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

A daughter witnessed her mother's sudden death at home, the result of an injury sustained in a work accident three weeks prior. Her claim for psychiatric injury as a secondary victim failed because she lacked proximity to the original accident.

Facts

The claimant’s mother, Mrs Taylor, was injured in an accident at her workplace on 19th August 2008, when a stack of racking boards fell on her. The defendant, her employer, admitted liability for this accident. Mrs Taylor sustained injuries to her head and foot but was discharged from hospital and appeared to be recovering. However, three weeks later, on 9th September 2008, she unexpectedly collapsed and died at home in the presence of the claimant, her daughter. The cause of death was a pulmonary embolism resulting from deep vein thrombosis, which was a consequence of the injuries sustained in the original accident. The claimant, who witnessed the traumatic death of her mother, suffered from post-traumatic stress disorder (PTSD) and brought a claim for damages against the defendant as a ‘secondary victim’.

Issues

The central legal issue was whether the claimant could recover damages for psychiatric injury as a secondary victim when she was not present at the tortious event (the accident at work) or its immediate aftermath, but only witnessed a later, horrifying consequence of that event (the death three weeks later). Specifically, the court had to determine whether the requirement for proximity in time and space, established in cases like Alcock v Chief Constable of South Yorkshire Police, related to the initial negligent act or could be satisfied by witnessing a subsequent, causally-linked, traumatic event.

Judgment

The Court of Appeal, with Lord Dyson MR giving the leading judgment, dismissed the claimant’s appeal. The court held that to establish liability for psychiatric injury as a secondary victim, the claimant must demonstrate proximity in time and space to the relevant ‘event’, which was the accident itself, not its later fatal consequence.

Lord Dyson MR extensively reviewed the authorities on secondary victims, particularly the control mechanisms laid down by the House of Lords in Alcock. He emphasised that these mechanisms were established to place limits on the availability of such claims.

In my judgment, the authorities to which I have referred are not authority for the proposition that a claimant can recover damages for psychiatric injury as a secondary victim if he or she was not present at the scene of the accident (or its immediate aftermath) in which the primary victim was injured or put in peril of being injured. Some have been critical of the restrictive approach that our law has taken to claims for damages for psychiatric injury. But we are bound by the authorities. The courts have been astute to confine the right of action for psychiatric injury to a secondary victim within strict limits.

The court distinguished the present case from Walters v North Glamorgan NHS Trust, where a 36-hour period of unfolding medical negligence was treated as a single horrifying event. In this case, the accident was a discrete event, and Mrs Taylor’s subsequent death, while a consequence, was separated from it in time.

In my view, we are bound by the authorities to which I have referred to hold that a secondary victim must be in a relationship of spatial and temporal proximity to the accident (or its immediate aftermath) which caused the death or injury to the primary victim. That is what Lord Keith of Kinkel meant in Alcock when he referred to ‘physical and temporal propinquity to the accident’; see para 400D of the report. To hold otherwise would be to go further than any of the authorities have gone and would be to make a significant extension of the scope of the duty of care to secondary victims.

Ultimately, the court reasoned that allowing the claim would represent an unwarranted extension of the law and that any such change would be a matter for the Supreme Court or Parliament.

Implications

This decision reaffirms the restrictive approach to claims by secondary victims in English tort law. It clarifies that the legal test of proximity requires the claimant to be present at the accident or its immediate aftermath, not just to have witnessed a later horrifying consequence, even if that consequence is a direct result of the initial negligence. The judgment reinforces the ‘event’ as the tortious incident itself and strictly delineates the boundaries of temporal and spatial proximity, thereby limiting the potential scope of a defendant’s duty of care to those who suffer psychiatric harm from witnessing injury to others.

Verdict: The appeal was dismissed. The claimant’s claim for damages as a secondary victim failed.

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