Galli-Atkinson v Seghal

LORD JUSTICE LATHAM: On 12th January 1998 Livia, the 16-year old daughter of the appellant, was killed when the respondent's car mounted the pavement and struck her. There is no doubt that the appellant suffered a significant psychiatric disorder as a result of her daughter's death for which she claims damages. Her claim was dismissed by Mr Recorder Wood in the Central London County Court. She now appeals to this court against that decision.

The accident happened when Livia was walking the half mile or so to a ballet class at about 7 pm. She had asked the appellant if she would drive her down. The appellant said no and told her she could walk. The accident itself happened at about 7.O5. An ambulance arrived reasonably promptly at just after 7.10. It was immediately apparent to the paramedic who attended her that Livia was severely injured. He summoned further assistance. A doctor subsequently arrived. Despite every effort made by the ambulance team she was pronounced dead at 7.40. The ambulance took her to the mortuary. Her injuries were horrific. The paramedic who treated her had to receive treatment afterwards as a result of the effect of the accident on him.

Livia's father returned home at about 7.45, which was about the time that her ballet class was due to end. She had not returned by 8.O5. Her father decided to drive to where the ballet class was held to collect her. He was diverted because the accident scene had been cordoned off by the police. When he got to the ballet class he expected to find Livia waiting there because she could not get past the police cordon. On discovering that she was not there he rang the appellant who, despite his protestations, said that she was coming down herself. The father then learned of Livia's death from one of the police officers at the scene. Not unnaturally he broke down. He did, however, manage to telephone home. The appellant had left by then; but Bianca, Livia's older sister, was there. He told her. Meanwhile, the appellant had reached the police cordon. She tried to cross the tape, and when confronted by a policeman told him that she was looking for her daughter. Her account was that she was then asked the name of her daughter. When she gave it and asked whether the cordon was something to do with her, the police officer said, yes, she was dead. The news had a profound effect upon the appellant. She screamed hysterically and collapsed to the ground. One of the police officers present described her screaming as unforgettable. Another described it as horrific. Her husband on hearing the screams went to the scene where he found her completely beside herself. The police tried to control her.

From the appellant's evidence the judge concluded that she was aware of police cars at the scene but not of an ambulance, and that there was no evidence that she saw anything of the consequences of the accident, apart from the cordoning tapes. The police asked the appellant and her husband whether they wanted to see their daughter. Despite her husband's objections the appellant said that she did. A police car was provided. They first went back home to find Bianca, who had herself become distraught and left home to be returned by a police car which had found her wandering in a nearby street.

The appellant, her husband and Bianca went together to the mortuary. It is clear that the appellant was, not unnaturally, in denial at that stage. They arrived at about 9.15. Livia's father went in first and identified Livia. He came out and confirmed to the appellant that it was her. The appellant fell to her knees, sobbing uncontrollably. She would not be helped to her feet but crawled to where Livia lay on the trolley bed. She pulled herself up and saw Livia's injured face and the upper part of her body, although the lower part, which was grotesquely distorted, had been covered by a blanket. She cradled her, saying that she was cold. Seeing and holding Livia's body must have been devastating to the appellant. Although the worst injuries were hidden, her face and head were disfigured.

There is no doubt that the appellant suffered an extreme reaction to Livia's death. There is no dispute that she suffered as a result a psychiatric condition which could properly found a claim for damages. She returned to the mortuary on both days before her body was taken to the funeral parlour. Since the funeral she has visited Livia's grave twice a day. A memorial garden has been created by her near the scene of the accident, which she also visits daily. Twice a month on the 12th day, the date of Livia's death, and on the 20th day, the day of her funeral, she lays flowers and lights candles and sleeps in her room after saying goodnight to her. A neighbour describes her home as a shrine to Livia. The appellant eventually had to give up work.

The respondent was convicted of causing death by dangerous driving on 6th November 1998. He was fined. The appellant feels a deep sense of injustice as a result. She told one of the psychiatrists who gave evidence before the Recorder that she considered that the respondent had got away with murder and that her life had become a crusade for justice.

The Recorder was referred, amongst other authorities, to McLoughlin v O'Brian and Others [1983] 1 AC 41O, and Alcock and Others v Chief Constable of South Yorkshire Police [1992] 1 AC 310. He decided that on the basis of those authorities the appellant could not succeed. In his view the appellant had to establish that the shock which caused the psychiatric disorder was occasioned by her seeing the accident or its aftermath. He was not prepared to accept that what happened in the mortuary could be said to be part of the aftermath. At paragraph 73 of his judgment he said as follows:

The appellant submits -- indeed, it would appear to be common ground -- that to succeed she had to establish (a) that she had a close tie of love and affection with the person killed; (b) she was close to the incident in time and space, ie present at the incident or its immediate aftermath; (c) she perceived the event or its immediate aftermath rather than hearing about it by a third person; (d) the illness that followed was induced by the shock of the event or its immediate aftermath.

It is submitted that the Recorder took too narrow a view of what the event and the immediate aftermath of the event were and of what caused the shock. Properly understood, the event and its immediate aftermath comprised a whole series of events, from the moment of the accident until the appellant saw Livia's body in the mortuary. It was the whole of what she saw and was told in that period which, taken compendiously, caused the psychiatric disorder. Accordingly, the Recorder was wrong to have excluded consideration of what happened at the mortuary when determining whether or not the appellant was entitled to damages for the psychiatric illness that she had sustained.

Further, by way of amendment, which was the result of a hearing before this court on 13th December 2002 when we adjourned the appeal for the purpose, the appellant submits that there was no evidence to support the Recorder's conclusion that the psychiatric illness suffered by the appellant was occasioned solely by what she was told.

On the other hand, the respondent submits that the Recorder's findings are clear. Whether or not it may be possible to describe the relevant events as constituting the event or the immediate aftermath of the event, the shock causing the psychiatric disorder was caused by only one matter, namely the fact that she was told of Livia's death. It is submitted that the law does not permit recovery of damages for psychiatric disorder resulting from shock occasioned simply by the news of the death of a loved one. It is submitted that the cases of McLoughlin and Alcock, to which I have referred, make it clear that the law requires the shock to have been caused by seeing or hearing an event itself or its immediate aftermath, and it cannot be extended over a period of time, as submitted by the appellant.

The law that we have to apply is indeed to be gleaned from the speeches of the House of Lords in these two cases. In McLoughlin the plaintiff was the mother of a child who died in an horrific accident in which her husband and two other children were injured. She was at home at the time of the accident but went to the hospital immediately when she had heard what had happened. There she saw and comforted her injured husband and children and was told of the death of her youngest child. She brought proceedings for the psychiatric effect of the shock that she sustained as a result. The Court of Appeal had dismissed her claim on the grounds that no duty was owed to her. The House of Lords unanimously allowed her appeal.

Giving the first speech, Lord Wilberforce set out at page 418 what he considered to be the position that English law had reached in considering claims for such injury. He identified five circumstances in which such a claim could succeed:

We are not concerned with the class of persons whose claim should be recognised. It is accepted that if in other respects a duty can be made out, the appellant clearly falls within the relevant class. As to the element of proximity, Lord Wilberforce said at page 422:

He then went on to deal with the means by which the shock was caused:

In the Alcock case the House had to consider just that question in claims made by the relatives and friends of spectators who were involved in the Hillsborough disaster. Two separate issues arose. First, the House had to consider the nature of the relationship between the plaintiff and the injured or deceased person, and the extent to which he or she fell within the class of persons to whom any duty was owed. The second was the issue of the scope of such duty, where the plaintiff had been aware of the disaster at which he or she knew a person was present who might therefore have been injured or killed as a result of watching the events on television. It was argued by the plaintiff that reasonable foreseeability of the risk of injury to them in the form of psychiatric illness was all that was required to bring home liability to the defendant. They relied on the speeches of Lord Salmon and Lord Bridge in McLoughlin.

Lord Keith in his speech held that, as regards the class of persons to whom a duty may be owed, it was sufficient that reasonable foreseeability could be the guide. He considered, however, that in the case of those within the sphere of reasonable foreseeability, the proximity factors identified by Lord Wilberforce in McLoughlin must be taken into account in judging whether the duty of care existed. He said at page 397:

As to the means by which the shock was suffered, he said at page 398:

Lord Ackner, concurring, at page 400 set out what he considered to be the propositions of law in the following terms:

He agreed with Lord Wilberforce in McLoughlin that the law needed to place some limitation on the extent of admissible claims and that the three elements identified by Lord Wilberforce had to be considered. Leaving aside the first, namely the class of person to whom a duty is owed, as to the second, namely the proximity of the plaintiff to the accident, he said at page 4O4:

Lord Jauncey was also of the view that the general principles of law to be applied were those set out by Lord Wilberforce in McLoughlin. He stated that in determining the extent of the duty of care, the three elements identified by Lord Wilberforce had to be considered. That included, therefore, a consideration of the means by which the shock was caused. He clearly approved at page 423 the view of Lord Wilberforce that a strict test of proximity by sight or hearing should be applied by the courts. In relation to the claim on behalf of those plaintiffs who had attended mortuaries to identify relatives or friends, he said at page 424:

Whether we like it or not, we are constrained to approach the question of psychiatric injury in cases such as the present on the basis of what Lord Lloyd described in Page v Smith [1996] AC 155 at 189, as the "control mechanisms" identified by Lord Ackner. This is clear from the speeches of Lord Steyn and Lord Hoffmann in Frost v Chief Constable of South Yorkshire [1999] 2 AC4 55, with both of whose speeches Lord Browne Wilkinson agreed. Both of their Lordships recognised that the law produced an unsatisfactory result. But both made it clear that the courts had to apply them, however unsatisfactory the result, unless and until Parliament intervened.

We have to consider therefore whether the appellant's present psychiatric condition which, as I have already said, has been accepted as being a condition which is capable of founding a claim for damages, was caused by shock resulting from her appreciation of an event or its immediate aftermath in the sense intended by Lord Wilberforce in McLoughlin.

In approaching that question, I do not consider that we are restricted by what Lord Ackner said in Alcock to a frozen moment in time. As Lord Wilberforce in McLoughlin recognised from the passage that he cited from Benson v Lee, an event itself may be made up of a number of components. This was accepted by this court in the case of North Glamorgan NHS Trust v Walters [2002] EWCA 1792. Likewise, in my judgment, can the aftermath, provided that the events alleged to constitute the aftermath retain sufficient proximity to the event. Indeed, the decision in McLoughlin's case can itself only be justified if the events in the hospital, when Mrs McLoughlin went to the hospital, are taken together as providing the trigger, if that is the right description, for the shock which produced the psychiatric illness.

In the present case, the immediate aftermath, in my view, extended from the moment of the accident until the moment that the appellant left the mortuary. The judge artificially separated out the mortuary visit from what was an uninterrupted sequence of events, quite unlike the visit to the mortuary under consideration in Alcock. The visit with which we are concerned was not merely to identify the body. It was to complete the story so far as the appellant was concerned, who clearly at that stage did not want - and one can understand this -- to believe that her child was dead.

Accordingly, in my judgment the judge was wrong to have excluded what happened at the mortuary from consideration. If, therefore, it could properly be said, on the basis of the psychiatric evidence, that the whole of that sequence of events which was witnessed by the appellant played a part in producing the illness from which she undoubtedly suffered, then the appellant is entitled to succeed in her claim.

The judge, however, as I have already related, took the view that it was only the fact that she had been told about the death that caused the illness, and that, accordingly, for two reasons she could not succeed. First, he considered that, on the authorities to which I have already referred, no claim could be based on shock caused merely by being told of the relevant events. Second, he concluded that the appellant would have suffered the same psychiatric illness whenever she had been told about Livia's death. In other words, she would have inevitably suffered from the psychiatric illness for which she now seeks compensation.

The judge's reasoning in both respects depends upon the validity of his finding that the psychiatric illness was solely caused by her being told of Livia's death. The challenge to this finding was, as I have indicated, the subject of the amendment which we have permitted to the grounds of appeal. In order to make good that ground, we have been taken by Mr Miller Q.C. through the evidence of the two psychiatrists, Professor Weller and Dr. Fry, which was the only material upon which the judge could have relied in coming to his conclusion in the absence of any reasoning to the contrary, as to which there is none. In his report Professor Weller said:

As far as Dr. Fry was concerned, who was the psychiatrist instructed on behalf of the respondent, the main thrust of his report was to challenge the psychiatric diagnosis made by Professor Weller, not on the basis that the appellant did not suffer from a psychiatric illness but in relation to the categorisation of that illness, in particular in relation to its prognosis. However, he did in his opinion have this to say about the cause of the psychiatric illness:

Accordingly, he was not taking issue with Professor Weller as to his views as to the cause of the illness, and he did not join issue with Professor Weller on that aspect of his evidence at any stage in the course of his oral evidence. Indeed, insofar as he was asked about it at all, he accepted at page 35C that the experience of loss was intensified by the trauma. In other words, he accepted in effect that the events that were witnessed, both what the appellant saw and what she heard after the accident, made a contribution to her psychiatric condition.

It follows, it seems to me, that the Recorder's conclusions cannot be supported on the evidence. We are not dealing here with shock caused merely by being told of the death of Livia. What the police officer said merely formed part of the immediate aftermath which caused the shock and the psychiatric illness. The evidence does not therefore support the proposition that the appellant would have suffered the psychiatric illness in any event, irrespective of her having gone to the mortuary. There would have had to have been some express expert evidence to that effect to meet the opinion of Professor Weller, supported as it was by Dr. Fry, as to the contribution to the causation of the appellant's illness of the appellant's experience at the mortuary. There was none.

I would therefore allow the appeal.

MR JUSTICE WILSON: I respectfully agree. Under the present law the appellant can succeed only if she was present at the accident or at its immediate aftermath and only if her psychiatric illness was caused by direct perception of it or of its immediate aftermath rather than by hearing about it: see, for example, the passage at 502G-H in the speech of Lord Hoffmann in Frost v Chief Constable of South Yorkshire.

The accident occurred at 7.O5 pm. In my view, like that of my Lord, its immediate aftermath continued until the appellant and her husband left the mortuary soon after 9.20 pm. Until then the accident had precipitated what in effect was seamless activity, first in seeking to preserve Livia's life and then in taking essential and urgent steps referable to her body. Such a conclusion is fortified by the decision of the House of Lords in McLoughlin v O'Brian. The judgment of Stephenson LJ in the Court of Appeal in that case, reported at [1981] 1 QB 599, makes clear at 603B-C that the visit of the ultimately successful claimant to the hospital to see her injured family occurred more than two hours after the accident. Although the House of Lords has since retreated from some of its expositions of principle in McLoughlin, no doubt has been cast on the conclusion that the claimant's visit fell within the immediate aftermath of the accident: see, on the contrary, the passage in the speech of Lord Keith of Kinkel in Alcock v Chief Constable of South Yorkshire at 397G. Accordingly this appellant was present at two stages within the immediate aftermath of the accident, namely at 8.20 pm when she arrived at the scene and at 9.20 pm when she saw Livia's body in the mortuary.

What did the appellant see upon arrival at the scene? The ambulance containing Livia's body had already been moved down the road. There had been one or two other ambulances at the scene; but the appellant told the Recorder that she did not see them. A police officer describes the scene as follows:

What did the appellant see at the mortuary? A paramedic who attended to Livia at the scene of the accident says:

Before the Recorder, counsel for the respondent successfully contended that the appellant's sight of the body in the mortuary was in law irrelevant. Counsel based his contention on the passage in the speech of Lord Jauncey of Tullichettle in the Alcock case, quoted by my Lord at paragraph 22 above. It is clear that a visit to a hospital for the purpose of identification may well fall outside the immediate aftermath of the accident. It is arguably less easy, at first sight, to understand why, if the visit takes place within that period and has psychiatric sequelae, its purpose remains significant; and, in particular, why, if the primary victim is dead and thus not susceptible to "rescue or comfort", any such sequelae, of which the likelihood must surely be greater, are beyond recompense.

At all events, not unreasonably in the light of the distinction drawn by Lord Jauncey, the Recorder addressed the purpose of the visit to the mortuary. He did so in paragraph 73 of his judgment, which my Lord has set out at paragraph 8 above. In my view the Recorder was compelled on the evidence to add his last sentence, namely that the purpose of the visit was also to satisfy the appellant of the fact of death. Indeed that sentence derogates significantly from the ostensibly definitive conclusion in the first sentence that the purpose was identification. It is clear that, when she went to the mortuary, the appellant was unable to believe that, even if she had been the girl in the ambulance, Livia was dead. The appellant says that her attempt to hug her at the mortuary was to warm her up. A police officer confirms that at one point the appellant suggested that the body was moving under the blanket. Another officer says that, even on the way home afterwards, the appellant asked "What if she wakes up and I am not there?" From the appellant's perspective, the visit to the mortuary was not even primarily for the purpose of Livia's identification.

In the main part of his judgment, therefore, the Recorder proceeded to address whether it was what the appellant saw at the scene, rather than at the mortuary, which contributed to her psychiatric illness. He found that the shock which she suffered at the scene was caused not by what she saw but by what the police officer there told her. He expressly declined to find that the fact that she was told at the scene rather than elsewhere made any material contribution to her illness. Indeed, in case he had been wrong to exclude from his analysis the appellant's sight of Livia at the mortuary, he added analogously that he was satisfied that such played no part in causing her illness.

Were such surprising conclusions open to the Recorder? There were three sources of medical evidence before him. First, there was the statement of the appellant's GP, who was not asked to attend for cross-examination and who said:

Accordingly I agree that, with respect to the Recorder, it was not open to him to conclude that the appellant's direct perception at each of the two stages within the immediate aftermath of the accident had not caused her illness in the sense, approved in Vernon v Bosley (No 1) [1997] 1 All ER 577, of making a substantial contribution to it.

LORD JUSTICE THORPE: I agree with my Lord, Lord Justice Latham, that this appeal succeeds. There is nothing that I can add to his judgment.