Taylor v A Novo (UK) Ltd [18.03.13]
Court of Appeal holds that Claimant who witnessed mother’s death three weeks after accident at work could not recover damages.
Defendants and insurers will welcome this decision which makes it clear that the courts should be very reluctant to extend the circumstances in which damages can be recovered by a secondary victim of an accident.
The law in relation to recovery of damages by secondary victims is well established, as a result of cases following on from the Hillsborough disaster. In his judgment in this case, the Master of the Rolls gave a typical example of a case in which a claimant could recover damages as a secondary victim. This would involve an accident which:
- More or less immediately causes injury or death to a primary victim; and
- Is witnessed by the claimant.
On 27 February 2008, Mrs Taylor was injured in an accident at work. As a result she sustained injuries to her head and left foot. Liability was admitted. She was apparently making a good recovery when on 19 March 2008 she suddenly and unexpectedly collapsed and died at home. This was caused by deep vein thrombosis and consequent pulmonary emboli, which were due to the injuries that she had sustained in the accident. Her daughter, the Claimant, did not witness the accident but did witness her mother’s death. As a result of witnessing the death she suffered post traumatic stress disorder.
The issue at trial was whether the Claimant was entitled as a matter of law to claim damages as a secondary victim from the Defendant. At first instance His Honour Judge Halbert held that she was.
The Court of Appeal stated that the broad distinction between primary and secondary victims is well established in our law and the relevant principles have been set out by the House of Lords.
The issue raised in this case was whether the death of Mrs Taylor was a relevant incident for the purposes of the Claimant’s claim as a secondary victim.
To allow the Claimant to recover as a secondary victim would be to go too far:
- If the Judge was right, the Claimant would have been able to recover damages for psychiatric illness even if her mother's death had occurred months, and possibly years, after the accident (subject to proving causation). This suggests that the concept of proximity of a primary victim to a secondary victim cannot reasonably be stretched this far.
- This area of the law is to some extent arbitrary and unsatisfactory. The effect of the Judge's approach was potentially to extend the scope of liability to secondary victims considerably further than has been done previously. The courts have been astute for policy reasons to confine the right of action of secondary victims by means of strict control mechanisms. These policy reasons militated against any further substantial extension. That should only be done by Parliament.