Law on secondary victims in clinical negligence claims pushes the existing boundaries even further

Posted: 22/09/2017

The law on secondary victims, namely those people who were not injured themselves (commonly known as primary victims), but who observed a loved one sustaining injury and suffered psychiatric injury as a result, is governed by principles set down in the cases following the tragedy at Hillsborough (Alcock v Chief Constable of South Yorkshire Police - [1992] 1 AC 310).

The tests to be satisfied of a close tie of love and affection, closeness to the incident in time and space, direct perception of the incident rather than, for example, hearing about it from a third person and the claimant's psychiatric injury having been induced by a sudden shocking event, are well established.

New cases of course come before the court and in Ronayne v Liverpool Women’s Hospital NHS Foundation Trust [2015] PIQR P 20 further qualification to the control mechanisms was given - that there must be ‘a sudden appreciation of an objectively horrifying event’.

Since in most clinical negligence claims, the ‘event’ which gives rise to the allegations of negligence occurs in a clinical setting such as a hospital, establishing a secondary victim claim is far from easy – Tomlinson LJ in Ronayne at para 17:

‘I consider it telling that there is…only one reported case in which a claimant succeeded at trial in a claim of this type [Walters] in consequence of observing in a hospital setting the consequences of clinical negligence. That is in my view unsurprising. In hospital one must expect to see patients connected to machines and drips and...expect to see things that one may not like. A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing.’

In Walters, where a mother witnessed the traumatic death of her baby son (North Glamorgan NHS Trust v Walters [2003] PIQR P16 ), the event was described by Ward LJ at para 34 as ‘..a seamless tale with an obvious beginning and an equally obvious end’.

On the issue of ‘horrifying’ in Walters, as per Ward LJ at para 36, the combination of events witnessed by the mother ‘..must have been chilling moments, truly shocking events…and thus amply justifying the conclusion that this was a horrifying event’.

Applying the tests then in the case of Re (a minor) v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB), it is not hard to understand given the traumatic series of events, why the court (Goss J) found for the secondary victim claimants, namely the mother and grandmother.

In brief terms, the circumstances are that an infant suffered a brain injury during a protracted birth which led to an hypoxic insult. As a result, the baby when born, was described as ‘flat and apnoeic, with a purple and swollen head’ (para 42).

In addition to the claim on behalf of the infant, both the mother and grandmother, who was present at the birth, brought a claim for psychiatric injury.

The grandmother succeeded, satisfying the tests in Alcock, Ronayne and Walters.

The mother was successful on the basis that she was a primary victim. At the time when the negligence occurred ie the failure to deliver the infant in a timely manner leading to the hypoxia, and at the onset of the psychiatric injury, the mother was still connected to the infant who was in her birth canal.

Once the infant was born and the mother witnessed her child in the same way as the grandmother, she was a secondary victim.

The interesting issue is the point of the onset of the psychiatric injury. Other than this being the first case apart from Walters where a secondary victim claim has been established, it begs the question whether a mother in similar circumstances, having been told of an injury to an infant she is carrying, and where a claim arises for the infant, automatically becomes a primary victim. This was considered to be the correct analysis in Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB); [2016] PIWR P3.

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