The High Court dismissed the Defendant Trust’s strike-out application in a secondary victim claim where the primary victim had ‘clearly suffered actionable damage’ prior to the shocking collapse. Master Cook held that it was not necessary to identify a ‘stopping point’ for liability prior to the shocking event, and that preceding actionable damage was no bar to recovery. An appeal is outstanding.
Facts and Admissions
The Claimants’ daughter, Esmee, was investigated for intermittent cardiorespiratory symptoms between December 2014 and February 2015. No diagnosis was reached. The symptomatic episodes continued and worsened. Significant parental anxiety was noted by the GP on 21 April 2015 (at -). Esmee collapsed and died in front of her parents on 1 July 2015. Her parents claimed damages for psychiatric injury caused by witnessing her death.
The hospital admitted that Esmee’s condition should have been diagnosed and managed by mid-January 2015.
The parties’ arguments
The Trust argued that there was actionable and ‘manifest’ damage in Esmee’s case prior to the shocking event itself (-). According to the recent judgment of Paul v Wolverhampton NHS Trust  EWHC 1415 (see Issue 6), liability was precluded because the ‘stopping point’ was ‘the point when damage to the primary victim first becomes manifest’ (at  of Paul). Counsel relied on the GP record showing significant and concerning symptoms in April 2015.
The Claimants submitted (at ) that Esmee’s symptoms were ‘transient and non-horrifying’, and accordingly could not be described as ‘manifest’ within the meaning of Paul. The Claimants added that there was no policy reason why earlier symptoms should prevent recovery, nor would there have been in Paul had there been a prior episode of angina. The baby in Walters v North Glamorgan NHS Trust  EWCA 1792 had hepatitis for a number of weeks prior to the fit, and recovery was permitted.
Master Cook first found that Esmee’s pre-collapse symptoms were not ‘transient and non-horrifying’, and were capable of founding a claim on her behalf (at  – and therefore that they constituted actionable damage, see also at ). However, he noted that the same could be said of the baby in Walters.
Standing back, Master Cook found that the failure to diagnose Esmee’s condition meant that the consequences of her illness continued, causing ‘not unnatural’ concern for her parents (at ). The event itself was sudden, external to the secondary victims, and rapidly caused death; it would have been horrifying, and could appropriately be described as the ‘fact and consequence of the Defendant’s negligence’. Master Cook asked himself ‘why should the fact that Esmee had suffered non-fatal episodes on previous occasions rule out the secondary victim claims of her parents’ (at ).
After revisiting Paul at  – , Master Cook found that it was not necessary to identify a stopping point in this case, ‘as it is possible to identify a qualifying shocking event and that shocking event need not coincide with or immediately precede the first actionable damage to the primary victim’ (at ). He therefore found that the claim was not bound to fail.
In the author’s view, this judgment is correct in its conclusion, but light on reasoning. The finding that ‘the shocking event need not coincide with or immediately precede the first actionable damage’ is clearly supportable (and welcome for claimants) following Paul. However, the difficulties presented by Taylor v A Novo  QB 150– which did introduce a proximity-based ‘stopping point’ into secondary victim jurisprudence, and one that has been interpreted very restrictively in clinical negligence claims – were somewhat sidestepped. Paul did not completely eliminate the need to consider whether there should be a ‘stopping point’, and further reasoning on why one did not arise here would have been helpful for future claims.
Relevant Background in the Case-Law. In Taylor in 2014, the Court of Appeal held that one could not have an accident caused by the Defendant’s negligence, and then have a shocking event as a later consequence of that accident. The court based its reasoning on proximity. In the author’s view, this amounted to an additional hurdle for Claimants over and above the criteria set out in Alcock. The latter judgment did not set out a free-standing limb of proximity beyond the criteria themselves; in particular, it did not envisage any proximity-based ‘stopping point’ following the breach of duty after which a shocking event would no longer qualify.
Matters got worse for claimants as the years progressed. Defendants took the Taylor proximity criterion further, arguing repeatedly (and successfully) in the county courts that the first actionable damage caused to the primary victim was the relevant proximate event caused by the Defendant’s breach of duty. Anything after that was a Taylor-style ‘later consequence’ and insufficiently proximate to the negligence. The ‘first actionable damage’ stopping point has proved fatal in clinical negligence cases, where there is almost invariably a period of actionable symptoms or deterioration before a fatal or life-threatening collapse.
In Paul, Chamberlain J addressed this development. First, he clarified that the question of proximity in Alcock claims was answered by applying the control mechanisms (at -). He then clarified that the ratio of Taylor was that ‘where the defendant’s negligence results in an “event” giving rise to injury in a primary victim, a secondary victim can claim for psychiatric injury only where it is caused by witnessing that event rather than any subsequent, discrete event which is the consequence of it ’ (at ). Against this background, he tackled whether ‘actionable damage’ had to be taken as the proximity-based stopping point after which all else would fail [76ff]. He noted that there was ‘nothing that could naturally be described as an event’ in Mr Paul’s case. If one had to identify a stopping point, it would be ‘the point when damage to the primary victim becomes manifest’ or ‘evident’ (at ). While he does not say this expressly at para , it is tolerably clear from his comments at , ,  and throughout the judgment that ‘manifest’ means something approaching an event. It must, in the author’s view, mean more than simply ‘apparent’ or ‘concerning’.
This judgment. It was plainly right to hold that Esmee’s pre-collapse symptoms were capable of founding a cause of action, and that such a finding was not a bar to the claim following Paul. It also appears (more than) arguable that Esmee’s symptoms did not reach Chamberlain J’s ‘manifest/could naturally be described as an event’ threshold. The wording of  could be interpreted as a finding to this extent, but it would have been helpful to have more detailed reasoning – particularly as - reads as a first-principles assessment, which is a difficult route in this area of law. As foreshadowed by Gideon Barth in Issue 6, what counts as ‘manifest’ is likely to prompt further debate (unless Paul is reversed in its upcoming appeal) and commentary on this point would have been illuminating. It is likely that these issues will receive detailed attention in the upcoming appeals; in the meantime, this judgment adds weight to the abandonment of the ‘first actionable damage test’ as the proximity limit in secondary victim claims.