Update | Personal injury: secondary victim liability, foreseeability, health and safety

An area of tort that has attracted much criticism is the courts approach to 'secondary victim' cases. Such claims usually arise in tragic circumstances where there has been death or serious injury to someone (called the 'primary victim'), which, when witnessed by another (the 'secondary victim'), causes them psychiatric illness. It is clear that 'but for' the negligence, the secondary victim would have suffered no injury, but the courts have been keen to restrict these cases for fear of exposing defendants to floods of claims.

It is not clear why this fear arises. If the basic principle of foreseeability is applied, only certain relationships between primary and secondary victims would ever qualify. Lord Atkin famously stated in Donoghue v Stevenson [1932] AC 562 that the defendant owes a duty to "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation". Also, not everyone who witnesses death or injury suffers a recognised, compensatable psychiatric illness. Surely these factors mean the defendant is not exposed to claims from the 'world at large'.

Despite this, the courts have sought to limit claims, and one of the mechanisms used to achieve this is to require the claimant is either present at the accident scene or witnesses its 'immediate aftermath'.

Last month, the Court of Appeal in Taylor v Novo Ltd [2013] EWCA Civ 194 resisted a call to widen the scope of these cases. The claimant's mother, Cindy Taylor, suffered head injuries when a stack of racking boards fell on her at work. She appeared to be making good progress, but about three weeks later, she suddenly collapsed and died at home from deep vein thrombosis (DVT) and a pulmonary embolism that were causally related to her accident.

The claimant, T, was not present at the accident, but witnessed her mother's tragic death at home. The issue was whether she was entitled to claim as secondary victim given the sudden nature of the death and the three-week delay. At first instance, T succeeded and so the defendant, N, appealed.

Need for reform

In the leading case arising from the Hillsborough disaster, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, Lord Oliver considered the key principle underlying all these cases was whether there was proximity between secondary victim and defendant. Determining proximity has proved no easy task in these cases given its artificial nature which ultimately depends on the court's perception of events rather than being founded on any logical basis. It was noted, however, from past cases that a proximal relationship was found to exist where there was a relatively short interval between the accident and 'event' causing the secondary victim's injury.

However, what constitutes the 'event' has been considered in more recent cases predating Taylor. Ward LJ in North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 confirmed the law allowed flexibility to decide what constitutes the event, which could be made up of a series of different components that lead to the secondary victim's injury.

T's case, on the other hand, was considered unusual in that her mother's death was sudden and unexpected. It was perhaps unfortunate for T at first instance, that her mother's death was regarded as a 'separate event' rather than something forming part of a sequence of events flowing from the accident. If the latter was adopted, there may have been more scope for the court to exercise the flexibility allowed in such cases in her favour.

However, when the Court of Appeal considered the matter, the focus was very much on this so-called second and separate event (which they preferred to define as a second consequence); the question being whether this was a 'relevant incident' for the purposes of T's claim as secondary victim.

When considering the circumstances of this case, it appears the lack of physical and temporal connection between this second event and the accident meant the court considered it would be going too far to include T in the class of secondary victim who could claim. As such, T failed.

A Law Commission paper, 'The Liability for Psychiatric Illness' (Law Com No 249), has criticised the distinction between secondary and primary victim. Perhaps, therefore, a reversion to the basic tort principles of Caparo v Dickman [1990] 2 AC 605 would achieve more just results. There appears some merit in this, given the court's admission in several cases that the criteria set by Alcock is not founded on any logic. It is stated this is because of the policy arguments against entertaining floods of such claims, but there still needs to be some logical basis for the application of policy that is clear in non-secondary victim cases such as Selwood v Durham CC [2012] EWCA Civ 979 (see Solicitors Journal, 16 October 2012) where the NHS was found liable to a council social worker who was injured by someone who they knew was dangerous.

Therefore, the law for secondary victim claims is in need of drastic change as the present uncertainty is neither beneficial to claimant nor defendant.

This decision is also disappointing as Walters together with some of the more recent cases, W v Essex CC [2001] 2 AC 592 and Gail-Atkinson v Seghal [2003] Lloyds Rep Med 285 appeared to be relaxing the strict criteria set by Alcock. While these are clinical negligence cases, there is no reason why, policy or otherwise, they should be treated differently.

Tragic circumstances

Caparo was referred to in another recent case involving tragic circumstances. In Cockbill v Riley [2013] EWHC 656 (QB), the claimant, C, aged 16 at the time, suffered a fractured spine and became tetraplegic after jumping into an inflatable outdoor pool at a friend's barbecue. C said he intended to do a belly flop, but his injuries suggested he entered the water head first.

This event was attended by others of a similar age. The friend was the daughter of the defendant, R, who appears to be the main organiser; he made and prepared the food, purchased and provided alcohol (which the court considered was not excessive) and was the occupier of the premises where the accident occurred. Prior to the accident, he inflated and positioned the pool away from other possible dangers.

It was accepted that R had assumed responsibility for C and the other children's safety, so was under a duty to monitor what they were up to and intervene if things got out of hand. However, this had to be balanced against not spoiling the event.

At one point, the boys in the group were getting boisterous, so R asked his daughter to invite them to come and have some food, which he claimed had a calming effect. However, C contended he should have intervened earlier or more forcibly to prevent the children jumping and running into the pool.

The Court of Appeal disagreed. While minor injury from use of the pool is foreseeable, injury arising from someone attempting to belly flop or dive was not. This may seem odd when talking about a group of teenagers, but reference was made to Stuart-Smith LJ's dicta in Ratcliff v McConnell [1999] 1 WLR 670, when he said the danger of diving into a swimming pool of unknown depth or paddling pool is "obvious to any adult and indeed to most children old enough to have learned to dive". It was therefore held that R was not under a duty to have done more nor was he required to have undertaken a prior risk assessment.

This may seem logical, but many would say that while most children may appreciate the danger, if they were already acting in a boisterous way such that there was a need to calm them down, the risk of such injury from this type of accident would be more foreseeable.

Piercing the corporate veil

Finally, the Court of Appeal dealt with an unusual scenario in Brumder v Motornet Service Repairs Ltd & Aviva Insurance Ltd [2013] EWCA Civ 195 where the claimant, B, sued his own company, M (the first defendant), of which he was the sole director and shareholder, for an injury he sustained from defective equipment which the evidence showed he alone was responsible for maintaining.

The court found M breached its absolute duty to maintain this defective equipment under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998. However, the facts showed this breach solely arose from B's own actions/inaction in his capacity as director which in turn breached his duty to M, under section 174 of the Companies Act 2006, to exercise reasonable care, skill and diligence in the performance of his directorial duties. In particular, he gave no consideration to the relevant health and safety regulations, undertook no risk assessment and failed to seek advice.

The key question was whether these failures fell within Ginty v Belmont Building Suppliers Ltd [1959] 1 All ER 414, where if it is shown an employer has breached an enactment that renders them liable, they have the option of submitting a defence on the basis the fault was wholly attributable to the employee.

To answer this, the court analysed the policy arguments underlying this defence. In essence, common law dictates that someone cannot obtain advantage from their own wrongdoing. Also, if the employee could recover against the employer in such a case, it followed, the employer was entitled to recoup this loss back from the employee under breach of contract. Given B's failings, M could rely on Ginty, meaning B lost.

The court did not (nor was it asked to) pierce the corporate veil which has always been an incredibly difficult argument to advance. It appears therefore that the claimant sought to exploit the separate entities argument to claim damages from the insurer. However, this and many other recent cases suggest the courts are more eager to look at the reality of any given situation to determine liability and not become saddled by technical arguments.