UK: Damages for Nervous Shock Following Medical Negligence

In this bulletin we examine the recent decision of the Court of Appeal in the case of North Glamorgan NHS Trust v Walters [2002] EW CA Civ 1792 which reviewed the law governing the circumstances in which a claimant is able to recover damages for psychiatric injury as a consequence of witnessing distressing events.

• In July 1996 the Claimant’s baby was admitted to the Prince Charles Hospital in Merthyr Tydfil and was incorrectly diagnosed as suffering from hepatitis A when, in fact, he was suffering from acute hepatitis.
• One evening, whilst in hospital, the Claimant was awoken by her son who was making choking noises and coughing blood. She was advised by a doctor he had had a fit but that it was unlikely he had suffered any serious damage. Not surprisingly, the Claimant was comforted by this advice. The advice was negligent and, unknown to the Claimant at that time, the baby had suffered a major epileptic seizure leading to coma and irreparable brain damage.
• Later in the day the baby was transferred to Kings College Hospital, London for a liver transplant. There the Claimant was informed of the seriousness of his condition and was described as devastated. The next day the Claimant and her husband decided to discontinue their son’s life support and he died shortly afterwards.

The Court of Appeal affirmed the decision of the judge at first instance and allowed the Claimant’s claim.

The law in this area is difficult largely because the Courts apply policy considerations in order to try and do justice in individual cases, but, at the same time, in a way which seeks to prevent opening the floodgates. As Lord Steyn in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 recognised, the state of the case law is "a patchwork quilt of distinctions which are difficult to justify".

In cases such as this where the claimant is a "secondary victim" (the injury arises because of what has happened to another) the Courts apply a number of control mechanisms which govern the circumstances in which a claimant can recover damages. To recover a claimant must establish:-

• a close tie of love and affection with the victim and;
• the claimant must have been present at the incident/event or its immediate aftermath and;
• the claimant’s injury must have been caused because the claimant directly perceived the incident. Hearing about it from a third person is insufficient.

The issue in the present case was whether there had been an incident or event given that the period of their son’s initial fit to his death had been 36 hours. Secondly, there was an issue as to whether the Claimant’s psychiatric injury arose not as a consequence of any event, but merely from an understandable natural grief reaction.

This type of issue arises in many cases. For example, in Taylorson v Shieldness Produce Ltd [1994] PIQR 329 the parents of a 14 year old boy brought a claim for the psychiatric injury they suffered after his death. Their son died three days after he was crushed by a reversing vehicle. They were informed of the accident soon after it occurred and went straight away to the hospital. They stayed with their son during the two days he was on life support and saw him grievously injured. As there was no significant improvement in his condition, they made the difficult decision to switch off his life support machine. In that case the Court of Appeal held that the parents could not recover because they had a dawning consciousness that they were going to lose their son and this was not part of the incident or event. Also, on the medical evidence, it was found their psychiatric injury arose from the grief of their son’s death, rather than from seeing him in hospital.

In the present case the Claimant succeeded because the Court of Appeal found that an incident or event could cover a 36 hour period although it was emphasised that each case would have to be considered carefully on its own facts. It was accepted that the events were horrifying and it was agreed that, unlike the situation in Taylorson, the Claimant’s appreciation of events was sudden rather than representing a more gradual assault on her mind over a period of time. Finally, the Court of Appeal accepted the agreed medical evidence that the horrifying event had caused her injury.

These cases are likely to continue to cause difficulty for defendants and their insurers because liability turns upon the detailed consideration of the particular facts and upon expert evidence.

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