Legal Principles and Key Points
- In the case of Taylor v A Novo (UK) Ltd.  E.W.C.A. Civ 194, it was held that for the question of proximity in a secondary victim claim (where an accident leads to an unexpected death sometime afterwards), it is the accident and not the death that is the relevant event to establish proximity. Someone cannot claim for witnessing the death, and as a consequence suffers psychiatric harm, if they did not witness the accident.
Facts of the Case
- In February 2008, C’s mother was the victim of a workplace accident when another employee caused a stack of racking boards to tip over on top of her.
- C’s mother suffered injuries to her left foot and her head. D, her employer, admitted negligence in causing this accident.
- C’s mother was apparently making a good recovery when on the 19th March 2008, she unexpectedly collapsed and died in her home.
- The cause of death was later shown to be the result of deep vein thrombosis and consequent pulmonary emboli. These had resulted from the injuries sustained in the accident.
- C did not witness the accident, but she did witness her mother’s death. As a result, she suffered significant post-traumatic stress disorder.
- Was the accident or the death of her mother the appropriate event for determining whether C had sufficient proximity to be a secondary victim?
Held by the Court of Appeal (Civil Division)
- Finding for D, that the appropriate event for determining proximity for a secondary victim was the accident, not the death itself. As such, since C had not witnessed the accident or its immediate aftermath, she could have sufficient proximity to claim as a secondary victim.
Lord Dyson M.R.
- The broad distinction between primary and secondary victims propounded by Lord Oliver in Alcock has been criticised as unhelpful, especially regarding where the line should be drawn. However, other case law and relevant legal principles has made this distinction clear. The courts should not seek to make any substantial development of these principles; that should be left to Parliament.
- Describing the accident and the death as ‘events’ distracts from the real question. The only event was the accident, which had two consequences: the injuries to C’s mother and her later death.
- “It seems to me that, if the judge is right, C 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, of course, to proving causation). This suggests that the concept of proximity to a secondary victim cannot reasonably be stretched this far. Let us now consider the situation that would have arisen if Mrs Taylor died at the time of the accident and Ms Taylor did not witness the death, but she suffered shock when she came on the scene shortly after the ‘immediate aftermath.’ In that event, Ms Taylor would not have been able to recover damages for psychiatric illness because she (possibly only just) would have failed to satisfy the physical proximity control mechanism. The idea that Ms Taylor could recover in the first situation but not in the others would strike the ordinary reasonable person as unreasonable and indeed incomprehensible. In this area of the law, the perception of the ordinary reasonable person matters. That is because where the boundaries of proximity are drawn in this difficult area should, so far as possible, reflect what the ordinary reasonable person would regard as acceptable. This is the idea that Lord Hoffmann was expressing in Frost in the context of distinguishing between different categories of secondary victims in that case” .