Mental health law briefing 253 – The scope of maternal psychiatric claims: Primary or secondary victims?
Last month saw the High Court revisit the issue of secondary victim status in personal injury claims, in Yah v Medway NHS Foundation Trust.
Delay in delivery
The facts of the case were, sadly, typical of many birth injury cases. The Claimant’s child suffered fetal distress during labour and was born following a period of hypoxia prior to delivery. The child was born with cerebral palsy. The Defendant admitted liability for the delay in delivery.
The Claimant sought damages for psychiatric damage arising out of the circumstances of the birth. The fact that the Claimant suffered psychiatric injury was uncontroversial. In a joint statement the psychiatrists stated:
‘We agreed that a number of factors had contributed to YAH having suffered a mental disorder, including the experience of a difficult labour; the worry of knowing whether or not [XAS] would survive and, importantly, the strain of looking after a child with significant disability.’
The contested issue in this case was the question of the Claimant’s status: was she a primary or secondary victim?
The Defendant Trust argued that the Claimant was a secondary victim. It submitted that as a secondary victim the Claimant could only recover if her injury had been caused by shock, citing the criteria set out in the case of Alcock v Chief Constable of South Yorkshire.
Alcock arose following the Hillsborough disaster and dealt with damages sought by family members who had witnessed the unfolding tragedy. The principle in Alcock included the requirement that the claimant’s psychiatric illness was caused by shock, and more particularly the ‘sudden appreciation by sight or sound of a horrifying event which violently agitates the mind.’
A novel defence argument was roundly dismissed by the court. The Defendant argued that in circumstances where following an adverse event a child survives, they may sue in their own right pursuant to the Congenital Disabilities (Civil Liability) Act 1976. In these circumstances, the mother ceases to be a primary victim and becomes a secondary victim. An argument, which did not find favour with the Court, relied on the assertion that there can only be one primary victim.
In dismissing the defendant’s argument, Whipple J relied upon the case of Wild v Southend University Hospital NHS Foundation Trust where the Court, in considering a father’s claim for secondary victim status, had concluded that a mother and child in utero should be considered as one legal person.
Following this principle, the Court in Yah side-stepped the Alcock test, concluding that the baby and mother were one legal entity until birth, the negligence occurred prior to birth and therefore, the mother was a primary victim.
The Defendant went on to argue that the Claimant’s injury was too remote from the admitted negligence to permit recovery. The Defendant submitted that the Claimant’s injury resulted from the stress of having to care for a disabled child.
The Claimant argued that the injury was caused by an interconnected combination of issues; the traumatic labour, the emergency caesarean section, fear for the infant’s life, as well as the anxiety arising from the child’s future care.
Single and indivisible injury
Whipple J concluded that a psychiatric injury is a single and indivisible injury. In preferring the Claimant’s expert’s evidence, the Court was critical of Defendant psychiatric expert, Dr Faith, commenting that it was ‘unimpressed’ by ‘her preference for working for Defendants and the reasons she gave for doing so’. The Court found that the Defendant’s argument was entirely unsupported in the experts’ joint statement which confirmed that the cause of the injury was multi-factorial. The Court found that all three causes were material to the outcome, rejecting the Defendant’s argument that the injury was too remote.
YAH v Medway Foundation Trust is a useful clarification of the law, but realistically does no more than restate the principle that the requirement that the claimant’s psychiatric illness was caused by shock is limited to secondary victims.
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 Yah v Medway NHS Foundation Trust  EWHC 2964 (QB)
 Alcock v Chief Constable of South Yorkshire  1 AC 310
 Wild and Another v Southend University Hospital NHS Foundation Trust  EWHC 4053 (QB)
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