TAYLOR AND ANOTHER v A NOVO (UK) LTD

In a similar vein to McLoughlin v O’Brian, the boundaries of proximity, and the effects of secondary nervous shock are explored with deliberate force, so as to establish where two related events fall within the passing of time and space.

In the first event, the respondent’s mother was subject to a workplace accident involving a stack of racking boards that unexpectedly fell upon her.

While recovering at home, the victim unexpectedly collapsed as the result of a deep vein thrombosis and associated pulmonary embolism, which were caused by the accident itself. 

In the second event, the respondent daughter was visiting with her mother at the time of her death, and was subsequently witness to her sudden passing.

This left the respondent in a state of shock, resulting in Post-Traumatic Stress Disorder (PTSD), a psychiatric injury familiar to both the courts and the medical profession.

In the first hearing, the judge placed focus upon whether, as a secondary victim to an earlier event, the respondent was qualified to receive damages.

In order to conclude as to her entitlement, there were seven requirements set forth, namely that:

(1) The respondent’s injury was reasonably foreseeable 

(2) The relationship between the respondent and the primary victim was a close one

(3) There was a recognised psychiatric injury

(4) The injury was the result of the appellant’s negligence

(5) The injury was the result of shock from witnessing the primary victim’s death

(6) The respondent was either present at the time of death or the immediate aftermath

(7) The respondent perceived the death with her own senses

While the appellants accepted that all but one of the criteria (4) were satisfied, the judge awarded in favour of the respondent, before the matter came before the Court of Appeal.

Here, the mechanics of secondary nervous shock claims fell under discussion, in order to both understand the previous findings and reach an informed conclusion as to the limitations of such developing claims.

The categorisation of primary and secondary nervous shock victims was properly outlined by Oliver LJ in Alcock v Chief Constable of South Yorkshire Police, where he remarked:

“Broadly [the cases] divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.”

Alcock v Chief Constable of South Yorkshire Police

Before going further to explain that:

“What is more difficult to account for is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact.”

Alcock v Chief Constable of South Yorkshire Police

While later posing that:

“[T]he concept of ‘proximity’ is an artificial one which depends more upon the court’s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.”

Alcock v Chief Constable of South Yorkshire Police

In Taylor v Somerset Health Authority, a widow was awarded damages when her husband died at hospital following a sudden heart attack at work.

Having arrived at the hospital an hour after his death, she waited twenty minutes before being informed by staff of his passing, whereupon she was taken to the mortuary to confirm his identity while still understandably distressed and shocked.

At the trial, it was revealed that the hospital had failed to diagnose the severity of his condition, while the widow was now diagnosed as having nervous shock from her experiences in the hospital.

On this occasion, the court held the local Health Authority liable for damages, through the months of misdiagnosis leading up to his passing.

In the previous hearing, Halbert J had explained that:

“[T]his 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…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.”

However, as had been stipulated by Wilberforce LJ in McLoughlin v O’Brian,it was important to remember that:

“As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant!s negligence that must be proved to have caused the ‘nervous shock’.”

McLoughlin v O’Brian

On this occasion, there had been a number of weeks between the first event and the second, therefore while the scope of secondary nervous shock was largely applicable to the core of the claim, there had since been a significant passage of time between both the accident and the death of the respondent’s mother.

This indisputable and distinguishing element, therefore left the Court with no other option than to allow the appeal on grounds of unreasonable proximity and proportionality of the doctrine, thus dismissing the claim outright, while reminding the parties that:

“In a secondary victim case, physical proximity to the event is a necessary, but not sufficient, condition of legal proximity.”

PROXIMITY

When we discuss legal proximity there is frequently divided opinion as to what is meant and in what context the term can be applied.

By definition, tort cases almost always rely upon proximity when establishing the claimant-defendant relationship, the relative distance between the two parties, and finally any subsequent obligatory considerations shared.

Though for the sake of clarity, let us begin with the Oxford Dictionary definition of proximity:

Noun [mass noun] nearness in space, time or relationship

Origin: Late 15th century from the French ‘proximité and Latin proximatas, proximus (meaning nearest).

While this explanation appears relatively straightforward, the complexities of human interaction often magnify the context of its use, insomuch as subjective opinion will almost always complicate matters, and leave final judgments in degrees of contention.

This is largely due to a collective inability to agree precisely where proximity fits, and how it connects with other strands of legal principle.

Early illustrative proof of the need for exactness would undoubtedly be the speech given by Lord Pearce in Hedley Byrne Co Ltd v Heller and Partners, which reads:

“[P]roximity will not be established unless at least the following conditions are satisfied….the plaintiff must be (i) the person directly intended by the maker of the statement to act upon the statement (ii) in a specific transaction of which the maker knows and (iii) for the purpose for which the statement is made. Exceptionally conditions (i) and (iii) may be relaxed provided the plaintiff is a person of whose actual existence (if not name) the maker knows, to whom he knows the statement will be communicated, and who it is likely with a high degree of certainty will act upon the statement in a specific transaction of which the maker knows.”

Hedley Byrne Co Ltd v Heller and Partners

Or the even earlier words of Lord Atkin’s ‘neighbour’ speech in Donoghue v Stevenson:

“[S]uch close and direct relations that that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

Donoghue v Stevenson

While a simpler definition would be that:

“The claimant must be in an established relationship with the defendant and able to prove that any existing duty of care applied to them, whether through action, inaction or words”

Neil Egan-Ronayne (Legal Consultant)

Whichever phrase suits best, the typical contexts for proximity can range from customer and seller to diner and chef; in fact, the list of possible scenarios could quickly prove lengthy, yet despite changes in issue the essence of proximity remains essentially undiluted.

That said, the general context of proximity deviated when through the course of accident and tragedy, the witnesses to those sudden and unforeseen events began to claim that the distress and trauma of such emotionally crippling scenes commanded financial assistance from the courts through damages.

In those instances, the fluid definition of proximity was echoed  by Lord Wilberforce in McLoughlin v O’Brian, who said:

“Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.”

McLoughlin v O’Brien

Taken further, the emergence of ‘secondarynervous shock forced the principle of proximity into new territory, by allowing those indirectly receiving terrible news to seek a claim for award under the umbrella of proximation (albeit subject to specific criteria), as defined by Lord  Oliver in Alcock v Chief Constable of South Yorkshire Police, who remarked:

“What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.”

Alcock v Chief Constable of South Yorkshire Police

Here, we see a variance in application of the principle of proximity and one demonstrating a generosity of scope over that regulated within everyday examples of arms-length dealings, and whether this broadening stemmed from the degree of harm or was simply the choice of the courts to extend empathy toward genuine loss, is not easily traceable; however, there are now notable differences.

Contrastingly, in the United States the ‘dangerous proximity test‘ is one used to determine criminal liability at federal and state levels, with the two key principles being that the defendant was dangerously close to completing the crime, or so close as to a result that the danger was great.

The test itself, was first laid down in 1901, and later adopted by a Judge Learned Hand, who said:

“(P)reparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to compete it renders the crime so probable that the act will be a misdemeanour, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”

Judge Learned Hand

While under the Turkish laws of contract, the ‘principle of proximity‘ comes into effect where non-specification of parties applicable laws during cross-border transactions leaves the courts with the option to default to the nearest jurisdiction, with the effect of establishing implied and express contractual terms, as was explained by Dr. Gülin Güngor in 2008.

So as before, proximity is regularly used to help establish liability, reduce conflict and this time bring levity to matters that might otherwise become bogged down in their own rhetoric.

With this flexible principle proving it an inarguable necessity, it leaves one pondering if proximity is far from a fair weather friend to law and jurisprudence, but rather an overlooked principle deserving to play a broader role in future legal disputes?

Book your Free Consultation