Nervous shock and psychiatric injury: Crystal Taylor v A Novo (UK) Ltd (2013)
Disease Aware Issue 3
Claims for nervous shock and psychiatric injury come high on the list of difficult personal injury claims. Judges trying to strike the right balance must grapple with a complex mixture of legal principles and legal policy. Decisions are shot through with concern about opening the floodgates.
Lord Oliver in Alcock v Chief Constable of South Yorkshire Police  1 AC 310, stated that: “Grief, sorrow, deprivation and the necessity of caring for loved ones who have suffered a misfortune must, I think be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities must be sustained without compensation…To extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.”
The current common law approach has at its core cases such as Alcock which followed the Hillsborough disaster. Claimants are divided into two categories - primary and secondary victims.
Alcock confirmed this classification of victims and helped to establish the criteria for identifying them. Primary victims are those directly involved in sufficiently shocking (usually life threatening) situations. Secondary victims are those not directly threatened. As we shall discover, they often include close family members of those injured or killed. These classifications are control mechanisms for limiting the class of individuals who may recover damages.
Some say that this is an area of law in need of reform. The main criticism is that the two categories of victim have different rules for compensation and that the boundary between them is unclear. The recent case of Crystal Taylor v A Novo (UK) Ltd CA (2013) re-examined the particular issue of proximity, together with the underlying policy considerations.
The claimant’s mother, Cindy Taylor, was employed by the defendant and suffered injury when a stack of boards fell on her while at work. She appeared to have suffered only minor injuries but suddenly and unexpectedly collapsed and died at home three weeks later. It was established that her death was the result of deep vein thrombosis caused by the original injury. Negligence for the original accident was admitted. The claimant was present at the time of her mother's death and developed post traumatic stress disorder.
The original judgment held that the claimant was entitled to recover damages. The Court of Appeal (CoA) allowed the defendant's appeal against that judgment. They confirmed that to succeed as a secondary victim, the claimant had to satisfy the following requirements:
- Her injury was foreseeable
- She was a close relative of and had a close emotional relationship with the primary victim
- She had suffered a recognised secondary injury
- The injury was caused by the actions of the defendant
- The injury was caused by ‘shock’ as a result of a sudden perception of death of, or risk of injury to the primary victim
- She was either present at the scene of the accident which caused the death or must have been involved in the immediate aftermath (both physical and temporal proximity being required)
- She must have perceived the death or risk of injury with her own senses.
The defendant conceded that the claimant met all but one of these requirements. The exception was the requirement for proximity. This, they argued, was not met. The claimant was present at neither the scene of the accident nor its immediate aftermath. The claimant argued that ‘the event’ was not the original accident but the subsequent collapse and death. Proximity, they said, was established.
The CoA decided that to permit recovery from an event three weeks after the accident would be to extend the law. In doing so, they reaffirmed the reasons for the strict controls and the centrality of legal policy in this area. The relevant event for the purposes of establishing proximity was the accident itself and not the death. Had the claimant witnessed the accident as well as the subsequent death, damages would be recoverable. She would satisfy the test for secondary victim. However, had the claimant’s mother died immediately following the accident at work, the claimant would not have been able to recover damages as she was not present. This sort of fine distinction lies at the heart of criticisms of the current law.
The court accepted that the distinction between primary and secondary victims was not ideal but repeated that this was a matter for Parliament rather than the courts. This opinion on potential reform goes alongside the Scottish Law Commissions’ recent recommendations that the current common law should be replaced with a statutory framework.
In this case, the claimant unsuccessfully sought to extend the boundaries of current law. The judgment of the CoA is a positive result for insurers as it confirms the status quo. The consequences, had the claimant succeeded, could have been potentially wide-reaching.
In this case the claimant’s mother died suddenly and unexpectedly, but clearly there were further implications for latent injury cases such as mesothelioma. Any legislative reform would need to bear such considerations firmly in mind.
Lord Steyn's observation in Frost v Chief Constable of South Yorkshire Police  2 AC 455, was that while, "the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify...It must be left to Parliament to under-take the task of radical law reform." This has now been reaffirmed in Taylor.
The fact that there is still no sign of Parliament accepting the invitation to act suggests that insurers can rest easy for now - on this issue at least.