England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1994] PIQR 329, [1994] EWCA Civ 16

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JISCBAILII_CASE_TORT

		BAILII Citation Number: [1994] EWCA Civ 16
		QBENF 92/0926/C

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE IAN KENNEDY)

Royal Courts of Justice
Strand
London WC2

11 February 1994

B e f o r e :

LORD JUSTICE RALPH GIBSON
LORD JUSTICE McCOWAN
SIR FRANCIS PURCHAS
____________________

	JEAN TAYLORSON (ON HER OWN BEHALF) AND ANOTHER
	PLAINTIFF/APPELLANT
	- v -
	SHIELDNESS PRODUCE LIMITED
	DEFENDANT/RESPONDENT

____________________

(Computer Aided Transcript of the Palantype Notes of
John Larking Verbatim Reporters, Chancery House, Chancery Lane
London WC2 Tel: 071 404 7464
Official Shorthand Writers to the Court)

____________________

MR. K. MAY (Instructed by Mincoff Science & Gold, Newcastle Upon Tyne, NE2 2AA) appeared on behalf of the Appellant
MR. S. HAWKESWORTH and MR. R. CRAVEN (Instructed by Messrs. Deas Mallen Souter, Newcastle Upon Tyne, NE1 3DE) appeared on behalf of the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE McCOWAN: This an appeal by the Plaintiffs from a judgment of Kennedy J (as he then was) given at Newcastle upon Tyne on 12 June 1992 by which he dismissed the Plaintiffs' claim for damages for psychiatric illnesses allegedly caused to them as parents by reason of shock as part of the immediate aftermath of an accident which befell their son.

The latter, called Mark, was 14 years old at the time. With another boy he climbed on to the rear step of a motor wagon owned by the Defendants and driven by their servant, which had delivered food to the boys' school in Newcastle. The servant reversed the wagon at speed out of the school premises. The boys' feet caught on the road bringing both of them under the wheels of the reversing vehicle. This occurred at 10.45 am on Thursday, 12 November 1987. The other boy died almost at once. The Appellants' son suffered very severe head injuries from which he never recovered consciousness before his death at 10.30 am on Sunday, 15 November, almost precisely three days from the time of the accident.

The Appellants' case, as it was put in the Statement of Claim, was that they "suffered personal shock and mental injury upon hearing of the accident and upon witnessing the deteriorating condition of their son."

The timetable of events after the accident is of importance. The accident, having been at 10.45 am, Mark's mother, Mrs. Taylorson, was soon after informed by her son's Headmaster by telephone that Mark had been involved in an accident with a van and that his injuries might be serious. She was told he was being taken to hospital and that she should wait at home to be collected by the police. An officer arrived about fifteen minutes later at about the same time has her husband. At the request of the officer, they followed him in their car to the Royal Victoria Infirmary in Newcastle.

There they were told that he was to be transferred to Newcastle General Hospital and they were advised to follow the ambulance into which he was loaded. They did that and, when they arrived at the hospital, as they passed the ambulance Mrs. Taylorson saw the boy's feet. They then went inside the hospital and, after a time, Mark passed on a trolley being rushed to the Intensive Care Department. Mrs. Taylorson told the learned Judge that, as the trolley went passed, she ran up to it and called out Mark's name. She saw that his eyes were shut and he did not reply. At that stage she saw blood on his face.

As to Mr. Taylorson, he said that as the trolley passed he noticed the boy's hand hanging out from under the blanket which covered him. Thereafter for some hours, whilst the boy was undergoing tests and receiving treatment, his parents were not allowed to see him. At about 7 or 8 pm they were advised that they could see him if they wished. Mr. Taylorson did that. He saw him for a few minutes but he was advised by a member of hospital staff to dissuade Mrs. Taylorson from doing so. In the event, she did not see Mark that evening. When Mr. Taylorson saw him, he had black eyes, there was blood on his face and a tube was attached to the top of his head to relieve the pressure on his brain.

Mrs. Taylorson was then taken home. Obviously she was very worried and could not sleep. The following morning she returned to hospital and, sometime that Friday morning, about 24 hours after the accident, she did see her son. His head was bandaged and swollen, his eyes were black and she did not recognise him. He showed no real sign of consciousness. Mr. and Mrs. Taylorson stayed at hospital throughout that Friday visiting Mark when they could, trying to elicit a response, without success. Plainly they were both very devoted to him; he was their only child.

On the Friday night Mrs. Taylorson went home but Mr. Taylorson stayed. Saturday for the parents was similar to Friday, but Mr. Taylorson was told that, if the boy showed no significant improvement within 24 hours, the ventilator would have to be switched off. On the Saturday night, both parents were accommodated at the hospital. On the Sunday, it was obvious there was no significant improvement and Mr. Taylorson bravely took upon himself the task of switching off the life support machine.

It appears that Mrs. Taylorson saw her General Practitioner on about three occasions, namely, in December 1987 and January and February 1988. Subsequently she had grief counselling. As to Mr. Taylorson, he saw his General Practitioner once in January 1988 and then he, too, had grief counselling. On 7 September 1988, both Plaintiffs were seen, at the request of their solicitors, by a consultant psychiatrist, Dr. McClelland. For the Defendants, a consultant psychiatrist saw the Plaintiffs in January 1991 in the case of Mr. Taylorson; and in March 1991 in the case of Mrs. Taylorson.

The Judge had the benefit of reports from them and of seeing both give evidence. What the Judge had to say of their evidence has not been criticised by Mr. May on behalf of the Plaintiffs, and it will suffice, therefore, if I read these passages from his judgment concerning their evidence. He said this, citing Dr. McClelland,

"Mrs. Taylorson's grief reaction was serious, sustained and virtually incapacitated her for some weeks."

At E on page 6 of the judgment, the learned Judge continued:

"In Dr. McClelland's view, Mrs Taylorson's illness, for the abnormal grief reaction amounted to an illness, had to be attributed to everything that happened between the time that she received the news of Mark's accident and the time that he died. There was an initial shock, followed by increasing anxiety and apprehension, and what Dr. McClelland described as the traumatising shock of seeing Mark in the Intensive Care Unit.

For Mr. Taylorson it was, in the view of Dr. McClelland, much the same, and for them both their symptoms were, as often happens, reinforced by an element of anger -anger against the driver, the school and the Local Education Authority."

The Judge then turned to the evidence of Dr. Wood, the Defendant's consultant psychiatrist. I read from 7H:

"... like Dr. McClelland, [he] attributed Mr and Mrs Taylorson's separate conditions to the whole sequence of events which culminated in the death of Mark, and to Mr and Mrs Taylorson's own reaction to those events, including these proceedings, rather than to any specific incident."

I turn, as did the Judge, to consider the law. First of all, there is the House of Lords decision in the case of McLoughlin v. O'Brian [1983] 1 AC 410. The facts shortly stated as they were in the head note were these:

"The plaintiff's husband and three children were involved in a road accident at about 4 pm on October 19, 1973, when their car was in collision with a lorry driven by the first defendant and owned by the second defendants that had itself just collided with an articulated lorry driven by the third defendant and owned by the fourth defendants. The plaintiff, who was at home two miles away at the time, was told of the accident at about 6 pm by a neighbour, who took her to hospital to see her family. There she learned that her youngest daughter had been killed and saw her husband and the other children and witnessed the nature and extent of their injuries. She alleged that the impact of what she heard and saw caused her severe shock resulting in psychiatric illness...

On appeal by the plaintiff, [it was] held, allowing the appeal, that the nervous shock assumed to have been suffered by the plaintiff had been the reasonably foreseeable result of the injuries to her family caused by the defendants' negligence; that policy considerations should not inhibit a decision in her favour; and that, accordingly, she was entitled to recover damages."

I turn to the speech of Lord Wilberforce at page 14 where he sets out the legal position reached by then as a result of the decided cases. He dealt with the matter in numbered paragraphs, a part of which I shall read. At D on that page, paragraph 1, he said:

"While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injury for oneself."

I read no more of that paragraph but pass to 2 and read the first sentence:

"A plaintiff may recover damages for 'nervous shock' brought on by injury caused not to him- or herself but to a near relative, or by the fear of such injury."

I read the first sentence only of paragraph 3:

"Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff."

Paragraph 4:

"An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath. In Boardman v. Sanderson the father was within earshot of the accident to his child and likely to come upon the scene: he did so and suffered damage from what he then saw. In Marshall v. Lionel Enterprises Incorporated [1972] 2 OR 177, the wife came immediately upon the badly injured body of her husband. And in Benson v. Lee [1972] VR 879, a situation existed with some similarity to the present case. The mother was in her home 100 yards away, and, on communication by a third party, ran out to the scene of the accident and there suffered shock. Your Lordships have to decide whether or not to validate these extensions."

At page 419 letter G he then said:

"To allow her claim may be, I think it is, upon the margin of what the process of logical progression would allow. But where the facts are strong and exceptional, and, as I think, fairly analogous, her case ought, prima facie, to be assimilated to those which have passed the test."

Lastly at page 422 at D he said:

"As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock'. Experience has shown that to insist on direct and immediate sight or hearing would be impracticable and unjust and that under what may be called the 'aftermath' doctrine one who, from close proximity, comes very soon upon the scene should not be excluded."

It is necessary to look next at the House of Lords' decision in Alcock v. The Chief Constable of South Yorkshire Police [1992] 1 AC 310. This case arose out of the tragedy at Hillsborough Stadium, the ground of Sheffield Wednesday Football Club. The trial Judge held that nine of the Plaintiffs, who were either parents, spouses or siblings of the victims and who were eye witnesses of the disaster or who saw it live on television, were entitled to claim damages for nervous shock. The remaining six plaintiffs were excluded as claimants because they were in a more remote relationship or because they had heard about the disaster by some means other than live television broadcast. The Court of Appeal allowed the defendants' appeal and dismissed the unsuccessful plaintiffs' cross-appeal.

In dismissing the appeals it was held in the House of Lords, among other things, that a plaintiff had to show propinquity in time and space to the accident, or its immediate aftermath, and that the viewing of the disaster on television could not be said to be equivalent to being within sight and hearing of the event or its immediate aftermath.

Lord Keith of Kinkel said at page 398 at letter F:

"In my opinion the viewing of these scenes cannot be equiparated with the viewer being 'within sight or hearing of the event or of its immediate aftermath', to use the words of Lord Wilberforce... nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of a relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity."

Lord Ackner said at page 402 at G:

"The three elements are (1) the class of persons whose claim should be recognised; (2) the proximity of such persons to the accident - in time and space; (3) the means by which the shock has been caused."

He dealt with (2) at page 404 at G:

"It is accepted that the proximity to the accident must be close both in time and space. Direct and immediate sight or hearing of the accident is not required. It is reasonably foreseeable that injury by shock can be caused to a plaintiff, not only through the sight or hearing of the event, but of its immediate aftermath.

Only two of the plaintiffs before us were at the ground. However, it is clear from McLoughlin v. O'Brian that there may be liability where subsequent identification can be regarded as part of the 'immediate aftermath' of the accident. Mr. Alcock identified his brother-in-law in a bad condition in the mortuary at about midnight, that is some eight hours after the accident. This was the earliest of the identification cases. Even if this identification could be described as part of the 'aftermath', it could not in my judgment be described as part of the immediate aftermath. McLoughlin's case was described by Lord Wilberforce as being upon the margin of what the process of logical progression from case to case would allow. Mrs. McLoughlin had arrived at the hospital within an hour or so after the accident. Accordingly in the post-accident identification cases before your Lordships there was not sufficient proximity in time and space to the accident."

Lord Oliver, speaking of those who had been watching television, said at page 417 at C:

"As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously observed image. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability."

In the present case Kennedy J cited that passage and proceeded at page 13A of his judgment to say:

"To my mind, the same line of reasoning applies in the present case. Mr and Mrs Taylorson heard of the accident to their son. They went to hospital. For hours they saw little of him, because he was being treated and no doubt also, the hospital authorities thought it inappropriate for them to see the boy in his injured state. That evening and next day they saw him in intensive care. Mrs Taylorson admits to a dawning consciousness that they were going to lose him and eventually they did, when the boy's father switched off the life support machine. So it can be said of the illnesses of Mr and Mrs Taylorson that to extend the notion of proximity to this more elongated process may seem a logical development, but it is a development, in my judgment, outwith the law.

Mr. May boldly submits that despite what is said in Alcock's case, I am entitled to find in the present case that the immediate aftermath of the accident extended from the time when the parents learnt of the accident to the time when they left hospital after the boy died. I am not prepared so to find."

The Appellants rely on the Australian case of Jaensch v. Coffey [1984] CLR 49. There the Plaintiff saw her husband who had been seriously injured in a motor vehicle accident at the hospital before and between his undergoing a series of emergency operations. The next day she stayed with him in the Intensive Care Unit and thought he was going to die. She was held to entitle to recover damages for the psychiatric illness she suffered as a result. Deane J said at page 608:

"The aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment. Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while she was present at the aftermath of the accident at the hospital."

Mr. May relies on the fact that three of their Lordships in the Alcock case mentioned this Australian decision without adverse comment. But neither did they approve it. I find the phrase used by Deane J "up to and including immediate post-accident treatment" somewhat imprecise. It has led Mr. May to argue before this Court that the post-accident treatment in the present case continued all the way up to the time of Mark's death. He says that that was his submission before Kennedy J and remains his submission today. This, to my mind, would create a very considerable extension of the law as laid down in Alcock. Kennedy J said he was bound by the decision in Alcock's case. So he was and so are we. For us to find liability established in the present case would, in my judgment, be to do exactly what Lord Oliver said we should not do, that is to say, take a further step along the road which must ultimately lead to virtually limitless liability. I, for my part, am not prepared to do this.

There is another aspect to this matter. Kennedy J records the argument on behalf of the Defendants in a passage at page 9F of his judgment, which reads:

"... say the Defendants, these illnesses on the medical evidence, cannot be attributed to one shocking event. They grew out of a whole sequence of events extending over an appreciable period of time, and the law offers no relief for persons so affected ..."

In my judgment, on the medical evidence in this case, that argument was right. Indeed, I would draw the conclusion from that evidence that the real psychiatric damage to the Plaintiffs has resulted from grief at his death.

Near the very end of his judgment Kennedy J said (at C on page 14):

"... when the law, as explained in Alcock's case, is applied to the facts of the present case these claims must fail. The illnesses are not shown to have been caused by the immediate aftermath of the accident because the shocking events relied upon, such as they were, were insufficiently immediate and, in any event, they were not causative of the illnesses."

I agree and would dismiss the appeal.

SIR FRANCIS PURCHAS: I agree. I would wish to associate myself with the expressions of sympathy of the trial Judge with the Appellants in their tragic loss and the sustained and deep grief which they clearly have suffered.

I have thought long and hard since I first saw Mr. May's Notice of Appeal and skeleton argument over the points made in those documents and so ably presented to us by Mr. May this morning. I find it, however, impossible to differ from the analysis made by Kennedy J (as he then was) of the speeches in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310, and his conclusion that he was, on the facts found by him, bound by that authority to reject the submissions made by Mr. May, which he has rehearsed again here this morning, notwithstanding the references in those submission both to McLoughlin v. O'Brian [1983] AC 410, and the decision of the High Court of Australia in Jaensch v. Coffey [1984] ALR 417.

For these reasons and for the reasons already given in the judgment of Lord Justice McCowan, I agree that these appeals must fail.

LORD JUSTICE RALPH GIBSON: I agree that the appeal should be dismissed for the reasons given by my Lord. To these Plaintiffs, their family and friends, the distinctions and principles which this Court is required to apply must seem to be as unconvincing as they are surprising. The rejection of their claim will no doubt add grievance to their anger at the happening of accident. That, I fear, cannot be helped by the law and must be endured. The law thus limits the extent of the liability of the wrong-doer. For my part, I think the limitation is based upon sound reasons and I agree that the line or margin should not be extended to include this case. The appeal is dismissed.

Order:Order for costs, not to be enforced without further order; legal aid taxation; leave to appeal refused.