsing on her mother would have failed? I doubt it.
  3. Consider further the following examples:

a. a mechanic negligently fails to replace a damaged brake cable with the consequence that when the driver collects the car on her return from holiday a fortnight later her brakes fail and she drives over a cliff. Her partner witnesses the fatal plunge and seeks damages for nervous shock. Intuitively one would say that the event was driving off the cliff rather than the failure to replace the brake cable.

b. a pharmacist negligently fills a medicine bottle with strycknine rather than paracetamol solution. He dispenses it to a mother and it sits on her shelf for a year before she gives it to her child who dies dramatically. Is the event the breach of duty or the poisoning and death of the child?  Intuitively one would say the latter.

Strike outs

  1. Some cases where there is a delayed injury to the primary victim are facing strike out applications. My view is that such applications are misconceived. A claim should only be struck out where it is not capable of succeeding. These cases are not the subject of any decided authority directly on point and should therefore properly be resolved at trial. Practitioners should be aware of two failed strike out applications before Queen’s Bench Masters in 2017. In Werb v Solent NHS Trust, on 15th March 2017 Master Roberts refused to strike out a claim where the Second Claimant’s son had committed suicide a number of days after negligently being discharged from a psychiatric hospital. This case can be found on Lawtel. In Sheen v Subesinghe on 11th December 2017, Master Eastman declined to strike out a claim by a mother whose son had died a week after being given the wrong asthma inhaler[1].
  2. Practitioners should be aware of the decision of HHJ Denyer QC in Morgan v Somerset, 29th February 2016. This case involved a suicide following a negligent discharge from psychiatric hospital and had similar facts to Werb. Master Roberts in Werb was critical of the lack of analysis by HHJ Denyer QC and practitioners will no doubt reach their own conclusions, suffice to say that this county court decision is not any sort of authority and can safely be put to one side.

Taylor v Somerset

  1. The best argument for defendants comes from the decision of Auld J in Taylor v Somerset. Mr Taylor had been negligently treated for a heart condition over many months and dropped dead of a heart attack at work. His wife was told and came to the hospital mortuary to look for him. Her claim failed. See the judgment of Auld J:

“Mr. Hart, on behalf of the health authority, submitted first that there was no event on the facts of this case to which the proximity test could be applied. He maintained that the test required some external, traumatic, event in the nature of an accident or violent happening. Here, he said, Mr. Taylor’s death long after the negligence which had caused it was the culmination of the natural process of heart disease, and the death, however unexpected and shocking to Mrs. Taylor when she learned of it, was not in itself an event of the kind to which the immediate aftermath extension could be attached.

Mr. Hart submitted secondly that, if Mr. Taylor’s death at work could be considered an event of the kind to which the immediate aftermath extension can be attached, Mrs. Taylor’s discovery of it at the hospital from a doctor and subsequent identification of the body did not satisfy the third of the three elements of constraint upon the extension expounded by Lord Wilberforce in McLoughlin v. O’Brian, namely as to the means by which the shock is caused. Such means, he submitted, lacked the immediacy or directness required to come within that extension. In my judgment, Mrs. Taylor’s claim must fail for both of the reasons advanced by Mr. Hart.”

  1. Defendants might argue that Auld J was suggesting that a gap between breach and consequent harm meant that there was no ‘event’. I disagree. Auld J was not saying that a sudden collapse months after the breach of duty could not be a qualifying event, only that there was no such ‘event’ on the facts of this case.

“There was no such event here other than the final consequence of Mr Taylor’s progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest.”

  1. This is the passage from his judgment which was approved by Lord Dyson MR in Taylor v Novo. Auld J was not saying anything new or controversial here, rather he was repeating the principle identified by the Court of Appeal in Sion v Hampstead H.A. In that case a father watched his son gradually deteriorate over a fortnight following negligent medical care. His claim failed because there was no sudden event, only a gradual decline.
  2. We can only speculate what Auld J would have held in the different scenario where there had been no deterioration in Mr Taylor’s condition over the months preceding a dramatic and wholly unexpected collapse in front of his wife. If anything, claimants can take comfort from the fact that Auld J did not say that the gap in time between breach and consequence prevented the nervous shock claim from succeeding.

Conclusion

  1. In my view a secondary victim who satisfies the other control tests (close relationship, recognized psychiatric injury, caused by ‘shock’, who is physically present at the ‘event’ or its ‘immediate aftermath’) should not lose her claim because of a gap in time between the relevant breach of duty and a consequent event, providing that the ‘event’ itself is sufficiently horrifying and unexpected. The decisions in Alcock, Walters and Taylor v Novo are all consistent. Cases where there is a delay between breach and any injury are not paradigms but that by itself is not sufficient reason to disallow them. The decisions in Werb and Subesinghe, refusing to strike out such claims, were correct.

 

Footnotes

[1] I represented the Claimant, no copy of the judgment is available.