Clyde & Co act for NHS Trust in successful defence of Secondary Victim Claim at Trial

Clyde & Co were instructed by NHS Resolution to represent the Hillingdon Hospital NHS Foundation Trust in a secondary victim case which included an examination of the proximity control mechanism recently addressed in the Court of Appeal case of Paul.

Synopsis

This was an extremely sad case. The Claimant and his wife were expecting twins. His daughter was born alive but tragically her twin sister was stillborn. This was caused by the Defendant’s delay in proceeding to deliver the twins for which breach of duty and causation were admitted at an early stage.

The Claimant and his wife both intimated claims. It is settled law that a mother is a primary victim in such circumstances (i.e. a person directly involved) and her claim was compromised following mediation. As a secondary victim (not directly involved) the Claimant had to establish the following in order to succeed:-

1. It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock;
    
2. There must be a close relationship of love and affection between the person killed or injured and the claimant;
    
3. The claimant must be in close proximity in space and time to the incident or its immediate aftermath;
    
4. There must be a recognised psychiatric injury and it must result from a “sudden and unexpected shock”; and
    
5. The psychiatric injury must be caused by seeing or hearing the incident or its immediate aftermath; rather than being told about it

Despite having great sympathy for the Claimant in these tragic circumstances, the law supported the fact that there was no valid claim here. Accordingly, liability was denied by the Defendant. Proceedings were then issued in the County Court and a 3 day trial look place before HHJ Hellman on 28 March 2022.

Factual background

The Claimant’s wife attended hospital on 20 November 2014 due to reduced fetal movements. It was admitted that in the absence of substandard care both babies would have been delivered unharmed between 02.00 and 03.00 on 21 November 2014.

In fact, at 14.30 on 21 November 2014 the Claimant and his wife attended the scanning room and an ultrasound scan identified that tragically the first twin had died in utero. The second twin was alive and immediate delivery by caesarean section was advised. After some subsequent discussion with the clinicians, this took place around 2 hours later at 16.23 on 21 November 2014.

The shocking event relied upon by the Claimant in his pleadings encompassed (a) the events in the scanning room; (b) subsequent discussions with the clinicians about whether the death could have been avoided; (c) the caesarean section; and (d) a 36-hour period thereafter until the body was released for a post mortem.

At trial however the Claimant’s case narrowed, and it was acknowledged by his representatives that the shocking event relied upon was simply the events in the scanning room.

Legal arguments

It was accepted by the psychiatric experts that the Claimant sustained a psychiatric injury albeit they disagreed on the proper diagnosis and cause. However, the core issues raised by the Defendant in the litigation included:-

• The case relied upon the communication of (bad) news by a third party as the shocking event. This was contrary to (e) set out above;
   
• There was no shocking event to witness as a matter of law and the case could not sensibly be distinguished from the unsuccessful claim by the father of a stillborn child in Wild v Southend University Hospitals NHSFT [2016] PIQR P3.
   
• The shocking event relied upon was not coincident in time with the breach of duty. As the baby had sadly already died by the time of the USS, it inescapably followed that not only the original breach of duty, its initial consequence of injury, but also the death, had already occurred prior to the shocking event relied upon. The interval in time between the breach of duty and the shocking event was enough to defeat the claim, applying Paul [2022] EWCA Civ 12..

Judgment was reserved and handed down on 4 May 2022.

Outcome

The Claimant’s claim was dismissed. The judge rejected the Claimant’s arguments that this was not a simple communication of news case and that the information imparted about the death was just one part of the overall circumstances. The judge found that the communication of news was the sole trigger of the injury and that this was enough to defeat the claim.

The Judge also rejected the Claimant’s arguments that Wild could be distinguished.

Furthermore, the Judge accepted that the 11 hour interval between the breach of duty and the shocking event was also enough to defeat the claim. He rejected the Claimant’s arguments that there was a continuing breach of duty on the basis that any continuing breach of duty was immaterial.

The Claimant sought permission to appeal but this was denied.

The case reinforced the hurdles that claimants have to overcome in secondary victim claims. The fact that communication of news is a bar to recovery is established law, as is the need for a shocking event to witness. The issue concerning intervals of time between the breach of duty and shocking event is a developing area of law which will be considered by Supreme Court in the forthcoming Paul appeal. For now however the comments of Lord Justice Underhill in Paul sum up the position succinctly on this specific requirement:-  

“The essence of the reasoning which [Lord Dyson MR] was thereby endorsing was that there could be no liability for psychiatric injury to the claimant caused by witnessing her husband’s death “long after the negligence which had caused it”, as opposed to injury caused by a traumatic event occurring at the time of the breach of duty (see the passage quoted at para. 11). Against that background, the fair reading of paras. 29 and 30 seems to be that the ultimately decisive feature was simply that there had been an interval of time between the breach of duty, whether or not it occasioned any injury at the time, and the shocking event. In Taylor v A. Novo itself the interval was three weeks, but the principle must be the same whatever the interval, provided it is not part of the same sequence of events as in cases of the Walters kind.”