Walters v North Glamorgan NHS Trust
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Thomas,Mr Justice Thomas |
| Judgment Date | 07 March 2002 |
| Neutral Citation | [2002] EWHC 321 (QB) |
| Docket Number | Case No: SA 110040 |
| Court | Queen's Bench Division |
| Date | 07 March 2002 |
[2002] EWHC 321 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SWANSEA DISTRICT REGISTRY
The Honourable Mr Justice Thomas
Case No: SA 110040
Mr Robert Weir (instructed by Hugh James Ford Simey) for the Claimant
Mr Gregory Chambers (instructed by Welsh Health Legal Services) for the Defendants
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgement and that copies of this version as handed down may be treated as authentic.
Mr Justice Thomas
Introduction:
The claimant suffers from pathological grief reaction, a recognised psychiatric
illness within the International Classification of Diseases; it was the agreed
opinion of the psychiatrists that the pathological grief reaction was caused by
events in July 1996 when the claimant's son Elliot died. It was accepted by the
defendants that Elliot died as a result of negligent treatment at the Prince Charles
Hospital, Merthyr, a hospital operated by the defendants.
Although it was also common ground that the claimant had suffered special
damages in the sum of £1216 and was entitled to a further sum by way of
general damages (in an amount determined by me as set out at paragraphs 63 to
66 below), the defendants denied that the claimant fell within a category of
victims that, on the existing state of the law, was entitled to recover. It was the Claimant's primary argument that she was entitled to recover on the basis of the
existing authorities (or a small incremental step forward within those
authorities). If not, then there was advanced by her the novel argument that by
reason of Article 6 of the European Convention on Human Rights, the case law
on "nervous shock" had to be reconsidered & to see whether it was permissible to
deny recovery to those to whom a duty of care was owed; that on such
reconsideration, the claimant was someone who was owed a duty of care and
there was no reason to deny her recovery. This second argument is an argument
of far reaching significance for the law of England and Wales, if correct.
The claimants' primary argument turned on the application of legal principles to
underlying facts that are not in dispute; it is therefore convenient to set out the
facts in a little more detail.
The facts
The claimant was born in July 1967. For five years she worked as an Auxiliary
Psychiatric Nurse in South Wales and thereafter did a variety of jobs including
shop work and working in a psychiatric hospital in London. She returned to
South Wales and worked in a factory. She became pregnant and on 15
September 1995 she gave birth to Elliot. By that time she had stopped working.
On Tuesday 16 July 1996 she noticed that the colour of Elliot's eyes looked
different. On 17 July 1996 she took him to see her general practitioner. He
referred Elliot to the Prince Charles Hospital at Merthyr. Elliot was seen that
day at the Prince Charles Hospital. Thereafter he was treated under the care of
the Prince Charles Hospital, most of the time as an in-patient, but part of the
time as an outpatient. The claimant was with him during his treatment.
Elliot was in fact suffering from acute hepatitis which led to fulminant hepatic
failure. It is accepted by the defendants that he was not properly diagnosed or
treated by the Prince Charles Hospital. The defendants also accept that if Elliot
had been properly diagnosed and treated, he would have undergone a liver
transplant and lived. It is not therefore necessary to set out the precise course of
treatment and events until the period immediately preceding his death. It is,
however, necessary to set out the events of the last two days as it is common
ground on the psychiatric evidence that they caused her psychiatric illness.
The final events leading to Elliot's death started at about 3 am on Tuesday 30
July 1996 when his condition deteriorated significantly. The claimant was at
that time sleeping in the same room as Elliot at the Prince Charles Hospital. She
awoke at about 3 am to hear Elliot making small choking noises in his cot; the
claimant saw that there were large amounts of what was described as "a coffee
ground blood substance"; his body was stiff. She took Elliot to a nurse. The
nurse told the claimant that Elliot was having a fit, though she did not appreciate
that the fit had lasted an hour. The hospital notes record Elliot as being in a
Grade 3 coma, responding only to deep pain. Elliot was transferred to the
Intensive Care Unit of the Prince Charles Hospital at 4:15am. The claimant was
told by a doctor at 4:45 am that it was very unlikely, and it would be very
unlucky, if Elliot had any serious damage as a result of the fit. After speaking to
the doctor she thought that Elliot might at worst be slightly brain damaged; she
did not think it was life threatening. In fact Elliot had suffered a major epileptic
seizure leading to a coma and irreparable brain damage.
At about 11 am that day the claimant was told by a doctor at the Prince Charles
Hospital after a CAT scan that there was no damage to Elliot's brain, but that he
wanted him transferred to King's College Hospital, London for a liver
transplant. Eventually later that day an ambulance arrived and a medical team
took Elliot to London where he was admitted at 6:30 pm; a further CAT scan
was carried out which showed universal attenuation in both cerebral
hemispheres; it was interpreted as showing diffuse brain injury consistent with a
profound hypoxic ischaemic insult.
The claimant had followed the ambulance in a car with Elliot's father and
arrived at King's College Hospital at about 9 pm that evening. She was seen by
three doctors. They told her that Elliot had suffered severe brain damage as a
result of the fit and he was on a life support machine. They told her that if a
liver transplant was undertaken, the chances of survival were only 50 - 50 and
he would be severely handicapped. The claimant described her feelings as being
numb, panic stricken and terrified at the sudden turn of events; she had been told
at the Prince Charles Hospital that he could have a liver transplant and she had
been told then he could not. The consultant paediatric heptologist at King's
College Hospital described her as "stunned".
On the following day, Wednesday 31 July 1996, Elliot underwent a further CAT
scan. A consultant neurologist told the claimant that Elliot's brain was damaged so severely that he would not have any sort of life or be able to recognise his parents; he would have no quality of life. This shocked her greatly. They were asked whether or not they felt it was in Elliot's best interest to continue with life support. She discussed this with Elliot's father and they decided they would
terminate the life support. Shortly thereafter, the life support machine was turned off and Elliot died in the claimant's arms at approximately 4.30pm. She was told after his death that if Elliot had been transferred for a liver transplant at any time before 30 July 1996, he would have stood a far better chance of survival.
The consultant psychiatrists instructed on behalf of the claimant and the defendants, Dr L.E. Webster and Dr P.L. Jenkins, jointly answered a series of questions; there were no substantial areas of disagreement between them. They did not give oral evidence. They were agreed that the claimant had suffered a pathological grief reaction and that the events witnessed and experienced by her over the two days prior to Elliot's death caused the pathological grief reaction; this reaction differed by reason of the severity and duration of its symptoms from the normal grief reaction. They were agreed that without the events of those two days the pathological grief reaction would not have occurred. They were agreed that the psychiatric impact of the claimant being exposed to distressing circumstances for two days was more severe than if Elliot had died suddenly. They were agreed that the psychiatric impact was compounded by uncertainties over the diagnosis and the admission to various hospitals. It was also compounded by the fact that the couple had to make a decision about the withdrawal of life support. The psychiatrists also responded affirmatively to the following question:
"Has the claimant suffered shock due to what was witnessed, experienced and participated in by her."
During the course of legal argument it became apparent that emphasis was being placed by the claimant upon the effect on the claimant of awakening to find Elliot had suffered a fit shortly after 3am on Tuesday 30 July 1996. It was therefore agreed that the psychiatrists would be asked further questions. Two questions were formulated by the parties after the hearing and the psychiatrists produced agreed answers:
i) "Q: When they began their consideration of the events of those two days,
which was the first event in time that the psychiatric experts considered
to have been relevant to the claimant's pathological grief reaction?
A: Shortly before admission on 17 June 1996 when [Elliot] was noted to be jaundiced, the claimant began to become emotionally disturbed
ii) Q: If the relevant events included the claimant witnessing the seizure
suffered by Elliot at 3:20 am on 30th July 1996 did this materially
contribute to the onset of the claimant's psychiatric symptoms or is it rather to be regarded as one of a series of materially contributory events that occurred over the period of two days?
A: It should be as one of a series of materially contributory events"
In September 2001, the claimant was still suffering from symptoms of an unresolved pathological grief reaction; these symptoms caused...
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