1. Today, 13 January 2022, the Court of Appeal handed down judgment in the long awaited nervous shock appeals in Paul v Wolverhampton, Polmear v. Royal Cornwall and Purchase v. Ahmed. The issue was whether a gap in time between the breach of duty and a subsequent shocking event prevents a nervous shock claim.   As the Court of Appeal recognised this is a particular problem in many clinical negligence claims.  In Paul the breach of duty was 14 months prior to Mr Paul’s sudden death whilst out shopping with his daughters on the streets of Wolverhampton.
  2. The Court of Appeal clearly wanted to find for the claimants on all the appeals and said so in terms. They found instead for the Defendants on the basis that they were bound to do so by the judgment of Dyson MR in Taylor v Novo. Clearly troubled by that decision they have expressed a strong preliminary view that this case should now go to the Supreme Court for a complete review of the authorities.
  3. You will recall that in Taylor v Novo the claimant’s mother was injured at work when shelves fell on her and three weeks later she collapsed and died at home, causing her daughter to suffer PTSD. Dyson MR held that the collapse of the shelving had two consequences. The first was the injury to the mother and the second her death three weeks later. If the daughter had witnessed the original injury there would have been sufficient proximity to permit a successful nervous shock claim, but the gap of three weeks prevented this.
  4. Along with many others I have always struggled with the reasoning in Taylor v Novo and in particular how it fitted with the Court of Appeal’s decision in Walters.
  5. It is some comfort therefore for us to find that we are not alone. As Underhill LJ, Vice-President of the Court of Appeal said, agreeing with the Master of the Rolls (and this was a heavyweight Court with Nicola Davies LJ sitting too):

“The difficulty however is Taylor v Novo.  I have not found it easy to identify the precise ratio of that decision.”

  1. In the end the Court of Appeal held that they were bound by Taylor to find that where there was a gap in time between the breach of duty and the relevant event there was insufficient proximity between secondary victim and defendant to found a duty of care.
  2. What is clear is that they could not understand the basis for this finding in Taylor. See the Master of the Rolls comparing cases where death coincides with the breach of duty and those where it does not:

“However I find it hard to see a principled reason why there should be the requisite proximity in the one kind of case but not the other. The arbitrariness of the distinction is illustrated by the example given by Peter Gibson LJ in Sion: why should the doctor who negligently prescribes a fatal medicine be liable to the secondary victim if the patient takes it, and dies (in the requisite shocking circumstances) straightaway, but not if they do so only a few days or weeks later? As the Master of the Rolls demonstrates, Lord Oliver’s references in Alcock to the need for “physical and temporal propinquity” are not directed to the relationship between the breach of duty and the shocking event but rather to the need for the claimant to be close in space and time to the shocking event.”

  1. So where does this leave us? Pretty much as we were – waiting for an authoritative determination.  Paradoxically although this was a defeat for claimants it may turn out to have been a step closer to success.  In the meantime ‘material gap’ clinical negligence cases will just continue to stack up.

 

JOHN DE BONO QC