Taylor v A Novo (UK) [2013] EWCA Civ 194

Mrs Taylor was injured at work through her employer’s admitted negligence and died three weeks later from complications. Her daughter developed PTSD after witnessing the death and claimed as a secondary victim. The Court of Appeal held she could not recover, restricting proximity for psychiatric injury claims.

Facts

On 27 February 2008 Cindy Taylor was injured at work when a fellow employee caused a stack of racking boards to tip over onto her, injuring her head and left foot. The accident was caused by the admitted negligence of her employer, A Novo (UK) Ltd.

Mrs Taylor appeared to be making a good recovery. On 19 March 2008, however, she suddenly and unexpectedly collapsed and died at home. Her death was due to deep vein thrombosis and consequent pulmonary emboli which were themselves caused by the original work injuries.

Her daughter, Crystal Taylor, did not witness the workplace accident. She did witness her mother’s sudden collapse and death at home and, as a result, suffered significant post‑traumatic stress disorder, a recognised psychiatric injury.

Before HHJ Halbert, it was common ground that Ms Taylor satisfied all the recognised requirements for a secondary victim in psychiatric injury claims save for the requirement of proximity in time and space to the accident or its immediate aftermath. The central question was whether, as a matter of law, she could recover damages as a secondary victim.

Issues

The key issue was whether Ms Taylor, who did not witness the original negligent accident but did witness her mother’s death three weeks later, could be regarded as a secondary victim. This turned on:

• whether the relevant “event” for the purposes of the control mechanisms was the original workplace accident or the later collapse and death; and
• whether, on that basis, there was sufficient proximity between Ms Taylor and the defendant to found a duty of care for psychiatric injury.

The court also had to consider how the established “control mechanisms” for secondary victims, derived from authorities such as Alcock v Chief Constable of South Yorkshire Police and Frost v Chief Constable of South Yorkshire Police, applied where the defendant’s negligence led to an accident and then a death separated in time.

Judgment

Existing law on secondary victims

The court reviewed the leading authorities. Lord Oliver’s categorisation in Alcock of primary and secondary victims, and his identification of common features (later termed “control mechanisms”) was emphasised. These include close ties of love and affection, a sudden shock, physical and temporal proximity to the event or its immediate aftermath, and direct perception of death, extreme danger or injury.

Lord Steyn’s policy-based approach in Frost was highlighted, including his conclusion:

“Thus far and no further”

and:

“In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case … and Page v. Smith as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament.”

Lord Hoffmann’s observations in Frost were also cited:

“It is now too late to go back on the control mechanisms as stated in the Alcock case… Until there is legislative change, the courts must live with them and any judicial developments must take them into account.”

“It seems to me that in this area of the law, the search for principle was called off in [Alcock]. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle.”

The Master of the Rolls noted that in secondary victim claims, “proximity” is used both in the legal sense (the relationship sufficient to found a duty of care) and in the physical sense (closeness in time and space to an event). Physical proximity to the event is a necessary but not sufficient condition of legal proximity.

The county court decision

HHJ Halbert treated Mrs Taylor’s sudden collapse and death as a new and distinct “event” from the workplace accident. He found that the psychiatric injury was caused by this sudden, horrifying event, that Ms Taylor was present and directly perceived it, and that this event had been caused by the defendant’s earlier negligence. He concluded:

“However, taking a commonsense view, this was not a gradual decline leading to death, it was a sudden collapse. It was on any practicable view a new “event” and a very traumatic one for CT. In reality, to argue that it was not a separate event is an artificial construct. It is an attempt to establish a defence based on the ALCOCK (sic) “control mechanisms” in a situation where they really do not apply. The operative “event” which traumatised the Claimant was sudden and horrifying. She was present at the scene and witnessed it with her own senses. The fact that there was an earlier incident caused by the same negligent act is irrelevant. The fact that the second event would not have occurred but for the first adds nothing.”

He therefore held that Ms Taylor could recover as a secondary victim.

Submissions on appeal

For the defendant, Mr Cory‑Wright QC argued that the judge had focused incorrectly on defining a proximate “event” rather than on the relationship of proximity between Ms Taylor and the tortfeasor. Properly applied, the control mechanisms required proximity to the original accident or its immediate aftermath; Ms Taylor was not present then and thus lacked the requisite proximity.

For Ms Taylor, Mr Bartley Jones QC contended that the “event” for these purposes was the collapse and death, caused by the defendant’s negligence, and that she was physically proximate in time and space to that event. He relied in particular on Sion v Hampstead Health Authority, North Glamorgan NHS Trust v Walters, W v Essex County Council and Galli‑Atkinson v Seghal, and on dicta suggesting flexibility in assessing “event” and “immediate aftermath”. He submitted that the control mechanisms should be applied to a second event case in the same way as to a single event case.

Court of Appeal’s reasoning

The Master of the Rolls accepted that Ms Taylor had to demonstrate a relationship of legal proximity between herself and Novo. He stressed that in this difficult field the boundaries of liability are essentially policy-driven and somewhat arbitrary, and that courts must have regard to what the ordinary reasonable person would regard as an acceptable scope of liability.

He characterised Novo’s negligence as leading to a single accident – the falling stack of racking boards – which had two temporally separated consequences: immediate physical injury and, three weeks later, death. He stated that there was clear legal proximity between Novo and Mrs Taylor, and that had Ms Taylor witnessed the accident and suffered shock, she would have been a secondary victim on established principles. However, permitting recovery based on a shock suffered weeks later, at the time of death, would go beyond the existing limits.

The court advanced two inter‑related reasons:

1. If the judge’s approach were correct, Ms Taylor could recover even if death occurred months or years after the accident, provided causation was proved. Yet if Mrs Taylor had died at the scene and Ms Taylor had arrived shortly after, just outside the “immediate aftermath”, she would have been barred. The notion that she could recover in the first scenario but not the second would appear unreasonable and incomprehensible to the ordinary person, indicating that proximity could not properly be stretched so far.

2. In light of Frost, where the House of Lords had effectively said “thus far and no further” and emphasised that major extensions should be left to Parliament, the judge’s approach would represent a substantial and unjustified extension of liability for secondary victims.

The Master of the Rolls therefore rejected the suggestion that the relevant event was the later death. He held that in the paradigm secondary victim case the relevant event is the accident that more or less immediately causes injury or death and is witnessed by the claimant. Later consequences of that accident, such as a death weeks later, are not new relevant events for the purposes of secondary victim claims.

He approved Auld J’s reasoning in Taylor v Somerset Health Authority, where a death was treated as the final consequence of earlier negligence rather than as a qualifying event in its own right, and distinguished the authorities relied on for the claimant. In particular, he noted that Walters involved a “seamless tale” of events over 36 hours amounting to a single drawn‑out experience, whereas here the injuries and death were “certainly not part of a single event or seamless tale”.

The court concluded that nothing in the authorities compelled or supported the county court’s conclusion and that the judge had been wrong to treat the death as the relevant event for proximity purposes.

Lord Justice Moore‑Bick and Lord Justice Kitchin agreed with the Master of the Rolls’ reasoning and conclusion:

“I agree.”

“I also agree.”

Implications

The decision confirms that, for secondary victim claims in psychiatric injury, the relevant “event” is the original accident caused by the defendant’s negligence, not later, temporally remote consequences such as a subsequent death, even if those consequences are sudden, shocking, and causally linked to the negligence.

It underlines the continuing force of the Alcock control mechanisms and of the policy stance in Frost that the courts should not significantly expand the categories of secondary victim or the scope of recoverable psychiatric harm. The ruling limits the reach of cases such as Walters and Galli‑Atkinson to situations where the relevant events form a single, continuous sequence or “seamless tale”.

Practitioners must therefore advise that close relatives who only witness a later collapse or death, separated in time from the original negligent accident, will not ordinarily be able to recover as secondary victims, notwithstanding the foreseeability of psychiatric harm and the existence of a close familial relationship.

Verdict: Appeal allowed; the county court’s decision was reversed and Ms Taylor was held not entitled to recover damages as a secondary victim.

Source: Taylor v A Novo (UK) [2013] EWCA Civ 194