Taylor v A Novo (UK) Ltd

A claimant seeking damages as a secondary victim must establish legal proximity to the defendant through the established control mechanisms. Physical proximity in time and space to the relevant event is necessary but is not itself sufficient.

The relevant event is ordinarily the accident caused by the defendant, including its immediate aftermath. A later consequence of that accident does not become a separate relevant event merely because it causes sudden shock. A person who witnesses a primary victim’s death three weeks after the accident therefore cannot recover as a secondary victim where the person neither witnessed the accident nor encountered its immediate aftermath.

The courts should apply the established controls without making a substantial extension of liability for psychiatric injury. Any such development is for Parliament.

The defendant employer admitted negligently causing a workplace accident in which the claimant’s mother was injured. Three weeks later, the mother unexpectedly collapsed and died at home from consequences of those injuries. The claimant had not witnessed the accident but witnessed the death and consequently developed post-traumatic stress disorder.

HHJ Halbert in Warrington County Court held that the death was a distinct relevant event and that the claimant could recover as a secondary victim. The employer appealed. The central issue was whether the later death could constitute the relevant event for establishing the physical and temporal proximity required between a secondary victim and the defendant.

1. Appeal allowed. The claimant could not recover damages as a secondary victim. The Master of the Rolls gave the judgment, with which Moore-Bick and Kitchin LJJ agreed.

2. A secondary victim must establish a relationship of legal proximity with the defendant. Legal proximity is distinct from, and narrower than, reasonable foreseeability. In this context, physical proximity in time and space to the event is one of the control mechanisms used to determine whether the necessary legal relationship exists. It is necessary but not sufficient: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Caparo v Dickman [1990] 2 AC 605 applied.

3. The employer’s negligence caused one accident with two consequences: the mother’s immediate injuries and her death three weeks later. Describing the death as a new event distracted from the controlling question. The relevant event was the accident, not a later consequence of it. The claimant had neither witnessed that accident nor encountered its immediate aftermath.

4. Permitting recovery whenever a claimant witnesses a later death caused by an earlier accident could extend liability to deaths occurring months or years afterwards. It would also produce an unacceptable contrast with a claimant who arrives only shortly after the immediate aftermath of a fatal accident and cannot recover. The established boundaries should, so far as possible, reflect what an ordinary reasonable person would regard as acceptable.

5. The restrictive approach in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 militated against a substantial judicial expansion of liability. Any such expansion should be left to Parliament. The reasoning in Taylor v Somerset Health Authority [1993] 4 Med LR 34 was correct.

6. The more flexible treatment of an incident’s immediate aftermath in W v Essex County Council [2001] 2 AC 592 did not assist. North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 and Galli-Atkinson v Seghal [2003] Lloyds Rep Med 285 concerned uninterrupted sequences forming a single event or immediate aftermath and were distinguishable. The contrary observations in Sion v Hampstead Health Authority [1994] 5 Med LR 170 were obiter and were not binding.

1. Court of Appeal (Civil Division): The employer’s appeal was allowed unanimously. The claimant could not recover damages as a secondary victim: [2013] EWCA Civ 194.

2. Warrington County Court: HHJ Halbert held that the mother’s later collapse and death constituted a distinct relevant event and that the claimant could recover as a secondary victim. No citation is stated.