Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWHC 980 (QB) |
| Docket Number | Case No: HQ17C00300 |
| Court | Queen's Bench Division |
| Date | 16 April 2019 |
[2019] EWHC 980 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Martin Spencer
Case No: HQ17C00300
Miss Susan Rodway QC and Mrs Sarah Fraser Butlin (instructed by Shoosmiths LLP) for the Claimant
Mr Charles Feeny (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 22 nd, 25 th, 26 th, 27 th and 28 th February 1 st, 4 th, 5 th and 8 th March
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this matter, the Claimant seeks damages for psychiatric injury arising out of the stillbirth of her daughter on 27 May 2013. Breach of duty is admitted, as is some damage arising out of the breach of duty. In those circumstances, judgment has been entered for the Claimant and the trial has concerned the extent of the damage caused and the quantification of the claim.
The Claimant gave evidence over two days, on Monday 25 February and Tuesday 26 February 2019. I have no doubt that the process of reliving the events surrounding the stillbirth of her child and its consequences, including reading through her witness statement (395 paragraphs long) and then giving evidence, were traumatic for her. The case has also attracted a certain amount of publicity from the press which may have been further unsettling. After she had finished giving evidence, I said to the Claimant that if she wished not to attend the trial further, I would quite understand and she took advantage of that indication (although her husband loyally attended throughout, except for the final day when submissions were delivered). It is always to be regretted when, in a claim for psychiatric damage, the legal proceedings themselves play a part in perpetuating or exacerbating the Claimant's illness and I am aware that there may be an effect on the Claimant's psychiatric wellbeing even from reading this judgment. Whilst that cannot deflect me from adjudicating on the matters in issue fully and candidly, I wish to indicate from the outset that I am sorry if this judgment has such an effect. I am sure however that the cessation of these proceedings in terms of knowing the outcome and no longer having to ruminate about past events for the purposes of her claim will only be beneficial.
History
The facts are as follows. The Claimant, who is Polish, was born on 26 September 1980. She is highly educated, having attended university and obtained a Master's degree in Economics. She has what may perhaps be described as an “alpha” personality: thus, she was highly motivated, ambitious, organised, a person who always liked to be in control, a planner who believed that anything that went wrong could be fixed. She is also something of a perfectionist who expects the highest standards of herself, and therefore of others: she is intolerant of the failings of others, particularly professionals whom she expects to act professionally at all times.
The Claimant moved to England in July 2004 and soon thereafter met and formed a relationship with Mark Smith who was born on 30 October 1961 and was therefore some 19 years older than her. He was divorced and had 3 children by his previous marriage. They married on 28 July 2007. The Claimant had obtained a job as an Operations manager for a company called Convention Travel, based in Guildford. This involved organising conferences and incentives, and took her all over the world. She was there for about 4 years.
The couple always planned to have a family and they moved from London to Lincolnshire in 2009, where they were able to purchase a large, 5-bedroomed house which could accommodate their intended family. In September 2010, the Claimant obtained employment as a Data Assistant at the Federation of Academies. She was soon promoted to the role of Data Manager at The Priory School, Lincoln, from 6 December 2010, but the job was low-paid, at £16,054 pa, and well below the Claimant's capabilities. One of her colleagues at The Priory School was Lisa Hodgson who was PA to the Head Teacher and Ms Hodgson gave evidence of the Claimant's capabilities and approach to work. She said:
“Justyna was a key player in developing the effective use of information systems. She was also known as a very logical thinker with excellent organisation skills. Justyna was able to prioritise her work and meet the required deadlines. She was very good with dealing with queries over the phone and email and attended all team meetings. She was an independent worker as well as a good team player. Justyna was a dedicated and hardworking member of the team and had excellent communication skills with all members of the staff. … I knew Justyna was a very ambitious and driven person and it was clear that she had the ability to become even more successful. I don't know what her plans were at the time but it was obvious that Justyna would eventually secure alternative employment where she had the opportunity to progress and better her career. I got the feeling that this was not enough for her she wanted to push herself further.”
In about October 2012, the Claimant discovered that she was pregnant and her first booking appointment at the hospital was on 24 October 2012. A 12 week scan on 2 November 2012 gave an estimated date of delivery of 15 May 2013. A further scan on 28 December 2012 revealed that the baby was a girl and the Claimant and her husband were overjoyed. They agreed a name for the baby, Megan, decorated and prepared a nursery for the baby and prepared themselves for the baby's birth. In this trial, the Claimant has emphasised the significance to her that the child was a girl. In her statement she said:
“I had always dreamed of having a daughter and at this scan I realised that my dreams were coming true and that it was really happening- I felt the happiest person in the world at that point.”
In her evidence, she expanded on this, explaining the special bond that exists between her mother and herself and her sisters, and how one of her sisters has been like a daughter to her. She said:
“I wanted to do the same with my daughter as my mum had done to me.”
The pregnancy proceeded uneventfully and the Claimant reached term (40 weeks' gestation). A membrane sweep was carried out at term on 15 May 2013 and a second membrane sweep was carried out a week later on 22 May 2013, neither of which precipitated labour. The Claimant was therefore admitted to the Defendant's hospital on 26 May 2013 (Term + 10) for induction of labour. At 01:00 in the early hours of 27 May 2013, a CTG trace was started which sadly revealed that there was no heartbeat and in fact the baby had died in utero. The labour had to proceed, it lasted some 18 hours, the baby was delivered by forceps and was stillborn. The Claimant was discharged the following day, 28 May 2013.
A number of witnesses have attested to the effect of the stillbirth on the Claimant. In addition to the Claimant herself, I heard from:
• Celina Zubel, the Claimant's older half-sister
• Halina Zeromska, the Claimant's mother
• Malgorzata Kwiatkowska, a friend;
• Mark Smith, the Claimant's husband
• Sabina Zeromska, the Claimant's younger sister
• Judyta Zubel, the Claimant's niece (Celina's daughter).
Celina Zubel, the Claimant's older half-sister, described Justyna as always being the leader and organiser in every situation. She described how Justyna liked to take control of a situation and had excellent organisational skills so that whenever they visited her in England, she always organised the family trips, putting together an itinerary. She said:
“Justyna's house would be full of family and friends and there was a lot of fun in the house. If the music was on Justyna would be the first one to get up and start dancing. The house was full of smiles and laughter.”
She described her sister as an aspirational and independent woman who was lively, outspoken and energetic. She was also very social enjoying being out with family and friends and colleagues. She said that the effect of the stillbirth has been devastating for the Claimant. She said:
“Justyna has stopped smiling and laughing, she is a completely different person now. She has isolated herself and won't let anyone in. She doesn't look after herself anymore and has stopped doing all the things which she used to love and enjoy. … Nothing brings her joy, she has become very closed, wooden and vacant.”
She describes the change in the Claimant's personality: she says that the Claimant now loses her temper very quickly and has a short fuse, whereas before she was always calm and collected. If the Claimant hears something she doesn't agree with, or if a particular job around the house is not completed fast enough, she loses her temper and ends up shouting. She describes the Claimant as being low in mood most of the time, lethargic and depressed. She no longer goes out of the house much but just wants to stay indoors all the time. In Celina's words:
“She has become a paranoid prisoner in her own house.”
She also describes Justyna now as being very forgetful and having poor concentration. She has also experienced Justyna expressing suicidal thoughts. She says that the relationship between Justyna and Mark has also been badly affected. I shall return to this when I consider the evidence of Mark Smith. Celina concludes her statement as follows:
“59. Justyna is the way she is now because Megan was taken away from her. Had Megan not died, nothing would have changed in Justyna's life. Had Megan lived, there would have been no strain on the relationship with Mark, she would have...
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