Two more secondary victim claims in clinical negligence cases

The High Court and Court of Appeal have recently considered again the application of the secondary victim (SV) ‘control mechanisms’ to claims arising from clinical negligence. Please see the previous post “Wild” for a recap of the law.

Liverpool v Ronayne 

Here, as a result of a negligently performed hysterectomy, C’s wife developed septicaemia and peritonitis, and was readmitted. C witnessed her condition deteriorate; she underwent further surgery and spent some weeks in intensive care.

C brought a claim as a secondary victim on the basis of his having witnessed two specific episodes (para[3]):

• (a) At about 5.00pm on 18 July, shortly before she underwent emergency exploratory surgery, he observed her connected to various machines, including drips, monitors etcetera;
• (b) Sometime on the following day he observed her in her post-operative condition. She was unconscious, connected to a ventilator and was being administered four types of antibiotic intravenously. Her arms, legs and face were very swollen. Pressure pads were in place to keep the blood in her legs flowing. Three years later Mr Ronayne described his wife’s then appearance to a consultant psychologist, Dr Eileen Bradbury, who gave evidence at trial, as resembling the “Michelin Man.”

The matter succeeded before HHJ Gore in Liverpool who found that C suffered from a psychiatric illness (but rejected his case that he had suffered PTSD). On appeal it was conceded by D that the Claimant had suffered an Adjustment Disorder. The appeal considered (a) whether the event was “horrifying” and (b) whether the appreciation of the event (i.e. ‘shock’) caused C’s psychiatric illness.

Importantly the Court of Appeal said this about diagnosis: “close attention to diagnostic criteria is… likely in this field to be of assistance in resolving what are often complex questions of causation.”

In upholding D’s appeal the court found that there was no ‘seamless tale’ (as there was in Walters); there was therefore no sudden appreciation of an event, but a ‘gradual realisation’ (para [40]):

“At each stage in this sequence of events the Claimant was conditioned for what he was about to perceive. Before first seeing his wife connected to drips, monitors etc he knew, of course, that she was in hospital, and that that was because she was not recovering as expected from her operation and was running a high temperature”.

Secondly the court found that the events were not ‘horrifying’ and it is worth setting out the whole paragraph on this point as it is an important one (on which many such cases are likely to turn):

“Both on the first occasion and on the second the appearance of the Claimant’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. What is required in order to found liability is something which is exceptional in nature. On the first occasion she was connected to monitors and drips. The reaction of most people of ordinary robustness to that sight, given the circumstances in which she had been taken into the A. and E. Department, and the knowledge that abnormalities had been found, including a shadow over the lung, necessitating immediate exploratory surgery, would surely be one of relief that the matter was in the hands of the medical professionals, with perhaps a grateful nod to the ready availability of modern medical equipment. The same is more or less true of her swollen appearance on the second occasion. There is I think a danger of the “Michelin Man” epithet acquiring a significance greater than it deserves. The Claimant was conditioned to see someone from whom a litre of abscess had been drained and whose life was in grave danger. The pressure pads, routine medical equipment, no doubt contributed to the swollen appearance. I can readily accept that the appearance of Mrs Ronayne on this occasion must have been both alarming and distressing to the Claimant, but it was not in context exceptional and it was not I think horrifying in the sense in which that word has been used in the authorities. Certainly however it did not lead to a sudden violent agitation of the mind, because the Claimant was prepared to witness a person in a desperate condition and was moreover already extremely angry” [emphasis added]

Owers v Medway and others 

In this case Mrs Owers suffered a stroke which went undiagnosed by the Defendant. Breach of duty was proven but causation was not.

Although the Judge found that the SV had suffered PTSD as a result of D’s breach of duty,  the SV claim was dismissed because the events were not ’horrifying’. The court noted that the bar was set high for such claims ([150]).

The SV had relied upon the following events for his claim ([126] – [128]):

… his wife was deteriorating in front of him and it was if they were being ignored. He felt that something should be happening and his fear was that if she deteriorated further and faster it would be too late. … By 11:30 – 12 noon C1 could make noises but not speak properly…

when they left Medway C1 could not get into the wheel chair and he could not do it without the assistance of his father…

Later on the drive to Darent Valley Hospital she deteriorated further. He said he could hear her choking. She could not alert him to the fact that something was wrong because she could not move or speak. He said this was the worst moment. He thought she was dying. He had to remove a bit of biscuit from her mouth because she could not swallow it. She was slumped in the front seat, seemingly lifeless and choking, with her head on one side and her eyes wide open. She was panicking. [I find that this incident of choking did happen. She may well not have been able to swallow something as large and hard as a biscuit.] [emphasis added].

However the court found that:

[the events] were not “horrifying” as judged by objective standards and by reference to persons of ordinary susceptibility. They were not wholly exceptional. His wife was in the throes of a severe illness and C2 should have seen her admitted and looked after (irrespective of the eventual outcome)

(footnote: I take account of the fact that C2 suffered PTSD, which is an indicator (but not determinative) of a sudden shocking event. Also the psychiatric evidence shows that C2 was more vulnerable than the average person to developing PTSD.)

 After the deterioration of 09:40 he not only saw a failure properly to diagnose and treat, but also the negligent discharge of his wife who was by then, on any account, very seriously ill. In the aftermath, which should have been avoided had the Defendants acted non-negligently, he perfectly understandably gave her a biscuit to eat and witnessed her choking upon it. [emphasis added]

Analysis

Both of these judgements provide helpful guidance on the kinds of events that will be considered horrifying enough to meet the Alcock control mechanism: ‘Ordinary’ treatment which is “expected in the circumstances” will clearly not suffice.

Perhaps one can see why Ronayne failed, given that the primary victim was receiving treatment and simply had the appearance that many in hospital have.

Owers seems a very different case, with the primary and secondary victim seeking treatment to no avail, and the SV then witnessing his wife’s very serious deterioration and choking, in their car, to the point that he feared she would die. That is certainly not the same as witnessing someone being treated in a hospital bed attached to machines and wires.

However the sight of Mr Owers’ wife choking and unable to speak was not considered to be ‘horrifying’ because it was not “wholly exceptional His wife was in the throes of illness”. That is despite diagnosis apparently being important, and his having suffered PTSD.

In the context of an individual suffering a stroke, those symptoms are of course not ‘wholly exceptional’ (i.e. they are expected as a result of the condition).  However they were sufficiently distressing to cause Mr Owers to suffer PTSD; surely most ordinary members of the public would consider them to be exceptional things to witness.

It is difficult to see why, simply because symptoms are part of the natural course of a condition – and despite their causing PTSD – they should not be ‘horrifying’. On that analysis it is hard to see how any medical condition could give rise to a secondary victim claim, as in almost all cases the symptoms (however distressing) are not going to be ‘exceptional’ in the context of whatever condition is suffered.

Consider two recent cases on the issue:

•         Walters, where the Claimant’s condition was not said to be wholly exceptional in medical terms, (though preventable) but was horrifying for the Claimant to witness and experience. That claim succeeded. What distinguishes that from Owers?
• 
  
•          Wild (though perhaps producing an unfair result) is a proper application of Alcock: There was no horrifying event, only a gradual realisation. “knowledge of the death” was the cause of SV’s psychiatric illness. That claim rightly (at least in terms of the control mechanisms) failed.

Conclusion

The control mechanisms were intended to prevent limitless claims by unrelated bystanders, and to limit claims to those caused by witnessing horrific scenes (those with sufficient proximity). Whilst one can understand that the event in Ronayne was perhaps not “horrific” by objective standards, the decision in Owers, it seems to me, is too narrow a reading of the Alcock mechanisms.

There is a circular logic in arguing that ‘expected’ symptoms cannot be horrific: Surely all symptoms are, by definition, expected as a result of whatever condition or injury is suffered and this would mean that no secondary victim claims could succeed.

Whilst it seems fair to say that where a primary victim is receiving treatment for whatever condition they are suffering, it would be difficult for that treatment to be “horrific” (as in Ronayne) it is difficult to see why Mr Owers’ fear of his wife’s death, witnessing her choking, and the helplessness he experienced (which caused PTSD) was not.

Anonymity in Infant Approvals

Kings Chambers' Anna Macey considers the impact of JX MX  where The Court of Appeal gave judgment, and set down detailed principles, on when anonymity orders should be used in personal injury approvals hearings for children and protected parties.

This article first appeared in the Personal Injury Law Journal

Facts

The Claimant suffered very severe injuries at the time of birth, and brought proceedings alleging the Defendant hospital had been negligent, with her mother acting as litigation friend. The case settled, with the Claimant receiving a large lump sum, and substantial periodical payments. At the approval hearing the Claimant’s mother requested an anonymity order, providing evidence she was concerned about the loss of privacy, and that people might start looking to her for payments if the compensation became public.

At first instance, Tugendhat J refused to grant the anonymity order, finding on the evidence that there were no specific risks that made this necessary: the Claimant’s affairs would be looked after by a professional deputy, and the mother’s fears were not objectively well founded. He did order though that the Claimant’s address should not be disclosed. The Claimant appealed to the Court of Appeal.

Open Justice

Moore-Bick LJ gave the only judgment. He began with a lengthy perusal of the many cases confirming the importance of open justice. These long standing principles are now set out in the Civil Procedure Rules, Part 39.2(1) of which provides:

“The general rule is that a hearing is to be in public.”

In JIH v News Group Newspapers Ltd, a case concerned with preventing the publication of personal information, Lord Neuberger MR identified the following general principles:

• An order for anonymity should not be made simply because the parties consent to it;
• The Court should consider carefully whether some restriction on publication is necessary at all, and, if it is, whether adequate protection can be provided by a less extensive order than that which is sought;
• If the application is made on the basis that publication would infringe the rights of the party himself or members of his family under Article 8, it must consider whether there is sufficient general, public interest in publishing a report of the proceedings which identifies the party concerned to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

Moore-Bick LJ confirmed that any departure from open justice needed to be justified strictly on the grounds of necessity, which meant such an order was the minimum consistent with achieving the ultimate purpose of doing justice in the instant case. The Court was clear that it was not appropriate to balance the demands of privacy and freedom of expression.

Approval Hearings

Any proposed settlement for a child or protected party must be approved by the Court, before it is binding on the parties (CPR 21.10).

Previously, in the case of Scott v Scott, the House of Lords ruled in cases concerning what were then known as wards of court and lunatics, the Courts were not exercising the same function as when determining disputes, but were instead exercising an administrative function as parens patriae, which justified a departure from the principle of open justice.

The rules on exceptions to the principles of open justice are set down in the CPR, rule 39.2(3) of which provides:

A hearing, or any part of it, may be in private, if: -

                (d) a private hearing is necessary to protect the interests of any child or protected party; [or]

                (g) the court considers this to be necessary, in the interests of justice.

In practice, if a Claimant wanted an anonymity order for an approval hearing they needed to provide specific reasons, and inform the Press Association, who were entitled to attend the hearing, and object. The Judge approving the settlement would make a decision on a case by case basis, with critics arguing this led to an inconsistent approach by the judiciary.

Moore-Bick LJ was concerned that the Courts now have a much broader jurisdiction in relation to children and those that lack capacity, for example in determining disputes between public authorities and private individuals, and much of this jurisdiction is governed by Statute. He reasoned that these changes meant it could no longer be argued that in such cases the Court was not exercising its judicial functions in approving cases.

Was an Order necessary?

Moore-Bick concluded that although approval hearings did not lie outside the scope of the principle of open justice, in the pursuit of justice Courts should be more willing to recognise a need to protect the interests of claimants who are children or protected parties, including their right to privacy.

He reasoned that the Court was essentially dealing with private business and its function was essentially protective, similar to when it exercised parens patriae on behalf of the Crown, and fundamentally different from its normal function of resolving disputes between parties to proceedings. Moore-Bick LJ was also influenced by Article 14 of the ECHR, which provides that all the other Convention Rights must be applied without discrimination. Adults with full capacity were free to settle their cases in private, and children and protected parties were entitled to the same respect for their private lives. Anonymising mitigates to some extent the “inevitable discrimination between these different classes of litigants”.

Human Rights

In addition to the common law, this case can also be analysed in terms of arguments about human rights, particularly Articles 8 and 10. Framed in this way, the issue is whether it is necessary to interfere with the rights of the public and the Press under Article 10 in order to protect the rights of the Claimant and their family under Article 8, and vice versa. Moore-Bick concluded: “The approach is the same whether the question be viewed through the lens of the common law or that of the European Convention on Human Rights…”.

Type of order

The Press Association argued that in most cases an Order under s39 of the Children and Young Persons Act 1939 will be more appropriate than an anonymity order. This is an Order prohibiting publication of information calculated to lead to the identification of the Claimant, which involves a lessor interference with the principle of open justice than an anonymity order. In a previous case of MXB v East Sussex Hospitals, Tugendhat J held such an Order might not provide adequate protection long term, because of the opportunity for informal publication of information on the internet, which might be easily accessible indefinitely. Moore-Bick LJ was also concerned that section 39 ceased to have effect when a child turned 18, and did not apply to protected parties.

He held the minimum necessary to do justice in the case was an anonymity order, by which he meant an order prohibiting the publication of the Claimant’s name and address, and that of their litigation friend and family, and a restriction on access by non-parties to documents in the Court records.

Principles for lower courts

Moore-Bick LJ stressed that a decision was necessary in every case to decide whether a derogation from the principle of open justice is necessary to ensure that justice is done. However, he continued that fine distinctions were difficult to justify and not easily understood, and the Courts ought normally to grant an anonymity order without the need for a formal application, unless satisfied that it was unnecessary or inappropriate to do so. A Claimant did not need to identify specific reasons, although if they did that would provide a further reason for derogating from the principle of open justice. He continued that the Press need no longer be formally notified when an anonymity order was being considered, however they ought to be given an opportunity to make submissions before any order was made restricting publication of the reporting of proceedings, such as the circumstances giving rise to the claim or the settlement amount.

Moore-Bick LJ concluded by advising Judges in lower courts considering approval hearings to recognise they were dealing with private business in open Court. He held that the following principles ought to apply:

(i)                  The hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;

(ii)                Because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings; 

(iii)               The Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);

(iv)              The judge should invite submissions from the parties and the Press before making an anonymity order;

(v)                Unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;

(vi)              If the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;

(vii)             The judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.

Conclusion

This case has been welcomed by many representing Claimants, ending an anomaly that meant highly personal medical information was made public. Approval hearings, unlike many hearings involving children and protected parties, are still held in public, with the PIBA and the Claimant accepting a full anonymity order provided sufficient protection for the Claimant and her family. The Press remain free to attend all approval hearings, and to report matters of public interest, such as the settlement amount.

Of course, the above departures from the principles of open justice do not apply to any contested personal injury cases.

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.

“Horrifying”

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…”

Analysis

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).

               

Secondary Victims Following Wild v Southend: Where Are We Now?

Secondary Victims – Where are we now?

An update following Wild & Wild v Southend

This post analyses the state of the law on Secondary Victims (SV), in particular in the clinical negligence context, following the case of Wild v Southend (available here). I consider below the background and key authorities, and the effect of Wild itself. 

Where did we start?

It is not immediately clear why Primary Victim (PV) and Secondary Victims (SV) claims should be treated differently. The answer is the issue of proximity to the Defendant. Lord Keith explained the importance of proximity in Alcock at 397:

“I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580 described those to whom a duty of care is owed as being:

"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Control Mechanisms

Lord Oliver identified ‘common features’ from all the reported cases (later the ‘Control Mechanisms’). They were set out by Lord Oliver at 411 (underlined text), and further detailed in Alcock and other cases, as referenced below):

• The psychiatric injury arises from sudden and unexpected shock to C’s nervous system.
• There are close ties of love and affection between C and PV.
• C was either ‘personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards.
• The injury arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the PV.
• There is not only an element of physical proximity but a close temporal connection between the event and the plaintiff’s perception of it combined with close relationship of affection.

The significance of the mechanism is: If these are satisfied, there well be sufficient proximity between the PV and Defendant. 

North Glamorgan v Walters

Facts

The Claimant’s son had been ill and was admitted to the Defendant hospital (though it failed to diagnose his acute hepatitis). The Claimant was asleep in the hospital at her child’s side when she awoke to him having a fit at 0300 on 30 July. She was told he had suffered no brain damage but he was transferred to Kings College Hospital.

On 31 July, C was told that he had suffered brain damage from the fit and that his quality of life would be poor. The decision was taken to withdraw treatment and the life support machine was turned off; he died a short while later in C’s arms.

The trial judge found that C could recover as she had suffered the injury as a result of experiencing sudden shock. He found that the event had lasted the whole 36 hour period from the fit.

On appeal the court considered whether the events qualified as ‘a horrifying event’ and whether the injury was caused by a ‘sudden appreciation’ as opposed to a ‘gradual assault’.

Issue 1 – was the 36 hour period one horrifying event?

At 34, Ward LJ said:

the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary "event". Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: 'An item in a sports programme, or the programme as a whole".

[…]

In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.

The court found that the totality of the events were horrifying ([35]):

For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an as-sault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat?

Issue 2: Was the condition caused by sudden appreciation or a more gradual assault?

The court found at [39] that the medical evidence was clear. The injury was caused by shock. As to whether the events were sufficiently sudden, (at [40]):

Each of these three events had their impact there and then. This is not a case of the gradual dawning of realisation that her child's life had been put in danger by the defendant's negligence. A consequence of that negligence was that the child was seized with convulsion. She was there witnessing the effect of that dam-age to her child. The necessary proximity in space and time is satisfied.

Taylor v A Novo:

The Claimant’s mother was injured at work (27.2.2008) and apparently recovered. Later (19.3.2008) she died from a pulmonary embolism caused by the accident. The sole issue was whether C was entitled to claim as a “secondary victim”; specifically whether she had witnessed the ‘accident’ or ‘event’. C submitted that the ‘event’ in this case was the death.

The Court of Appeal held ([29]) that in this case there was a single accident or event with 2 consequences: (i) Injury to head / arm and (ii) her death three weeks later.

The Court distinguished Walters (at [35]) on the basis that there were 2 events, not a ‘seamless tale’ as described in Walters. “The injuries and death suffered by Mrs Taylor were certainly not part of a single event or seamless tale”.

Wild & Wild v Southend University Hospital

This is a case which seems to have caused concern among practitioners, though it should first be noted that this is a High Court case. Further, it sets out no new principle. Like Walters it merely applies arbitrary and somewhat unsuitable principles to complex situations.

Facts

C was due on 20 March 2009. Attended an appointment on 10 March 2009 with her husband, at which time the Defendant’s midwife was negligent (it is not clear how). C noticed vaginal bleeding on 20 March 2009 and attended hospital. FHR not detectable. Multiple midwives attempted to auscultate the FHR but could not. Parents were not actually told that intrauterine death had occurred. The baby was delivered still-born on 21 March 2009.

Both C’s suffered psychiatric injury arising from the still birth of their son, in particular from the realisation that their son had died when no FHR could be heard. “knowledge of the death” was the cause of the injury (Psychiatrist, see judgment at [10]-[11]).

The Issues

Mrs Wild was held to be the PV given that foetus and mother are considered to be the same person in law (see [22]). Though the court did not appear to consider it, the fact that Mrs Wild was clearly within the range of foreseeable physical injury also indicates that she was the primary victim (as per Page v Smith). That also removes the need to consider the more complex issues of law surrounding the foetus.

The main issues on the secondary victim claim were as to (iii) (iv) and (v) of the control mechanisms:

The court considered the distinction between Walters and Taylor, raising an issue as to which might apply to Wild. The issue was not resolved because the judge based his decision on the ‘horrifying’ element of the control mechanisms.   

The Ratio

The Defendant’s arguments (at [45]-[47]), which were accepted, were that:

• There was no shocking event to witness, only the shocking fact to experience the death of a loved one or the death of the soon to be born baby.
• Just as those in Alcock who were watching television did not qualify, Mr Wild’s realisation based on the actions of the staff in the hospital does not qualify.
• “As in fact the baby had already died, by definition Mr. Wild was not a witness of the injury and death suffered by Matthew. Even if the injury is characterised, as a matter of law, as having been suffered by Mrs Wild, that was an injury that had already occurred at some time between the 10th and 20th March.”

The key passages are as follows:

• Mr Wild was experiencing a growing and acute anxiety… But none of that… amounts to “actually witnessing horrific events leading to a death or serious injury” ([47])

• In my judgment this case is materially different from the facts in Walters being based on an “event” which starts with the realisation that Matthew has already died ([53])

The author’s view is that this has been somewhat misinterpreted, and its effect overstated. The court did not find that there was no horrific event – no specific finding was made but the stillbirth would most likely satisfy that test. However the claim failed for three reasons:

• The (horrific) event did not lead to injury to the PV; it flowed from injury to the PV;
• There was no ‘inexorable progression’; there were 2 separate events;
• The witnessing of the (second) event did not cause the SV’s injury, the injury stemmed from his realisation about the death;

Conclusions

In conclusion the authorities establish that the following requirements must be met in relation to the 'witnessing a horrific event' control mechanism in a secondary victim claim:

1. C must witness the event. Not hearing or realising it as a fact. (i.e. Wild)
2. The event has to be shocking and that has to cause the injury to the SV. Not realisation, (Wild) not the bereavement, but what was witnessed.
3. It must be a single event. However it need not all occur in a few seconds (Walters – can be over days). But not an event followed by another event (i.e. Taylor v A Novo / Wild)
4. The event must ‘Immediately’ cause death or injury. Immediate in the sense that it is the direct and immediate result - not a later consequence as in Taylor v A Novo. Events which flow from the death or injury will not suffice (Wild)

The importance of the question of proximity cannot be overstated: Is it reasonable for D to have the SV in contemplation? 

In the case of a father in a stillbirth case the obvious answer is yes.

However the broader answer comes from Allcock: D only has to contemplate those in the immediate area of the accident or injury who are also closely connected to the PV. Otherwise, D would have to consider (and be liable to) anyone who came upon the scene (over whom D has no control) and the limits of liability would be endless.

That produces a result in clinical negligence cases, and in particular stillbirth cases, which is arbitrary and apparently unfair. However that is unlikely to change in the near future and we are left with the Alcock control mechanisms unless and until Parliament opts to change the law.  

R (Letts) v Lord Chancellor - Legal Aid in Art.2 Inquests

By Richard Borrett

Introduction
The High Court has considered a challenge to the criteria applied by the Legal Aid Agency (LAA) in deciding whether the grant legal aid for representation at inquests which might engage Article 2 (A2) ECHR. The Judgement is available on BAILII here.

Issues
In certain deaths, A2 is engaged, the state has a duty to investigate the death and the investigation must meet certain requirements. One of those requirements is the involvement of the next-of-kin in the process. That requirement means that in certain cases the state might be required to grant legal aid.

The Lord Chancellor's Exceptional Funding Guidance, promulgated under LASPO endeavours to identify the steps that a caseworker, facing an application for legal aid to cover representation at an inquest, must take. The Guidance identifies two steps or conditions which must be passed in order to warrant legal aid. The first is that the case must fall within Article 2; the second was not in issue.

The guidance seeks to define the ambit of an A2 case, stating that the procedural obligation "only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life" (see [53]).

The essential basis of the challenge was that this guidance is an error of law or that it is misleading. The Claimant submitted:

• - (i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but 

• - (ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state. 

The Decision
Mr Justice Green therefore considered in some detail ([71] onwards) when the procedural obligation is triggered, in the context of psychiatric involuntary patients.

At [73]-[74] the Judge considered R (Smith) v Oxfordshire Deputy Assistant Coroner [2010] UKSC 29 and said:

... five categories of death where the substantive rights contained within Article 2 have been held to be potentially engaged "…with the result that the procedural obligation has been held to exist". These categories were: killings by State agents; deaths in custody; conscripts; and, mental health detainees. The fifth category is "… other situations where the State has a positive substantive obligation to take steps to safeguard life". With regard to the category of mental health patients Lord Mance cited Savage of which he stated:


"…although concerned not with any duty to investigate under Article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide – highlights the analogy between the State's duty towards persons in custody and persons in detention for mental health reasons as well as conscripts".

1. In these cases the courts have held that the mere fact of death gives rise to a "possibility" of State complicity and that this suffices to trigger the investigative duty. It is quite clear that when referring to the "possibility" of a violation the Courts are by no means saying that there is (or needs to be) any evidence of a violation. The courts in these cases are not linking the duty to investigate (and provide the derivative right of representation) with the existence of arguable evidence of breach. On the contrary it is the mere fact of death in circumstances where there is a hint of state control which creates the hypothetical "possibility" of violation and it is this "possibility" triggered by the fact of death which then activates the investigative duty. In such cases (as the examination of objects and purposes in section F. above shows) there still can exist very good and powerful policy reasons for the inquiry to be held, including so that the finger of doubt can be dispelled and the State can emerge unblemished, which of course is the very opposite of a case where the purpose of the inquest is to find the state culpable.

The Judge then considered the psychiatry cases and concluded that the procedural duty might be so triggered "irrespective of whether the state, whether arguably or otherwise, is in breach of the substantive duties in Article 2 ECHR" ([92]), but that the limits of the principle are "hard to define".

Accordingly the court found that the guidance, insofar as it it failed to identify the category of cases at (ii) above, contained an error of law ([94]).

Having considered the guidance and whether or not the court should interfere with it, the court granted declaratory relief, having said ([118]):

•               The test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things.

Further submissions are to be heard on the nature of the declaratory relief.

Analysis
The effect of this judgement should not be overstated; though it is perhaps a useful analysis of some of the cases on the procedural duty:

• It establishes only that there are 'cases' in which the procedural obligation may arise 'automatically'; no further conclusions are drawn about the scope of that principle;

• The court was not required to consider whether the refusal to grant legal aid was in this case lawful; 

• The case concerned a detained psychiatric patient: "The position in relation to different categories of case... is also fact sensitive and on the state of the present law complex.... Even in relation to mental health suicides the outer limits of the automatic duty are not crystal clear" ([99]).

Therefore the effect of this case is wholly in relation to the guidance and its failure to acknowledge that there are cases which 'automatically' trigger the investigative duty.

It remains to be seen what declaration will be given, but it seems that the guidance will have to be wider so as to incorporate the 'automatic' cases.

However, in due course some families may find it easier to obtain legal aid in cases where it is difficult to establish (evidentially) an arguable breach, in particular in deaths of detained psychiatric patients. Importantly the applicant will still need to show that representation is 'necessary'.

Conclusion
This case is an interesting development in the procedural obligation under A2 and is also a step toward increasing much-needed representation for families at inquests. A further post will analyse the effect of the declaration when the judgement is available.

Reaney V North Staffordshire NHS Trust

Reaney V North Staffordshire NHS Trust:

Does This Represent A Change In The Law?

By Killian Garvey, Kings Chambers Pupil

It is trite law that a defendant may only be liable to compensate a claimant for the damage it has caused him or to which it has materially contributed. Moreover, it is well established that a defendant must take its victim as it finds him (which may be to its advantage or disadvantage). This latter principle, known as the ‘egg-shell skull rule’, derives from Mackinnon LJ’s speech in the case of Owens v Liverpool Corp [1939] 1 KB 394, whereby he said:

One who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one

Applying these principles to a hypothetical scenario, one can see how they can potentially serve to limit a defendant’s liability. So, for example, consider the situation whereby a claimant requires 3 full-time carers. If they were a healthy, independent individual prior to the defendant’s negligent act, then they can now claim for paying these 3 carers. However, if the claimant had a pre-existing disability from a non-negligent act, whereby they already had 2 full-time carers that were provided for by their local authority, their claim would be limited to the one additional carer they now require.

This approach has been followed for decades. However, some seem to think that this is no longer the case, in light of the recent decision in the case of Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016. Some now seek to rely on Reaney in support of the view that the claimant, in the hypothetical scenario posed before, can now claim for the 3 carers, irrespective of their previous care needs. I suggest that this is wrong and based on a misunderstanding of Foskett J’s judgment in this case. 

Mrs Reaney had a very serious spinal injury that preceded the Defendant’s negligence. This injury essentially put her in the same position as a T7 paraplegic. The Defendant admitted that they were responsible for a deep (grade 4) pressure sore, which exacerbated Mrs Reaney’s pre-existing disability. Prior to the Defendant’s negligence, Mrs Reaney received gratuitous care from her husband and 7 hours of professional care a week from the local authority. After the negligence, Foskett J held that Mrs Reaney now needed 2 carers offering 24-hour care, 7 days a week.

The Defendant contended that due to Mrs Reaney’s pre-existing disability, the extent of her additional care needs should be limited. Thus, it was submitted, on behalf of the Defendant, that were they held to be liable for the full extent of Mrs Reaney’s care needs, they would be compensating her not only for the pressure sores, but also for her underlying paraplegia. Instead, their liability should be confined to only ‘topping-up’ the care she would have otherwise needed but for the negligence. The Defendant asserted, therefore, that the correct approach to the assessment of Mrs Reaney’s care needs was to assess the Claimant’s care needs globally, give credit for the care that was being provided already, take account of the care that she needed pre-negligence but was not receiving and therefore limit the additional care to that which arose from the pressure sores.

However, Foskett J preferred the position advanced by the Claimant’s representatives, which was simply to consider factually what care the Claimant was receiving pre-negligence and then to consider what she needed now. Indeed, at paragraph 68 of the judgment (subsection ii and iii), Foskett J stated:

(ii)  Although the Claimant needed two carers on a 24/7 basis, she did not receive

      such care because she could not afford it and the local authority was only able to

      provide the levels of assistance described above …

(iii) As already indicated, the Claimant’s future care requirements for the rest of her

     life fall to be assessed on the basis that she requires 24/7 care from two carers ...

So, returning to the title question: does this represent a change in the law? It is submitted that it does not. It follows from the age-old approach in tort of putting the claimant back into the position they would otherwise have been in.

Arguably, the most interesting point arising from this decision is that even if the Claimant had pre-existing care needs, if they were not being met, then they cannot be deducted from the calculation. So, returning to the hypothetical scenario posed before. If the Claimant had 2 full-time carers pre-negligence and now needs 3 carers, their claim would be limited to this additional carer. However, if the Claimant needed 2 full-time carers pre-negligence but was not receiving any care, then arguably Reaney suggests that they can still claim for the 3 carers.

The views expressed by the writer are not necessarily those of Kings Chambers.

Border v Lewisham

Border v Lewisham confirms the importance of consent and what issues can be raised at appeal

By Richard Borrett

In the recent Court of Appeal case of Border v Lewisham the Claimant had suffered an injury as a result of a cannula being inserted into her arm, despite the Claimant telling the doctor that she had recently had a left mammectomy and axillary node clearance, and that inserting a cannula into her left arm carried the risk of oedema.

The trial judge had found that the doctor had made a quick and silent decision that the left arm was the only viable site for the insertion of the cannula and did so without communicating this to the patient. The Judge had found that this was in accordance with recognised practice and was not negligent. 

The Claimant appealed on the basis that the lack of consent meant the treatment was negligent. The Defendant argued that the Claimant had 'impliedly consented'. 

The Court of appeal held ([24]):
"The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it (see, for example, Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134)."

This is certainly not a ground-breaking case, but it does reinforce the importance of consent, even where a course of treatment may be in accordance with recognised practice.

Additionally the case raised an important procedural point. The issue of consent was not seen by the Claimant's counsel as an important part of the case. It was not in his skeleton, and the Judge obtained apparent indications during the trial that consent was 'not the issue'. The CA said that "Thus the judge was right to consider that neither party was attaching importance to the issue at the trial" (22).

However the CA said ([24]):
"It seems to me to be open to the claimant to contend on the appeal that the finding that the procedure was carried out without the claimant's consent should have led the judge to find a breach of duty on the part of Dr Prenter even though that was not the way the claimant's case was being advanced at trial". 

This conclusion was based on the fact that the issue had been pleaded, where the allegations of negligence included "Failing to heed the warning given by the Claimant that she should not have any injections into her left arm …" and "Proceeding to place an intravenous cannula into the Claimant's left arm when the Claimant objected to this" ([23]).

This may be a useful decision therefore in cases where there are a wide range of allegations of negligence, and an appeal is sought on an issue which, though pleaded, was not perhaps the 'thrust' of the case at trial.