Tuesday, 28 April 2015

Secondary Victims in Clinical Negligence (again): Shorter v Surrey

In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild).

No new ground is broken but in such a complex area, any application of the rules to a new set of facts is of great use to those considering bringing a secondary victim claim. Some helpful clarification is provided on a number of issues.

The Facts
Very briefly, the Claimant’s sister died on 13 May 2009 at St George’s Hospital, as a result of a subarachnoid haemorrhage, caused by an aneurysm, having been admitted on 12 May.

Previously on 5 May 2009, the deceased had another SAH caused by the same aneurysm, causing a severe headache. She attended at the Defendant’s hospital and underwent a CT scan but the aneurysm was not identified. Liability (for the death) was admitted.

The Claim
The Claimant brought a claim as a ‘secondary victim’, the basis of which is described as follows:
She was aware of her sister’s collapse on 5 May 2009 and of what happened thereafter.  In particular, she was present with Mrs Sharma at ESH following Mrs Sharma’s admission there on the morning of 12 May and she was also at SGH [St George’s] from shortly after Mrs Sharma’s admission there until after she was pronounced dead on 13 May.

The Particulars of Claim alleged at paragraph 25, that, as a result of the Defendant’s negligence, the Claimant suffered a number of different insults which:
“constituted a seamless single horrendous event starting with the news of the serious deterioration in Mrs Sharma’s condition on the morning of the 12th May 2009 and that she had suffered a subarachnoid haemorrhage which had gone undiagnosed and untreated and concluding with her death which resulted in the Claimant sustaining … nervous shock …”.

This is a clear reference to the ‘seamless tale’ in Walters (see previous post).

The Defendant denied the claim on the basis that the control mechanisms were not made out, specifically:
-          There was no single seamless event
-          The Claimant did not witness all of the event(s)
-          There was a gradual realisation over a prolonged period of the probable consequences for her sister.

The Defendant had argued that the relationship between the Claimant and her sister was not sufficiently proximate but had conceded this point by the time of judgment.

The Judgment
Mrs Justice Swift gave detailed consideration to all of the authorities on secondary victims, particularly those in clinical negligence cases. The Judge found as follows:

The nature of the ‘Event’
Considering Walters [210]:
The “event” was a convenient description for “the fact and consequence of the defendant’s negligence” and that it had begun “with the negligent infliction of damage”, i.e. at the time of the baby’s convulsion.  That was the time when the consequence of the negligence first became evident.  There would of course have been ongoing consequences affecting the baby’s biological processes for some time previously but it was only at the time of the convulsion that those consequences became evident and impacted on the claimant.

Applied to the present case [211], Swift J found that the negligence started on 5 May when the aneurysm was not diagnosed, and continued thereafter. It was a week later when the deceased attended SGH that “both the fact of the negligence and of the potential consequences of that negligence became known”.

Although the fact and consequence of the negligence became known to the claimant on 12 May, she was informed of developments by telephone. At that stage there was no element of physical proximity to any event [212]:
Even when she saw her sister on a life-support machine, her perception was informed by the information she had been receiving over the previous 15 hours or so and by her own professional knowledge. ([218])”

So this was a “series of events over a period of time”, only some of which occurred when the claimant was proximate to them ([218]) (suggesting that it cannot have been a ‘seamless tale’). Accordingly the events were not sufficient to satisfy the control mechanisms.

When the Claimant subsequently arrived at SGH, the deceased was not (the judge found) in the dramatic state of pain and distress contended by the Claimant. She was not in such a condition that to see her could be described as a ‘horrifying event’ or to cause ‘violent agitation of the mind’. Even if she had been in the state described by the Claimant that would not have been sufficient to meet the ‘horrifying event’ test ([213]).

Interestingly the Claimant had argued that the events were more ‘horrifying’ for the Claimant because she had professional expertise as a nurse and therefore a more detailed understanding of what was happening. The Judge dismissed this argument, finding that “the event must be one which would be recognised as ‘horrifying’ by a person of ordinary susceptibility, in other words, by objective standards. After all certain people would find it more frightening to have no medical knowledge…”

Though this case turns on its facts, it is a useful example of how the control mechanisms apply in practice, in particular where there is a series of events, some of which are witnessed by C and some of which are not.

Further, a number of interesting issues are raised and dealt with in this appeal. Though it is not a binding authority the reasoning appears sound on the basis of the previous authorities:

1. It is clarified that the “event” begins when the fact and consequence of the negligence become evident,

Firstly this confirms that the negligence and the consequence thereof do not need to be concurrent in time, and therefore that C need not witness the negligence.

Accordingly it seems that where there has been negligence, the first consequence of which is evident some time later (unlike in Taylor v A Novo where there were 2 consequences), and that consequence is witnessed by C, that consequence will be the ‘event’ (or the start of it) and may give rise to a secondary victim claim.

2. The ‘event’ must be ‘horrifying’ on an objective basis and special knowledge that the Claimant possesses is not relevant.

This must be right given that the basis of the mechanisms is proximity. Whether a defendant should have in mind a secondary victim claimant as potentially being injured by his negligence cannot include considerations of special knowledge C may possess.

3. It appears that a series of events was not a ‘seamless tale’ because the Claimant had not been present throughout.

This again seems entirely consistent with the authorities. The definition of the ‘event’ must always be from the point of view of the secondary victim and if only some events are witnessed, they are separated from one another (unlike in Walters where the Claimant was involved throughout).


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