Author
Editor
Edward Bishop QC
Ian Miller
October 2015
PERSONAL INJURY BRIEFING
In our latest Personal Injury Briefing Edward Bishop QC, who appeared for the successful defendants in
Speirs v St George’s Health NHS Trust, a claim for damages for psychiatric injury, looks at problems for
claimants which arise out of recent case law.
PSYCHIATRIC DAMAGE – PROBLEMS FOR CLAIMANTS
has suffered a recognised psychiatric illness (as opposed to
Claims for damages for psychiatric illness suffered by those
grief, sorrow etc.), it may still be important to identify what
who witness injuries to others (ie “secondary victims”) are
the psychiatric illness is. Indeed, the definition of the illness
subject to common law “control mechanisms”. Despite rec-
may assist in determining whether or not it was caused by wit-
ommendations by the Law Commission for change, and the
nessing a sudden shocking event.
fact that mental illness has become so much better understood over recent years, these obstacles continue to cause
For example, in Liverpool Women’s Hospital NHS Foundation
claimants difficulties, as some recent Court of Appeal and
Trust v. Ronayne [2015] EWCA Civ. 588 the claimant husband
first instance decisions show.
succeeded at first instance having witnessed the effects – some
ten days after the operation – of a
A secondary victim must prove (a) a close tie of love and
negligent hysterectomy performed on
affection with the person killed, injured or imperilled (b)
his wife.
physical proximity to the incident in time and space (c) di-
claimant’s case that he had suffered
rect perception of the incident (rather than, for example,
from post traumatic stress disorder
hearing about it from a third person or watching it on televi-
(“PTSD”), but nonetheless found that
sion) and (d) that he or she suffered a recognised psychiatric
he suffered from a “frank psychiatric
illness as a result of witnessing a sudden, shocking event.
illness”.
Though none of these is necessarily easy to define or apply,
pointed out, the judge thought it
it is (d) that has arisen for particular consideration recently.
“unnecessary to specify [the illness] by reference to the estab-
Did seeing the “event” cause a “recognised psychiatric ill-
lished taxonomy”.
ness”? What is meant by “an event”? And how “shocking”
proach, Tomlinson LJ saying (at paragraph 9):
The judge rejected the
As the Court of Appeal
The Court of Appeal criticised this ap-
must it be?
“Close attention to diagnostic criteria is in my view likely in
Recognised psychiatric illness
this field to be of assistance in resolving what are often com-
A secondary victim has to have suffered a recognised psychi-
plex questions of causation”.
atric illness. As Lord Oliver said in Alcock v. Chief Constable
of South Yorkshire Police [1992] 1AC 310:
In other words, where – as in Ronayne – a claimant suffers a
less well-defined psychiatric illness than PTSD (depression or
“Grief, sorrow, deprivation and necessity for caring for
an adjustment disorder, for example), it may be less likely that
loved ones who have suffered injury or misfortune must, I
the psychiatric illness has been caused by witnessing a sudden,
think, be considered as ordinary and inevitable incidents of
shocking event.
life which, regardless of individual susceptibilities, must be
sustained without compensation”.
On the other hand, the mere existence of PTSD does not necessarily prove that the illness has been caused by witnessing a
Whilst in some cases there may be no dispute that a claimant
sudden, shocking event. In Owers v. Medway NHS Foundation
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Trust [2015] EWHC 2363 (QB), Stewart J dismissed a claim
However, judges recently have hardened the line on the need
brought by a husband who witnessed negligent treatment of
to identify a single shocking event, particularly in cases in-
his wife’s stroke at hospital.
volving witnesses of the effects of clinical negligence. Recent
The judge found that the
claimant had suffered PTSD as a result of witnessing the
examples include:
Shorter v Surrey and Sussex Healthcare
negligent treatment, but that this of itself was not sufficient
NHS Trust [2015] EWHC 614 (QB) (Swift J), Liverpool Women’s
to establish that what he saw amounted to a sudden shock-
Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ
ing event sufficient to found liability. The Judge said that
588, Wells v University Hospital Southampton NHS Foundation
PTSD is “an indicator (but not determinative) of a sudden,
Trust [2015] EWHC 2376 (QB) (Dingemans J), Wild v Southend
shocking event”.
University Hospital NHS Foundation Trust [2014] EWHC 4053
(QB) (Michael Kent QC), and Owers v Medway NHS Foundation
There must be “an event”
Trust [2015] EWHC 2363 (QB) (Stewart J).
There must be a single shocking event, rather than a series
of separate events over a period of time. As Lord Ackner
And claimants face an additional problem, illustrated by the
said in Alcock:
facts of Taylor v. Novo [2013] EWCA Civ. 194 [2014] QB 150.
A woman was injured in an accident at work.
She was at
“Shock” in the context of this cause of action…has yet to
home three weeks later and apparently making a good recov-
include psychiatric illness caused by the accumulation over
ery when - and as a consequence of her injuries - she suddenly
a period of time of more gradual assaults on the nervous
collapsed and died. Her death was witnessed by her daugh-
system”
ter, the claimant, who had not been present at the original
accident. As a result of witnessing her mother’s death, the
Two Court of Appeal decisions, over ten years ago, suggest-
claimant suffered PTSD. She succeeded at first instance, but
ed that the courts might be expanding – or at least taking a
lost on appeal.
more lenient view of - the definition of “event”. In GalliAtkinson v. Seghal [2003]
The Court of Appeal decided that the defendant’s negligence
EWCA Civ. 697, the claimant’s
had caused a single event which had two consequences. The
16 year old daughter was
first was the initial accident and injury. The second conse-
knocked down and killed by a
quence was the death. In these circumstances the defendant
car driven by the defendant.
should not be liable to the claimant for witnessing the second
The claimant reached the
consequence, rather than the actual event.
scene of the accident after
her daughter’s body was re-
At first sight it may be hard to discern why the mother in Wal-
moved and was then taken to
ters should succeed whereas the daughter in Taylor should
the mortuary to see her daughter’s body, arriving more than
not. After all, the mother witnessed injury to her baby that
two hours after the accident. The claim failed at first in-
manifested itself well after the negligence that caused it, just
stance, but the Court of Appeal allowed the claimant’s ap-
as the daughter saw her mother die three weeks after the
peal, stating that there was a single seamless event and that
negligence that caused her sudden death. The answer may lie
the judge had artificially separated out the mortuary visit
in the fact that in Walters, as in many clinical negligence cas-
from “an uninterrupted series of events”.
es, damage is not apparent at the time of the negligence and
the “event” continues until such damage is revealed and a
In Walters v. North Glamorgan NHS Trust [2002] EWCA Civ
cause of action is complete. This may explain why this point –
1792, a mother witnessed the consequences of negligent
ie that the negligent event was long in the past – was appar-
treatment of her young baby, beginning with seeing her ba-
ently not taken in Ronayne, (in which a husband witnessed the
by making choking noises and having a fit. Over the next 36
effects of his wife’s injuries 10 days after the negligence that
hours the baby deteriorated, causing a sequence of horrific
caused them).
events culminating with the baby’s life support machines
being switched off. The Court of Appeal agreed with the
An alternative (or perhaps additional) explanation may be
trial judge that an event could cover “in ordinary parlance
that the requirement for a claimant to witness a single shock-
something that occurs over several days”.
ing event in order to succeed in a secondary victim
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claim relates to legal proximity. Indeed, this is how Dyson
objective standards and by reference to persons of ordinary
MR approached the issue in Taylor. It seems that in that
susceptibility. They were not wholly exceptional.”
case the Court of Appeal was reluctant to decide that it
should have been in the contemplation of the defendant
A final word on causation
that a consequence of its negligence might be the victim’s
Claimants’ advisers must be alert to the need for psychiatric
sudden death in three weeks later, and that it might occur
experts to attribute recognised illness to the shock of seeing a
within sight of a family member.
horrific event, rather than other factors. The situation may be
more complex where the causes of a psychiatric illness include
The effect of Taylor, and the need for a claimant to wit-
sight of the shocking event amongst a number of other factors
ness the event or its immediate aftermath was emphasized
(eg grief, recurrent or pre-existing depression etc).
in the strike out case of Berisha v Stone Superstore
claimant rely on the shocking event making a material contribu-
(Manchester County Court, 2.12.14, unreported), and in
tion to global psychiatric illness, and therefore recover in full?
Baker v Cambridgeshire and Peterborough NHS Foundation
Readers may like to look at Smith and Sedley LLJ’s remarks in
Trust [2015] EWHC 609 (QB) (David Pittaway QC).
Dickins v O2PLC (which suggest that a material contribution will
Can a
be enough to establish a claim), and contrast this with TomlinHow “shocking” must the event be?
son LJ’s final observations in Ronayne, which tend to suggest
A secondary victim must show that the event he or she
the opposite.
witnessed was objectively horrifying. As Swift J put it in
Shorter v. Surrey & Sussex HC NHS Trust [2015] EWHC 614
Edward Bishop QC
(QB):
“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 standard”.
The Court of Appeal in Ronayne agreed with this observation saying that the event must be “judged by objective
standards and by reference to persons of ordinary susceptibility”.
The claimants in Ronayne, Shorter, and Owers all witnessed the complications of alleged medical negligence in
hospital. Judged by objective standards, whilst no doubt
unpleasant, the sight of an injured or severely ill loved one
in hospital is not objectively sufficiently “horrifying”.
There must be something more, described by HHJ Hawksworth QC in Ward v, Leeds Teaching Hospital NHS Trust
[2004] EWHC 2106 (QB) (and cited with Court of Appeal
approval in Ronayne) as “wholly exceptional”.
Thus, in
Owers, Stewart J said:
“[The events] were not “horrifying” as judged by
About the Author
Edward Bishop QC specialises in clinical negligence, personal injury and police law.
He acts for both claimants and defendants and has expertise in a broad range of high
value claims. Edward is a member of the Personal Injuries Bar Association executive
committee and a contributor to its Personal Injuries Handbook.