Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent)

LORD LEGGATT AND LADY ROSE (with whom Lord Briggs, Lord Sales and Lord Richards agree):

1. Introduction

1. We all die and, when we do, the fact or manner of our deaths may cause harm to other people. Often such harm is readily foreseeable. We all know that the death of someone’s child, or of their partner, or of a young child’s parent, will cause grief and suffering and can have prolonged and profound effects on physical and mental health. Death may also have damaging, even ruinous, financial consequences for family members or others who were dependent economically on the deceased.

1. Under the common law the rule was that “in a civil court, the death of a human being could not be complained of as an injury” by another person: Baker v Bolton (1808) 1 Camp 493 (Lord Ellenborough); Admiralty Comrs v SS Amerika [1917] AC 38. This is still the general rule. The same rule applies where the victim does not die but is severely injured. Essentially, the common law does not recognise one person as having any legally compensable interest in the physical well-being of another. The law affords compensation to the victim but not to others who suffer harm in consequence of the victim’s injuries or death, however severely affected they may be: see eg D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373, paras 102-105.

1. There is a statutory exception, introduced by the Fatal Accidents Act 1846 (9 & 19 Vict c 93) and now contained in the Fatal Accidents Act 1976, which gives certain dependants of a person whose death is caused by a wrongful act, neglect or default the right to sue and recover damages from the person who (if death had not ensued) would have been liable to the deceased. Originally such damages were only recoverable to compensate dependants for financial loss resulting from the death. Since 1991, when a new provision was added to the 1976 Act, a spouse or partner or parents (if the child was an unmarried minor) of the deceased can recover damages for bereavement whether or not they were dependent on the deceased; but these damages are limited to a fixed sum (currently £15,120). No remedy under that Act is otherwise available for physical or psychological harm caused to relatives or others by the death.

1. There is a further limited category of cases, recognised by the common law, in which damages may be recovered for personal injury consequent on the death or injury of another person. In these cases, it is not the death or injury of that person itself or the defendant’s responsibility for it which gives rise to the claim but the fact that the claimant has witnessed the wrongful death or injury (or threat of such death or injury) to someone they love. The scope of this category of cases is the subject of these appeals, and we will need to consider it in detail. But it certainly includes cases where the claimant suffers personal injury (typically, but not limited to, psychiatric illness) as a result of witnessing an accident in which a close relative is killed or injured (or put in peril of death or injury) as a result of the defendant’s negligent act or omission.

1. The key issue raised by these appeals is whether this exceptional category of case includes - or can and should be extended to include - cases where the claimant’s injury is caused by witnessing the death or injury of a close relative, not in an accident, but from a medical condition which the defendant has negligently failed to diagnose and treat.

1. Each of the three cases under appeal involves such a claim. In two of the cases (Paul and Polmear), the claimants were present when their father (in the case of Paul) or their young daughter (in the case of Polmear) died in shocking circumstances. In the third case (Purchase), the claimant came upon her daughter in such circumstances a few minutes after her death. In each case it is the claimants’ case that the death was caused by the negligence of the defendant doctor or health authority in failing to diagnose and treat a life-threatening medical condition from which the deceased was suffering. The claimants contend that the defendant is not only responsible for the death of the person whose life was lost but is also liable to compensate them for psychiatric illness caused by their experience of witnessing the death (or its immediate aftermath).

1. In each case the defendant has applied to strike out the claim on the ground that as a matter of law it cannot succeed. The question on these appeals is whether that is so or not.

1. The facts

1. We will summarise shortly the material facts alleged by the claimants in their particulars of claim in each case. No facts have yet been proved by evidence in court. But for the purpose of deciding whether the claims are capable in law of succeeding it is necessary to assume that the facts alleged, in so far as they are not admitted, will be proved to be true.

Paul

1. On 26 January 2014, while out shopping with his two daughters, aged 9 and 12, Mr Paul suffered a cardiac arrest and collapsed in the street. His daughters saw him fall backwards and hit his head on the pavement. They tried to call their mother on their mobile phones and to call an ambulance, which was eventually called by a passer-by. When their mother arrived, the daughters were taken to a nearby church. They heard their mother screaming their father’s name. They came out and saw an ambulance crew put a foil blanket over their father and paramedics performing chest compressions on him. Mr Paul was taken by ambulance to hospital but was declared dead on arrival.

1. In this action Mr Paul’s daughters are each claiming damages for psychiatric illness allegedly caused by witnessing these events.

1. It is agreed that Mr Paul’s heart attack and death were caused by occlusion of a coronary artery due to atherosclerosis. Some 14 months earlier, on 9 November 2012, he had been admitted to the defendant’s hospital complaining of chest and jaw pain. He was treated for acute coronary symptoms and discharged on 12 November 2012. The claimants allege that the defendant was negligent in failing to arrange coronary angiography during Mr Paul’s admission to hospital and that, had this been performed, it would have revealed significant coronary artery disease which would have been successfully treated by coronary revascularisation, in which case he would not have collapsed and died when he did.

Polmear

1. In August and September 2014 Esmee Polmear, then aged six, was seen by her GP with a history of strange episodes during which she could not breathe, appeared pale and turned blue after a few minutes. She was referred to a paediatrician at the defendant’s hospital who saw her on 1 December 2014. In January 2015 some tests were carried out, but the consultant paediatrician wrongly concluded that Esmee’s symptoms were likely to be related to exertion and failed to diagnose that they were caused by pulmonary veno-occlusive disease. The defendant admits that Esmee’s condition should have been diagnosed by mid-January 2015.

1. On 1 July 2015 Esmee died from effects of this disease in distressing circumstances. Her parents, who are the claimants in this case, were present when she died. Because she had felt unwell her father had agreed to meet Esmee at the beach where she was supposed to be taking part on a school trip, to take her back to school if required. When he arrived, he found Esmee with a teacher and another pupil looking tired, pale and breathless. Esmee wanted to sit down but was encouraged to try to walk back to the school. At one point she stopped and vomited. She had to keep stopping to rest and her father then had to carry her. Her father left Esmee at the door of the school but shortly afterwards was called back and found her lying on the floor with a member of staff administering first aid. He took over and tried to give Esmee mouth-to-mouth resuscitation. She was not breathing. Esmee’s mother ran to the school and saw her lying on the floor with members of staff attempting resuscitation which she could see was not working. Paramedics arrived and also tried unsuccessfully to revive Esmee. Both parents went with Esmee in an ambulance to hospital where she was declared dead.

1. Esmee’s parents are each claiming damages for post-traumatic stress disorder and major depression developed as a result of their experiences on 1 July 2015. It is their case that with proper diagnosis and management Esmee would not have collapsed and died on that day.

Purchase

1. Evelyn Purchase died on 7 April 2013 at the age of 20 from severe pneumonia. Three days before, having been unwell for several weeks and having made two previous visits to her GP, Evelyn attended the out-of-hours clinic with her mother. She was examined by the defendant, Dr Ahmed. Evelyn had difficulty walking into the clinic as a result of weakness, dizziness and difficulty in breathing, which was rapid, shallow and noisy. Dr Ahmed failed to diagnose her condition and sent her home with a prescription for antibiotics and an antidepressant.

1. Evelyn’s condition did not improve and on 6 April 2013 she was also complaining of heart palpitations. That evening her mother attended a pre-planned event in London with her younger daughter. She returned home at 4.50 am on 7 April 2013 and found Evelyn lying motionless on her bed with the house telephone in her hand, staring at the ceiling and not moving. Her skin was slightly warm and she looked alive but was not moving or blinking. The younger daughter called 999 and the family were advised to give Evelyn cardiopulmonary resuscitation. When the mother opened Evelyn’s mouth to attempt mouth-to-mouth resuscitation, blood and bodily fluids spilled out of the mouth and nose. When paramedics arrived, their attempts at resuscitation were also unsuccessful and Evelyn was declared dead.

1. Evelyn’s mother realised that she had a missed call and a voice message from Evelyn on her mobile phone. The voice message was the sound of Evelyn’s dying breaths which continued for four minutes and 37 seconds. The call was timed at 4.40 am and ended approximately five minutes before her mother got home and saw Evelyn.

1. As a result of these events, Evelyn’s mother has developed post-traumatic stress disorder and severe chronic anxiety and depression for which she is claiming damages. It is her case that her daughter’s death was caused by the defendant’s negligent failure to diagnose and treat Evelyn’s symptoms when he examined her on 4 April 2013.

1. The proceedings

1. In the case of Paul the claims of Mr Paul’s daughters for damages for psychiatric injury were struck out by Master Cook ([2019] EWHC 2893 (QB), [2020] PIQR P5), but an appeal to the judge (Chamberlain J) was allowed: [2020] EWHC 1415 (QB), [2020] PIQR P19. Following Chamberlain J’s decision in Paul, Master Cook refused the defendant’s application to strike out the parents’ claim in Polmear: [2021] EWHC 196 (QB). In Purchase the mother’s claim, brought in the county court, was struck out shortly before Chamberlain J’s judgment in Paul was handed down.

1. The Court of Appeal heard and decided appeals in all three cases together: [2022] EWCA Civ 12, [2023] QB 149. They regarded themselves as bound by an earlier Court of Appeal decision in Taylor v A Novo (UK) Ltd[2013] EWCA Civ 194, [2014] QB 150 to conclude that the claims for damages for psychiatric injury made in these cases cannot succeed. However, both Sir Geoffrey Vos MR, who gave the leading judgment, and Underhill LJ, who gave a short concurring judgment, expressed reservations about whether the earlier case was correctly decided and indicated that, if the point had been free from authority, they would probably have reached a different outcome. Nicola Davies LJ agreed with both judgments. The Court of Appeal itself granted permission to the claimants to appeal to the Supreme Court to enable this court to consider the important issues that arise in these cases.

1. The issues

1. Under the common law a doctor responsible for providing medical care to a patient owes a duty to the patient to exercise reasonable skill and care to protect the patient’s life and health. If the patient suffers physical or psychiatric injury of a kind which the exercise of such care should have prevented, the doctor is liable to pay damages to compensate the patient for the injury. If the patient dies, such a claim can be pursued by the patient’s personal representative(s) for the benefit of his or her estate.

1. It is not in dispute that such claims can be made in these cases. The claims in issue, however, are not claims made on behalf of the person who died for the harm suffered by that person. They are claims brought by close relatives of that person for harm which those relatives have suffered as a result of witnessing the person’s death (or its immediate aftermath). The critical question on which the validity of the claims depends is whether a doctor, in providing medical services to a patient, not only owes a duty to the patient to take care to protect the patient from harm but also owes a duty to close members of the patient’s family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor’s negligence. (We should make it clear that nothing turns for this purpose on whether the negligence consists in an act or an omission).

1. There are two ways of approaching this question. One is by considering the basic legal principles which determine the scope of the duty of care owed by a doctor and the persons to whom this duty is owed. The other approach is to examine the cases in which courts have previously decided whether damages could be recovered by claimants who suffered injury in connection with the death or injury of another person. Historically, the leading cases have involved accidents (mostly road traffic accidents). The question then is whether the rules which have been developed in those cases either apply already or can by a permissible incremental development of the common law be extended to apply to claims of the present kind arising in the field of medical negligence.

1. In arguing these appeals counsel for the claimants focused on the latter approach. Although invited to address the existence of a duty of care in terms of the general principles which apply to doctors, they submitted that it is unnecessary to do so because the relevant requirements for claims of the present kind have been established by case law. That can indeed be said - and has not been disputed on these appeals - as regards claims arising from accidents, using that term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means. But a critical question raised by these appeals is whether or not the rules developed in relation to accidents apply where, as a result of negligence of a doctor, a person dies or manifests injury from an illness which proper treatment would have prevented. We do not think that this question can be answered satisfactorily without considering the general principles that determine when a doctor owes a duty of care to someone other than their patient.

1. As it reflects the way in which the appeals were presented, we will start by examining the case law directly concerned with claims for damages for personal injury suffered in connection with the death, injury or imperilment of another person. We will then test our provisional conclusions by reference to the general principles which determine when a doctor who assumes responsibility for providing medical services to a patient owes a duty of care to prevent harm to a third party.

1. The evolution of claims for psychiatric illness: McLoughlin, Alcock and Frost

1. Three decisions of the House of Lords have largely set the requirements under the common law of England and Wales for a successful claim by someone who suffers psychiatric illness in connection with the death or injury of another person. They are McLoughlin v O’Brian [1983] 1 AC 410 (“McLoughlin”), Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (“Alcock”) and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 (“Frost”).

Earlier cases

1. It is unnecessary for the purpose of deciding these appeals to trace in any detail the prior history of how claims for psychiatric illness were approached in English law. Here a very brief overview is all that is needed. Liability for “mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock” was rejected entirely by the Privy Council in 1888 in Victorian Railways Comrs v Coultas (1888) 13 App Cas 222, 225 (“Coultas”), a case where the claimant became ill following the terrifying experience of a near collision with a train on a level crossing. In Dulieu v White & Sons [1901] 2 KB 669, however, a Divisional Court held that a claim alleging personal injury caused when the defendants’ pair-horse van was driven negligently into a public house where the claimant was working behind the bar stated a good cause of action for damages. In Hambrook v Stokes Brothers [1925] 1 KB 141 a majority of the Court of Appeal held that the principle extended to a case where the claimant suffered injury (and died) from shock caused by fear, not for herself, but for the safety of her children. However, in Bourhill v Young [1943] AC 92 the House of Lords held that the claimant could not recover for injury suffered when a motorcyclist negligently collided with a car and was killed. The claimant heard but could not see the collision from where she was standing and neither she nor anyone she knew was endangered.

1. Some preliminary points may be made about this line of cases. First, in none of them was it treated as material whether the injury for which compensation was claimed was psychological or physical (in so far as any clear distinction can be drawn). Thus, in Coultas the claim failed although the symptoms suffered by the claimant included physical symptoms (such as impaired eyesight). In Dulieu the nature of the harm alleged was that the claimant became “seriously ill” and gave birth prematurely. In Hambrook the claimant suffered a severe haemorrhage and died as a result of her experience. In Bourhill v Young the injuries allegedly sustained included injury to the claimant’s back and giving birth to a child which was stillborn. Physical as well as psychological harm, therefore, was alleged in these cases. It was not suggested that the legal rules applicable depended on the nature of the injuries for which compensation was claimed.

1. In so far as a distinction has been drawn between physical and psychological injury, it has been based, not on the nature of the claimant’s symptoms, but on the mechanism by which injury has been caused. The argument accepted in Coultas was that “no cause of action was disclosed by [the statement of claim], as it was not stated that either the plaintiffs or their property were struck or touched by the train of the defendants; and, further, that the alleged damage arising from shock or fright, without impact, was too remote to sustain the action”: (1888) 13 App Cas 222, 224. It was the notion that damages could be recovered only for injuries caused by physical impact which was rejected in later cases. In Bourhill v Young Lord Macmillan observed that the “crude view” that the law should take cognisance only of injury resulting from physical impact had been discarded and that “it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact”: [1943] AC 92, 103.

1. In Hinz v Berry [1970] 2 QB 40, 42, Lord Denning MR was able to say that it had been settled “for these last 25 years” that damages could be recovered for injuries caused by the sight of an accident, at any rate to a close relative. The only dispute in that case, where the claimant saw her husband killed and children injured by a car that careered off the road into their family picnic, was about whether the amount of damages awarded by the judge was excessive.

Requirement of a recognisable psychiatric illness

1. An expert psychiatrist who gave evidence in Hinz v Berry described the claimant’s injuries brought about by witnessing the accident as a “recognisable psychiatric illness” (p 46C), and Lord Denning MR adopted that expression in saying that, although in English law no damages are awarded for grief or sorrow caused by a person’s death, damages are recoverable for “any recognisable psychiatric illness” (p 42H). In later cases proof of a medically “recognisable” or “recognised” psychiatric illness has been treated as a requirement for a successful claim: see eg Page v Smith [1996] AC 155, 167C-D, 171B, 189G, 197H; Frost [1999] 2 AC 455, 469B, 491F-H. The requirement has been criticised by some commentators: eg Rachael Mulheron, “Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012) 32 OJLS 77; Jyoti Ahuja, “Liability for Psychological and Psychiatric Harm: The Road to Recovery” (2015) 23 Med L Rev 27. But even critics recognise the need for a requirement that some threshold level of psychological harm must be exceeded to justify an award of damages.

1. There is no challenge on these appeals to the requirement to show a medically recognisable psychiatric illness nor as to whether the requirement is met in the present cases. It is an agreed fact that each of the claimants is suffering from a medically recognised psychiatric illness.

McLoughlin

1. The first of the three leading cases which set the relevant limits of recovery under the current law is McLoughlin, where the issuewas whether a claimant who was not present at the scene of a road accident but saw injuries caused to members of her family shortly afterwards could recover damages. Mrs McLoughlin was at her home about two miles away when the car in which her husband and children were travelling was involved in a collision caused by the defendant’s negligence. On learning of the accident from a neighbour an hour or so after it happened, she went immediately to the hospital where she was told that her daughter was dead. She saw her husband and other children injured and in distress and grimy with dirt and oil. The symptoms from which Mrs McLoughlin suffered were both physical and psychological and included “recurrent headaches, irritability, coughs, loss of voice, loss of appetite, poor sleeping, depression and fatigue, lapse of memory and loss of concentration, an irrational fear of the unknown, and perpetual myoclonus of the left orbital muscles”: [1981] QB 599, 602H.

1. The House of Lords held unanimously that she was entitled to recover compensation for her injuries. Their reasons differed but it is the speech of Lord Wilberforce which was subsequently regarded in Alcock as stating the ratio of the case. The essence of his reasoning was that it would be arbitrary and unjust to draw a line between a person who was present when her husband and children were seriously injured in an accident and a claimant such as Mrs McLoughlin who was a short distance away, immediately rushed to the scene and came upon its aftermath. At the same time Lord Wilberforce acknowledged that allowing the claim was “upon the margin of what the process of logical progression would allow”: [1983] AC 410, 419G.

1. In considering the need to draw a line, Lord Wilberforce said it was important to bear policy arguments in mind. He identified four arguments against a wider extension of claims for “nervous shock”: (1) the risk of a proliferation of claims, including fraudulent claims; (2) the imposition of a burden on defendants out of proportion to the negligent conduct complained of; (3) greatly increased evidentiary difficulties which would lengthen litigation; and (4) that an extension of liability ought only to be made by the legislature, after careful research. He concluded that, just because “shock” in its nature is capable of affecting so wide a range of people, there remains “a real need for the law to place some limitation upon the extent of admissible claims” (pp 421H-422A).

1. Lord Wilberforce identified three elements inherent in any claim which had to be considered to keep the liability of the defendant within reasonable bounds: (1) the class of persons whose claims should be recognised; (2) the proximity of such persons to the accident; and (3) the means by which their injury was caused. He observed that the class of persons clearly included those such as Mrs McLoughlin with the closest of family ties - parent and child or husband and wife. Other cases involving less close relationships “must be very carefully scrutinised”, though Lord Wilberforce would not say they should never be admitted. As regards proximity to the accident, it was “obvious that this must be close in both time and space” but to include someone who, from close proximity, comes upon the “aftermath” was “correct and indeed inescapable”. Lord Wilberforce approved, at p 422E, a statement by Lush J in the Supreme Court of Victoria in Benson v Lee [1972] VR 879, 880, that allowing recovery in such a case is based, soundly, upon:

   “direct perception of some of the events which go to make up the accident as an entire event, and this includes … the immediate aftermath ...”

1. Lastly, as regards the means by which injury is caused to the claimant, Lord Wilberforce noted that communication of the news by a third party had never been regarded as sufficient and commented that “this is surely right”. He said, at p 423A:

   “The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, eg through simultaneous television, would suffice may have to be considered.”

Alcock

1. These limits on recovery were considered in depth by the House of Lords in Alcock. The claims in Alcock arose out of the disaster in which 95 people were crushed to death and over 400 more sustained injuries as a result of severe overcrowding in the Hillsborough football stadium. The Chief Constable of South Yorkshire, who was responsible for the policing of the match, admitted liability in negligence for the deaths and physical injuries. Of the ten claimants whose appeals were heard by the House of Lords, all had relatives who were killed in the disaster. Two of the claimants had been present at the ground; the others either saw the disaster unfold on live television or (in two cases) watched recorded television later. At least three of the claimants went to the mortuary to identify the body of their relative.

1. The House of Lords unanimously held that none of the claimants was entitled to succeed. Four of the five members of the appellate committee separately expressed their reasons for the decision. However, it is the speech of Lord Oliver of Aylmerton to which reference has most often been made in later cases and which was the main focus of the submissions made about Alcock on these appeals.

1. Lord Oliver’s speech is the genesis of a distinction drawn in the case law between “primary” and “secondary” victims. He divided the cases into two broad categories, namely, “those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others”: [1992] 1 AC 310, 407. He described claimants in the latter category as “secondary victims” (p 411A) and used the term “primary victim” to refer to the person whose injury is witnessed by the claimant in such a case (p 410A). Lord Keith of Kinkel drew a similar distinction when he described the injuries suffered by the claimants in Alcock as “a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person” (p 396G).

1. The focus in Alcock was on the requirements which must be satisfied for a claim by a secondary victim to succeed. Lord Oliver began by identifying the common features of all the reported cases in which such claims had previously succeeded (p 411F-H). These were:

   Lord Oliver considered that it must be “from these elements that the essential requirement of proximity is to be deduced” (p 411H).

   “… first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff’s perception of it combined with a close relationship of affection between the plaintiff and the primary victim.”

1. Lord Oliver did not suggest that the elements which he identified should be regarded as fixing rigid lines of demarcation between claims which can or cannot succeed. In particular, he saw no logic or policy reason for requiring a marital or parental relationship between the claimant and the primary victim and for precluding recovery in other cases where a sufficiently close relationship in terms of love and affection is present. But equally he considered that “further pragmatic extensions of the accepted concepts of what constitutes proximity must be approached with the greatest caution” (p 417F).

1. Of the two claimants who were present at the ground, one lost two brothers in the disaster and the other lost his brother-in-law. Their claims failed because a sufficiently close tie of love and affection with the deceased could not be presumed from their family relationship and had not been proved by evidence. Claimants who had seen their son’s body in the mortuary after the disaster for the purpose of identification were held not to come within the scope of the “aftermath” of the disaster. Claims based on seeing the disaster on television failed because the televised images of the unfolding tragedy (which did not depict the suffering of recognisable individuals) could not be treated as equivalent to being present at the stadium.

Frost

1. The third of this trilogy of cases, Frost, also arose out of the Hillsborough disaster. The issue was whether police officers who were present at the stadium and who suffered psychiatric illness could recover compensation. It was common ground that they could not do so if their claims had to satisfy the requirements for claims by secondary victims established by the decision in Alcock.

1. The members of the House of Lords were substantially agreed about what those requirements were. Lord Steyn stated them, at p 496D-E, as being:

   1. that [the claimant] had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person.”

Lord Hoffmann summarised the requirements, at p 502G-H, in very similar terms as follows:

Lord Goff of Chieveley gave a similar summary of the requirements (p 472E). Lord Griffiths adopted Lord Hoffmann’s summary (p 462G-H), and Lord Browne-Wilkinson agreed with the speeches of both Lord Steyn and Lord Hoffmann (p 462B-C).

1. None of the claimants in Frost (who were present at the stadium in their capacity as police officers) satisfied these requirements as none of them had a close tie of love and affection with any of those killed or physically injured. They argued, however, that the Alcock requirements did not apply to them, either because the Chief Constable was in breach of a duty of care owed to them as their employer or because they were not bystanders or spectators but rescuers involved as participants in the disaster and, as such, fell within Lord Oliver’s description of primary victims. A majority of the House of Lords rejected both arguments for reasons given by Lord Steyn and Lord Hoffmann, with which Lord Browne-Wilkinson agreed. They held, in particular, that the category of primary victims is limited to persons exposed (or who perceived themselves to be exposed) to physical danger and for that reason did not include the claimants.

1. Lord Steyn referred to policy considerations. He identified what he saw as four distinctive features of claims for psychiatric harm which in combination may account for treating them differently from claims for physical injury (pp 493F-494E). In summary these were: (1) the complexity of drawing the line between acute grief and psychiatric harm; (2) concern that greater availability of compensation and consequent litigation would act as an unconscious disincentive to recovery; (3) concern that relaxing the restrictions on recovery would greatly increase the class of persons who can recover damages in tort; and (4) concern to avoid imposing a burden of liability on defendants which is disproportionate to their fault.

1. With the exception of the last point, which was also made by Lord Wilberforce in McLoughlin, we would not ourselves give significant weight to these considerations. We in any case do not accept the premise that, aside from the requirement to show a medically recognised psychiatric illness, there are different rules for the recovery of compensation for psychiatric harm and physical injury. Lord Steyn referred to the rule that “bystanders at tragic events, even if they suffer foreseeable psychiatric harm, are not entitled to recover damages” (p 493A). As we have indicated, we do not consider that there is such a special rule restricting compensation for psychiatric harm. Rather, the inability of bystanders to recover damages even where they suffer foreseeable harm (of any kind) is a consequence of the general rule that the law does not grant remedies for the effects - whether psychological, physical or financial - of the death or injury of another person.

1. A point of general importance, which was critical to the decision in Frost, is the need in defining the limits on the recovery of damages by secondary victims to avoid distinctions which would offend most people’s sense of justice. In McLoughlin that concern had persuaded the House of Lords to extend the class of eligible claimants to close relatives who did not see or hear an accident but came upon its aftermath. In Frost such reasoning operated in the opposite direction. The majority was unwilling to uphold the claims of the police officers when the claims of bereaved relatives had been rejected in Alcock: see [1999] 2 AC 455, 499H (Lord Steyn) and 510E-F (Lord Hoffmann). Lord Hoffmann said that such differential treatment would be “unacceptable to the ordinary person” because:

   “[such a person] would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury … while the bereaved relatives are sent away with nothing.”

Matters not in issue on these appeals

1. In case it was necessary to decide whether to depart from any of these decisions of the House of Lords, in particular Alcock, these appeals have been heard by a panel of seven Justices. But in the event none of the parties has urged us to depart from any earlier decision reached at this appellate level. The claimants have based their submissions squarely on the existing case law. They argue that allowing recovery in the present cases either follows from or is at any rate consistent with what has previously been decided by the House of Lords.

1. A feature of the law as it has evolved is the distinction between “primary” and “secondary” victims: see para 40 above. Precisely how the distinction is or should be drawn, if at all, potentially raises difficult questions: see eg the Law Commission Report on Liability for Psychiatric Illness (1998) (Law Com No 249), paras 5.52, 5.54; Harvey Teff, “Liability for negligently inflicted psychiatric harm: justifications and boundaries” (1998) 57 CLJ 91; Chris Hilson, “Liability for psychiatric injury: primary and secondary victims revisited” (2002) 18 PN 167. In W v Essex County Council [2001] 2 AC 592, 601, the House of Lords expressed the view that the concept is still to be developed in different factual situations. But it is not an issue on these appeals. It is common ground that the claimants are to be classified as “secondary victims”. The essential point is that the harm for which they are claiming compensation in each case is harm brought about indirectly by injury caused to another person.

Relevance of McLoughlin, Alcock and Frost to non-accident cases

1. McLoughlin, Alcock and Frost,like the earlier authorities discussed in those cases, all involved injuries to the primary victim sustained as a result of an accident. In McLoughlin the relevant event was a road accident, which is perhaps the paradigm. In Alcock and Frost the event was on a scale so large that it is more naturally described as a “disaster”, but nothing turns on that linguistic difference. In each case the event was not “accidental” in the sense that no one was to blame for it since it was caused by the defendant’s negligence; but it was an “accident” in the sense already mentioned that it was an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims.

1. That is not the usual situation in medical negligence cases such as those under appeal. In these cases, the event (or its aftermath) witnessed by the secondary victim is generally not an accident; it is the suffering or death of their relative from illness. As a shorthand and without intending it to be a term of art, we will refer to such an event as a “medical crisis”. The question raised by these appeals is whether witnessing a negligently caused medical crisis (or its aftermath) can in principle found a claim for damages by a secondary victim or whether such a claim can lie only where the triggering event is an accident in the sense we have described.

1. Counsel for the claimants have argued that this question is answered in their favour by the decision in Alcock. They highlight passages in the speeches which refer to liability arising where the claimant witnessed “the event of injury” to the primary victim (p 410H), or “the injury” suffered by the primary victim (p 411G), or simply “the event” (p 411G). They submit that this language is wide enough to encompass cases where the event is a medical crisis. We are unimpressed by this argument. For every passage in which expressions such as “the injury” or “the event” are used, another can be found referring to “the accident”. For example, in the passage quoted from Lord Oliver’s speech at para 41 above the third element identified is that the claimant “was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards”. The same ambiguity can be seen in Frost in the passages quoted at para 45 above, where in summarising the Alcock requirements Lord Hoffmann referred to the “accident” whereas Lord Steyn used the potentially broader term “incident”. The plain fact is that the question whether damages can in principle be recovered in a case where there is no accident did not arise in Alcock (or Frost) and was not considered by the House of Lords. In these circumstances it is fallacious to fasten selectively on particular forms of words used in various passages of the speeches and then deploy those quotations out of context in support of an argument which was not in the contemplation of the law lords and to which their reasoning was not addressed.

1. A similar point can be made about a passage in Lord Wilberforce’s speech in McLoughlin on which the claimants also seek to rely. Lord Wilberforce said, at p 421A-B:

   “We must then consider the policy arguments. In doing so we must bear in mind that cases of ‘nervous shock,’ and the possibility of claiming damages for it, are not necessarily confined to those arising out of accidents on public roads. To state, therefore, a rule that recoverable damages must be confined to persons on or near the highway is to state not a principle in itself, but only an example of a more general rule that recoverable damages must be confined to those within sight and sound of an event caused by negligence or, at least, to those in close, or very close, proximity to such a situation.”

1. We do not read this passage as asserting that any kind of event caused by negligence can give rise to a claim for damages. The point made by Lord Wilberforce was only that claims in which damages are recoverable “are not necessarily confined to those arising out of accidents on public roads”. That does not preclude a requirement that there must be an accident which need not be a road accident but might, for example, be a rail accident or an industrial accident (a type of event specifically mentioned by Lord Wilberforce at p 421D). All the cases discussed by Lord Wilberforce were cases that involved accidents and, once again, the question whether or when damages are recoverable in cases arising out of any other type of event was not in issue, was not the subject of any argument and was not addressed by Lord Wilberforce or any of the other law lords.

1. We would equally reject the opposite argument made on behalf of the defendants that the use of the word “accident” and the focus on accidents in these cases must mean that only an accident can be a qualifying event capable of giving rise to a claim for damages by a secondary victim. The defendants have submitted, for example, that, of the elements identified by Lord Oliver in Alcock in the passage quoted at para 41 above, the third (presence at the scene of the accident or its aftermath) would be otiose and subsumed by the fourth (direct perception of the death of or injury to the primary victim) if no accident was required and a medical crisis could be a qualifying event. We have already noted, however, that Lord Oliver’s list was a list of features found in the previous cases and was not intended to set the law in stone. Lord Oliver made it clear that he was “not dissenting from the case-by-case approach advocated by Lord Bridge” in McLoughlin (p 418C) but was seeking to steer a middle way between the two “extreme positions” of drawing rigid lines based on policy considerations and limiting recovery by reference to reasonable foreseeability of damage alone (pp 413H-415C).

1. We do not agree with Lord Hoffmann’s lament in Frost, at p 511B, that “in this area of the law, the search for principle was called off in Alcock”. Alcock, like the speech of Lord Wilberforce in McLoughlin, emphasised the need to set limits on the recovery of damages by secondary victims based on the concept of proximity and recognised that these limits are influenced by practical and policy considerations rather than purely analogical development of the law. But the common law strives for coherence and whenever a question arises as to whether or how what was decided in an earlier case should be applied in a different factual situation, it is always necessary to exercise judgment about whether the factual differences should be regarded as legally significant. Such a question arises here as to whether or how what was decided in McLoughlin, Alcock and Frost should be applied in cases where the event witnessed by the claimant is not an accident.

1. Cases of medical negligence

1. In the period of some 30 years since Alcock was decided by the House of Lords a number of claims made by secondary victims in medical negligence cases have come before the courts. But although there has been some discussion of whether damages can in principle be recovered in such cases in the absence of an accident caused by the defendant’s negligence, the question has never been examined in any depth or authoritatively decided.

Taylor v Somerset

1. The question was raised in a case decided shortly after Alcock. In Taylor v SomersetHealth Authority [1993] PIQR P262 the claimant’s husband suffered a heart attack at work and died after being taken to the defendant’s hospital. The claimant went to the hospital within the hour and was told of her husband’s death. She later went to the mortuary and saw his body. The defendant admitted that Mr Taylor’s death was caused by its clinical negligence in failing, many months earlier, to diagnose or treat his serious heart disease. It was also accepted that Mrs Taylor had developed a recognised psychiatric illness and that there was a causal link between what she witnessed and her illness.

1. This was a case, therefore, where the relevant event was a medical crisis. Auld J held that the claim failed for two reasons. The first was that “the test required some external, traumatic, event in the nature of an accident or violent happening” (p 267), and there had not been such an event. Rather, Mr Taylor’s death was the culmination of the natural process of heart disease. The second reason was that, even if her husband’s death could be regarded as a qualifying event, the doctor’s communication of it to the claimant at the hospital and her subsequent sight of her husband’s body in the mortuary did not come within the “aftermath” extension recognised in McLoughlin as an exception to the general rule that the claimant must have perceived the event as it happened. Although Mrs Taylor’s visit to the mortuary had occurred within an hour of Mr Taylor’s death, the judge found that its purpose was principally to settle the claimant’s disbelief in the fact of his death and that his body “bore no marks or signs to her of the sort that would have conjured up for her the circumstances of his fatal attack” (p 268). Mrs Taylor was therefore in a different position from the claimant in McLoughlin who came upon her injured and distressed husband and children in very much the same condition as they were at the scene of the accident.

Sion

1. The first of the reasons given by Auld J for rejecting the claim in Taylor v Somerset - that “some external, traumatic, event in the nature of an accident” was required - was doubted by Peter Gibson LJ in Sion v Hampstead Health Authority [1994] 5 Med LR 170 (“Sion”). The claimant in Sion was the father of a young man who was fatally injured in a motor-cycle accident. The defendant to the claim was not the person responsible for that accident, however, but the hospital which treated the victim for his injuries. It was alleged - and assumed for the purpose of an application to strike out the claim - that the hospital had negligently failed to diagnose substantial and continuing bleeding from the young man’s left kidney and that this had resulted in his death. The claimant, Mr Sion, sat by his son’s bedside for 14 days watching his gradual deterioration until he fell into a coma and died.

1. One issue was whether, for the claim to succeed, the claimant needed to prove that he had experienced a sudden shock. The Court of Appeal held that there was such a requirement and that, as the facts alleged did not disclose such a shock, the claim was doomed to fail. Peter Gibson LJ, however, also commented (obiter) on a submission based on Auld J’s judgment in Taylor v Somerset that Mr Sion’s claim could not succeed because the alleged breach of duty on which the claim was based did not involve a sudden and violent incident. He said, at p 176:

   “I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.”

Walters

1. A case strongly relied on by the present claimants and appellants is North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16 (“Walters”). Mrs Walters’ infant son died following two days of illness which she witnessed. The claimant was sleeping in the same room as her son in the defendant’s hospital when he suffered a major epileptic seizure leading to coma and irreparable brain damage. Appropriate treatment was delayed by a misdiagnosis. The baby was eventually transferred to a London hospital; but nothing could be done to save him and, approximately 36 hours after the seizure, he died in his mother’s arms once the life support machine was switched off.

1. The defendant admitted that the baby’s death was a result of its negligence. It was further agreed that the claimant had developed a recognised psychiatric illness. The trial judge held that the claimant was a secondary victim, and this finding was not challenged on appeal. The judge identified the essential issue as being whether what happened to cause the claimant’s illness constituted “a sudden appreciation by sight or sound of a horrifying event” as opposed to “an accumulation over a period of time of more gradual assaults on the nervous system”. The judge held that it did, as the entire 36-hour period could be regarded as one horrifying event for this purpose and the claimant's appreciation of the event was sudden within that temporal context. This decision was affirmed by the Court of Appeal.

1. In explaining his reasons for this conclusion, Ward LJ, with whom Clarke LJ and Sir Anthony Evans agreed, used phrases which have been relied on in later cases. He said, at para 35:

   “In my judgment on the facts of this case there was aninexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.” (emphasis added)

1. Having concluded by this reasoning that the claimant’s experience over a period of 36 hours was to be regarded as “one entire event”, the judgment then sought to explain how the claimant’s appreciation of this drawn-out event could be characterised as “sudden”. The explanation given was that an “entire event” can be made up of “one or more discrete events” (para 34) and that each of the three events which the claimant experienced were sudden and unexpected and “had their impact there and then” (para 42).

Shorter

1. In Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB), (2015) 144 BMLR 136 (“Shorter”) the claimant’s sister, Mrs Sharma, died in hospital from a subarachnoid haemorrhage caused by an aneurysm in a cerebral artery. She had negligently been released from hospital earlier because her brain scans were not properly assessed. The claimant’s pleaded case alleged that, starting with the news of the serious deterioration of her sister’s condition, she had experienced a “seamless single horrendous event” which ended with her sister’s death a day later and caused her to suffer from a psychiatric illness (para 8). The judge rejected that characterisation of the facts, finding that there had been no “seamless single horrifying event” similar to that experienced by the claimant in Walters but rather a series of events over a period of time. Only some of the individual events involved the claimant actually witnessing her sister’s condition and none of those could be regarded as an event which would be recognised as “horrifying” by a person of ordinary susceptibility, nor as sudden or unexpected (para 218). The claim was therefore dismissed.

Ronayne

1. In Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, [2015] PIQR P20 (“Ronayne”) the claimant’s wife underwent a hysterectomy and was readmitted to hospital a few days later with complications including septicaemia and peritonitis caused by the defendant’s negligence. Shortly before she underwent emergency surgery, Mr Ronayne saw his wife connected to various machines including drips and monitors. After surgery he saw her unconscious, connected to a ventilator and with antibiotics being administered intravenously. Her arms, legs and face were very swollen. She remained in intensive care in hospital for some nine weeks but eventually made a complete recovery. Mr Ronayne’s claim for damages for psychiatric illness caused by his experience succeeded at trial, but that decision was overturned on appeal.

1. Tomlinson LJ who gave the reasons of the Court of Appeal recorded, at para 8, that the appeal had concentrated on two interrelated points: (a) whether the events concerned were “in the necessary sense ‘horrifying’”; and (b) whether the sudden appreciation of the events caused the claimant’s psychiatric illness. He held, at paras 38-41, that there was no sudden appreciation of an event because the judge had been wrong to characterise what happened as one event. There was no “seamless tale” or “inexorable progression” as there had been in Walters. Rather, there was a series of events giving rise to an accumulation of gradual assaults on the claimant's mind as he came to realise that his wife’s life was in danger. At each stage, Mr Ronayne was conditioned for what he was about to perceive. There was nothing sudden or unexpected about being ushered in to see his wife and finding her connected to medical equipment before or after the operation. Nor were the events horrifying by objective standards, as they were not exceptional in nature.

Must the claimant experience a sudden shock?

1. Sion, Walters, Shorter and Ronayne were not cases in which there had been an external, traumatic, event in the nature of an accident caused by the defendant’s negligence. In none of these cases, however, did the court decide the question whether in principle the rules developed in accident cases ought to be applied. In the latter three cases this question was not even raised or mentioned: it was simply assumed that the same rules applied. Instead, the judgments in all these cases focused on whether it could be said that the claimant had suffered psychiatric illness because of a “sudden shock” or a “sudden appreciation of a horrifying event”.

1. Those phrases reflect language used in Alcock. Lord Oliver, at p 411F, identified as one of the features of all the reported cases that the injury “arose from the sudden and unexpected shock to the plaintiff’s nervous system”. Lord Ackner said, at p 401F, that:

   Those observations were no doubt true as descriptions of how historically the causation of psychiatric illness in accident cases was understood. The very term “nervous shock”, which was still commonly used in court proceedings when Alcock was decided, embodies such an understanding. The crude mechanical model which attributes psychiatric illness in such cases to an “assault on the nervous system” has, however, long since been discredited: see eg the criticism made in the Law Commission Report, para 5.29.

   “‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

1. The remarks of Lord Ackner and Lord Oliver quoted above were not necessary to the decision of the House of Lords in Alcock and we do not consider that those dicta establish an additional restriction on the recovery of damages by secondary victims nor that the law is tied to an outdated theory of the aetiology of psychiatric illness. The requirements established by the decision in Alcock were, in our view, accurately and authoritatively summarised in Frost (see para 45 above). They do not include a requirement that the claimant’s psychiatric injury must have been caused by a “sudden shock to the nervous system”. None of the law lords in Frost endorsed such a requirement and Lord Goff expressly stated, at p 489E-F, that “the nature of PTSD illustrates very clearly the need to abandon the requirement of nervous shock in these cases, and to concentrate on the requirement that the plaintiff should have suffered from a recognised psychiatric illness”.

1. With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced.

Must there be a “horrifying event”?

1. Lord Ackner’s description of “shock” in Alcock (quoted at para 72 above) has also given rise to a notion that, to succeed in a claim as a secondary victim, it is necessary to prove that the event perceived was “horrifying”. In Shorter and Ronayne Lord Ackner’s use of this word was elevated to the status of a formal requirement and treated as requiring the court to decide whether the relevant event was “horrifying by objective standards”. It is of course necessary for a claimant to show that it was reasonably foreseeable that the defendant’s negligence might cause her injury. If, for example, a claimant with a history of psychiatric illness develops such an illness after witnessing a minor accident in which his wife sustains some cuts and bruises, his claim might fail that test. But we can see no justification for super-imposing an additional, separate requirement that the event witnessed by the claimant was “horrifying”.

1. Although said to involve an “objective standard”, such a test is in truth unavoidably subjective. There is no available Richter scale of horror. The test pushes judges to compare the facts of the case before them with the facts of other cases and engage in an exercise of deciding whether or not the facts are similarly “horrifying”. As Tomlinson LJ put it in Ronayne, at para 15, the judge’s task is to “allocate to [the] case its appropriate place on the spectrum between circumstances which attract compensation and those which do not”.

1. A judge adopting this approach in the present cases would therefore have to ask the question: is Mrs Purchase’s experience of coming upon her daughter’s still warm but dead body at home and listening to her dying breaths in a voicemail message as horrifying as the experience of Mrs Walters waking up to find her baby having an epileptic fit and choking up blood? Or if the claimant seeing her sister lying in intensive care on the verge of death could not be regarded as a “horrifying event”, as the judge found in Shorter, how does that experience rank on the spectrum of horror with that of Saffron and Mya Paul seeing their father fall to the ground after suffering a fatal heart attack in the street? Such questions are invidious and not susceptible to any proper answer.

1. Again, this test is not one of the requirements established by Alcock and confirmed in Frost. In engrafting onto those requirements additional requirements of needing to prove that the claimant’s injury was caused by the mechanism of a “sudden shock to the nervous system” and was a sufficiently “horrifying event”, the law has in our opinion taken an unfortunate wrong turn which these appeals enable us to correct.

What counts as one event?

1. Another unsatisfactory development has been the emergence of a legal test of whether what the claimant witnessed should be regarded as one event or several separate events. This was viewed as the central issue in Walters, where the Court of Appeal managed to conclude that the whole period of 36 hours from the time when Mr Walters’ baby suffered an epileptic seizure to the time of his death was to be regarded as one event, although at the same time - supposedly without contradiction - this period could also be regarded as comprising a number of separate events some of which were sudden and unexpected. In the absence of any coherent test of what counts as one event, parties and judges in later cases have adopted phrases used by Ward LJ in Walters, at para 35,when he described what happened in that case from the moment when the epileptic fit occurred to when the baby died as “an inexorable progression” and “a seamless tale with an obvious beginning and an equally obvious end”. In Shorter (paras 8 and 218) and Ronayne (paras 35 and 36) these phrases were deployed as if they amounted to a legal test.

1. The phrases are vague and are not of much help. The phrase “inexorable progression” suggests that something had happened which made death inevitable (at least absent an early medical intervention). The reference to a “seamless tale” seems to reflect Mrs Walters’ subjective experience “both at the time and as subsequently recollected” (see the full passage quoted at para 66 above). Implicit in both phrases is a suggestion that what happened should be regarded as one event because it followed a dramatic arc which makes for a compelling story. Tomlinson LJ spelt this out in Ronayne, at para 35, when he said of the facts of Walters:

   We find it hard to see why the defendant’s legal liability should turn on the court’s impression of whether or not the facts of the case fit the dramatic pattern of a Greek tragedy.

   “The working out of the tragedy, with the raising of hopes, the journey up the motorway to London following in the wake of the ambulance, and the dashing of hopes and then their final destruction was almost Sophoclean in its seamlessness.”

1. The medical negligence cases treating the traumatic scenes witnessed over several days as themselves comprising an event founding liability appear also to have led to an extension of the aftermath of true accidents to a period far beyond what was contemplated by Lord Wilberforce in McLoughlin. It has created the separate problem which is not simply identifying when the aftermath finishes but also when the triggering event stops and its “aftermath” starts. Two cases illustrate the development, both of them road accident rather than medical negligence cases. In Taylorson v Shieldness Produce Ltd [1994] PIQR P329, the parents of a 14-year old boy who suffered serious head injuries in a road accident went to the hospital where he was being treated. The parents saw their son being rushed on a trolley into surgery and then sat by his bedside until the life support machine was switched off almost three days after the accident. The defendant was the employer of the driver whose negligence caused the accident. The Court of Appeal upheld the dismissal of the parents’ claims for damages for psychiatric illness on the grounds that they did not witness the accident or its immediate aftermath and also that their illnesses could not be attributed to one shocking event but “grew out of a whole sequence of events extending over an appreciable period of time” (P335).

1. By contrast in Galli-Atkinson v Seghal [2003] EWCA Civ 697,[2003] Lloyd’s Rep Med 285 (“Galli-Atkinson”), decided a few months after Walters, the claimant’s daughter was a pedestrian killed by the defendant’s negligent driving. About an hour later the claimant learnt that there had been an accident and went to the scene. The police did not allow her through the highway cordon so she did not see the crash site but she was told that her daughter was dead. Subsequently she went to the mortuary and saw her daughter’s body. Her claim against the defendant driver for damages for psychiatric injury was rejected by the judge on the ground that the claimant had not witnessed the road accident or its immediate aftermath. However, the claim succeeded on appeal. Relying on Walters, Latham LJ who gave the lead judgment held, at para 26, that the “immediate aftermath” extended from the moment of the accident until the moment the claimant left the mortuary. The trial judge had erred because he “artificially separated out the mortuary visit from what was an uninterrupted sequence of events.” In Galli-Atkinson, therefore, the theory derived from Walters that “an uninterrupted sequence of events” is capable of being characterised as one entire event was relied on to extend the concept of the “aftermath” to include the claimant’s visit to see her daughter’s body in the mortuary more than two hours after the accident in which her daughter was killed. The Court of Appeal sought to distinguish Alcock, where mortuary visits by relatives within hours of the Hillsborough disaster were held by the House of Lords not to fall within the scope of the aftermath, on the basis that the visit in Galli-Atkinson was made “not merely to identify the body” but “to complete the story” so far as the claimant was concerned. We cannot regard the claimant’s perceived motivation for seeing her daughter’s body as a satisfactory criterion for determining the defendant’s liability.

1. Taylor v A Novoand the reasoning of the courts below

1. Although not a medical negligence case, the decision of the Court of Appeal in Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, [2014] QB 150 (“Novo”) has featured prominently in the reasoning of the courts below and in the arguments on these appeals. The case therefore requires close scrutiny. The defendants rely on the decision, while the claimants invite us to distinguish or overrule it.

The facts and reasoning in Novo

1. The facts were that the claimant’s mother, Mrs Taylor, sustained injuries in an accident at work when a stack of racking boards fell on top of her. The defendant, her employer, admitted liability in negligence for the accident. Mrs Taylor was apparently recovering well when three weeks later she unexpectedly collapsed and died at home. Her death was caused by a pulmonary embolism resulting from a deep vein thrombosis which was itself due to injuries sustained in the accident. The claimant did not witness the accident, but she witnessed her mother’s death and as a result developed post-traumatic stress disorder. The defendant accepted that the claimant was a secondary victim who met all but one of the requirements to succeed as such. The sole defence was that she was not present at the scene of the accident or its immediate aftermath. The claim succeeded at trial. The judge held that the requirement of physical proximity was satisfied because Mrs Taylor’s collapse and death was a qualifying event at which her daughter was present.

1. This decision was reversed by the Court of Appeal. Lord Dyson MR, with whom Moore-Bick and Kitchin LJJ agreed, said that the use of the word “event” had a tendency to distract. There had been one accident, the falling of the stack of racking boards, with two consequences: the initial injuries to Mrs Taylor and her death three weeks later. To allow the claimant to recover as a secondary victim when she had not been in physical proximity to her mother at the time of the accident would be to go too far (para 29). This was for two reasons. The first was that this would mean that the claimant could have recovered damages even if her mother’s death had occurred months or possibly years after the accident. By contrast, if Mrs Taylor had died at the time of the accident and the claimant had suffered psychiatric illness as a result of coming on the scene shortly after what constitutes the “immediate aftermath”, damages could not have been recovered. The idea that the claimant could recover in the first of these situations but not in the second “would strike the ordinary reasonable person as unreasonable and indeed incomprehensible” (para 30).

1. The second reason was closely connected with the first, namely that to allow recovery would extend the scope of liability to secondary victims considerably further than in previous cases and policy reasons articulated by the House of Lords in Frost militated against any such extension.

1. As regards earlier authorities, Lord Dyson MR agreed with the decision of Auld J in Taylor v Somerset that the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case the relevant event is the accident. It is not a later consequence of the accident. Lord Dyson discounted the observations of Peter Gibson LJ in Sion as obiter dicta which were therefore not binding. And he distinguished Walters on the ground that the only question in that case was whether there was a single event and the question whether the death, when held to be a separate event from the sustaining of the injuries, was a relevant event for the purposes of a claim by a secondary victim had not been addressed.

The reasoning of the courts below

1. In his clearly reasoned judgment in Paul, Chamberlain J analysed the ratio of Novo as being that, in a case 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, however sudden or shocking that subsequent event may be”: [2020] EWHC 1415 (QB), [2020] PIQR P398, para 73 (emphasis in original). In Paul, there was only one pleaded event, namely, Mr Paul’s collapse and death from a heart attack, at which his daughters had been present. Unlike in Novo, there had been no previous “event” since the negligent failure to diagnose Mr Paul’s heart condition could not be described as an event akin to the racking boards falling onto Mrs Taylor. Chamberlain J concluded that Novo could be distinguished on this basis and was not a bar to recovery.

1. The Court of Appeal did not agree with this analysis. In their view Novo decided that a secondary victim cannot claim for psychiatric injury caused by witnessing a “horrific event” involving injury to the primary victim resulting from the defendant’s negligence if the horrific event is a separate event removed in time from the defendant’s negligence: [2022] EWCA Civ 12, [2023] QB 149, paras 12 and 96 (Sir Geoffrey Vos MR) and para 104 (Underhill LJ). In each of the present cases the horrific event witnessed by the claimant (the death of the primary victim or its immediate aftermath) occurred an appreciable time after the omissions which constituted the defendant’s negligence. The Court of Appeal therefore concluded that, as it is bound by its own previous decisions, it was bound by the decision in Novo to hold that the present claims cannot succeed.

What Novo decided

1. This court is not so bound, butwe agree with the Court of Appeal that the present claims cannot succeed unless we conclude that Novo was wrongly decided. We disagree, however, both with their interpretation and with that of Chamberlain J of what was decided in Novo. In our view, the analyses of both courts below share the common flaw that they treat Novo simply as a case in which there were two events, separated in time, in which injuries caused by the defendant’s negligence occurred or became manifest, and view the fact that there was an accident as if it were an incidental feature of the facts, not material to the decision. This ignores the insistence in the judgment of Lord Dyson MR that what mattered was not the number of “events” but the fact that there had been an accident. It also ignores his express endorsement of Auld J’s reasoning in Taylor v Somerset which identified as necessary conditions for the recovery of damages: (i) an external, traumatic, event which immediately causes injury or death to a primary victim; and (ii) direct perception of the event (or its immediate aftermath) by the claimant. The reason why the claim in Novo failed was that, although there was an external, traumatic, event (ie “an accident”) which immediately caused injury to Mrs Taylor, the claimant did not witness that event and the event which she did witness and which caused her psychiatric illness was not an accident. The proximity (or lack of it) of the claimant to an accident was therefore critical to the court’s reasoning.

1. In disagreement with the Court of Appeal, we do not read the judgment in Novo as suggesting that the length of time between the defendant’s negligent act or omission and the event witnessed by the claimant and which caused her psychiatric injury was a relevant factor. Lord Dyson MR did not doubt that, if the claimant had been in physical proximity to her mother at the time of the accident and had suffered psychiatric illness as a result of seeing the accident and the injuries sustained by her mother, she would have qualified as a secondary victim on established principles: see [2014] QB 150, paras 29 and 32. But, as Chamberlain J pointed out, Lord Dyson said nothing to suggest that the position would have been any different if the accident in which the stack of boards fell over onto Mrs Taylor had been caused by negligent stacking weeks or months before the accident occurred.

1. We agree with the Court of Appeal that Novo is authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate event removed in time from the accident. But we do not agree with the suggestion in paras 12 and 96 of the judgment that Novo decided anything about distance in time between the event which caused psychiatric injury and the original negligence.

1. More important, however, is that neither of the two alternative analyses canvassed by the courts below provides an acceptable justification for the outcome in that case, as they themselves recognised in their analysis of Novo.

Must the event be close in time to the negligent act or omission?

1. Although they considered themselves bound by Novo to apply such a test, the Court of Appeal could see no good reason why the gap in time (short or long) between the negligence and the horrific event caused by it should affect the defendant’s liability. Nor can we. Sir Geoffrey Vos MR postulated a case of a negligent architect who designs a door in a load-bearing wall without specifying an RSJ, causing masonry to fall on a primary victim’s head years later (paras 79-80). These facts are similar to those of the actual case of Clay v AJ Crump & Sons Ltd [1964] 1 QB 533, where an architect who was responsible for the safety of a building site negligently left a wall standing when a building was demolished. The architect was held liable to compensate a person working on the site who was injured when over two months later the wall collapsed. In agreement with the Court of Appeal, we see no reason why, in a case of this kind, the gap in time between the negligence and the accident should prevent a claim by a secondary victim when it does not prevent a claim by a primary victim. If, for example, a mother who was present and saw masonry fall on her child’s head suffered psychiatric injury, her ability to make a claim cannot rationally depend on the length of time between the negligence and the accident.

1. Typically in accident cases, the accident and the defendant’s negligent act or omission which caused the accident occur at much the same time. That is almost inevitably so in cases such as McLoughlin involving road accidents. We agree, however, with Chamberlain J that there is nothing in any of the House of Lords authorities to suggest that the right to recover damages for personal injury caused by witnessing a person’s death or injury in an accident is affected by the length of time between the negligent act or omission and the accident. The requirements established by the decision in Alcock include closeness in space and time to, and direct perception of, the accident (or “the event caused by the defendant’s breach of duty to the primary victim”, per Lord Oliver at p 416E). They do not include any requirement of closeness in space and time to the defendant’s breach of duty. There is no suggestion in Alcock and Frost that the timing of the negligent acts or omissions was a relevant consideration in those cases. In Frost Lord Goff mentioned that the immediate cause of the Hillsborough disaster was the decision of a senior police officer to open an outer gate to the stadium without cutting off the crowd’s access to two pens in which crushing then occurred: [1999] 2 AC 455, 465H-466C. But nothing was said by any of the law lords (or the lower courts) to suggest that the claims of either relatives or police officers would be affected if the operative negligence lay in decisions on crowd control or police deployment taken in the days before the match.

1. Although in the present cases the defendants’ stance on this point appears to have fluctuated (compare para 63 of Chamberlain J’s judgment with para 7 of the judgment of the Court of Appeal), in his oral submissions on their behalf in this court Mr Simeon Maskrey KC made it clear that the defendants do not contend that there is any requirement of closeness in time between the defendant’s negligence and the accident which caused the claimant psychiatric injury. In our opinion, that concession was rightly made.

Must the event be the first manifestation of damage to the primary victim?

1. As we have indicated, Chamberlain J explained the decision in Novo on the basis that there had already been an “event” in which Mrs Taylor suffered injury three weeks before she collapsed and died. In his view, the fact that the earlier event was an accident was not legally significant. The position would have been the same if the earlier event had been “internal to the primary victim” (para 75). What mattered was that in Novo the occasion when Mrs Taylor collapsed and died was not the first occasion when damage to her “became manifest” (paras 79-80). By contrast, on the facts alleged in Paul, where Mr Paul’s collapse in the presence of his daughters was the “first manifestation” of damage which would have been avoided by proper diagnosis and treatment, there is no earlier event which bars recovery.

1. In this court counsel for the claimants in Paul have argued that this approach is in principle correct. They submit that there can only be one qualifying event capable of giving rise to a claim for damages by a secondary victim, and this event must involve the first manifestation of the damage which it was the defendant’s duty to prevent.

1. This argument is not supported by the claimants in Polmear and Purchase, who make common cause with the defendants in this respect. It is easy to see why these claimants do not support a “first manifestation of damage” test. It is apparent that both Esmee Polmear and Evelyn Purchase had shown significant symptoms of illness (which on the claimants’ case would have been avoided by proper diagnosis and treatment) before the medical crisis occurred on which the claims are founded. Therefore, if the test for which the claimants in Paul contend represents the law, the claims in Polmear and Purchase might well fail.

1. We do not think it justifiable to differentiate on this ground between the claims made in these three cases. We have already explained why the first manifestation of damage test, although compatible with the result reached in Novo, is inconsistent with the reasoning in that case. There is no precedent for applying such a test in any authority cited to us. Nor can we see good reason to introduce it. We agree with the Court of Appeal that the test “would create unprincipled and complex factual disputes” (Sir Geoffrey Vos MR at para 82) and would be “both unprincipled and unworkable” (Underhill LJ at para 105).

1. The proposed test would in the first place create a new layer of factual complexity in proceedings by inviting investigation of whether any and, if so, what symptoms were manifested by the primary victim at any time during what might be a long period between misdiagnosis and the event witnessed by the claimant. As counsel for the claimant in Purchase pointed out, it is also unclear what “manifest damage” means for this purpose. Suppose that in the case of Paul Mr Paul had experienced symptoms of angina on an occasion before he collapsed and died. Would this disqualify the claim and, if so, why should it? Would it matter whether anyone else was present when these symptoms were experienced? If so, would it make a difference whether the person present was the claimant or another relative or a stranger? Would it make a difference whether the symptoms were serious or minor and, if so, how serious would they need to be to count as “the first manifestation of damage”?

1. If one sees that as the general rule then the law of negligence on liability for psychiatric illness suffered by secondary victims is an exception to it (although the need for a separate duty of care to be owed to the secondary victim may be said to restore the general rule). But plainly it would be odd if the secondary victim who suffers a psychiatric illness is in a legally better position than the secondary victim who suffers a physical injury. On the contrary, one would have thought that one of the aims of the tort of negligence, given the modern medical understanding of psychiatric illness, would be to move the law on psychiatric illness towards assimilation with a less restrictive law on negligently caused physical injury.

1. However, there is no such oddity because allowing recovery in these three cases would not favour a secondary victim who suffers psychiatric illness over a secondary victim who suffers a physical injury. The difficulty in comparing the two situations is that it is extremely rare for a “secondary victim” to suffer physical injury as opposed to a psychiatric illness (leaving aside where, as in Hambrook v Stokes Brothers [1925] 1 KB 141, the secondary victim suffers a psychiatric illness which then goes on to cause the secondary victim physical injury). It follows that the law on physical injury to secondary victims has been little explored in the case law (although for exceptions, in the context of rescuers, see, eg, Videan v British Transport Commission [1963] 2 QB 650 and, in relation to infectious diseases, see Evans v Liverpool Corporation [1906] 1 KB 160). The rarity of physical injury to secondary victims might make it more difficult on the facts of a case to establish that the physical injury was reasonably foreseeable. But say, for example, one of the secondary victims in these cases suffered a heart attack (rather than a psychiatric illness) from seeing the death or injury of the primary victim and that was found to be reasonably foreseeable. In principle, the secondary victim would have a claim in the tort of negligence even if the law required the application of analogous proximity factors to those applying to the claim for psychiatric illness. It is therefore misleading to imagine that by allowing recovery in these cases, one would somehow be treating the person who suffers psychiatric illness more favourably than the person who suffers physical injury.

1. That there is a significant time lag between the negligence and the death of the primary victim is not a valid objection to treating the death as the relevant event

1. The significant time lag between the breach of the duty of care and the death is not an objection because, even in an accident case, it is irrelevant (and is not supported by anything said by the highest court) whether or not there has been a long time lag between the breach of the duty of care and the relevant consequence for the primary victim (whether that be death, injury or imperilment).

1. Say, for example, a door has been negligently designed without an appropriate load-bearing joist or scaffolding has been negligently erected or the wiring of a building has been negligently carried out or a crash barrier in a car park has been negligently inspected; and that, many months later, masonry above the door falls onto X or the scaffolding collapses onto X or the faulty wiring electrocutes X or the crash barrier falls onto X . If C, the secondary victim, sees the masonry fall on X or the scaffolding collapse on X or the electrocution of X or the barrier falling on X, and suffers psychiatric illness as a consequence, it is not a bar to C’s recovery that there was a long time lag between the breach of duty of care and X’s injury or death.

1. In Paul,Chamberlain J made this point forcibly in the following passage at para 63:

   “Although McLoughlin and Alcock were both cases where the negligence was close in time to the ‘event’, there is nothing in any of the House of Lords authorities to suggest that this must invariably be so. Lord Oliver said in Alcock at p 416 that the ‘temporal propinquity’ required was between the psychiatric injury and ‘the event caused by the defendant's breach of duty to the primary victim’ (emphasis added), not the breach of duty itself. As [counsel for the claimant] submitted, there is nothing in any of the House of Lords authorities considering the control mechanisms to suggest that a claim for psychiatric injury suffered as a result of witnessing a person's death or injury caused by (for example) the collapse of negligently erected scaffolding, or electrocution as a result of negligent wiring, would be affected by the date of the negligence. Taylor v A Novo does not suggest that it would. In that case, Lord Dyson MR made clear at para 29 that the secondary victim would have been able to recover if she had witnessed the accident with the racking boards. There is nothing to suggest that the position would have been any different if their collapse had been caused by being negligently stacked months or years beforehand.”

1. The Court of Appeal below agreed that in principle it should not matter that there was a time gap, short or long, between the breach of duty of care and the death of or injury to the primary victim. Sir Geoffrey Vos MR said at para 80:

   “Looking at the matter without regard to the authorities, it is hard to see why the gap in time (short or long) between the negligence (whether misdiagnosis or door design) and the horrific event caused by it should affect the defendant's liability to a close relative witnessing the primary victim's death or injury that it caused.”

1. Lord Dyson MR’s judgment in the Court of Appeal in Novo is open to interpretation on this time lag point. Chamberlain J at para 29 (set out at para 229 above) interpreted Lord Dyson as accepting that there could be a time lag between the breach of duty and the death or injury. On the other hand, the Court of Appeal thought that Lord Dyson appeared to have based his decision primarily on the time lag between the breach of duty and the death of the primary victim. As Sir Geoffrey Vos said, referring to Novo, a secondary victim cannot recover for psychiatric illness where the horrific event (eg the horrific death) is “a separate event removed in time from the negligence” (para 96). Underhill LJ made the same point at para 104 which has been set out in para 174 (iv) above.

1. Whatever the correct interpretation of Lord Dyson’s judgment in Novo, the above hypothetical examples show that, in an accident case, the time lag between the breach of duty and the death or injury of the primary victim is not, and should not be, a bar to recovery. As this is not an objection in accident cases, it logically follows that the significant time lag between the negligence and the death also cannot be an objection in the non-accident cases with which we are concerned.

1. That there is a significant time lag between the accrual of the primary victim’s cause of action and the death of the primary victim is not a valid objection to treating the death as the relevant event

1. A separate possible objection that is similar to, but distinct from, that just considered is that there may be a significant time lag between the accrual of the primary victim’s cause of action and the death of the primary victim (and hence the suffering of the psychiatric illness by the secondary victim). But again this is a flawed objection.

1. One reason that this is flawed is because the primary victim may not have any cause of action against the negligent defendant. This will most obviously be so where the situation is one of imperilment, as in the well-known runaway lorry case of Hambrook v Stokes Brothers [1925] 1 KB 141. In that case, there was no injury to the primary victim. Rather it was the secondary victim’s assumption that her child must have been injured by the runaway lorry that caused her psychiatric illness.

1. Even where the primary victim has a cause of action, in an accident case, the injury caused may be latent. Let us assume, for example, that there is an accident in demolishing a building so that asbestos is negligently disturbed or there is a leak from a nuclear power station. The accident may not cause an observable injury or illness (eg mesothelioma or cancer) to the primary victim for many years. The tort of negligence recognises that a cause of action may accrue even though the claimant does not know and could not reasonably know that he or she has a cause of action because the injury is latent (see, eg, Cartledge v E Jopling & Sons Ltd [1963] AC 758). If a secondary victim suffers a psychiatric illness consequent on seeing the primary victim’s horrific death or illness from mesothelioma or cancer – and even let us assume that the secondary victim is present when it is accepted that the serious illness first manifests itself - it cannot be relevant, as a matter of principle, that, subject to the claim of the secondary victim being time-barred by a limitation period, the primary victim’s cause of action as a result of the accident accrued many years previously. As that is the position in relation to an accident case, it logically follows that the significant time lag between the accrual of the primary victim’s cause of action and the death of the primary victim cannot be an objection in the non-accident cases with which we are concerned.

1. Novo should be overruled

1. The facts and decision in Novo have been set out at paras 192-197 above. With great respect to a master of the common law, Lord Dyson MR’s reasoning in Novo is flawed for at least the following reasons.

1. First, he applied the “thus far and no further” approach. However, that approach was put forward by Lord Steyn in Frost at a time when the courts saw the development of this area of the law as better achieved by legislation. As I have explained in paras 146 - 148 above, the explicit response of Government to the Law Commission’s report has passed the baton back to the courts to develop this area of the law.

1. Secondly, Lord Dyson considered that the ordinary reasonable person would find it unreasonable and incomprehensible that a person who suffered psychiatric illness by coming too late to an accident causing injury or death could not recover, while a person who witnessed the later death from the accident could recover. However, there is a clear distinction between the two situations because, if one treats the accident and the death as separate events, the person who can recover is the same person in both situations ie the person with a close tie of love and affection, provided that that person witnesses (and is therefore closely proximate to) either the accident or the death. One is therefore treating the two situations in the same way and there is nothing unacceptable or irrational about so doing. In any event, applying the same hypothetical logic as Lord Dyson, I would suggest that the ordinary reasonable person would find it unacceptable and incomprehensible that, varying the facts of Novo, a daughter who witnessed the initial injury to the primary victim and suffered a psychiatric illness could recover whereas a daughter who witnessed the horrific death of the primary victim a few weeks later and suffered a psychiatric illness could not recover.

1. Thirdly, there was inconsistency in Lord Dyson’s approach. This is because he accepted Auld J’s reasoning in Taylor v Somerset HA on the need for an accident/event external to the primary victim and yet suggested that the Court of Appeal’s decision in Walters could be distinguished. But if one applies Auld J’s approach, Walters should have been regarded as wrongly decided.

1. Fourthly, it is be noted that, although Lord Dyson at para 30 in Novo appeared to be concerned, as one of the principal reasons for his decision, with the potentially long time lag between the negligence or accident in that case – the falling of the stack of racking boards - and the death of the mother, he did not consider other situations, such as the hypothetical examples given in paras 228 and 235 above, where the death or injury is also not more or less instantaneous with the negligence or accident.

1. In my view, for these reasons, the Court of Appeal’s decision in Novo was incorrectly decided. Although on the face of it, one could distinguish it from these three cases, because it was not a medical negligence case, that would be a superficial and unprincipled distinction. If one is treating the death as the focus in medical negligence cases, so that the secondary victim who witnesses the death, can recover, it would be inconsistent to deny recovery where the secondary victim witnesses the death where there has been an earlier accident.

1. One might alternatively try to distinguish the cases with which we are concerned from Novo on the basis that, in that case, there were two shocking events, the initial accident and injury and the subsequent unexpected death, whereas in our cases there was only one shocking event, namely the death. This featured in Sir Geoffrey Vos MR’s analysis of Novo and was the basis on which Chamberlain J sought to distinguish Novo. But while one can understand why Chamberlain J was trying valiantly to distinguish Novo, because he was otherwise bound to apply it, it seems faintly absurd to say that the three cases with which we are concerned are stronger cases for allowing recovery because the claim is in respect of only one shocking event namely the death, whereas in Novo the claim failed because there was more than one shocking event. Why should one allow recovery where there has been just one shocking event, while denying recovery where the relevant psychiatric illness is consequent on a second shocking event? The correct position is that it should not matter how many shocking events there have been because that is irrelevant to the principled outcome.

1. I therefore agree with the Court of Appeal below that Novo cannot be distinguished. As it cannot be distinguished and as there are good reasons for regarding it as incorrectly decided, it should be overruled.

1. Conclusion

1. For all these reasons, it is my view that the relevant event in these three cases is the death of the primary victim. Once that is accepted, the claimants are entitled to succeed because foreseeability and the control or proximity factors are all satisfied.

1. Four final matters

1. Academic writing and comparative law

1. In preparing this judgment, I have been assisted by academic writings, in particular, Peter Handford, Tort Liability for Mental Harm, 3^rd ed, (2017) especially chapter 22; Stelios Tofaris, “Limping into the future: negligence liability for mental injury to secondary victims” [2022] CLJ 452; and Imogen Goold and Catherine Kelly, “Time to start de Novo: the Paul, Purchase and Polmear litigation and the temporal gap problem in secondary victim claims for psychiatric injury” (2023) 39 Professional Negligence 24.

1. I have also looked briefly at the relevant law in Australia, New Zealand, Canada, the United States and Singapore. However, significant differences have emerged between the different jurisdictions (for example, in Canada – see, eg, Saadati v Moorhead [2017] 1 SCR 543 - it would appear that the approach in the leading House of Lords caseshas been largely rejected; and there are legislative provisions in respect of tort liability in Australia set out in various Civil Liability Acts). In my view, it is therefore difficult and potentially misleading in this area to seek to draw lessons from the legal position in other common law jurisdictions.

1. The need for the event to be shocking and horrific

1. Mr Maskrey submitted that an unfortunate consequence of treating the relevant event as the death would be that the court would face the invidious task of having to differentiate shocking horrific deaths from non-shocking and non-horrific deaths. Applying the established control mechanisms, only the former would trigger liability. But the courts already have to differentiate between treating some events as shocking and horrific and others as not being so. In my view, what this purported objection in truth raises is the question whether the requirement for the event to be shocking and horrific is a justified controlling factor. It can be strongly argued that it is not (although it may help in establishing that the psychiatric illness was reasonably foreseeable in a person of reasonable fortitude and also in establishing causation). This requirement may be said to derive from the early terminology of “nervous shock” and the focus on post-traumatic stress disorder. In relation to that type of psychiatric illness, a shocking event will often be necessary, factually, in establishing that the illness has been suffered. However, for other types of psychiatric illness the establishing of the illness is not dependent on there being a shocking event. All that matters is that a recognised psychiatric illness has been suffered.

1. The Law Commission considered the arguments for and against retaining this requirement and came down firmly in favour of recommending its legislative removal: see Liability for Psychiatric Illness, Law Com No 249 (1998) paras 5.28 – 5.33. It is a separate question whether the common law should be developed by removing this restriction. These appeals have not been concerned with the pros and cons of such a development. We have had no submissions on this issue. Nevertheless, I agree with the thrust of what Lord Leggatt and Lady Rose have said about this being an unwarranted and unnecessary requirement (see their judgment at paras 71-78).

1. The impact on the NHS

1. Mr Maskrey also fleetingly submitted that a consequence of treating the relevant event as the death would be that this would unacceptably increase the burden of legal liability on the NHS. That is not the type of socio-economic policy argument that the courts are well-equipped to assess and, at least as presented, it cannot outweigh the reasons of principle and legal policy that I have set out for allowing these appeals. It should also be borne in mind that primary victims (or, if they have died, their estates and dependants) are already likely to have claims for the medical negligence in question although, of course, allowing claims by secondary victims will inevitably increase the overall quantum of compensation that the NHS may be liable to pay for any particular negligent act or omission.

1. The judgment of Lord Leggatt and Lady Rose

1. I have read with admiration the judgment of Lord Leggatt and Lady Rose. It will be apparent that the fundamental disagreement between us is that, in my respectful view, it would be an unwarranted backward step to insist that there must be an accident (in the sense of an event external to the primary victim) in order for there to be recovery for negligently caused psychiatric illness by secondary victims. Turning the clock back in this way would require, as Lord Leggatt and Lady Rose acknowledge (see paras 121-122), the overruling of Walters and a departure from the reasoning in almost all of the reported medical negligence cases in this area. Indeed, at para 123, they have left open for another day whether there can be liability even where there has been a medical accident (ie medical negligence comprising or causing an event external to the primary victim as in the examples set out in paras 185 and 205 above). In future, and subject to possible rare exceptions, the approach of Lord Leggatt and Lady Rose will mean that recovery for negligently caused psychiatric illness by secondary victims will be closed off in medical negligence cases.

1. Overall conclusion

1. For all these reasons, I would allow the appeals in these three conjoined cases.

LORD CARLOWAY (with whom Lord Sales agrees):

1. I agree with the judgment of Lord Leggatt and Lady Rose as based on English common law. However, the decision is likely to have considerable persuasive influence on Scots law in similar circumstances. It is therefore appropriate to explain that there is a difference in the two systems in relation to the right to claim damages caused by the death of another person. In contrast to the general rule in English law that “the death of a human being cannot be complained of as an injury” (judgment para 2), Scots law has, from ancient times, allowed claims by close relatives (spouses, ascendants and descendants) in respect of the death of another. This may have derived in part from the action of assythment, under which there was compensation payable for the homicide of, or injury to, a close relative. By the end of the eighteenth century it, at least in relation to non-criminal acts, had become part of the general law of reparation, notably quasi delictual negligence under the action injuriarum (McKendrick v Sinclair 1972 SC (HL) 25, Lord Reid at 53; Eisten v North British Railway Co (1870) 8 M 980, LP (Inglis) at 984). A close relative could claim both solatium (an amount representing pain and suffering of the relative) and loss of support from the wrongdoer. This was not a derivative action but an independent right vesting in the surviving close relatives. As with the Fatal Accidents Act 1846, and its successors, in England & Wales, this area is now governed in Scotland by statute. The Damages (Scotland) Act 1976 abolished assythment (section 8), but continued to permit claims by relatives for “Loss of Society” and support (section 1; see now Damages (Scotland) Act 2011, section 4).

1. Nothing turns on this speciality. Had Scots law been applied, the same result in relation to the present claimants would have been reached. These claims are not for solatium, loss of society or loss of support consequent on the death, but compensation for psychiatric sequelae occurring as secondary or indirect injury to the surviving relatives. As a generality such damage is irrecoverable because the person injured is not within the area of danger which the wrongdoer has in contemplation (Bourhill v Young 1942 SC (HL) 78, Lord Thankerton at 83, Lord Russell at 85-86). Exceptions to this generality have been made in the trilogy of cases, to which reference has been made, culminating in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. These apply only to close relatives who were at the scene of an accident or who came across its immediate aftermath. It was not suggested that these exceptions should be reviewed.

1. At the risk of adding unnecessarily to the principal judgment, the key feature of these exceptional cases, in which recovery is permitted, is that the claimant is present at the scene of an accident or its immediate aftermath. There must be an accident to be witnessed. At the core of any claim is the need for the claimant to demonstrate that the defendant breached a duty which was owed to him or her. This depends upon both reasonable foreseeability of damage and proximity between the parties (Taylor v A Novo (UK) [2014] QB 150, Lord Dyson MR at paras 24 to 29).

1. As it was put in Young v MacVean 2016 SC 135, Lord Brodie, delivering the opinion of the court, at para [5]):

   “Not every adverse consequence of an act or omission, which, from some perspective or another, can be described as wrongful … gives rise to a claim for damages. That is so independent of questions of foreseeability and causal connection. The law sets limits beyond which adverse consequences will be regarded as too remote from the relevant wrong to give rise, on the one hand, to a right of action and, on the other, to an obligation to make reparation. In order for the relevant right and the correlative obligation to arise, the loss must be caused by the wrong and it must have been reasonably foreseeable that the wrong would cause the loss but, in addition, there must be what is usually described as a relationship of ‘proximity’ between the person who suffers injury and loss and the wrongdoer. Thus, a particular wrong may cause loss to a number of persons but only those who can establish the requisite relationship of proximity with the wrongdoer will fall into the class of victims who have a claim for damages against the wrongdoer. Where the relevant wrong is a careless act or omission then the issue can be framed in terms of whether the victim was within the ambit of such duties of care as were owed by the wrongdoer. For there to be a duty of care owed by the wrongdoer to a particular injured person there must be a relationship of sufficient proximity between them. If the relationship is too remote then there is no duty and therefore no liability in the event of injury, even although injury has been caused by the wrongdoer’s act or omission.”

1. The issue in the present cases becomes one of whether the doctor owed the patient’s relatives a duty to prevent them from suffering harm as a result of witnessing the death of their relative; itself caused by medical negligence. Again, for the reasons given in the principal opinion, no such duty exists on the facts of these cases. I too would dismiss the appeals.