Personal injury law
Nervous shock - secondary victims and the control mechanisms
Walters v North Glamorgan Health Trust, 6 December 2002, CA; Froggatt & Others v Chesterfield and North Derbyshire Royal Hospital NHS Trust, 13 December 2002, Forbes QBD; Atkinson v Seghal, CA, 21 March 2003
In the last few months there have been a number of important decisions arising out of claims for 'nervous shock' by claimants who have witnessed injury to others caused by a defendant's negligence.
The cases have all concerned the control tests imposed in relation to such secondary victims.
The combination of the decisions provides a confusing message to legal practitioners in providing advice on the prospects of success in a particular case.
A 'primary victim' is someone directly involved in an accident.
A 'secondary victim' is someone who suffers injury as a result of the injury or fear of injury to a primary victim.
To prevent a flood of claims resulting from any particular accident, the higher courts have been concerned to reject the notion that reasonable foreseeability of harm alone is sufficient for a defendant to be fixed with liability.
Therefore, control mechanisms have been introduced as a matter of policy to restrict the number of potential claims.
In brief, these are as follows:
- The claimant must have a close tie of love and affection with the person killed, injured or imperilled;
- The claimant was 'close to the accident' in time in space;
- That he or she directly 'perceived the accident' rather than, for example, hearing of it.
A fourth control mechanism was re-iterated by Lord Lloyd in Page v Smith [1996] AC 155, namely the need for the claimant to be of reasonable fortitude.
The instant cases consider the definition of proximity in relation to time and place, that is to say, coming upon the accident or its immediate aftermath.
In the House of Lords' decision in McLoughlin v O'Brian [1983] 1 AC 410, Lord Wilberforce appears to limit arrival upon the aftermath of the accident to within one to two hours for in that case he found that the claim of the mother was 'on the margin of what the process of logical progression would allow'.
In Walters, the unfortunate Ms Walters was a 31-year-old mother of a little boy called Elliott.
He had had an unfortunate life and within nine months of his birth was in hospital because of a jaundiced condition which was thought to be linked to hepatitis A.
On 30 July 1996, she woke up in hospital at 3am.
Elliott was in his cot by her bedside making small choking noises and she saw a bloody substance on his pillow.
His body was stiff.
She called a nurse.
At 4.15am he was transferred to the intensive care unit.
At 4.45am she was told it was 'very unlikely' that Elliott had suffered any serious brain damage as a result of the fit.
At 11am she was told the CAT scan had shown no damage to the brain but that Elliott was going to be transferred to Kings College Hospital in London.
She and her husband followed the ambulance by car and arrived at 6.30pm.
A further CAT scan was carried out.
At 9pm Ms Walters was advised that Elliott had suffered severe brain damage and was on a life support machine.
She was told he would be severely handicapped and that if he had a liver transplant his chances of survival were only 50/50 whereas previously she had been told he would survive.
She was 'stunned'.
The next day Elliott underwent a further CAT scan.
The neurologist said that he was so severely brain damaged he would not have any sort of life or be able to recognise his parents.
At 4.30pm that day the life support machine was switched off and Elliott died in his mother's arms.
Proof of how appallingly Ms Walters was misled is given by the fact that her partner described them being 'very positive' as they drove to London having been told that he was not brain damaged.
Subsequently, life passed in a void.
Ms Walters was prescribed tranquillisers.
She began to drink herself into oblivion.
She had suicidal feelings together with nightmares and hallucinatory experiences.
The psychiatric evidence was in agreement that her pathological grief reaction was caused by the events around Elliott's death.
It was agreed that she was a secondary victim.
The control tests were therefore applicable for as Lord Hoffmann stated in White v The Chief Constable of South Yorkshire [1992] 2 AC 455, 'it is too late to go back on the control mechanisms as stated in Alcock v The Chief Constable of South Yorkshire [1992] 1 AC 310.
Until there is legislative change, the courts must live with them and any judicial developments must take them into account'.
It was accepted that she had the necessary tie of love and affection and that she suffered a recognisable psychiatric illness.
But her condition was caused by the sudden appreciation by sight or sound of the horrifying event that affected her mind.
The judge at first instance found that this was the case and the defendants appealed on the basis that the 36-hour period from her waking up to Elliott's death could not properly be held to be 'one horrifying event'.
A review of the case law was conducted by the Court of Appeal before the finding in Ms Walter's favour for as Lord Justice Ward held: 'a realistic view had to be taken from case to case of what constitutes the "necessary event"'.
In this matter, he found that there was 'an inexorable progression from the moment when the fit occurred as the result of the failure of the hospital to properly diagnose and then treat the baby, the fit causing the brain damage which shortly thereafter made termination of the child's life inevitable, and the dreadful climax when the child died in her arms'.
It was 'a seamless tale'.
Lord Justice Clarke added: 'I do not think that these mechanisms (the control mechanisms) should be applied too rigidly or mechanistically'.
The decision should be contrasted with that of the Court of Appeal in Taylorson v Shieldness Produce Ltd [1994] PIQR 329, in which the court upheld a decision in the High Court that the mother who stayed with her 14-year-old son over a period of three days before he died in intensive care following a road traffic accident had a dawning consciousness that she was going to lose her son and that this was 'an elongated process'.
There was therefore no sudden appreciation of a horrifying event.
The view of the Court of Appeal in Walters is justifiable.
Lord Justice Ward held that there were in fact three shocking events for Ms Walters to suffer, namely finding blood on the pillow of her child, having her hopes dashed by being told in London that he had suffered brain damage and then thirdly having to switch off his life support machine.
The control mechanisms came up for further review in Froggatt before Mr Justice Forbes in the High Court.
Ms Froggatt was misdiagnosed with breast cancer on 15 February 1999.
She believed she was going to die and told her husband that evening.
He was 'very upset'.
On 16 February she was advised to have a mastectomy of her right breast.
At some time in the week commencing 16 February her son, Dane, overheard her in a telephone conversation advising that she had cancer and thought she was going to die.
On a date which is unclear, but one presumes it followed her return home after the mastectomy on approximately 1 March some 12 days later, her husband saw her undress for the first time following the operation and was shocked, saying in his statement 'I remember thinking from the side she looked like a man'.
One cannot imagine this improved Ms Froggatt's state of wellbeing.
It was in relation to the claims of Mr Froggatt and Dane that the court considered the control mechanisms.
Finding them both as secondary victims the judge awarded damages.
In my view, he was wrong to do so.
Mr Froggatt was merely 'upset' when he heard of his wife's diagnosis but 'shocked' when he saw the results of the mastectomy.
The operation took place seven days after the diagnosis and she returned home five days later.
It was therefore a stage at approximately 12 days before the 'shocking' event took place.
It was not the mastectomy but the misdiagnosis which caused Ms Froggatt to fear for her life that in my view was the trigger for the commencement of the period of the immediate aftermath.
Similarly, in respect of Dane, his knowledge arose from overhearing a telephone conversation at sometime in the week commencing on 16 February.
Therefore, it could be that he received the information within 24 hours of the misdiagnosis on 15 February but this would be the earliest time that he would have been aware of his mother's condition.
Once more, this stretches the boundaries of the 'immediate aftermath' way beyond anything that the House of Lords has found to be acceptable.
Finally, in Atkinson, the Court of Appeal had to consider a dreadful accident which will make most parents think twice about refusing to give a lift to one of their children.
Poor Ms Atkinson had been asked by her 16-year-old daughter, Livia, to give her a lift to her ballet class.
She had refused telling her that she could walk.
During the journey, Livia was knocked over by a motor vehicle which mounted the kerb.
The accident happened at 7.05pm.
She was pronounced dead at 7.40pm and taken to the mortuary of the local hospital.
Her father arrived home at 7.45pm and as Livia hadn't returned from ballet by 8.05pm he decided to drive to the ballet class.
He was diverted by the police cordon, arriving at the class to find she was not there.
He learned of her death through the police officers at the scene of the accident.
Ms Atkinson had travelled down to the scene independently and was told by a police officer that Livia was dead.
Her screaming was 'unforgettable' and 'horrific' according to police officer witnesses.
The parents were then driven in a police car to the mortuary, arriving at 9.15pm where Livia's body was seen by her parents including disfiguring facial and head injuries.
Ms Atkinson cradled her daughter.
Subsequently, she was a regular visitor to the graveyard and made her home a shrine to her daughter.
In McLoughlin, Ms McLoughlin 'had arrived at the hospital within one hour of the accident' (Lord Ackner).
She saw the bloodied bodies of her children and husband and was informed of the death of one child.
There is confusion within the judgments as to whether the immediate aftermath related to the period of one hour or two hours.
There is reference within Lord Wilberforce's judgment to the two-hour period.
The fact is that she attended at the hospital before the expiry of two hours.
In Alcock, it was described that the claimant arrived at the temporary mortuary in Sheffield within eight hours of the disaster and that he was there to merely 'identify' the body of his relative.
The House of Lords in McLoughlin stressed that in finding for her, her case was 'on the margin of what the process of logical progression would allow' (Lord Wilberforce).
Strictly, there is an immediate aftermath period of one hour from the time of the accident.
At the outside one could perhaps stretch it to two hours arising from the confusion within the judgments.
In the instant case of Atkinson, the time limit from the accident to the Atkinsons attending at the mortuary was two hours and ten minutes.
There they saw the dead body of their child.
Mr Justice Wilson, sitting in the Court of Appeal, referred to the 'seamless activity' that had taken place.
He was no doubt picking up on the phraseology of Lord Justice Ward in Walters, but the shocking events that Ms Walters had to endure as her child went from having a fit to a pronunciation of brain damage and ultimately the switching off of the life support machine are wholly different from those experienced by the Atkinsons.
In their case, the accident happened, they found out about the death of their daughter through information from a police officer over one hour after the event and attended at the hospital to see the dead body slightly more than two hours after the event.
Whether Ms Atkinson was prepared to believe that Livia was dead or not without seeing the body is frankly of little relevance.
Whether a person is dead or alive in nervous shock cases has never been an issue.
However, the facts of Walters are very different from those of Atkinson.
There is no series of shocking events.
It seems to me that to satisfy this particular control test, the relatives must be able to demonstrate that they can tick the following boxes:
- They see the body (note that the claimant did not do so in Ravenscroft v Rederiaktiebolaget [1991] 3 All ER 73);
- The bodies must be bloodied (as opposed to looking angelic);
- The fact that the subject is alive or dead is of no consequence.
Note in Wigg v British Railways Board (1986) 136 NLJ 446, Mr Wigg succeeded (arguably as a rescuer) despite the fact that he did not know that the victim he was comforting was already dead;
- The body must be seen within a short period of the accident.
In relation to the last point, it is purely arbitrary as to when the time limit is imposed.
Should it be within one hour, two hours, three hours, 12 hours or one day? On the basis that the House of Lords in McLoughlin used the words 'upon the margin' in relation to Ms McLoughlin's attendance at the hospital within one hour of the accident to her family, it is difficult to see how the immediate aftermath in Atkinson can be extended to a time of two hours and ten minutes.
For if we allow Ms Atkinson to succeed, then in Hevican v Ruane [1991] 3 All ER 65, Mr Hevican should also have won.
In that case, the claimant's son was killed in a road traffic accident at 4pm.
The claimant went to the police station at 5.50pm and attended the mortuary at 7pm.
Within three hours he had witnessed the dead body of his son.
Should the two hour and ten minute period of Ms Atkinson not be extended to the three-hour period of Mr Hevican?
While the approach of Lord Justice Clarke in Walters that 'I do not think that those mechanisms should be applied too rigidly or mechanistically', is understandable, the fact is that some certainty is required for the unfortunate secondary victims whose relatives are seriously injured and killed in accidents if we are to avoid having the trauma of the event reopened by the civil process.
A time limit to define proximity in time and place needs to be imposed because being informed of the death of a close relative in whatever circumstances is always likely to be shocking.
At present the courts are playing around with the control tests.
It seems, surprisingly, that emotion is influencing the judgments.
Ultimately, this will ill-serve the public, for a lack of certainty will result in imprecise risk assessments by solicitors and a reluctance to litigate.
By Simon Allen, Russell Jones & Walker, Sheffield
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