Court of Appeal overturns 'Michelin man' payout decision

March 2013 marked
ten years since a secondary victim claim had reached the Court of Appeal when the important case of Taylor v A Novo (UK) Ltd
[2014] QB 150 was decided.
By contrast, the last six months have seen a series of key decisions illustrating the approach first-instance courts will take in light of Taylor, namely Wild v Southend NHS; Brock v Northampton NHS; Berisha v Stone Superstore; Shorter v Surrey and Sussex NHS; and, culminating in another landmark Court of Appeal decision, Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588.

As long ago as 1999, in
White v Chief Constable of South Yorkshire [1999] 2 AC 455, Lord Hoffmann observed: ‘It seems to me that in this area of the law, the search for principle was called off in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. No one can pretend that the existing law, which your lordships have to accept, is founded upon principle.’

This lack of principle made it hard to advise clients on likely outcomes. A series of decisions followed Alcock and White which were difficult to reconcile with each other. Taken as a whole, the five cases decided in the months since last December bring some welcome consistency for practitioners advising in this complex and policy-driven area of law.

While being factually varied, ranging from a death in the womb (Wild), to a fatal workplace accident (Berisha) and clinical negligence (Brock and Shorter), these cases have consistently returned to first principles.

In the Taylor appeal, the Master of the Rolls, Lord Dyson had reiterated that the courts should confine the right of action of secondary victims by means of the strict control mechanisms set out in Alcock. Any substantial extension of the right of action should only be done by parliament. This has led first-instance judges to apply those control mechanisms with renewed rigour. It is perhaps no surprise that there is no reported decision in which a secondary victim claim has succeeded since Taylor, a decision which itself overturned a trial judge’s award of compensation in such a case.

‘Bolt-on’ claims

The Ronayne decision is so significant because it arguably tightens those strict control mechanisms. This will be welcomed by NHS Trusts and liability insurers, who have seen a rise in ‘bolt-on’ secondary victim claims.

Mr Ronayne sustained
a psychiatric injury from the
shock of his seriously ill wife’s appearance in hospital. A few days after her surgery, it was discovered that a misplaced suture in her colon had caused complications. Shortly before
she underwent consequent emergency surgery, he saw his wife connected to various machines including drips and monitors. After surgery he
saw her unconscious, connected to a ventilator and being administered antibiotics intravenously. Her arms, legs,
and face were very swollen.
He described his shock at
seeing her looking like ‘the Michelin man’.

The judgment clarifies and adds to the ingredients necessary to establish the control mechanism of a ‘shocking event’. It must be (a) exceptional; (b) sudden; and (c) horrifying. Unquestionably, this will be a high threshold for claimants. This will be judged by objective standards by reference to persons of ordinary susceptibility, not by examining the claimant’s medical knowledge.

A visitor is, to a degree, conditioned about what to expect, such as a patient connected to machines and drips, and it is likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing. Indeed, the judges went as far as to observe that most people of ordinary robustness, in such a situation, would be relieved to see that the matter was in the hands of medical professionals, with perhaps a grateful nod to the ready availability of modern medical equipment.

Objective standards

The appeal judges accepted
this had been an appalling sequence of events which had caused profound distress to Mr Ronayne however; the court unanimously held that the circumstances fell ‘far short’ of those recognised by the law in previous cases. This was not a horrifying event by objective standards, as the appearance of Mr Ronayne’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. It was not exceptional.

This all goes to underline how high the bar has been set for future claimants, given the need for the shocking event to be ‘exceptional’. It is likely that many cases currently being litigated will be abandoned as having no realistic prospect of meeting that threshold and fewer cases will be brought in future. Secondary victim law has come back to its roots, where such claims were felt to be the exception rather than the rule. The case summary for Ronayne can be found here. SJ

Charles Bagot is a specialist injury and clinical negligence barrister at Hardwicke. He was counsel for the successful parties in the secondary victim cases of Taylor, Wild, and Berisha