CLAIMS BY SECONDARY VICTIMS RECENT DEVELOPMENTS Ambit of lecture 1. This lecture addresses recent developments in English law since 2010 relating to the claims by secondary victims for damages for psychiatric illness. 2. The legal matrix within which any such claim must be brought, if it is to be successful, has been much criticised. This paper does not seek to address the arbitrariness of the law as it stands nor what how it might be reformed. It is sufficient perhaps to note that the House of Lords long ago suggested that Parliament might address this issue. However, the 1998 report of the Law Commission entitled Liability for Psychiatric Illness made recommendations, none of which has been acted on by Parliament. In consequence, the development of the law has been left to the judges. 3. It is useful to establish a starting point for this updating lecture by briefly summarising the state of the law as at the end of 2010. Parameters of recoverability for psychiatric injury 4. A claimant, whether as primary or as secondary victim, must have suffered a psychiatric illness or injury. Mental distress and symptoms may or may not amount to an injury. This issue is usually resolved by expert medical evidence and reference to DSM-5 and ICD-10. 5. A claimant may recover damages for psychiatric injury: 5.1 as a primary victim [in essence, one who is directly involved in an accident or incident] or 5.2 as a secondary victim [in essence, one who is not directly involved in an accident but who becomes psychiatrically ill as a result of what he witnesses] provided he can bring himself within certain control mechanisms, but not otherwise. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 1
Circumstances in which a claimant will recover as a primary victim 6. A claimant will recover damages for psychiatric injury as a primary victim: 6.1 where the defendant s breach of duty [whether a positive act or an omission] exposes him to the foreseeable risk of physical injury which is the cause of his psychiatric injury, even if psychiatric injury was not reasonably foreseeable: Page v Smith [1996] 1 AC 155. 6.2 where, as a rescuer [one who has provided more than trivial or peripheral assistance ], he exposes himself to danger or reasonably believes that he is exposing himself to danger and his psychiatric injury results from fear for his own safety or is a reaction to the horrific events that he witnesses: Frost v. Chief Constable of South Yorkshire Police [1999] 2 AC 455. This case concerned four police officers who were on duty in the stadium at the Hillsborough tragedy who brought claims for psychiatric injury for what they had witnessed. A fifth officer who was not on duty in the stadium at the time of the tragedy but who had been responsible for stripping bodies and completing casualty forms at the hospital also brought a claim for psychiatric injury for what he saw in the immediate aftermath. These claims were brought as representative claims. Their claims failed. Lord Steyn said [499A and 499F]: The specific difficulty counsel [for the plaintiffs] faces is that it is common ground that none of the four police officers were at any time exposed to personal danger and none thought that they were so exposed. In order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm the plaintiff must at least satisfy the threshold question that he objectively exposed himself to danger or reasonably believed that he was doing so. Without such limitation one would have the underlying spectacle that, while bereaved relatives are not allowed to recover as in the Alcock case, ghoulishly curious spectators, who assisted in some peripheral way in the aftermath of a disaster, might recover. For my part the limitation of actual or apprehended dangers is what proximity in this special situation means. Lord Hoffman said [509H-510F] said: The ordinary person...would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 2
have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing. 6.3 where the defendant s breach of duty places the claimant in the position of being, or thinking that he is about to be or has been, the involuntary cause of another s death or injury and the psychiatric injury complained of stems from the shock to the claimant of the realisation of this supposed fact. The fact that the defendant's negligent conduct has foreseeably put the claimant in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that claimant was or was not reasonably foreseeable: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, per Lord Oliver at 408F. Circumstances in which a claimant will recover as a secondary victim 7. A claimant will recover damages for psychiatric injury as a secondary victim where, although he is someone who is not personally in danger, he suffers foreseeable psychiatric injury through seeing, hearing or learning of physical harm tortiously inflicted upon others 1 provided that he can also satisfy specific control mechanisms. 8. The control mechanisms, which were first set out in Alcock and which a claimant must prove, are: 8.1 Requirement No. 1: There must be a close relationship of love and affection between the person killed or injured [the primary victim] and the claimant [the secondary victim]. Note that, although in Alcock claims by a brother, a brother-in-law, an uncle and a particular friend failed on this ground amongst others, each case is fact-sensitive. As we shall see depending on the evidence, such a person may have a claim. In Shorter 2, it was never contended that the claimant who was the sister of the primary victim deceased did not qualify and, in Berisha 3 and in Akers 4, claimants who were the unmarried partners of the primary victims were held by the court to have be in sufficiently close relationship. 1 Hatton v Sutherland [2002] EWCA Civ 76, per Hale LJ at para 19 2 See page 16 below 3 See page 14 below 4 See page 26 below David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 3
8.2 Requirement No. 2: The claimant must be in close proximity in space and time to the accident or its immediate aftermath. In Walters v. North Glamorgan NHS Trust [2002] EWCA 1792 the claimant s son had been admitted to the defendant hospital. It was admitted that there was a negligent failure to diagnose and treat the son s condition, acute hepatitis. Had that condition been diagnosed the son would have undergone a liver transplant and would probably have lived. However, as a result of the negligent clinical omission his condition deteriorated. His mother remained at his bedside. At 03:00 on 30 th July 1996 the claimant woke to find her son making small choking noises in his cot (he was 10 months old at the time), with large amounts of a coffee ground blood substance; his body was stiff. She was informed by a nurse that she believed that her son had had a fit. Shortly thereafter she was advised that it as very unlikely that her son had suffered any serious damage as a result of the fit. That was incorrect and, in fact, he had suffered a major epileptic seizure leading to a coma and irreparable brain damage. Later that morning she was told by a doctor that a CT scan had shown no damage to her son s brain. However, her son had to be transferred to another hospital for a liver transplant. Her son was transferred by ambulance. She followed in a car. She arrived at the second hospital about 18 hours after the initial fit. She was seen by the doctors who then advised her that her son had in fact suffered severe brain damage as a result of the fit and was on a life support machine; the chances of a successful liver transplant were 50-50; if he survived, he would be severely handicapped. The claimant was numb, panic stricken and terrified at the sudden turn of events. The following day she was advised that her son s brain damage was so severe that he would not have any quality of life. This shocked her greatly. She and her husband took the decision to terminate life support. Her son died in her arms just over 36 hours after the initial fit. She developed a psychiatric illness and brought a claim as a secondary victim. She was successful at trial. The defendant appealed unsuccessfully. In the Court of Appeal, accepting that what the claimant had witnessed was shocking to her, Ward LJ said: David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 4
[para 34] In my judgment the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary "event". Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: "An item in a sports programme, or the programme as a whole". It is a useful metaphor or at least a convenient description for the "fact and consequence of the defendant's negligence" or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be. It is a matter of judgment from case to case depending on the facts and circumstances of each case. In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn out experience. 8.3 Requirement no. 3: The psychiatric injury must result from a sudden shock. Shock means the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It is not sufficient that a person is told of the shocking event. It is not sufficient if the psychiatric illness is caused by the accumulation over a period of time of more gradual assaults on the nervous system: Alcock, per Lord Ackner at 401F. What is important is the effect on the claimant as well as the nature of the event. 8.4 Requirement No. 4: It must be reasonably foreseeable that a person of normal fortitude or ordinary phlegm might suffer psychiatric injury by shock: Page v Smith, per Lord Lloyd. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 5
8.5 These control mechanisms were neatly encapsulated in Taylor v Somerset [1993] PIQR P262 by Auld LJ at P267: There must be a perception by the [claimant] of the event as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event as well as of its consequence is brought home to him. 9. The application of these control mechanisms has been unpredictable in prospect and arbitrary, some would say unfair, in outcome. Inevitably there have been decisions that appear to draw some fine distinctions and to disentitle some claimants whilst allowing others. The recent case law demonstrates just how difficult this area continues to be. Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 10. This was the first case on secondary victims to reach the Court of Appeal in 10 years since Frost. It was a personal injury claim. It concerns the issues of determination of the relevant event and of proximity in time and place. 11. In Taylor the claimant was the daughter of a woman who had had an accident at work when a fellow employee caused a stack of racking boards to fall on to her. 12. The mother was recovering well at home when, three weeks later, she unexpectedly collapsed and died due to a deep vein thrombosis and consequent pulmonary emboli caused by the injuries sustained in the accident. 13. The claimant witnessed her mother s death and suffered significant posttraumatic stress disorder. 14. She claimed damages for psychiatric injury as a secondary victim against her mother s employer. 15. The claimant argued that the collapse and death of her mother was the relevant event and that, as she had witnessed it, proximity was established. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 6
16. The defendant contended that proximity was lacking because the claimant was not present at the accident or involved in its immediate aftermath. 17. The trial judge concluded that the event which caused the claimant s injury was her mother s sudden death and that there was no gap between that event and the injury she suffered, which was the reasonably foreseeable consequence of the negligence. The claimant therefore succeeded at trial. 18. The defendant appealed. 19. The Court of Appeal held that the issue was whether the mother s death was the relevant incident for the purposes of the claimant s claim as a secondary victim. Lord Dyson MR explained the importance of the requirement of legal and physical proximity within the control mechanisms: 26. I accept the submission that, in order to succeed, Ms Taylor must show that there was a relationship of proximity between Novo and herself. The word proximity has been used in two distinct senses in the cases. The first is a legal term of great importance in the law of negligence generally. It is used as shorthand for Lord Atkin s famous neighbour principle. Used in this sense, it is a legal concept which is distinct from and narrower than reasonable foreseeability. It describes the relationship between parties which is necessary in order to found a duty of care owed by one to the other. In his speech in Alcock Lord Oliver refers to proximity in this sense more than once in the passages which I have cited above. Lord Atkin s neighbour principle itself is concerned with the relationship between parties. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Lord Bridge made the same point in Caparo v Dickman [1990] 2 AC 605 at 617H: What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity or neighbourhood... David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 7
27. But in secondary victim cases, the word proximity is also used in a different sense to mean physical proximity in time and space to an event. Used in this sense, it serves the purpose of being one of the control mechanisms which, as a matter of policy, the law has introduced in order to limit the number of persons who can claim damages for psychiatric injury as secondary victims or to put it in legal terms, to denote whether there is a relationship of proximity between the parties. In a secondary victim case, physical proximity to the event is a necessary, but not sufficient, condition of legal proximity. 28. I accept the submission that the correct question is whether Ms Taylor and Novo were in a relationship of proximity in the legal sense. The difficulty in answering this question is that, as Lord Oliver said, the concept of proximity depends more on the court s perception of what is the reasonable area for the imposition of liability than any process of logic. In the context of claims by secondary victims, the control mechanisms are the judicial response to how this area should be defined. This has involved the drawing of boundaries which have been criticised as arbitrary and unfair. But this is what the courts have done in an area where they have had to fix the ambit of liability without any guiding principle except Lord Atkin s famous, but elusive, test. 20. The defendant s negligence had had two consequences separated by three weeks in time: firstly, there was the accident which caused the mother s injuries, and, secondly, there was her death. There was clearly a relationship between the employer and the mother [employee], but to allow the claimant daughter to recover as a secondary victim on the facts was going too far. Had the judge been correct then the claimant would, subject to proving causation, have been able to recover damages had her mother s death occurred months, possibly years later. However, had she died at the time of the accident and the claimant suffered shock coming onto the scene but not in the immediate aftermath, she would not have been able to recover damages because she would have failed to satisfy the physical proximity control mechanism. That she might have been able to recover in the first situation but not in the latter would strike the ordinary reasonable person as incomprehensible. Therefore, it was not reasonable to impose liability on the defendant for her psychiatric illness. The judge's approach potentially David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 8
extended the scope of liability to secondary victims considerably further than had been done before. The Court therefore held that in order to satisfy the Alcock criteria, the claimant must have been proximate in space and time to the negligent event [as opposed to the death] 21. The court had for policy reasons confined the rights of secondary victims by means of strict control mechanisms. Those same reasons militated against any further substantial extension unless done by Parliament. The Court of Appeal distanced it from obiter dicta observations of Peter Gibson LJ in Sion v Hampstead HA [1994] 5 Med LR 170 where he had observed: I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system. 22. Taylor was a personal injury claim. It might be said that, in the context of such claims, the circumstances [with the death occurring remotely in time from the accident] are unlikely to occur very often. The parties submissions did not address what the implications of allowing or dismissing the appeal might be for claimants in clinical negligence claims. Had they done so, the Court of Appeal may have felt even more emboldened in its decision because the decision in Taylor has assumed profound significance for such claims in the light of subsequent cases. Wild and Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) 23. This was a clinical negligence case in which the decision in Taylor was applied. The court had to consider and determine what was the relevant event and the issue whether the claimant was sufficiently proximate in time and place. 24. Mrs Wild became pregnant in 2007. During that pregnancy the defendant s staff made a number of clinical errors in failing to measure and record the baby s rate of growth. 25. The baby was subsequently stillborn having died in utero at some stage David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 9
between 10 th and 20 th March 2008. 26. The defendant admitted that these omissions constituted breaches of duty and that, but for these, the baby would have been probably have been born alive because fetal compromise would have been diagnosed at a sufficiently early date for delivery to have been achieved through induction of labour before his death in utero. 27. The circumstances in which the stillbirth was discovered and notified to the father who was present at the hospital deeply distressed him. 28. Both parents claimed damages for nervous shock. The mother s claim was admitted. The father s claim as a secondary victim was denied. 29. The father s case was that his injury was caused on the day that he learned that his baby had died. He submitted that the fetus was considered in law to be part of the mother and therefore the mother was properly described as the primary victim. He contended that Taylor was not a clinical negligence case and not applicable to such a case, that the effect of Taylor was not that a secondary victim could not claim for nervous shock where the first manifestation of the injuries sustained by the primary victim had occurred in front of the secondary victim but was separated in time from the negligent act or omission because that would be an unprincipled distinction imposing an additional control mechanism not intended by the House of Lords in the leading cases. He maintained that his realisation that the baby had died qualified as the observation of a horrific event within the meaning of Alcock and that it was not a relevant distinction that in the successful nervous shock claim of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792, the mother's shock had started with the manifestation of a serious condition whereas in the instant case the shock began with the realisation of the baby's death. 30. The defendant denied the father s entitlement to damages as a secondary victim and relied in particular on the statement of principle in Taylor, stressing that the father was not present at the time of the alleged negligent events which led to the death of the baby, in the alternative the events were not so exceptional or shocking as to be expected to cause a recognised psychiatric injury. 31. The court [Michael Kent QC sitting as a Deputy High Court Judge] held that, although Taylor was not a clinical negligence case, it is clear that the Court of David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 10
Appeal had in mind the principles applicable to all cases. He held that the primary victim was the mother, but that while the baby was in utero, any damage to the baby must be treated as damage to the primary victim because the baby did not have status as a separate legal entity at that stage. The father s claim failed because he had not seen his baby s death with his own senses. He came to the realisation that his baby had died because of what he was told and by the actions of the medical staff on 20 th March, which was after the baby had already died. This realisation was not sufficient to meet an essential requirement of the Alcock test. His psychiatric illness had been caused by witnessing midwives determine that his baby had died in his wife's womb. His claim could not succeed where he had experienced a growing and acute anxiety starting at a time when the baby had already died, rather than witnessing horrific events leading to a death or serious injury. 32. The judge said that in Alcock the point was made that what those watching the broadcast, who were concerned that their loved ones were or might have been in the pens where the tragedy was unfolding, were experiencing was not actual sight or sound of the injury and death of the primary victims but a real and distressing anxiety about whether they were involved. They discovered some time later that indeed they had been but the discovery and the visit to the mortuary was not sufficiently close in time to count as part of the immediate aftermath. He drew an analogy with the position of Mr Wild, saying: [para 47] Mr. Wild was experiencing a growing and acute anxiety, which started when the second midwife failed to find a heartbeat. This developed to the point at which, simply because of the behaviour (and no doubt body language) of the clinical staff and the words of the doctor I concur, he had a correct realisation that the baby had died. But none of that, in my judgment, equates to actually witnessing horrific events leading to a death or serious injury. That what Mr. Wild experienced was capable of and did generate sufficient shock to have foreseeably caused psychiatric illness is not in dispute. But the authorities show that the control mechanisms often have the effect of excluding such cases. 33. He then considered the claimant s submission that he was bound to succeed because of the earlier decision of the Court of Appeal in Walters, contending that this too was a seamless tale with an obvious beginning and an obvious end. The judge disagreed, saying: David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 11
[para 53] In my judgment this case is materially different from the facts in Walters being based on an event which starts with the realisation that [the baby] has already died. The authorities have driven me to conclude with reluctance that Mr Wild cannot on the facts succeed It would be difficult to argue that that is a logical outcome but, as Lord Oliver said in Alcock To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But... the law in this area is not wholly logical. The same may be said about an extension to a clinical negligence case where the first possible manifestation of the consequences is when medical staff discover that the baby has already died in the womb. 34. In Wild the court determined that the relevant event was the death of the baby in the womb. Applying Taylor, this was not an event to which the claimant was proximate in time or place and this disentitled him to damages. Brock v Northampton General Hospital NHS Trust and University Hospital Birmingham NHS Foundation Trust [2014] EWHC 4244 (QB) 35. In this clinical negligence case the court had to consider and determine the relevant event and whether what was witnessed was a single sudden shock causing psychiatric illness. 36. Rachel Brock was the claimants daughter. On 31 st January 2009, as a reaction to the breakdown of her relationship with her partner, Rachel had consumed a large quantity of alcohol [15 units] and 14 paracetamol tablets. She recognised at once that she did not want to kill herself and called the claimants. They went to her house and, on advice took her to Northampton General Hospital. She was examined and correctly sent home having been advised to return if her condition deteriorated. Unfortunately, it did and so she was returned to hospital. It was decided that she required a liver transplant because of complications from taking the large quantity of paracetamol tablets. One complication of her condition was that she developed a high pressure in the brain. On 5 th February 2009 she was transferred to Queen Elizabeth Hospital in Birmingham where an intracranial pressure monitoring bolt was inserted. However, in breach of the duty of care owed by the doctors at Birmingham the bolt was placed too far into the brain and, as a result, she suffered a brain haemorrhage and died on 6 th February 2009. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 12
37. It was common ground that she would have died in any event shortly thereafter [within a few days] because, although she was on very high priority for a liver transplant, there was in fact no liver available within the time scale required, which were very short as a result of her extremely severe condition. The parties agreed that any claim by her estate was nominal and the estate s claim and that of her infant daughter as a dependent were discontinued. However, her parents, the claimants also maintained a claim for damages for nervous shock. 38. The negligence of the Birmingham Hospital did not occur until the stage at which the bolt was inserted too deeply. That was on the evening of 5 th February 2009. It was not apparent to the claimants at that time or for some considerable time thereafter that any error had been made. 39. Later that evening the claimants saw Rachel and Mr. Brock remarked that the bolt was not what he expected. He says that he thought that Rachel's tongue and face had slipped to the left but said nothing about it to his wife. Mrs. Brock says that Rachel looked as she had done before. 40. At about 9 pm the claimants went to their rooms on site. At about 11.30 pm a nurse phoned them to say that Rachel had deteriorated and asked them would they like to come back to see her before her brain was scanned. 41. Mrs. Brock gave evidence that it was when that call was received that she realised that Rachel was indeed going to die. Mr Brock did not say that anything traumatic occurred when they saw Rachel at that time. However, at 4 am when Rachel returned from the scan, they were told that she had had bleeding on the brain and all was lost for her. They saw her. Shortly afterwards the life support machine was turned off, by which time Mrs Brock, understandably, did not want to be present. 42. His Honour Judge Yelton, sitting as a Deputy High Court Judge said: It is undoubtedly the case that the claimants had had a dreadful and distressing week. However the way in which the claim is now put on their behalf relies only on events from and including the telephone call at 11.30 pm on 5 th February 2009: the call itself cannot found liability However, neither claimant said that it was seeing their daughter after that call which caused their psychiatric illness. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 13
43. The judge found that both of the claimants were reacting to the untimely loss of their daughter, a loss which was not caused by one single event which is thereafter at the forefront of the patient's mind, which is the almost invariable experience with those suffering from PTSD nor was either suffering from any other psychiatric disorder precipitated by a sudden event. Their claims failed. Berisha v Stone Superstore Ltd [Manchester DR; 02.12.14] 44. This is a personal injury case in which the issue was the court had to consider whether the claimant was sufficiently proximate in time and place to the accident or its immediate aftermath. 45. Ms Berisha was the partner of Mr Soran Aziz. 46. Mr Aziz suffered a serious head injury at work as the result of having been struck by a pallet of ceramic tiles which fell from a forklift truck. He was taken to hospital where he was placed on a life support machine. The claimant was informed of the accident by the police about 1½ hours after the accident. She arrived at the hospital about 3 hours after that and stayed at Mr Aziz s bedside in intensive care continuously until his life support system was switched off two days later; tragically, Mr Aziz had died from the complications of a skull fracture and the resulting severe brain injury. 47. By the time Ms Berisha saw Mr Aziz, all immediate medical care was complete and there was no further fresh treatment or significant change in circumstances until his life support was withdrawn. She contended that she saw him in the immediate aftermath of the accident and that she held his hand for much of the time he was in intensive care and witnessed his face swelling and becoming disfigured. 48. Ms Berisha claimed damages as a secondary victim against Mr Aziz s employer, the defendant. It was accepted that, although she was not married, her relationship with Mr Aziz at the time of the accident was one of close love and affection. 49. The defendant applied for summary judgment or to strike out the claim of the claimant. The court considered not only the statements of case but also the ambulance and hospital records and the facts and reasoning in the two expert clinical psychologists reports. In the Reply to the Defence the claimant had contended that the application of the control mechanisms to David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 14
any particular case was highly fact-dependent and, as such, dependent on the whole of the relevant history. In essence, the claimant said it was not appropriate to strike out such a claim in the absence of oral evidence and therefore that the matter should proceed to trial. The claimant faced something of an uphill struggle with this submission because, even under the old Rules of the Supreme Court, where all that was considered was the adequacy of case pleaded in the Statement of Claim the court had been prepared on occasion to strike out cases: see, for example Sion v Hampstead Health Authority [1994] 5 Med LR 170 where Brooke J. struck out a case which he describes as doomed to fail. Under the CPR, the material to which the court can have regard is much wider and includes disclosed evidence. This was the material which the District Judge considered in Berisha. 50. The defendant submitted and the court accepted that there was no real prospect of a material change to the relevant facts as regards proximity occurring after service of witness statements or the giving of live oral evidence at trial. It was therefore appropriate to proceed to consider and to determine the application summarily without allowing the case to proceed to trial. 51. The issue was whether the claimant had a real prospect of establishing the proximity required of a secondary victim in time and place to the accident or its immediate aftermath so as to be able to recover damages for nervous shock. 52. District Judge Hassall held: 52.1 There had been only two cases in which a claimant summoned to hospital or a mortuary, after a loved one had befallen an unexpected accident had successfully claimed damages as a secondary victim for nervous shock. These were McLoughlin v O'Brian [1981] Q.B. 599 and, some twenty years later, Galli-Atkinson v Seghal [2003] EWCA Civ 697. The differences between those cases and the instant one were numerous and profound. In McLoughlin the scene of the accident and its immediate aftermath included the chaotic and distressing scenes that the mother encountered on entering the hospital; the accident and the immediate aftermath were not yet over. In Galli-Atkinson the mother attended the scene of the accident. Her shock and denial began at the scene within the most immediate aftermath and continued through to the mortuary. In both cases, proximity in time and place were made out. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 15
52.2 In this case the claimant never attended the scene. She attended the hospital five hours after the event to find her partner in a terminal, yet managed and treated, condition. It was difficult in those circumstances to see proximity in time or in place or a situation properly to be described as witnessing an accident or its immediate aftermath. In Taylorson v Shieldness Produce Ltd [1994] P.I.Q.R. P329 a claim by parents for psychiatric injuries suffered as secondary victims was dismissed. The facts were very similar to the instant case. In the court's view, the claim in Taylorson failed as there was simply no valid use of the English language that could describe seeing a treated, intubated, unconscious person in intensive care as witnessing an accident or its immediate aftermath. The passage of five hours before she saw Mr Aziz made it more difficult for the claimant to recover damages. No component part of proximity in time or in place or witnessing the accident or the scene or the immediate aftermath favoured the claim continuing. She had no real prospect of establishing that she witnessed the immediate aftermath of the accident. The District judge said: The claimant s argument, if accepted, would appear to abolish large parts of the control mechanisms by sweeping all family members who attend hospital many hours after an accident into the sequence of events. That is precisely what the control mechanisms seek to avoid. 52.3 Further, Mr Aziz s injuries and death were not part of a single event or "seamless tale" as might occur in a clinical negligence case such as Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792. 53. The claimant s claim was therefore struck out. Julie Shorter v Surrey & Sussex Healthcare NHS Trust [2015] EWHC 614 (QB) 54. In this clinical negligence claim the court had to determine what was the relevant event, whether the claimant s experience as a nurse made her more susceptible to shock and, if so, whether this was relevant to the issue whether a person of normal phlegm would have sustained psychiatric injury David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 16
and whether the claimant was proximate in time and place. 55. Mrs Shorter was a senior sister in a neuro-intensive care unit. 56. Mrs Shorter s sister had collapsed with a severe headache and had been admitted to hospital. A CT scan was performed and she was told that she had not suffered a subarachnoid haemorrhage. She was discharged after two days. Seven days later she was re-admitted with head and neck pain and a review of the CT scan showed that she had suffered a haemorrhage a week earlier. The sister's husband telephoned Mrs Shorter to inform her that there had been an undetected haemorrhage, and that her sister's condition had worsened. Mrs Shorter, having regard to her profession, was aware of the seriousness of her sister's condition and the possibility of a further haemorrhage. 57. She attended the hospital accident and emergency department and claimed that she saw her sister rolling around on a trolley, crying with pain, clutching her head and saying that she was in agony. Mrs Shorter returned home some hours later. She then received a call from her sister's husband informing her that her sister had suffered a seizure, and then later another call to say that she had started fitting. 58. She attended the hospital and saw her sister on life support and was told by the sister's husband that she had "gone". The sister died shortly afterwards. 59. Mrs Shorter developed a major depressive disorder and claimed damages as a secondary victim from the defendant. As the claimant, she argued that, in line with Walters, she had been exposed to a seamless single horrendous event which she had directly witnessed and/or in which she had directly and immediately been involved, either by direct sight or by sound. 60. The defendant admitted that the sister would probably have survived if it had not negligently failed to diagnose a haemorrhage and accepted that the close relationship between the claimant and her sister was such as to bring her within the class of persons eligible to bring a claim as a secondary victim. 61. However, the defendant argued that the claimant did not have the required degree of proximity to a specific and shocking event because the realisation of the danger to her sister had been gradual. 62. Swift J. held that: David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 17
62.1 On the balance of probabilities, the incidents over the two days of the second hospital admission had all contributed to the development of the claimant's psychiatric disorder. 62.2 As to the contention that the claimant s professional background as a nurse made her more likely to be sensitive to events and to find then horrifying, it was accepted that this gave her an unusual degree of insight into her sister s medical situation. However, the judge said: it seems to me that it is necessary to be cautious in finding that the Claimant s professional expertise made the sight of [her sister] more horrifying than it would have been to a person without that knowledge. I consider that the event must be one which would be recognised as horrifying by a person of ordinary susceptibility; in other words, by objective standards. After all, certain people would find it more frightening to have no medical knowledge and not to know what was going on; they may feel helpless and isolated. Others may have armed themselves in advance with medical information from the internet which leads them to feel far greater fear than is in fact justified. It would be unfortunate if secondary victims claims were to become embroiled in debates about an individual claimant s level of medical knowledge and its effects upon whether an event should be classified as horrifying. 62.3 The claimant had to show that her psychiatric illness had been caused by the sight or sound causing an assault on her senses. Her sister was plainly unwell, in pain, and fearful about the news of the bleed. However, the judge was satisfied that she was not in such a condition that to see her could be described as a horrifying event or to cause violent agitation of the mind. She said: However, I do not consider that, at the time, the sight of [her sister] had the visual effect on the Claimant which was later described. In the case of Walters, the trial judge and the Court of Appeal laid considerable emphasis on the start of the event, when the mother awoke to find her baby rigid and choking after a convulsion, with blood pouring out of his mouth. Ward LJ likened that to the assault upon her senses David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 18
the mother would have suffered if she had seen her child bleeding in a seat after a road traffic accident. That sort of assault upon the senses is, it seems to me, of a very different order to the scene in the A & E Department at ESH on 12 May. Indeed, even if [the sister] had for a short time been in the state described by the Claimant, I do not consider that the sight would have come within the type of event described in Walters and the other relevant authorities. [Her sister s] condition was fluctuating; she did not have obvious injuries; she was not or at least did not appear at that stage to be in any obvious or immediate danger. 62.4 In relation to the requirement to establish sufficient proximity to the event, here had been no physical proximity when the claimant had been informed by telephone of the defendant s negligence. 62.5 In relation to the requirement to a sudden and direct visual impression on her mind of witnessing the event or its aftermath: 62.5.1 Although the fact that the claimant was a nurse gave her an unusual degree of insight into her sister s medical situation, it was not possible to accede to the submission that she would have been more sensitive to events at the hospital and more likely to find them frightening. The test was objective. The judge said: Certain people would find it more frightening to have no medical knowledge and not to know what was going on; they may feel helpless and isolated They may have armed themselves in advance with medical information form the internet which leads them to feel far greater fear then is in fact justified. It would be unfortunate if secondary victims claims were to become embroiled in debates about an individual claimant s level of medical knowledge and its effects upon whether an event should be classified as horrifying. 62.5.2 When the claimant saw her sister on the trolley she had not been in such a condition that to see her could be described as a horrifying event or cause violent agitation of the mind. After the claimant left the hospital, all the information she gained over the following nine hours had been by four telephone calls, she had not seen her sister and had not been proximate to the unfolding events. It was not until David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 19
she saw her sister on life support that the reality had become clear. The judge said: That must have been a deeply upsetting experience for her and it is no wonder that she suffers flashbacks whenever she sees a similar sight in the course of her work. It was not, however, a sudden or unexpected shock. Her professional position makes the memory of that moment a great deal more difficult to bear. 62.5.3 So far as the claimant s reliance on Walters was concerned, there had not been a seamless single horrifying event; there had been a series of events over a period of time. None of the individual events within the series actually witnessed by the claimant had given rise to the sudden and direct appreciation of a horrifying event. Even when she had witnessed her sister on the life support machine, her perception had been informed by the information she had been receiving over the previous 15 hours and by her own professional knowledge. The judge said: However, in order to succeed in her claim for damages, she has to overcome the high bar of the control mechanisms which apply to cases such as hers. I have come to the conclusion that she cannot do so. It does not seem to me that what happened in this case can properly be described as a seamless single horrifying event. There was a series of events over a period of time. 63. The claimant s claim therefore failed. Baker and ors v Cambridge & Peterborough NHS Foundation Trust [2015] EWHC 609 (QB) 67. This clinical negligence case involved references made obiter to whether a claimant would, if the claim had otherwise been viable, have satisfied the requirement for proximity in time and place. 68. This was a Fatal Accident Act claim in which the deceased, who sadly suffered from bipolar disorder, committed suicide. His body was found at his parents home and his daughter saw his body some 45 minutes later. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 20
69. The daughter, as claimant, claimed damages as a secondary victim for psychiatric injury against the NHS Trust which she contended should have involved community mental health services, the intervention of which, it wad further contended, would have avoided the suicide and her injury. 70. David Pittaway QC, sitting as a Deputy High Court Judge, found against the claimant both that there had been no breach of duty in failing to make a referral to the community services and that, in any event, any such failure was not causative of the deceased's death because it was unlikely that a home visit by community mental health services could have been arranged in time. The judge went on to say, applying Taylor v A Novo (UK) Ltd, that, if it had been necessary to reach a decision on this issue, he would have concluded that there was insufficient physical proximity in time and space to Mr Baker's death. Liverpool Women s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 558 71. This clinical negligence claim also involved consideration of the decision in Walters, consideration and identification of the event, whether the event in a hospital setting was shocking and what the true cause of the Claimant s illness was. 72. The claimant, Mr Ronayne, was an ambulance driver who, although he worked on what the Court of Appeal described as the non-emergency side, was nonetheless used to seeing people on life support in the course of his work. 73. In July 2008 his wife was admitted to the hospital for a planned hysterectomy. Post-operatively she was discharged. Within a few days she became unwell with a high temperature, thirst and shallow breathing. She was re-admitted to hospital urgently. Over a period of about 24 hours the claimant observed a rapid deterioration in the condition of his wife, manifested most vividly in two distinct episodes: 73.1 The first was shortly before she underwent emergency exploratory surgery, the claimant observed her connected to various machines, including drips and monitors; 73.2 The second was post-operatively when he observed her to be unconscious, connected to a ventilator with four types of antibiotic being David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 21
administered intravenously. Her arms, legs and face were very swollen. Pressure pads were in place to keep the blood in her legs flowing. Some three years later he described her appearance to a consultant psychologist as resembling the "Michelin Man." 74. The defendant admitted that his wife s condition was a consequence of its negligence in the performance of the earlier hysterectomy; a suture had been misplaced in her colon, in consequence of which she had developed septicaemia and peritonitis. Fortunately, she eventually recovered. 75. The claimant contended at trial that he was a secondary victim who had suffered psychiatric injury in the form of post-traumatic stress disorder as a result of the shock of seeing his wife's sudden deterioration and, in particular, her appearance on the two distinct occasions referred to above. 76. At trial the judge [HHJ Gore QC sitting as a High Court Judge] rejected his case that he suffered from PTSD, but nonetheless found in favour of the claimant on the basis that he suffered from a frank psychiatric illness; the judge found it unnecessary to specify quite what illness by reference to the established taxonomy, although he did say that, if it was necessary to do so, he would accept that it was an adjustment disorder. He was awarded damages of 9,165.88 inclusive of interest. 77. The defendant appealed successfully. The Court of Appeal recognised that its decision in this case had a wider importance to health authorities in respect of other claims which might be brought by an almost unlimited number of claimants in similar circumstances. 78. The appeal has therefore concentrated upon two interrelated points:- 78.1 Were the events in the necessary sense "horrifying"; and 78.2 If so, whether the horrifying events caused the claimant's psychiatric illness. 79. The Court of Appeal recognised the importance of determining what was or were the event or events said to be of a sufficiently horrifying character. 80. The Court of Appeal said that, if the judge had he paid closer attention to the diagnostic criteria for adjustment disorder and to the significance of the fact that he had found the elements of PTSD not to be made out, he may well David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 22
have come to a different conclusion on causation, saying that close attention to diagnostic criteria is likely in this field to be of assistance in resolving what are often complex questions of causation. 81. Giving the judgment of the court, Tomlinson LJ noted that in hospital one must expect to see patients connected to machines and drips and also expect to see things that one may not like to see. A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing. 82. The judge had found that the relevant "event" was not the misplacement of the stitch but the injury flowing from it, as and when it became actionable harm at the time that it became apparent that the claimant's wife had or may have suffered the development of life-threatening infection. 83. On the question whether what the Claimant perceived during the relevant event was in the necessary sense horrifying or shocking, the judge had concluded that it was this event, a period of one or two days, which ran from the date of re-admission to the sight of his wife after surgery in her swollen state, and the immediate aftermath thereof. He had concluded that it was sight of the sudden shocking state and condition of his wife during that period that constituted the event for this purpose and was a sudden and shocking trigger to the mental illness. 84. However, the Court of Appeal disagreed, holding that the circumstances with which the claimant was confronted fell far short of those which have been recognised by the law as founding secondary victim liability. The judge was wrong to regard the events of the relevant period of probably about 36 hours as one event. It was not, as in Walters, "a seamless tale with an obvious beginning and an equally obvious end." There were a series of events over a period of time. There was no "inexorable progression". The claimant's perception of what he saw on the two critical occasions was in each case conditioned or informed by the information which he had received from medical staff in advance and by way of preparation. 85. As regards the first pre-operative episode event [when the claimant observed her connected to various machines, including drips and monitors], the claimant knew from his time at the hospital earlier in the morning that abnormalities had been found, a shadow on his wife's lower lung and abnormalities in the blood. Before he saw her later in the day he knew that, David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 23
as a result of a CT scan, a mass had been found in her abdomen which the doctors could not identify. He knew before seeing her that she was to go into theatre for immediate surgery, and he knew that that meant that her condition, whatever it was, was, in his own words, "deadly serious." The Court of Appeal therefore regarded it as:...artificial to regard the sight of his wife in her pre-operative condition as constituting the beginning of an event distinct from what had gone before. 86. As regards the second post-operative episode [when he observed his wife to be unconscious, connected to a ventilator with four types of antibiotic being administered intravenously with her arms, legs and face very swollen], the Court of Appeal regarded it as wholly artificial to describe the sight of his wife in her post-operative condition as the end of a distinct event. It was all part of a continuum. 87. The Court of Appeal also held that the events were far from seamless because the claimant had gone home whilst his wife underwent surgery, he was told that the surgery had gone well and that there was no point in his returning to hospital as his wife was unconscious. He was told to visit the next day. Before next seeing his wife, he was told that next 24 hours were critical and therefore effectively her life was in danger. It was explained to him that a suture had been found in her colon which had resulted in her blood being poisoned and he was overwhelmed by anger. It followed, said the Court of Appeal, that this was not a case in which there was a sudden and unexpected assault on her mind. There was a gradual realisation by the claimant that his wife's life was in danger in consequence of a mistake made in carrying out the initial operation. At each stage in this sequence of events the claimant was conditioned for what he was about to perceive. 88. The Court of Appeal also rejected the finding that what the claimant saw on these two occasions was horrifying by objective standards. The appearance of his wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. Tomlinson LJ held: What is required [as a matter of law] 5 in order to found liability is something which is exceptional in nature. On the first occasion she was connected to monitors and drips. The reaction of most people of ordinary 5 My insertion David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 24
robustness to that sight, given the circumstances in which she had been taken into the A. and E. Department, and the knowledge that abnormalities had been found, including a shadow over the lung, necessitating immediate exploratory surgery, would surely be one of relief that the matter was in the hands of the medical professionals, with perhaps a grateful nod to the ready availability of modern medical equipment. The same is more or less true of her swollen appearance on the second occasion. There is I think a danger of the "Michelin Man" epithet acquiring a significance greater than it deserves. The Claimant was conditioned to see someone from whom a litre of abscess had been drained and whose life was in grave danger. The pressure pads, routine medical equipment, no doubt contributed to the swollen appearance. I can readily accept that the appearance of Mrs Ronayne on this occasion must have been both alarming and distressing to the Claimant, but it was not in context exceptional and it was not I think horrifying in the sense in which that word has been used in the authorities. Certainly, however, it did not lead to a sudden violent agitation of the mind, because the Claimant was prepared to witness a person in a desperate condition and was moreover already extremely angry. 89. In the light of this finding the Court of Appeal found it unnecessary to decide whether the judge was justified in finding that it was the appearance of his wife on these two distinct occasions, as opposed to his wife's ill-health, which caused the adjustment disorder but nonetheless recorded that, here too, they were very doubtful about the judge's conclusion because he failed to give sufficient weight to the circumstance that the claimant was already extremely angry before he saw his wife on the second occasion, which might properly be regarded as the more distressing of the two. Furthermore, having found none of the persistent recurrent flashbacks and/or nightmares that characterise PTSD, the judge should have been far less ready to attribute causative potency to the two visual images, rather than to the whole set of circumstances which overcame the claimant s wife and the consequential effect upon the claimant. It was the uncontradicted evidence of the defendant s expert psychiatrist that, if the Claimant's psychiatric condition were the result of a sudden visceral attack of the type posited by the judge, then one would expect it to manifest itself in intrusive recollection. Lack of intrusive recollection therefore told against the visual images being the trigger of or for the condition. 90. If the Court of Appeal had upheld the decision in Ronayne it is highly likely that the floodgates for claims of a similar nature would have been opened. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 25
There would have been the real probability that NHS Trusts up and down the country would have faced huge numbers of secondary victim claims brought by relatives or close friends of a primary victim. The Court of Appeal was alert to this consequence if the judge s decision was upheld. In the circumstances, it is unsurprising that Court of Appeal allowed the appeal and firmly closed the door to this type of litigation. Akers v Bowmer & Kirkland Ltd and ors [High Court, Liverpool District Registry; 20.07.14] 91. This was a decision in a trilogy of personal injury claims. It is arguably the most interesting decision and one which involves a contemporary construction of the meaning of the requirement for the Claimant to be proximate in place to the shocking event which was the cause of the psychiatric injury. 92. On 6 th July 2009 a tower crane collapsed on to an apartment block at Chandler s Wharf in Liverpool. The crane driver sustained catastrophic injuries and the building suffered severe damage and required emergency evacuation. 93. The defendants were responsible for the operation of the crane and for the design and construction of the crane and its base plate. 94. Liability for the accident was not in issue. 95. A number of residents of Chandler s Wharf claimed damages for psychiatric injury as secondary victims, none of them having been at a foreseeable risk of physical harm. 96. The court had ordered a trial of the preliminary issue: Whether any of the Claimants who were not physically within the Chandler s Wharf building can recover damages for psychiatric injury. 97. The trial was not to determine whether any of them had in fact suffered psychiatric injury nor what the value of those claims were but merely to determine whether the claimants satisfied the various control mechanisms. The ambit of the trial was to establish whether the claimants were in fact secondary victims who were entitled, subject to individual proof of causation of psychiatric injury, to damages. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 26
98. By the date of trial there were only three claimants left whose claims remained undetermined. Confusingly, none of the claimants was called Akers. 99. The judge, [Andrew Lewis QC sitting as a Deputy High Court Judge] found that the scene at Chandler s Wharf would have presented as a frightening and horrifying event because significant damage to the building s roof and structure had been caused by the falling crane with substantial debris and dust that would have been generated and, in turn, this meant that some persons of normal phlegm would have perceived there to be a risk of death or serious injury to those within the building as a result of the collapse of the crane. The judge held that the scene would have presented as a frightening and horrifying event. 100. So far as the individual claimants were concerned the judge: 100.1 rejected the claim of one claimant, who had asserted that she and one of her flat mates were really close, as not satisfying the required relationship of a close tie of love and affection, and 100.2 allowed the claim of a second claimant who had received a very confused phone call from her husband had contacted her from the flats at a time when she had been in a nearby Tesco s. This claimant had returned to the scene; she described the scene as mayhem and herself as being f frantic and in a state of panic for 15 minutes, having concluded that her husband was not going to come out or was lying inside and could not get out. She then saw her husband sudden in a zombie state, disorientated and completely blank. 101. However, the most interesting decision was in relation to the third claimant, Miss Lorraine McAuley. She lived with her partner in a flat in Chandler s Wharf. The judge had no hesitation in concluding that the necessary tie of love and affection existed between them. He said: in 2014 it is difficult to justify treating a stable cohabiting relationship any differently to a married relationship. 102. The judge was also satisfied that there was a foreseeable risk of David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 27
psychiatric injury test. 103. The crucial issue for the court to determine was that of proximity in time and space. The facts were that the claimant left Chandler s Wharf to go to her work as a restaurant manager leaving her partner at home in the flat. Some 25 minutes later and whilst at work she received a phone call from him. To her, he was in sheer panic, screaming down the phone, breathing extremely heavily and explaining that the crane had fallen onto the block of flats and that there was no way out. She could hear alarms going off in the background and her partner coughing and saying he could not see, presumably because of the dust created. She then remained on the telephone with him for most of the time that it took him to finally reach the ambulance services, although there was probably a series of four telephone calls. She gave her partner appropriate advice and tried to keep him calm. She initially advised him to run down the stairs and get someone s attention but he was unable to do so as the crane had destroyed them and this caused him to panic even more. She advised him to return to the flat to collect his shoes and there was then a gap in the call as she advised him to go out on the balcony in the hope that some workmen could see him from the building site. By that stage, the fire services had arrived and were extending ladders up towards the balcony. The claimant could hear them in the background shouting towards the residents of Chandler s Wharf to move to the corner where the ladder was. Again, there was a break in the conversation as her partner climbed along the balcony towards the fire crew. She next spoke to him after he attended an ambulance crew for him to be checked over. At no point did she go to Chandler s Wharf. Finally, about 30 minutes later, her partner arrived at her work, looking pale and shaky. 104. Miss McAuley confirmed that, although there was a disturbing and distressful conversation, she was able to give her partner clear directions and was in almost constant contact with him save when she was aware that he was either putting down the phone or cutting short the call for particular purposes. The judge found that the mere fact that she tried to stay in control does not mean that she was not suffering extreme turmoil and fear during the whole episode and he held that he was satisfied that telephone conversations and background noise created an extremely disturbing and frightening experience for Miss McAuley. 105. As to the requirement for proximity in time and space, it was clear that Miss McAuley neither saw the event nor did she hear all of it directly. Her perception was the lengthy commentary provided by her partner and the David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 28
background noise she heard via the telephone whilst she was still at work. As to the specific requirement of proximity in time, the judge held that that it could not have been more proximate as the claimant received a live commentary. 106. As to the specific requirement of proximity in terms of space and that the claimant must perceive events directly through sight and sound and noting also that being told about events will not suffice, the judge said: Although, not proximate in terms of physical space, [Miss McAuley] heard what was happening inside the building, and I accept that the event can be perceived via her telephone so that this requirement is satisfied The Hillsborough disaster occurred at a time when instant communication through smart mobile phones and internet access was not available. Circumstances of the modern world make it far more likely that secondary victims will be affected and suffer because of the opportunity for live information and streaming of footage directly to loved ones, as in this case, during the relevant event. The mere fact that modern developments have extended the likelihood and opportunity for secondary victims to claim damages, does not mean that the relevant test and the public policy checks have been extended. In my judgment, listening to one s partner having to live the event on the end of the telephone involves a necessary specificity to allow the claim. 107. The judge was satisfied that Miss McAuley had a sudden appreciation of a horrifying event, the description given to her by her partner and the sounds she heard in the background creating a sudden appreciation of the horrifying event. 108. The judge therefore held that the claimant was a secondary victim entitled to maintain a claim, subject to proof in her case of causation of injury. 109. On any analysis, Miss McAuley was not physically proximate in the conventional sense, as the judge himself recognised. However, the judge impliedly accepted that the medium of the contemporaneous phone call had the consequence of conferring upon her a virtual physical proximity; it was as if she herself was in the flat, listening, if not seeing save perhaps in her mind s eye to what was happening. Is this an extension of requirement that the claimant must be physically proximate to the sudden shocking event David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 29
which caused her illness? The judge held that it was not an extension of the test but merely an application of the test to modern circumstances. 110. The contrary view may be that the recognition of virtual physical proximity makes the point; she was not actually present and that means that, applying Alcock strictly, the claim should not have succeeded. 111. The answer may lie in the reasons behind the invention and imposition of the control mechanisms. A substantial part of the justification for these was the need to protect defendants from having to deal with claims brought by a class of claimants whom they could never have expected to have to compensate. Will the decision in Miss McAuley s case lead to a flood of new claims? No. The circumstances in which such a claim might be brought are only very rarely likely to be replicated. Amongst the class of 40 claimants in the Chandler s Wharf action only one such claim was brought. No other similar claim has ever been reported. Mobile phones have been with us now for over 20 years. For any such claim to succeed, it would require a disaster of some evolving length which was recounted in real time by a person in physical danger who was in a close relationship of love and affection with a claimant. Of course, it is not impossible to conjure up such a scenario; for example, a passenger in a slowly sinking ferry disaster, the occurrence of which had been caused negligently, who recounts horrifying events by telephone. However, such occasions are likely to be rare. Most people in danger are more likely to spend their time trying to escape than telephoning close relatives. Only in rare circumstances are they likely to resort to their telephones, perhaps when all else is lost. Any argument that the decision in Miss McAuley s case is wrong because it might open the floodgates to new claims by secondary victims is, in my opinion, thin. It is true that there may be some individual claims by claimants in similar situations to Miss McAuley but the circumstances in which a large number of claims may arise out of one single incident are likely to be few and far between, It is pertinent to note that in Alcock Lord Ackner said: simultaneous broadcasts of a disaster cannot in all cases be ruled out as providing the equivalent of the actual sight or hearing of the event or its immediate aftermath. [Nolan LJ] gave an example of a situation where it was reasonable to anticipate that the television cameras, whilst filming and transmitting pictures of a special event of children travelling in a balloon, in which there was media interest, particularly amongst the parents, showed the balloon suddenly bursting into flames. Many other such situations could be imagined David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 30
where the impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident. 112. If the decision of the Court of Appeal in Ronayne had been to uphold the claimant s claim it would be reasonable to anticipate that a large number of claims would have been brought against NHS Trusts every year. It cannot be said that the decision in Miss McAuley s case is likely to open the floodgates to many claims. Secondary victims in CICA claims 113. In claim for awards of compensation under the Criminal Injuries Compensation Scheme the wording of the scheme had been very tightly drawn to try to avoid any judicial mission creep as regards the circumstances in which secondary victims are entitled to awards. As regards the proximity requirement, a secondary victim must demonstrate that he: either witnessed and was present on the occasion when the other person sustained the injury, or was closely involved in its immediate aftermath... 114. The scope of this control arose for determination in RS v CICA [2013] EWCA Civ 1040. The applicant s wife had been the victim of a sexual assault at knifepoint by a man who lived next door. The attack had begun at around 9.15am on a Friday. The assailant remained in the house until around 1.15pm. The applicant arrived home at about 4.35pm. His evidence was that he and his wife spent a "horrendous" weekend during which she was indifferent and hostile towards him, and that she did not tell him what had happened until the following Monday. His claim for compensation related to psychiatric injuries sustained as a result of the events of the day when the attack occurred. The issue was whether he satisfied the condition set out in para.9(b)(ii) of the scheme, namely "the applicant either witnessed and was present on the occasion when the other person sustained the injury, or was closely involved in its immediate aftermath". The First-tier Tribunal held that he did not, but its decision was reversed by the Upper Tribunal. On a further appeal by the Board to the Court of Appeal, it was held that the phrase "witnessed and was present on the occasion when the other person sustained the injury" had to refer to the event which constituted the infliction of the injury, in effect the commission of the crime. The primary victim might only have suffered mental injury. In that case, if there was a secondary victim, it had to be on the footing that he or she witnessed and was present David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 31
on the occasion when that injury was inflicted; that would refer to the commission of the crime. Later consequences of the event when the injury was inflicted were not the occasion on which it was inflicted. The secondary victim was to be compensated if and only if he too suffered injury because of his presence at that event or his involvement in its immediate aftermath. If the "occasion" in question was extended to later consequences, the application of the term "immediate aftermath" would become strained and artificial, and the scope of the scheme as it applied to secondary victims would become much broader and more uncertain than was suggested by the plain words "witnessed and was present on the occasion". It was also held that while "immediate aftermath" might allow a degree of temporal and spatial flexibility, the focus of the provision was on the secondary victim's exposure to the overt consequences of the crime of violence, and in the nature of things those were likely to follow the event more or less immediately. 115. Unsurprisingly, the Court of Appeal in Davis v First Tier Tribunal [24.06.14] held that the passage of five hours between a crime of violence and sight of the deceased s body was not within the criterion of immediate aftermath. The focus of the Scheme, so far as para 9(b)(ii) is concerned, is on the immediate aftermath of the event constituting the commission of the offence rather than upon the medial consequences in terms of any subsequent and unsuccessful treatment at hospital. David Heaton QC - Byrom Street Chambers, Manchester, M3 4PP 32