Tuesday, 19 March 2013
The Master of the Rolls has given a judgment on a secondary victim claim in a personal injury action which will have important consequences for clinical negligence litigation.
In Taylor-v-A. Novo (UK) Limited  EWCA Civ 194 Mrs Taylor suffered injuries as a result of an accident at work. Three weeks later, at home, having seemingly begun a good recovery, she collapsed and died as a consequence of those injuries. Negligence for the accident was admitted. Her daughter, the claimant, Ms Taylor, witnessed her mother's death but not the accident. She claimed compensation as a secondary victim for her own psychiatric disorder due to the shock of witnessing her mother's death at home.
The Master of the Rolls referred to the established rules of recovery for secondary victims set out by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police  1AC 310
"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 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. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim."
The Master of the Rolls identified the issue in Taylor-v-A. Novo as being "whether the death of Mrs Taylor was a relevant incident for the purposes of Ms Taylor's claim as a secondary victim. If it was, then her claim would succeed because, on this hypothesis, it would not founder on the rock of any of the control mechanisms." 
He, and the other appeal judges found that the death was not the relevant incident or event:
"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. It is not a later consequence of the accident. Auld J put the point well in [Taylor-v-Somerset Health Authority  4 Med LR 34]. MsTaylor [the present claimant] would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother's accident. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother's death three weeks after the accident." 
In the clinical negligence case of Taylor-v-Somerset HA referred to, the deceased's heart condition had not been adequately managed over a period of time. He collapsed and died at work . His wife attended hospital and saw him and claimed damages as a secondary victim. She was denied damages, Auld J holding that the death was not "the event" which had to be considered for the purpose of determining the validity of the secondary victim's claim. It was a first instance decision. The House of Lords in W-v-Essex CC  2AC 592 seemed to point to a more liberal approach to the secondary victim control mechanisms, albeit in relation to a strike-out application.
In other clinical negligence cases, such as North Glamorgan NHS Trust-v-Walters  EWCA Civ 1792, the "event" has been taken to be the deterioration and death of a patient due to negligent treatment, yet the Master of the Rolls did not think Walters was inconsistent with his judgment in Taylor-v-A. Novo.
There are many clinical negligence claims where a close relative suffers a psychiatric injury as a result of witnessing a collapse or death due to negligent treatment which occurred days, weeks, even years before. Suppose a surgeon perforates the bowel and the perforation is not recognised. The patient goes home, develops systemic sepsis, collapses and dies. There was an "accident" - the perforation- but clearly the relatives did not witness that, only the "horrific" collapse and death at home. Is the horrifying "event" the perforation rather than the collapse and death?
The Master of the Rolls quoted Lord Oliver in Alcock where he divided cases of nervous shock into two categories:those in which the claimant is directly involved as a participant, and those in which the claimant "was no more that the passive and unwilling witness of injury caused to others." [emphasis added]. If the "injury" is caused in a road traffic accident, at a factory or a football stadium then the injury is contemporaneous with the accident. In clinical negligence cases the "injury" is often suffered and therefore witnessed as a later consequence of the negligence or accident.
In Walters , as in many clinical negligence cases, the negligence was an omission - a failure to diagnose acute hepatitis - and the "event" was his collapse, deterioration and death (apparently) several days later. There was no earlier "accident" to witness.
Defendants are likely to deploy the judgment in Taylor-v-A. Novo to argue that a collapse and/or death of a patient consequent upon an earlier negligent event are not part of the event and that therefore secondary victims who witnessed the event's consequences but not the event itself are not entitled to recover compensation. Claimants can still refer to Walters as supporting the contention that where "injury" is subsequent to an act or omission of clinical negligence, the injury can be the event to which the secondary victim control tests are applied.
This is an area of law where the courts are guided by "policy" considerations, but different judges may have different notions of where the policy lines should be drawn.
Perhaps the Supreme Court will be asked to tackle this important issue.