Liverpool Women's Hospital NHS Foundation Trust v Mr Edward Ronayne (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Beatson,Lord Justice Sullivan |
| Judgment Date | 17 June 2015 |
| Neutral Citation | [2015] EWCA Civ 588 |
| Docket Number | Case No: B2/2013/2430 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 2015 |
[2015] EWCA Civ 588
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE GORE QC
1IR21287
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice Tomlinson
and
Lord Justice Beatson
Case No: B2/2013/2430
Charles Cory-Wright QC (instructed by Hill Dickinson LLP) for the Appellant
Amanda Yip QC and Simon Fox (instructed by Maxwell Hodge Solicitors) for the Respondent
Hearing dates: 22 April 2015
Introduction
In July 2008 the Respondent Edward Ronayne, Claimant at trial, was 53 years old. He was an ambulance driver. Although working on the non-emergency side, he was used to seeing people on life support in the course of his work.
On 8 July 2008 the Claimant's wife, Julie Ronayne, was admitted to the Liverpool Women's Hospital, administered by the Appellant NHS Foundation Trust, Defendant at trial, where she underwent a hysterectomy.
A few days after discharge Mrs Ronayne became unwell with a high temperature, thirst and shallow breathing. In the early morning of 18 July she was admitted to the Royal Liverpool University Hospital by way of its Accident and Emergency department. During the course of a period of about 24 hours the Claimant observed a rapid deterioration in the condition of his wife, manifested most vividly in two distinct episodes:-
(a) At about 5.00pm on 18 July, shortly before she underwent emergency exploratory surgery, he observed her connected to various machines, including drips, monitors etcetera;
(b) Sometime on the following day he observed her in her post-operative condition. She was unconscious, connected to a ventilator and was being administered four types of antibiotic intravenously. Her arms, legs and face were very swollen. Pressure pads were in place to keep the blood in her legs flowing. Three years later Mr Ronayne described his wife's then appearance to a consultant psychologist, Dr Eileen Bradbury, who gave evidence at trial, as resembling the "Michelin Man."
It is common ground that Mrs Ronayne's condition on 18 and 19 July was a consequence of the negligence of the Appellant Trust in the performance of the hysterectomy. A suture was misplaced in her colon, in consequence of which she developed septicaemia and peritonitis. Although Mrs Ronayne remained in intensive care for a further nine weeks, developed a MRSA infection and had to deal with other extremely unpleasant complications, happily she has, so far as I am aware, made a complete recovery. This case is not concerned with her grievous suffering.
The Claimant alleged at trial that he suffered psychiatric injury in the shape of post traumatic stress disorder, "PTSD", consequent upon the shock of seeing his wife's sudden deterioration on 18 July, and in particular her appearance on the two distinct occasions I have described. At trial therefore he claimed damages as a secondary victim of the Appellant's admitted negligence.
His claim succeeded in the Liverpool County Court, although not on the basis asserted, before His Honour Judge Allan Gore QC, a judge of immense experience in this field. The judge rejected his case that he suffered from PTSD, but nonetheless found that he suffered from a frank psychiatric illness which the judge thought it unnecessary to specify by reference to the established taxonomy. He was awarded damages of £9,165.88 inclusive of interest. The Appellant appeals. It will be immediately apparent that, leaving on one side costs, which are not insignificant, this case has an importance to health authorities which goes far beyond the award here made.
The Appellant does not accept the judge's somewhat enigmatic conclusion that the Claimant suffered a frank psychiatric disorder, to which the judge, expressing an aversion to the attribution of what he called labels, would have attached the description adjustment disorder had that been thought relevant. Mr Charles Cory-Wright QC, for the Appellant, did however accept that the court may feel that the judge had just sufficient evidence to find that the Claimant had suffered adjustment disorder, as opposed to anger and stress falling short of psychiatric illness, which was the opinion of Dr Lesley Faith, the consultant psychiatrist called by the Appellant. This is an important point for, as pointed out by Lord Steyn in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491H, in this field "only recognisable psychiatric illness ranks for consideration" by which he meant, in context, compensation. Nonetheless, the position adopted by Mr Cory-Wright was realistic.
The appeal has therefore concentrated upon two interrelated points:-
(a) Whether the events concerned were of a nature capable of founding a secondary victim case, i.e. were they in the necessary sense "horrifying"; and
(b) Whether the sudden appreciation of that event or those events, i.e. shock, caused the Claimant's psychiatric illness.
Bound up in those questions is the distinct issue, what was here the event or events said to be of a sufficiently horrifying character?
Although it is inappropriate to revisit the judge's conclusion that the Claimant suffered from an adjustment disorder, I should indicate that for my part I think that the judge was, with great respect, wrong to be dismissive of the utility of diagnosis or label. Whilst I understand his point that he was concerned only to ascertain whether the Claimant had sustained a frank psychiatric illness, close attention to diagnostic criteria is in my view likely in this field to be of assistance in resolving what are often complex questions of causation. At the very least, attribution of a label introduces what might be characterised either as a discipline or as a cross-check, according to taste. I am not sure that the judge would have come to the conclusion he did on causation had he paid closer attention to the diagnostic criteria for adjustment disorder, and to the significance of the fact that he had found the elements of PTSD not to be made out.
The law
It is common ground that on the points in dispute on this appeal the judge directed himself correctly in law, founding on Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and White, above, by identifying the four requirements for recovery established by those authorities, viz:-
(a) The Claimant must have a close tie of love and affection with the person killed, injured or imperilled;
(b) The Claimant must have been close to the incident in time and space;
(c) The Claimant must have directly perceived the incident rather than, for example, hearing about it from a third person; and
(d) The Claimant's illness must have been induced by a sudden shocking event.
To this list the judge added a fifth requirement to which I have already adverted, that the Claimant must have suffered frank psychiatric illness or 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."
It is unnecessary on this appeal to revisit the "control mechanisms" which regulate recovery in this field, which can be said to be both arbitrary and pragmatic but which are well-understood, binding on us, and which were considered only recently by this court in Taylor v Novo [2014] QB 150. The question is whether the judge correctly applied the principles and in particular the fourth criterion as broken down into the two issues identified at paragraph 8 above.
In Alcock, Lord Ackner said, at page 401F:-
""Shock" in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."
In Shorter v Surrey & Sussex HC NHS Trust [2015] EWHC 614 QB Swift J, who also has enormous experience in this field, was concerned with a claimant who saw her sister in undeniably distressing circumstances in hospital. It was suggested that the claimant's professional background – she was a radiographer – gave her an unusual degree of insight into her sister's medical condition and that, as a result, she would have been more sensitive to events at the hospital and therefore more likely to find them "horrifying". Swift J said this, at paragraph 214:-
"… it seems to me that it is necessary to be cautious in finding that the Claimant's professional expertise made the sight of Mrs Sharma more "horrifying" than it would have been to a person without that knowledge. I consider that the "event" must be one which would be recognised as "horrifying" by a person of ordinary susceptibility; in other words, by objective standards. After all, certain people would find it morefrightening to have no medical knowledge and not to know what was going on; they may feel helpless and isolated. Others may have armed themselves in advance with medical information from the internet which leads them to feel far greater fear than is in fact justified. It would be unfortunate if secondary victims' claims were to become embroiled in debates about an individual claimant's level of medical knowledge and its effects upon whether an "event" should be...
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