In Taylor v. A. Novo Ltd  EWCA Civ 194, the claimant, Ms Crystal Taylor, developed post-traumatic stress disorder (PTSD) after witnessing her mother’s sudden collapse and death as a result of deep vein thrombosis and consequent pulmonary emboli (blood clots moving to the arteries in her lungs). Her mother’s deep vein thrombosis, pulmonary emboli and death were a result of an accident at work three weeks previously, in which she sustained injuries to her head and left foot, from which she had appeared to be recovering well. And this accident at work was a result of the admitted negligence of her employer, the defendant. Clearly, if the claimant had developed post-traumatic stress disorder as a result of directly witnessing a horrifying accident in which her mother was killed she would, in accordance with the rules set out in Alcock v. Chief Constable of South Yorkshire Police  1 AC 310, have been able to claim in negligence against a party whose carelessness had brought about that accident. So the question for the Court of Appeal was whether she should still be able to claim when she witnessed not the immediate accident but horrifying effects of it that arose suddenly and unexpectedly three weeks later. The Court of Appeal’s answer was ‘no’: it held that the three week gap between the initial accident at work and her mother’s collapse meant than the claimant was not in a sufficient relationship of proximity with her mother’s employer, and that consequently her mother’s employer had not owed her a duty of care.
Why did the Court of Appeal reach this conclusion? Lord Dyson MR invoked two arguments. First, he identified a general theme in the relevant decisions of the House of Lords as having been “thus far and no further” (quoting Lord Steyn in Frost v. Chief Constable of South Yorkshire Police  2 AC 455), with any further substantial extension of the law being a matter for Parliament. Perhaps surprisingly, he thought that allowing the claimant to recover for directly witnessing horrifying effects arising three weeks after an accident would involve a substantial extension of the law. Secondly, he insisted that “an ordinary reasonable person” would think it was “unreasonable and indeed incomprehensible” to allow the present claimant to recover whilst saying that people who arrived on the scene of an accident shortly after “the aftermath” could not.
This second argument deserves some further attention. No doubt, “an ordinary reasonable person” might need some persuading that it is sensible for the law to draw a line between those who are injured as a result of directly witnessing horrifying accidents involving their loved ones, or the immediate aftermath of such accidents, and those who are injured as a result of learning about such accidents and then participating in deeply distressing steps such as identifying a body in a mortuary. (The latter is intended to be the sort of case that Courts have consistently held falls just beyond “the immediate aftermath”.) Indeed, “an ordinary reasonable person” might need some persuading that it is sensible for the law to draw a line between those who are injured as a result of directly witness horrifying accidents involving their loved ones and those who are injured as a result of the stresses of caring for, and worrying about, severely injured loved ones for several years. But it is less clear that once the ordinary reasonable person had understood the line (loosely, somewhere between that which causes terror and that which causes grave and terrible distress) he or she would insist that the claimant in the current case could not be distinguished from those learning about the accident and then participating in deeply distressing formal steps: the claimant in Taylor v. A. Novo Ltd directly witnessed a sudden and traumatic emergency, which threatened her mother’s life, albeit this emergency occurred three weeks after the initial accident. Wasn’t this a “terror case” rather than a “grave and terrible distress case”?
(This isn’t, of course, intended to defend the law’s drawing of such a line; merely to query whether, in a legal system where the line exists, it is appropriate to classify Ms Taylor’s claim as outside the “terror” category where tort recovery is a possibility.)
Lord Dyson MR’s insistence that “an ordinary reasonable person” would find distinguishing between Ms Taylor’s claim and a “just-after-the-aftermath” claim “incomprehensible” seems to depend on some combination of the thoughts that: (i) such a person wouldn’t think the experience of witnessing a sudden, traumatic emergency three weeks after an accident was a more traumatic experience than learning about an accident and then participating in deeply distressing steps such as identifying a body in a mortuary, and (ii) consequently, such a person would find it mystifying that people subjected to traumatic experiences three weeks, or more, after an initial accident could sometimes recover damages whilst people subjected to (similarly) traumatic experiences a few hours after an initial accident would sometimes be prevented from recovering damages because they did not witness the “immediate aftermath”. But the problem with any reasoning that relies on thought (i) is that it tends to undermine the basic distinction between cases of “terror” and cases of “terrible distress”: it doesn’t seem appropriate to rely on the fact that a “reasonable ordinary person” would struggle to comprehend the significance of the dividing line in order to decide which side of the line a particular case should fall on.
What is the position, then, if a defendant does something careless but this action causes no injury to the primary victim until three or more weeks later, and a secondary victim directly witnesses the primary victim being injured? For example, suppose that a defendant electrician fails to disconnect a redundant electrical cable in a factory where he has been removing machinery, and a few weeks later a primary victim comes into contact with the cable and is electrocuted whilst a close relative of the primary victim witnesses the horrific accident. In such circumstances, where there is a time delay between the carelessness and the horrific accident that it causes there can be little doubt that a claim by the secondary victim is possible. (Accidents often occur a significant time after the negligence that caused them – for example, the negligence of the car mechanic in failing to spot the corrosion of the brake cable or the looseness of the wheel nuts – and no one has ever suggested that such a time lag should alter the position of potential secondary victims.) If this is correct then it seems that if the facts had been different – (NB the following set of facts are hypothetical) – and a negligent medical practitioner had carelessly failed to diagnose the possibility of Mrs Taylor’s deep vein thrombosis, with the result that three weeks later she suddenly collapsed in front of her daughter in a horrific and shocking way, then her daughter ought to have been able to claim against the negligent medical practitioner. (Indeed, in Taylor’s case the Court of Appeal distinguished North Glamorgan NHS Trust v Walters  EWCA Civ 1792,  PIQR P16, which was a case involving a claim for psychiatric injury brought by the mother of a baby that died as a result of medical negligence, where the circumstances of the death were horrific – albeit drawn out over 36 hours – and much of the admitted medical negligence occurred some weeks before the baby’s death. In Taylor’s case the Court of Appeal focused on the fact that in Walters the 36-hour crisis that led to the baby’s death involved a “seamless tale”, but said nothing to suggest that the claim should have been barred because the admitted negligence occurred some weeks before the final, horrific, crisis.) But this raises a difficult question: if the daughter could claim against a negligent medical practitioner in the hypothetical case, and there would be no problem in a court finding sufficient ‘proximity’ between her and the practitioner despite the three week delay between the negligence and the horrifying consequences, then why will such a three week gap cause problems in Taylor’s case where the negligence had both immediate and delayed consequences? Would Lord Dyson MR’s “ordinary reasonable person” find this distinction (between Ms Taylor’s claim – rejected – and the hypothetical claim against a negligent medical practitioner – allowed) “comprehensible”? (NB I have no desire to encourage the Court of Appeal to hold that the claim against the negligent medical practitioner should be rejected!)
By now it is probably obvious that I was not convinced by the Court of Appeal’s reasons for overturning the decision of the trial judge in Taylor’s case: I think that from the perspective of the Alcock ‘limits’ the claim could have been straightforwardly classified as one involving direct perception of a horrifying incident involving a very close relative. At the same time, however, I can appreciate why the Court of Appeal was concerned that many injuries might eventually bring about (or at least make a ‘material contribution’ to the occurrence of) horrifying crises at some later date. Personally, however, I think that the answer to the spectre of cases (unexpectedly?) arising from the degeneration of injuries many years later ought to be found in a robust test of “reasonable foreseeability” at the remoteness of damage stage (i.e. were the injuries suffered by the claimant of the same “type or kind” as those that reasonable person in the defendant’s shoes ought to have foreseen as a real possibility?) rather than in artificial rules about whether the injured relative witnessed the “same event” as the defendant’s negligence caused, and whether there was a “seamless tale” (!), etc.
A closing thought – could it be argued that the tendency to invent complex and artificial “proximity rules” has been (in part) encouraged by a lack of confidence (and consistency) in the application of remoteness rules?