Paul & Anor v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB)
This article originally appeared in Issue 6 (September 2020).
Following a series of secondary victim claims being struck out or dismissed on the grounds that there is insufficient proximity as required by the Alcock control mechanisms (see, most recently, the strike out decision of DJ Lumb in Purchase v Ahmed [2020] 5 WLUK 249, applying Taylor v A Novo (UK) Limited [2013] EWCA Civ 194) this judgment changes the way in which proximity should be understood.
Facts
In January 2014, Mr Paul was out shopping with his daughters, then aged 12 and 9, when he had a heart attack, collapsed, fell backwards and hit his head on the floor. Sadly, he was declared dead later that day. The heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. The Claimants argued that there was a failure to perform coronary revascularisation in November 2012 (14 ½ months earlier) which would have prevented the heart attack.
Strike out
Master Cook allowed the Defendant’s application to strike out the claim – see our coverage of this decision here. In particular, he noted that the facts could not be distinguished from Taylor v Somerset Health Authority [1993] PIQR 262, approved by the Court of Appeal in Taylor v A Novo. In his judgment:
“To focus simply on the death of Mr Paul as being the first point at which the consequence of the Defendant’s negligence became apparent is not an approach which is supported by the authorities. To do so overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event. It is this proximity in space and time that allowed Lord Oliver to impose the duty of care in Alcock…” [40].
Appeal
Following a thorough and detailed review of the authorities, Mr Justice Chamberlain allowed the Claimant’s appeal, and clarified what can constitute an ‘event’ following Taylor v A Novo.
Importantly, he stated that the ‘event’ need not be at the same time as the negligence which gives rise to it [63]. The proximity required by the House of Lords authorities is between the psychiatric injury and the shocking event (caused by negligence), not the shocking event and the negligent act or omission. This was not an argument pursued by the Defendant but appears to be the basis for the initial strike out.
The Defendant had argued that the secondary victims must be present at the ‘scene of the tort’. The tort became actionable shortly after the negligence as Mr Paul’s heart condition continued to deteriorate, thereby damage was immediately caused and the tort was complete. This analysis is consistent with the approach of Auld J in Taylor v Somerset who held, on very similar facts, that the death was “the final consequence of Mr Taylor’s progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest” [267].
The Claimant asserted that, as a matter of fact, Mr Paul suffered no damage until the collapse. As this was a strike out, the Court had to proceed on the factual basis most favourable to the Claimant. On that basis, the tort was not complete until the collapse in January 2014 and the secondary victims were present at that scene [66].
But the judgment goes on to say that even if the Claimant was wrong and there was damage, it is only at the point that the damage becomes “evident” or “manifest” that the tort is complete [78]-[79].
The two Taylor cases
Chamberlain J delicately tackled the two Taylor cases, which have caused such difficulties for claimants in recent years.
In Taylor v Somerset, Auld J held that a secondary victim claim requires “an external, traumatic event caused by the defendant’s breach of duty which immediately causes some person injury or death” [267], a sentence which was approved by the Court of Appeal in Taylor v A Novo [33]. This was understood to be an event external to the primary victim (such as a car accident, or stadium crush). But this sits uncomfortably with the Court of Appeal in North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 in which a negligent omission in the clinical negligence context resulted in the serious illness and death of a baby; there was no external, traumatic event and yet the Claimant succeeded.
Chamberlain J aligned these contradictory authorities. In his view, a “plausible” interpretation of Auld J’s analysis was that this external event means an event external to the secondary victim [72]. This nullifies the effect of the comment because secondary victim claims, by their very nature, are founded on events external to them.
The ratio in Taylor v A Novo has also been narrowed to apply only to cases where there are two subsequent events [73]. For example, where negligence causes an ‘event’ (such as a car crash or other accident), it is that event which can give rise to a secondary victim claim and no subsequent event, such as a later deterioration in hospital. The requirement for proximity in secondary victim claims is that the psychiatric injury arises close in time and space to the event, not to the negligence.
Comment
This judgment is good news for claimants, removing the hurdle imposed since Taylor v A Novo. It clarifies the law on proximity which has at times appeared incongruous and inconsistent. The way in which the proximity requirement has been applied was, in the author’s view, unsupported by the House of Lords authorities, and was an unprincipled extension of the control mechanisms in an already difficult area of law.
However, it may be that this judgment now imposes a slightly different hurdle for claimants to overcome. In cases where there is a delay between the negligence and the shocking event, careful consideration must be given to when the damage or injury first becomes evident or manifest (per [78]-[79] of the judgment).
Gideon Barth discusses secondary victim claims in Episode 121 of Law Pod UK which can be found here.
