Nervous shock and the Material Gap: Is Paul v Wolverhampton a problem for nervous shock claimants?

  1. On 4 November 2019 Master Cook struck out a nervous shock claim by the children of Mr Paul who collapsed and died from an untreated heart condition whilst out on a shopping trip with them in the centre of Wolverhampton. This is the latest skirmish in a long running battle between claimants and defendants over the ‘material gap’ cases where there is a gap in time between the breach of duty and subsequent injury.
  2. Master Cook held that the case was bound to fail because: “I cannot sensibly distinguish the facts of the current case from those in Taylor v Somerset Health Authority.
  3. There are two problems with the Master’s approach. First, he did not acknowledge in his judgment that ‘material gap’ cases such as this are novel or that there is an as yet undecided legal principle. An application to strike out should not be granted unless the court is certain that the claim is bound to fail. See Hughes v Colin Richards & Co [2004] EWCA Civ 266. Peter Gibson LJ emphasised that this was particularly so in an area of law subject to some uncertainty and which was developing. If the issue in Paul had been identified correctly i.e. ‘does a gap in time between the breach of duty and the consequent injury to the primary victim operate as a bar to a nervous shock claim?’, then there is a question as to how the claim was ‘bound to fail’ given the absence of authority on the point.
  4. Second, his acceptance of the Defendant’s submission that the case was on all fours with Taylor v Somerset. In Taylor the primary victim had a heart attack at work and his wife was shocked and distressed when she saw him later in the hospital mortuary. The key passage in Auld J’s judgment, to which the Master referred, is as follows:

    “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.”


  5. As Master Cook observed, in Taylor v Novo, Lord Dyson MR said, in my view the reasoning of Auld J in Taylor was correct.”
  6. It is of critical importance to understand the ratio of Auld J’s judgment. There are two parts to his decision. First, he appears to be saying that nervous shock will only be available where there is an ‘external, traumatic event’ (e.g. Hillsborough or a road accident). That cannot be right because it would exclude cases such as a negligent overdose or poisoning which the Court of Appeal accepted later in Sion might lead to the shocking discovery of a body; it would also exclude cases of untreated illness such as Walters. I don’t read Lord Dyson as endorsing this part of Auld J’s decision and saying that nervous shock can only succeed where there is an external, traumatic event. Instead he describes Auld J as giving the ‘paradigm’. A paradigm is a ‘classic example’. Identifying a paradigm is not the same as saying ‘such a case and no other’.
  7. The second part of Auld J’s judgment was his finding that the Alcock criteria had not been met. It was this conclusion which Lord Dyson was endorsing in Taylor v Novo. I have no difficulty with this. We know from cases like Ronayne that the mere fact that a patient is in hospital with tubes sticking out of her, or from Ward v Leeds Teaching Hospitals that the sight of a loved one in a hospital mortuary is not sufficient to qualify as a ‘horrifying event’ or a ‘violent assault on the senses’.
  8. If we go back to Taylor v Somerset we are told nothing about the nature of Mr Taylor’s heart attack at work or how he looked in the mortuary. On the facts as described by Auld J he was right that there was no ‘horrifying event’. A heart attack might be a violent, disturbing, distressing scene to behold if the victim is gasping for breath, convulsing or being aggressively resuscitated but it might just as easily be a gentle slide into unconsciousness. In ordinary language the sudden death of anyone is ‘horrific’ and ‘shocking’, so too would seeing a loved one in a mortuary, but that is not enough for nervous shock under Alcock.
  9. It is important not to conflate Auld J’s rejection of the claim in Taylor, which was on the basis that there was no traumatic event, with an acceptance of the Defendant’s argument in Paul that Auld J in Taylor v Somerset and then the Court of Appeal in Taylor v Novo have held that a nervous shock claim can never succeed where there is a gap in time between breach of duty and subsequent injury. Such a principle is not to be found in the ratio of Taylor v Somerset. If it is then it was not endorsed by Lord Dyson in Taylor v Novo.
  10. The point is demonstrated by imagining a modification to the facts of those two cases. Supposing that in Taylor v Somerset the collapse with a heart attack had happened in front of Mrs Taylor at home and had been a horrific scene to witness, whether with pain, gasping, turning blue, cardiac compressions, fitting, blood, other fluids or any combination: the sort of scene to which a film censor would attach an 18 certificate. If you re-read the above extract from Auld J’s judgment with these new facts then I suggest the case would have been argued, and decided, differently. There would unquestionably have been an event and the case could not have been decided on the absence of one.
  11. Consider next Taylor v Novo. Mrs Taylor was injured by racks of shelves falling on her as a result of the negligence of a fellow employee. It is reasonable to assume that had Ms Taylor been visiting her mother at work and witnessed her being crushed to death by the falling shelves then she would have been entitled to damages for nervous shock. What then if we change the facts slightly so that the shelves fell not because of something done immediately prior to the collapse (being knocked over by an employee) but because a year earlier they had been fitted negligently? In that scenario there would have been a 12 month gap between breach of duty and the sudden, horrific death of Mrs Taylor. I cannot see why in that scenario the nervous shock claim would not have succeeded. I also cannot see anything in either Taylor v Somerset or Taylor v Novo to say that a claim on those facts could not succeed.
  12. It is worth pointing out that when the control mechanisms were first established there was never any suggestion that it was a requirement for there to be proximity to the breach of duty rather than its consequences. It just happens that in most cases the two will coincide.
  13. In McLoughlin v O’Brian Lord Wilberforce required proximity not to the breach of duty but to its consequences. He said ‘‘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’.
  14. In Alcock, Lord Oliver identified the key requirement as proximity to the ‘event’.  He could have made it a requirement for there to be proximity to the ‘breach of duty’ but did not.
  15. In Walters, Ward LJ emphasised Lord Wilberforce’s words in McLoughlin:

    “That passage [from McLoughlin] 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 [Lord Wilberforce] 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.”

  16. In the past 12 months I have settled a number of cases arising from medical treatment where there has been a material gap between the date of breach and the date of injury. In an unreported case of S v Subesinghe (unreported) before Master Eastman in December 2016 I succeeded in defending a strike out where a GP had prescribed the wrong inhaler for a child who collapsed and died in front of his parents a week later. In Werb v Solent (on Lawtel) Master Roberts dismissed a strike out application where a claimant had found his son’s broken body under a bridge from which he had jumped following negligent psychiatric treatment. Both of these Masters rejected the key submission from the Defendant that a claim for nervous shock required proximity to the breach of duty.
  17. These ‘material gap’ cases are difficult but the central issue remains undecided. Such a difficult issue is not suitable for determination at a strike out hearing.