Tide turning on secondary victim claims

choppy seaSigns of consistency are finally appearing in an area of practice bedevilled by elusive concepts and contradictory decisions. In his guest post for the LexisNexis DR blog, Charles Bagot, personal injury barrister at Hardwicke, considers when can a relative who is shocked by the sight of a horrific incident (or its aftermath) involving a loved-one recover damages for psychiatric injury and analyses recent case law relating to secondary victim claims.

Five reported decisions since December 2014

Collectively these decisions bring some logic to this policy-driven area, building on the decision in the Taylor v Novo (UK) Ltd. [2014] QB 150 appeal (decision in 2013). The law has now come full circle and successful secondary victim claims are to be viewed as exceptional rather than the norm.

As long ago as 1999, one of the most senior Judges spoke in trenchant terms of the unsatisfactory cul-de-sac down which the law in this area had gone.

“It seems to me that in this area of the law, the search for principle was called off in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle.”

observed Lord Hoffman in White v Chief Constable of South Yorkshire [1999] 2 AC 455 (the police officers’ claims arising out of the Hillsborough disaster).

Taylor v. Novo

Taylor v Novo was the first secondary victim claim to go to the Court of Appeal for 10 years. The Master of the Rolls, Lord Dyson, looked again at secondary victim claims and reiterated that strict control mechanisms set out by the House of Lords in the post-Hillsborough disaster decision of Alcock, in 1992, should be applied by Judges to limit the ambit of permissible secondary victim claims unless Parliament intervened to change the law.

A quintet of new decisions

Since December 2014 there have been a quintet of decisions arising from a variety of tragic circumstances:

  • Wild v Southend Hospital NHS Trust [2014] EWHC 4053
  • Brock v Northampton NHS [2014] EWHC 4244 (QB)
  • Berisha v Stone Superstore (2014) LTL, 2nd December (Manchester CC; DJ Hassall)
  • Shorter v Surrey & Sussex NHS [2015] EWHC 614 (QB)
  • Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588

Whilst factually varied, ranging from a death in the womb (Wild), to a fatal workplace accident (Berisha) and clinical negligence (Brock; Shorter; and Ronayne), there has been a consistent theme of going back to first principles and a much stricter approach to secondary victims.

While four of these decisions are clinical negligence related, the same principles apply in cases arising from accidents. There are no special rules or exceptions.

Courts approach

The first and the last of these decisions demonstrate a tougher line being taken by the Courts.

Wild v Southend Hospital NHS Trust was the first application of Taylor v. Novo in the clinical negligence context.

The Claimant, Mr Wild, was present with his wife at hospital on their baby’s due date when it was discovered their unborn son had died in the womb (due to the hospital’s negligence) causing Mr Wild psychiatric injury.

The Judge dismissed the claim as the Claimant did not satisfy the control mechanisms in Alcock and applying Taylor v Novo. It was not enough for him to have been witness to the manifestation of the consequences of the Defendant’s negligence, i.e. the retrospective discovery that the baby had died in the womb. That does not equate with actually witnessing horrific events leading to a death or serious injury. Also there was no sudden shocking event as the law requires. Here, there was a gradual realisation that medical staff could not find the baby’s heartbeat and mounting panic for the father.

The decision in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne  is significant because it arguably tightens the strict control mechanisms. This will be welcomed by NHS Trusts and liability insurers, who have seen a rise in secondary victim claims.

Mr Ronayne sustained a psychiatric injury from the shock of his seriously ill wife’s appearance in hospital. He described her looking like ‘the Michelin Man’.

The judgment clarifies and adds to what is necessary to establish the control mechanism of a ‘shocking event’ that it must be (a) exceptional; and (b) sudden; and (c) horrifying. Unquestionably, this will be a high threshold for Claimants.

The Appeal Judges accepted the appalling sequence of events which caused profound distress to Mr Ronayne, but held unanimously that the circumstances fell “far short” of those recognised by the law in previous cases as founding secondary victim liability. This was not a horrifying event by objective standards as the appearance of Mr Ronayne’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. It was not exceptional.

Conclusion

Demonstrating that a shocking event is ‘exceptional’ will be a standard rarely met. Fewer cases will be brought in future and many current cases will fail. Secondary victim law has come full circle so that successful claims will be the exception rather than the rule.

Charles Bagot is a specialist personal injury and clinical negligence Barrister at Hardwicke. He was Counsel for the successful parties in Taylor v. Novo; Wild v. Southend NHS Trust; and Berisha v. Stone Superstore.

Filed Under: Personal Injury

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