Court of Appeal reasserts Hillsborough 'cases limiting secondary victim claims

In the first Court of Appeal case on secondary victims for ten years, in Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194, the Court of Appeal has revisited the Hillsborough cases concerning secondary victims of psychiatric injury and reaffirmed that the existing limitations should be applied unless parliament intervenes. This case is significant for those conducting both personal injury and clinical negligence litigation where relatives may suffer psychiatric damage by reason of injury to or clinical negligence suffered by a loved one.

The claimant failed in her attempt to argue that a less strict and more liberal approach had been taken by the courts to such claims in the 21 years since the key Hillsborough case of Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. Alcock was the 1992 House of Lords appeal arising out of claims for psychiatric injury made by relatives of the Hillsborough stadium disaster victims. Those claims failed because they did not meet the strict control mechanisms laid down by the House of Lords to limit the extent to which insurers would be liable to those not directly injured in an incident, but suffering psychiatric injury from witnessing the death of or serious injury to a loved one in an incident or coming across its immediate aftermath.

One of the key control mechanisms is that the secondary victim must be proximate in space and time to the incident as well as establishing a proximate relationship with the defendant. In Novo, the claimant had argued that it was sufficient for her to be proximate to the death of her mother, three weeks after the mother was injured an accident at work, for which the defendant admitted it was liable. The defendant had argued that to establish 'proximity' the claimant had to have been present at the negligent incident in which injury was caused or its immediate aftermath, i.e. present at the accident at work itself, not the consequence, namely the mother's death three weeks later. The issue in the case was whether it was sufficient for the claimant to be proximate to the death or whether she had to be proximate to the accident at work. The trial judge's decision in the claimant's favour was reversed on appeal and, Lord Dyson, the Master of the Rolls (MR), giving the lead judgment in the Court of Appeal, accepted the defendant's arguments that proximity was not made out in this case as the claimant was not present at the accident at work or anything which could sensibly be considered as its immediate aftermath.

Left undisturbed, the first instance decision would have resulted in many more such claims. This would have included claims where the primary victim died months or years after an incident, providing that the death was caused by the original incident. The Court of Appeal has made it clear that such claims should not be permitted and any further extension to allow further claims (by extending the control mechanisms) should only be done by parliament, not the courts: "In my view, the effect of the judge's approach is potentially to extend the scope of liability to secondary victims considerably further than has been done hitherto. The courts have been astute for the policy reasons articulated by Lord Steyn to confine the right of action of secondary victims by means of strict control mechanisms. In my view, these same policy reasons militate against any further substantial extension. That should only be done by parliament."

The Master of the Rolls also justified allowing the appeal on the grounds that the "ordinary reasonable person" would find it "unreasonable and indeed incomprehensible" if someone whose loved one died weeks, months or even years after an incident could make a claim, whereas someone who arrived on the scene of the incident causing injury, but shortly after the immediate aftermath could not.

This provides important clarification in this area for claimants and defendants alike. It confirms that the scope for such claims is strictly limited by the Alcock control mechanisms. This is logical as such claims are in any event an exception to the usual rule that only those directly affected by a careless act can bring a claim.