Court reaffirms position on secondary victims in catastrophic injury claims

29 Nov 2016

Clowes (1) Nuzzolese (2) v Embrace Group Limited.

This case involved two secondary victim claims and the Circuit Judge’s decision could now lead to further clarity at the early stages of future similar cases.

The facts

The claimants in this case were the daughter (Clowes) and granddaughter (Nuzzolese) of George Chicken, a service user who was staying in a residential home owned by the defendant (Embrace Group Limited).

Mr Chicken suffered from dementia and was known to wander. One evening he left his room and gained access to a fire escape where he then fell down a flight of stairs, suffering a severe head injury which resulted in him dying in hospital three days later. The defendant was convicted of failing to ensure the safety of non-employees after a Health and Safety Executive investigation and fined £1.5million.

The first claimant was notified by telephone when the accident occurred by a member of the defendant’s staff. It is alleged the seriousness of the incident was downplayed by the staff member. The first claimant first saw Mr Chicken some two hours post-accident as he was being transferred having had a scan. He was allegedly covered in blood and his head was notably damaged. The second claimant first saw Mr Chicken some two and a half hours post-accident when she shared a lift with him and other family members as he was being taken from Accident & Emergency to a hospital ward. By this time both claimants had been told by hospital staff to expect the worst. Mr Chicken died three days later.

The claimants sought damages for “nervous shock, flashbacks, psychological disturbance, emotional trauma, anxiety and PTSD” which was ongoing.

The claim was defended on the basis that neither claimant fulfilled the criteria of secondary victims, as set out in the earlier cases of Alcock v Chief Constable of South Yorkshire Police and other cases dealing with this issue. The defendant made concessions in respect of breach of duty and that the first claimant (Clowes) met the criteria for the “close ties of love and affection”. Aside from these two concessions the claim was defended in full to trial.

The decision

At trial His Honour Judge Owen found in the defendant’s favour on all aspects of the case. He considered that the circumstances, while tragic and upsetting for the claimants, were unfortunately a part of everyday activity in a hospital setting.

He determined it was not reasonably foreseeable either claimant would suffer psychiatric injury as a result of Mr Chicken’s fall. It was considered the second claimant, having no automatic acceptance in respect of close ties of love and affection, had not adduced sufficient evidence to meet this criteria.

HHJ Owen considered neither claimant “came close” to meeting the proximity test as two and two and a half hours respectively, was too remote. This also led the judge to consider there had been no direct perception and there had been no sudden shock, the remaining two criteria.

The claims were therefore dismissed. Costs were assessed in the defendant’s favour, however, as this was a QOCS case no costs were recoverable.

What this means for you

This judgment is in line with previous caselaw on the issue of secondary victims. What it does provide is further clarification on what the court’s consider to be necessary to bring a successful claim on this basis. The judge’s comments that two and two and half hours did not “come close” to meeting the proximity test is very helpful.

The court also found a granddaughter had not automatic right to be assumed to have close ties of love and affection, further re-enforcing previous positions and rejecting the claimant’s submissions on this point.

As the judgment of a Circuit Judge sitting in the County Court, it will bind judges in the lower courts and can be used to dissuade claimant’s from pursuing such claims at an early stage, especially in this era of QOCS when they may feel they have nothing to lose in running a case to trial.

BLM solicitor-advocate, Paul McGinn successfully represented Embrace Group in this case.


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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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