PI Brief Update

Unpicking the Patchwork Quilt: Psychiatric Injury and Secondary Victims - Vanessa Cashman, 12 King's Bench Walk

16/10/13. It is agreed by most practitioners in this field that the law on recoverability for psychiatric injury as sustained by secondary victims is extremely messy. It consists of many conflicting decisions all uncomfortably pieced together in what has been and still can be termed a patchwork quilt. This was so even in 1999 when Lord Steyn said that the law on the recovery of compensation for pure psychiatric harm “is a patchwork quilt of distinctions which are difficult to justify.” (White v Chief Constable of South Yorkshire [1999] 2 AC 455)

Since then, a great deal has happened in this field with the result that very little has actually changed.

This short article looks briefly at a few of the cases in the patchwork quilt and attempts to draw out the common thread which may provide a clue as to the approach the Courts are now taking and ultimately the likely destination of such claims in the future.

What are the criteria to be a successful secondary victim?

The five criteria, all of which have to be satisfied before a secondary victim can succeed, were most recently confirmed by the Court of Appeal in Taylor v A Novo [2013] P.I.Q.R. P15. They are:

(i) That C sustained his psychiatric injury as a result of "shock", i.e. "the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind", rather than by some more gradual process.

(ii) That the "shock" would have been sufficient to cause psychiatric injury to an imaginary person of “reasonable fortitude".

(iii) That he was close in space and time to the accident concerned or its immediate aftermath ("Nearness").

(iv) That he directly saw and/or heard the accident or its immediate aftermath ("Hearness") i.e. being told about it is not enough.

(v) That he had a close tie of love and affection with the principal victim of the trauma ("Dearness").

It will be seen however from the case law that these criteria are being stretched beyond recognition or entirely ignored.

Criterion 1: Horrifying event

In the cases soon after the Hillsborough disaster the courts were strict in their approach to this control test. In Taylorson v Shieldness Produce [1994] PIQR P329 the Claimants were the parents of a teenage boy who was crushed by a vehicle. The parents went straight to the hospital and then followed the ambulance he was in while he was being transferred to another hospital. They were not allowed to see him for some hours, although they glimpsed him in the ambulance and when he was being taken into ITU. The father saw him that evening but the mother was advised not to. They both saw their son 24 hours after the accident, when he had been placed on life support. He was unrecognisable. They stayed with him for two days before switching the machine off. The Court of Appeal upheld the trial judge’s finding that the shocking events were not sufficiently immediate.

This previous requirement is however becoming less rigid as time goes by. In Walters v. North Glamorgan NHS Trust [2003] PIQR P16, as a result of a hospital's negligent failure to diagnose a baby's acute hepatitis, the Claimant mother sustained psychiatric injury in witnessing the baby suffering a major epileptic fit and thereafter declining to death over a 36 hour period. The Defendants contended that the Claimant failed to satisfy control test (i), in that she had sustained psychiatric injury not as a result of the "shock" of a single traumatic event but by some more gradual process as a result of a series of events. The Court of Appeal rejected this contention, holding that she did suffer "shock" and that the entire 36 hour period was to be regarded as one traumatic event.

These two decisions appear to be, on the face of it, completely contradictory and do not seem to be an example of the courts stretching the boundaries to allow the meritorious claimant to succeed; both cases are horrific.

However, contrast these cases again with White v Lidl [2005] EWHC 871. Mrs White was in her car leaving a car park when the defective barrier swung out and went through her windscreen. She suffered minor cuts. Her psychiatric condition deteriorated and some six months later she hung herself. Her husband found her and tried to save her. He suffered a psychiatric reaction as a result of her death.

Mr White had argued that in the case of Walters, the focus was on the shocking event (the fit), rather than the negligent event (failure to diagnose). In his case, he argued that it was the suicide which was the shocking event, not the barrier coming down. The Defendant argued that Walters, in whichthere was a considerable interval between the actual tortious event and the death, should be distinguished on the basis that in that case there had been an inexorable progression from the failure to diagnose the hepatitis until the death of the child. Hallett J rejected the claim on the basis that the relevant event was the barrier incident, not the suicide, which were quite distinct events, and there had not been an inexorable progression from the tortious event until the death.

Criterion 2: Reasonable fortitude

This criterion is not controversial. The only oddity might be why the requirement does not also apply to primary victims.

Criteria 3 and 4: Nearness and Hearness

In Tranmore v T.E. Scudder Ltd (Court of Appeal 28.4.1998), the Claimant’s son was working on a demolition site when the building collapsed. He was covered by rubble and by a large machine which fell in the collapse. The Claimant heard of the accident and arrived about an hour after it occurred. He saw the rubble and was told that his son had been buried under it. About two hours after his arrival at the scene he was told that his son had died. He did not see his son’s body. The Court of Appeal rejected his claim as he had not seen his son’s body.

However Judge Seys –Llewelllyn in Jones v Ramshaw (2011, unreported) took a rather different approach. The father of a young woman killed in a road traffic accident brought a claim in respect of his psychiatric injuries sustained as a result of her death. She had been one of a group of young people from a small village who had all been travelling together in the same car. When the car crashed, word spread that there had been a terrible accident and the residents of the area including the Claimant and his wife attempted to go to the scene. They were stopped by the police at a barrier a little over a mile away from the scene of the accident. From this position the Claimant was unable to see the scene of the accident. What he could see was the police helicopter hovering over the scene of the accident illuminating it with a searchlight and the flashing blue lights of a number of rescue vehicles. A police officer came to the barrier and informed everyone there that four young women had been killed in the accident. All those at the barrier were distraught. Later the Claimant and his wife attended the local police station where they were told that there was one female survivor. However, a short time later they were told that the survivor was male. At least 8 hours after the accident the claimant and his wife went to the hospital mortuary. The Claimant did not identify the body of his daughter. His wife carried out that task and she reported to him that their daughter’s face was badly swollen and that her tongue sticking out.

On the face of it the Claimant failed to meet four of the five criteria for success, satisfying only the test of love and affection. It is difficult to see why Tranmore v Scudder did not provide the answer to the claim. The judge none the less found in favour of the Claimant. In effect the judge seems to have applied, despite saying that he was not doing so, a quite different test. He seems to have concentrated on the horror of the occasion and the foreseeability of psychiatric injury.

Jones v Ramshaw has similarities with Galli-Atkinson v. Seghal [2003] EWCA Civ 697. In that case the Defendant's car mounted the pavement and struck and seriously injured a 16 year old girl who was walking to a ballet class. Despite efforts by a paramedic and subsequently a doctor to save her, the girl died. About half an hour later, her mother, the Claimant, came to the edge of the Police cordon and was informed for the first time that her daughter had been involved in an accident and was dead. The Claimant became hysterical and collapsed. About an hour later, the Claimant cradled her daughter's body in the mortuary. The Court of Appeal held that the Claimant was entitled to recover damages for her psychiatric injury, since it was sustained as a result of "shock" in reaction to the sight of the cordon, what she was told there, and the visit to the mortuary, all of which constituted a single incident and its immediate aftermath.

Again, the unfairness of the decision in Taylorson when contrasted with Galli-Atkinson does indicate that the courts are taking a more lenient approach now to the control criteria.

Where the courts are retaining a degree of inflexibility is in respect of the horrifying event having to be the tortious event complained of. White v Lidl (above) is one such example. The most recent example is Taylor v A Novo [2013] P.I.Q.R. P15, which is the first Court of Appeal case on secondary victims for ten years; interestingly, it does not deal with the usual issues which arise in these cases but instead looks at what constitutes the tortious/horrifying event.

The claimant was the daughter of a woman who sustained injuries when a stack of racking boards fell on her at work. The claimant was not present at the accident but was present at her mother’s death some three weeks later and suffered PTSD as a result. The cause of death was an embolism, a result of the injuries sustained in the accident. The argument on appeal was whether the relevant shocking event was the death or the original negligent accident and it was held that the relevant event was the latter. There was no question of it being one long drawn-out seamless tale but it was in fact two separate events. The Court of Appeal commented that if the claimant had been present at the accident and suffered PTSD then she would have been able to recover as a secondary victim. However, if she arrived shortly after the accident, outwith the immediate aftermath, her claim would fail. Accordingly, it could not be correct that she could recover for PTSD caused by the death some three weeks later as that would allow claimants to recover damages for witnessing the consequence of a negligent act potentially years later.

Perhaps a contrasting decision with this thinking is the earlier case of Froggatt v. Chesterfield & North Derbyshire Royal Hospital NHS Trust 2002 EWHC 3027, a hospital negligently misdiagnosed a woman's benign cyst as breast cancer. Her son sustained psychiatric injury as a result of overhearing his mother telling a friend on the telephone that she had cancer. The woman then had a mastectomy, and her husband sustained psychiatric injury as a result of seeing her for the first time without a breast. Forbes J allowed both the claims. It is however difficult to see how either the father or son were close in time and space to the negligent act i.e. the giving of the misdiagnosis.

Criterion 5: Dearness

This requirement has of course been tested and in particular in the Hillsborough cases. Although relatives will usually be the category of persons who will recover, a mere blood tie is not enough to satisfy the test; cogent evidence is needed to show love and affection.

A particularly unsatisfactory caseisFarrell v. Avon H.A 08/03/2001. The Claimant had sex with a woman on one occasion. He had no continuing relationship with her. She became pregnant. When she gave birth she telephoned the claimant to tell him that their baby was not well. The claimant went to the hospital immediately and was told that his baby had died. He held the dead baby. In fact, there had been a mix-up and he had been given the wrong baby; his baby had not died and he was told this good news a few minutes later. He spent a few minutes with his own baby and then left never troubling to see him again. He developed a psychiatric injury and claimed for it successfully.

Had he been a secondary victim, say if his child had actually died, there was no way he could have succeeded in proving a close tie of love and affection. However, the trial judge concluded that he must be a primary victim because there was no other primary victim. He found that the Claimant was involved directly and immediately in the incident.

So where are we now?

The general approach taken by the courts now is to apply the control criteria far less rigidly. There is a suggestion amongst academic lawyers that the English courts would do well to follow the approach taken in Australia (for example, see Annetts v. Australia Propriety and Tame v. The State of New South Wales[2002] HCA 35 (5^th Sept 2002).) The Australian courts have largely abandoned the control criteria and simply look at whether it was reasonably foreseeable that a person of ordinary fortitude would suffer psychiatric injury as a result of a defendant’s negligence.

Lord Justice Denning in King v Phillips [1953] 1 QB suggested that what the courts were doing was drawing lines “where in the particular case the good sense of the judge decides”. That seems to apply as much today as it did in 1953.

Vanessa Cashman
12 King's Bench Walk

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