Jamie King v Royal United Hospitals Bath
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 16 June 2021 |
| Neutral Citation | [2021] EWHC 1576 (QB) |
| Docket Number | Case No: F90BS630 |
| Court | Queen's Bench Division |
| Date | 16 June 2021 |
[2021] EWHC 1576 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
Civil Justice Centre
Bristol BS1 6GR
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: F90BS630
Ben Collins QC and Kara Loraine (instructed by Augustines Injury Law) for the Claimant
Jeremy Hyam QC and Gemma Witherington (instructed by Bevan Brittan) for the Defendant
Hearing dates: 24 – 27 May 2021
Approved Judgment
Philip Mott QC:
Introduction
The Claimant is an actor. He is married to another actor, Tamara Podemski. They have a son, Oliver, who was born on 8 July 2014 in the Royal United Hospital, Bath (“RUH”). Their second son, Benjamin, was born there by emergency caesarean section on 5 May 2016. Tragically he died on 10 May 2016. On 4 July 2017 the Defendant admitted liability for his death “ in not providing care that would have led to the option of Benjamin being delivered before 5 May 2016”. It was accepted that “ had Benjamin been delivered before 5 May 2016, he would have avoided injury and survived”. As a result the full details of Benjamin's death have not been explored in evidence in this trial, but it is clear that his viability was severely compromised by meconium aspiration.
Claims on behalf of the estate, for bereavement, and for psychiatric injury to Tamara have all been dealt with. I was not provided with any details, but understand that Tamara's claim was made as a primary victim, since Benjamin was in law still a part of her when the negligence occurred.
By this action, the Claimant seeks damages for psychiatric injury, with consequential loss and damage. It is accepted that he does so as a secondary victim. As a result, it is common ground that in order to succeed he needs to satisfy the control mechanisms derived from Alcock v South Yorkshire Police [1992] 1 AC 310. These have been described as “ both arbitrary and pragmatic” by the Court of Appeal in Liverpool Women's NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, but they are binding and must be applied here.
Four control mechanisms are laid down, but it is common ground that all are satisfied save for the last. The four requirements, as summarised in Ronayne, are:
i) The Claimant must have a close tie of love and affection with the person killed, injured or imperilled;
ii) The Claimant must have been close to the incident in time and space;
iii) The Claimant must have directly perceived the incident rather than, for example, hearing about it from a third person; and
iv) The Claimant's illness must have been induced by a sudden shocking event.
Even if these control mechanisms are satisfied, recovery is limited to loss arising from frank psychiatric injury, as opposed to what Lord Oliver described in Alcock at page 410E as
“grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune [which] must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation.”
The fourth control mechanism, which is the only matter in dispute on liability, was defined or described in Alcock as follows:
i) By Lord Oliver at page 411F as “ sudden and unexpected shock”.
ii) By Lord Ackner at page 401F as “ the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”. It does not include “ the accumulation over a period of time of more gradual assaults on the nervous system”.
These descriptions or definitions are not to be treated in the same way as statutory language (see North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, per Clarke LJ at [48]). But the control mechanisms are now fixed and cannot be extended by analogy (see White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, per Lord Steyn at page 500B and Lord Hoffman at pages 502D and 511B; and Taylor v A Novo (UK) Limited [2013] EWCA Civ 194, per Lord Dyson MR at [24] and [31]). None of this is contentious, and I do not need to extend this judgment by setting out the case law in great detail.
When it comes to the practical application of these principles to particular sets of facts, I have been referred to a number of previous cases to which I will return when I have considered the facts and evidence on liability in this case.
As now pleaded in the Amended Particulars of Claim, the Claimant founds his claim solely on what he saw and was told on his first visit to see Benjamin in the Neonatal Intensive Care Unit (“NICU”) at the RUH on the morning of 5 May 2016. The stress of the next few days, which culminated in the Claimant and his wife having to make the terrible decision to move to palliative care, and therefore to allow Benjamin to die as he did on 10 May 2016, can form no part of this claim because of the requirement of a single shocking event in the control mechanisms.
It is agreed by the clinical psychologist instructed for the Claimant and the psychiatrist instructed for the Defendant that the Claimant suffered from post-traumatic stress disorder (“PTSD”), and that clinically the cause of this was the “ psychological impact of seeing his critically ill son on his first visit to NICU after his son's birth”.
I therefore turn first to the factual disputes surrounding the circumstances of that first visit.
The first visit to NICU – evidence
I heard evidence on this from the Claimant, and from Dr Edmonds and Dr Jones for the Defendant. Witness statements from Tamara Podemski and the Claimant's father add a little to the background. There are also extensive clinical records, some written retrospectively. It was agreed that these are admissible as evidence of the facts stated, but the weight to be attached to them may be less where the maker has not been called as a witness to be cross-examined.
The Claimant's evidence sets the scene. Their first child, Oliver, had spent two weeks in the NICU at RUH after his birth, which had been a frightening experience and gave the Claimant a heightened degree of anxiety in the run up to Benjamin's birth. His wife was two weeks overdue by the time of the birth. On 4 May 2016 they went to the Frome Birthing Centre, where the midwife noticed a deceleration in Benjamin's heartbeat. They decided to send Tamara to RUH by a blue light ambulance. As a result both parents began to feel anxious. By the early evening it had been decided to put off the caesarean section until the next morning, and the Claimant and his wife went home to Frome. Early the next morning (she says about 5 am) Tamara woke and could not feel Benjamin moving. The Claimant drove her back to RUH. She felt something was terribly wrong and told him so. He says:
“ My heart was racing and I was feeling very anxious. I knew something was wrong and we had to get to the hospital as soon as possible … I was very scared … As soon as we arrived, I shouted out in the reception area that this was an emergency and where was everybody, and a receptionist told me to calm down. I said that she didn't understand what was going on. Tamara was in pieces and I desperately wanted help to come. It was very intense … Tamara and I were both panicking.”
At that stage, the Claimant says, events moved very quickly. Tamara was taken for surgery almost immediately. He was left outside the delivery suite, and paced up and down in the corridor, anxious and afraid, trying not to think of the worst. Eventually he says he stopped a random member of staff to ask what was going on, as a result of which a member of the team came out to tell him that Benjamin had been born and had been taken to NICU. He was relieved to hear this and asked to go there immediately. The nurse went with him and he went straight in. His statement continues:
“ When I entered I saw that there were a lot of people around Benjamin's cot working on him and I kept telling myself he was alive and he would be okay. As I walked closer I saw that it was much worse than I thought. He was attached to machines and they were all bleeping loudly. There were a lot of different people working around the cot and there seemed like a lot of panic. I recognised Dr Steve Jones who had cared for Oliver and I said “He's alive?” but Dr Jones said, “Yes, he's alive, but he is very sick and we still might lose him”. In that instant all my hopes were dashed and I shouted out “Don't say that, we don't know that yet”. My knees were weak and I was fighting the energy in me. I felt like I wanted to punch him for taking away my hope. There was a lot of tension in the room. As I looked down at Benjamin, I felt sick to my stomach. I desperately wanted to hold him but I couldn't. He was all hooked up to machines, looking like a science experiment and I couldn't get close to him. At that point I remember my knees feeling weak.”
It was after this first sight of Benjamin, and the information from Dr Jones, according to the Claimant, that he first met Dr Edmonds. She asked him to sit down and gave him a glass of water. She said to Dr Jones “He's ok but I think what you just said really shocked him”. She then took him to a waiting room back on the Central Delivery Suite (“CDS”) near the operating theatre where Tamara underwent the caesarean section. Dr Kirk (who performed the operation) was there, in tears. Ms Qureshi, the obstetric consultant, also came in. The Claimant's recollection of the conversation there, as recorded in his statement, is as follows:
“ They explained that Benjamin had been born with thick meconium in his lungs and that he had been without oxygen for a long time. They said there was a chance that he might have brain damage and that he would need specialist treatment.”
Thereafter the Claimant spoke to Tamara, and...
To continue reading
Request your trial
-
Secondary Victim Claims ' Where Are We Now?
...event was 'horrifying by objective standards.' Further gloss was added in King v Royal United Hospitals Bath NHS Foundation Trust [2021] EWHC 1576 (QB) with the wording of 'exceptional', which had crept into the test, not as an addition to the legal test, but as an explanation that the shoc......