Nervous shock and the Material Gap: Paul v. Wolverhampton in the High Court

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. I wrote a blog piece commenting upon that decision.

Today Chamberlain J has allowed the Claimant’s appeal and reinstated the claim. It is not known whether the Defendant will stick or twist with an appeal to the Court of Appeal on what the judge described as a difficult point of law.

The judgment provides an impressive and comprehensive review of the authorities. Chamberlain J. decries judicial squeamishness and says that at a micro level:

“..there is no constitutional reason why the courts should not apply their usual analogical tools. More specifically, there is no reason to favour a  conservative posture in which liability is accepted only where it has already been found to exist on indistinguishable facts. There is nothing to inhibit the courts from aiming for maximal coherence in the principles which govern the circumstances in which the existing control mechanisms will be satisfied. In doing so, they are bound by the rules of precedent, but are otherwise unconstrained.”

The key points of his decision are as follows:

  1. Taylor v Novo is not authority for the proposition that nervous shock claims must fail where there is a delay between the breach of duty and a subsequent event. ‘Event’ can mean the consequences of an earlier breach of duty. For example if scaffolding collapses 6 months after it is negligently erected there is no bar to recovery from someone witnessing injury to a primary victim from its collapse.
  2. In this way Walters v Glamorgan is entirely consistent with Taylor v Novo and does not require distinguishing – the breach of duty in Williams did not correspond in time to the ‘event’.
  3. Taylor v Somerset is not authority for a heart attack not being a shocking event. That claim failed because on its facts there was no shocking event, the claim did not fail because of a gap in time between breach and its consequences.
  4. The key to establishing a duty of care to a secondary victim is proximity. Proximity has its own meaning in the context of nervous shock claims and is to be determined by reference to the control mechanisms.
  5. There is nothing in the authorities to support the defendant’s contention that the ‘relevant event’ means ‘breach of duty’.
  6. There is no reason in principle why a claim cannot succeed, as here, where the gap in time between breach of duty and its consequences is 14 months.
  7. There was nothing in the defendant’s point that there was a completed tort i.e. in the sense of some physical harm resulting from the breach of duty, 14 months prior to Mr Paul’s collapse, because no one was aware of this physical harm and it did not therefore constitute an event.

In my view Chamberlain J’s judgment represents a common sense application of the existing authorities to the facts of the case. He was right to recognise that finding for the Claimant would not open floodgates or defeat the very purpose of the control mechanisms. Rather, he was simply applying the existing control mechanisms to the facts of the case.  Here there was no event until Mr Paul collapsed in the street in front of his family. The fact that the reason for the collapse was a breach of duty more than a year before was no bar to a successful claim.

There are a steady trickle of similar claims currently being litigated. Every now and again a Defendant attempts a strike out but this is the most authoritative determination of this issue so far. The Court of Appeal may disagree but I see no reason for claimants not to be optimistic about pursuing similar cases in the future.