Psychiatric Injury Claims from ‘Secondary Victims’

The recent Court of Appeal case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 has further clarified the criteria that alleged secondary victims must satisfy in order to establish a claim for psychiatric injury.

It was held that a husband was not entitled to claim for the psychiatric injury that he allegedly suffered following a NHS Trust Hospital’s negligence in performing a hysterectomy on his wife.

The claimant claimed that he suffered PTSD after witnessing his wife’s state whilst she was suffering in hospital after a suture was negligently misplaced in her colon. The Court found that the necessary element of suddenness did not exist and that his wife’s appearance was not exceptional or "horrifying" as required by the established case law.

Background

The claimant’s wife became seriously unwell after she underwent a hysterectomy at Liverpool Women’s Hospital. During exploratory surgery, it was found that a suture had been misplaced causing her to develop septicaemia and peritonitis. The hospital admitted that it had performed the hysterectomy negligently.

The claimant claimed that he was a secondary victim of the hospital’s negligence. It was the claimant’s case that he suffered PTSD following two distinct distressing episodes over a 36 hour period in which he witnessed his wife being treated in hospital in the aftermath of the negligent surgery.

The first episode that the claimant cited as causing his psychiatric illness was seeing his wife shortly before she underwent emergency exploratory surgery connected to numerous machines such as drips and monitors. The second episode that the claimant described as distressing was visiting his wife after the surgery and witnessing her with pressure pads in place and suffering from severe swelling. The claimant likened his wife’s appearance following surgery to the "Michelin Man".

He claimed that these sights caused him to develop various psychiatric symptoms including loss of control of his stammer, anger, problems sleeping, low mood and intrusive memories.

At first instance, the County Court at Liverpool found that the claimant had not suffered from PTSD however concluded that he had suffered a mild adjustment disorder and that this was triggered by the claimant’s wife’s "sudden shocking condition". The claimant was awarded damages in the sum of £9,165.88 plus costs.

The hospital appealed the County Court’s decision and argued that the sights described by the claimant fell short of those which have been recognised as founding secondary victim liability in the relevant authorities.

Court of Appeal Ruling

Upon consideration of the case law, the Court of Appeal confirmed that the requirements for recovery in claims from alleged secondary victims for psychiatric injury were:

1) The claimant must have suffered from a real and recognised psychiatric illness or injury;

2) The claimant must have a close tie of love and affection with the person killed, injured or imperilled;

3) The claimant must have been close to the incident in time and space;

4) The claimant must have directly perceived the incident rather than, for example, hearing it from a third person; and

5) The claimant’s illness must have been induced by a sudden shocking event.

It was the fifth requirement that was subject to consideration in this case. The court identified that the requirement for "shock" must involve the "sudden apprehension by sight or sound of a horrifying event which violently agitates the mind".

The issue to be decided was whether the event concerned was, by objective standards, "horrifying" in the necessary sense and whether it could be said that there was an element of suddenness and shock.

The Court concluded that the sights described by the claimant were not in context extraordinary or horrific in the sense necessary to found secondary victim liability. It found that it is ordinarily expected that hospital visitors will see patients in poor health and connected to machines and drips.

Furthermore, there was no necessary element of sudden appreciation or shock. The claimant was well informed of his wife’s condition and the sights to expect prior to each of his visits.

It could not be said that whole 36 hour period starting from the claimant’s admission into hospital until claimant’s sight of his wife after the exploratory surgery was one "event" for the purpose of the fifth criteria. The Court’s view was that each of the claimant’s depicted sights formed a series of separate events over a period of time. The significance of this is that the claimant’s perception of what he saw on each of the main two pleaded episodes was informed by previously received information. The claimant was informed that his wife was gravely ill by the doctors and was prepared in advance for what he saw. Accordingly, there was no true suddenness or shock.

The judgment for the claimant was therefore overturned and the claimant’s claim was dismissed.

Comments

This case highlights the cautious approach taken by the courts when faced with claims for secondary psychiatric injury. The authorities continue to demonstrate that only exceptionally horrific and shocking events will give rise to liability to secondary victims.

The leading authorities continue to be White v Chief Constable of South Yorkshire [1999] 2 AC 455 and Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 which concerned claims arising out the Hillsborough disaster in 1989.

This case also interestingly demonstrates the Court’s reluctance to find that the witnessing of a primary victim being treated in hospital constitutes a horrifying event for the purposes of the authorities. The court found that hospital visitors are conditioned to expect to see unwanted sights and that therefore normally the necessary element of shock does not exist.

This case will therefore be a significant hurdle for future similar hospital related claims in this field.