In Taylor v A Novo (UK) Ltd 13 the Court of Appeal confirmed that it is the accident itself, rather than the death, which is the relevant event for the purposes of establishing proximity in a claim for psychiatric damage brought by the secondary victim of an accident. The leading judgment of the Master of the Rolls provides a useful summary of the relevant case law in secondary victim claims and emphasises the tight parameters within which the rights of action of secondary victims operate.
The claimant brought a claim against the employer of her late mother, Mrs Taylor, who had been injured in an accident at work caused by the admitted negligence of her employer. Mrs Taylor appeared to be making a good recovery, but suddenly and unexpectedly collapsed and died at home three weeks after the accident. Her death was due to pulmonary emboli, which were themselves due to the injuries that she had sustained in the accident. The claimant did not witness the original accident, but did witness her mother’s death and, as a result, suffered significant post traumatic stress disorder.
HHJ Halbert, at first instance, was asked to address one issue only: whether the claimant was entitled as a matter of law to claim damages from her mother’s employer as a “secondary victim” of the accident to her late mother. He held that she was, as the event that had caused her damage was the sudden death of her mother, and there had been no break between that event and the injury that she suffered: the second event (her mother’s death) had been caused by the first (the accident), and the injury to the claimant was the reasonably foreseeable consequence of the defendant’s negligence.
The Court of Appeal unanimously disagreed, holding that the relevant “event” for the purposes of determining the proximity question was the accident rather than the death itself, and that the effect of HHJ Halbert’s approach would be potentially to extend the scope of liability to secondary victims considerably further than had been done hitherto: the courts had been astute for reasons of policy articulated by Lord Steyn in Frost v Chief Constable of South Yorkshire Police14 to limit the right of action of secondary victims by strict control mechanisms. Any further substantial extension should only be made by Parliament.