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.”