Yah v Medway NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 05 November 2018 |
| Neutral Citation | [2018] EWHC 2964 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16C02033 |
| Date | 05 November 2018 |
[2018] EWHC 2964 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple DBE
Case No: HQ16C02033
Richard Booth QC (instructed by Boyes Turner LLP) for the Claimant
Edward Bishop QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 15th, 16th, 17th October 2018
HTML VERSION OF JUDGMENT
INTRODUCTION
At 18.15 on 9 July 2012 the Claimant's daughter, referred to in this judgment as XAS, was born at the Medway Maritime Hospital, Gillingham, Kent. She was born by emergency caesarean section. She was in poor condition, extremely acidotic, and required resuscitation. Her mother, the Claimant, knew that something was wrong. Before the Claimant was able to see her new baby, XAS was taken to the special care baby unit where she was cooled and intubated. The Claimant saw XAS for the first time the next morning. At that time, XAS was in a box, surrounded by medical equipment, tubes and monitors, and her mother could not hold her or touch her.
XAS has since been diagnosed with cerebral palsy for which the Defendant, the trust responsible for the hospital, has admitted liability. The basis of that admission is a culpable delay in delivering XAS after clear signs of distress were evident on the CTG trace. Judgment has been entered in XAS's claim which is proceeding to an assessment of damages.
This claim concerns XAS's mother, the Claimant (anonymised in these proceedings as YAH). She was 30 when she had XAS, who was her first baby. The Claimant claims damages for psychiatric injuries associated with XAS's birth.
The Defendant resists this claim and argues that the Claimant is not entitled to recover damages for psychiatric injury.
ISSUES
The central issues going to liability are:
1. Whether the Claimant is, properly classified, a primary victim in law (the “primary victim” issue).
2. If she is a primary victim, whether she must show that her psychiatric injury was caused by shock in order to recover damages (the “shock” issue).
3. If she is a primary victim, whether the psychiatric damage that she suffered is too remote from the Defendant's admitted negligence to permit recovery of damages (the “remoteness” issue).
4. Whether she has an alternative claim as a secondary victim (the “secondary victim” issue).
If liability is established as either a primary or secondary victim, I must determine the value of damages due to her (“quantum”).
THE PLEADED CLAIM
On 8 October 2014, the Claimant's solicitors wrote a letter of claim to the Defendant's solicitors. That set out the facts in outline and asserted that the Claimant had suffered pain, injury, loss and damage. The damage was particularised to include “a psychiatric injury as a result of the traumatic birth, XAS's time in SCBU and XAS's diagnosis of cerebral palsy”.
On 20 January 2015, the Defendant's solicitors responded rejecting the Claimant's claim. That letter stated that “ It is the Defendant's position that the [Second] Claimant must fulfil the criteria for the recovery of damages as a secondary victim in this claim….”. The Defendant accepted that the Claimant met some of the criteria which attach to secondary victim claims (she had the tie of love and affection and thus sufficient proximity was established) but the Defendant asserted that the Claimant had not shown that she had suffered a recognised psychiatric injury, or that the injury was caused by shock resulting from the relevant events or their immediate aftermath.
The Claim Form was issued on 9 June 2016 and particulars of claim drafted by Richard Booth QC, who has appeared for the Claimant at this trial, were served. The particulars asserted at [2] that the Second Claimant was a primary victim, and that she claimed damages for psychiatric injury caused by directly experiencing the shocking trauma of her daughter's extremely poor condition at birth. The Claimant gave voluntary particulars of her case on causation at [25] which included the assertion that she had been shocked and horrified by XAS's very poor condition and apparent lifelessness following her birth and that this was a truly shocking and horrifying event. It was again asserted that she was a primary victim.
The Defendant served a defence (it is not clear to me who drafted that defence in its original form) which denied the Claimant's claim, and specifically denied (at [14]) that the Claimant was a primary victim, but went on to state that if she was a primary victim, she would still have to prove that she suffered her psychiatric injury by sudden appreciation of a horrifying event, which the defence asserted she would be unable to do.
On 28 August 2018, the Claimant amended her particulars of claim (again, by the hand of Mr Booth). At [2], her claim to be a primary victim was restated, but it was now said that the psychiatric injury was caused by the Claimant directly experiencing the shocking trauma of XAS's extremely poor condition “on the day after her birth” (rather than “at” her birth as previously pleaded). More substantial amendments were made at [25]. The Claimant now asserted that “… as a primary victim, [she] does not need to prove that this was a truly shocking and horrifying event, viewed both objectively and subjectively….”; that the negligence which had caused her psychiatric injury had occurred “ when [XAS] was in her womb”; and that “ the [Second] Claimant's anxiety disorder and depression were caused or materially contributed to by the Defendant's admitted negligence”.
The Defendant served an Amended Defence dated 7 September 2018. The Amended Defence is in the name of Mr Bishop QC (who has appeared for the Defendant at this trial). Responding amendments were made. Paragraph 14 now stated:
“14. As to Paragraph s 25(d) and (e), it is denied that the Second Claimant is a “primary victim”, in the sense of which that description is used in claims for damages for psychiatric injury and/or that the description of her as a “primary victim” entitles her to damages for psychiatric injury caused by the realisation of the extent and effect of the First Claimant's injuries in the months and years following her birth. Even if she is, she must still prove that she suffered her psychiatric injury by sudden appreciation of a horrifying event. For the reasons already set out, this is denied. The Defendant admits that its negligence caused the First Claimant's injuries but denies that the Second Claimant's realisation of the extent and effects of those injuries entitles her to claim damages caused by such realisation.”
The Claimant's skeleton prepared for trial, dated 10 October 2018, again stated that the Claimant was a primary victim who was placed at foreseeable risk of injury by the Defendant's admitted negligence and who was therefore entitled to recover damages for injuries, whether physical or psychiatric, caused or contributed to by that negligence (see [5]). The Claimant disputed the Defendant's case that she was in law a secondary victim ([6]). Further, the Claimant pointed to the joint statement of the expert psychiatrists where it was agreed that the difficult labour, the worry of not knowing whether XAS would survive, and the strain of looking after XAS had contributed to the Claimant's mental disorder ([7], referring to a passage from the second joint statement dated 17 September 2018) and argued that this agreement meant that the Claimant was entitled to damages.
The Defendant's skeleton in response dated 9 October 2018 denied that the events around XAS's birth were shocking; rather, the Defendant asserted that the Claimant's mental health problems were caused predominantly by the stress of having to look after XAS (see [14]). It was said that the distinction between primary and secondary victims was not helpful and that there was a blurring of the lines when injury was sustained in the course of a traumatic birth and its aftermath; but in this case, the Claimant could not recover damages for the stress of coping with a disabled child ([26]).
LIABILITY ISSUES
Primary Victim
The Claimant has always maintained that she is a primary victim. The Defendant has asserted, by way of denial of her claim, that she is a secondary victim, although the Defendant's skeleton suggests that the distinction is unimportant.
It is well established in law that a secondary victim must bring him or herself within the criteria which were established in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, including the requirement that the Claimant's psychiatric illness must be caused by shock, defined by Lord Ackner in the following way at p 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.”
By contrast, a primary victim does not have to satisfy the Alcock criteria (or the Alcock “control mechanisms”, as they are sometimes called). Specifically, a primary victim does not have to demonstrate that his or her psychiatric illness has been caused by witnessing the sort of shocking event described by Lord Ackner.
I accept Mr Booth's submission that it is important to identify, at the outset, whether the Claimant is a primary or a secondary victim. The two categories of claim are governed by different rules. I reject Mr Bishop's submission that categorisation does not matter.
Mr Booth submits that the Claimant is, quite plainly, a primary victim. XAS was unborn at the time of the negligence; as a matter of law, mother and daughter were at that time...
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