Those people making claims in such
cases are referred to as secondary
victims. It is felt that the current law is
out of touch and does not give enough
credence to the severity of psychiatric
illness. For example, siblings are not
assumed to have a close enough
relationship and only parents of children
(under the age of 18) or a spouse of an
individual are able to claim bereavement
damages, currently set at £12,980 under
the Fatal Accidents Act 1976.
The Bill proposes to extend the statutory
list of relationships where an assumed
‘close tie of love and affection’ exists
and will further extend the list of family
members eligible to claim bereavement
damages. These changes will bring
England and Wales more in to line
with Scottish law, where each case is
assessed on its own merits.
The current law relating to recovery
of damages by secondary victims for
psychiatric injury emerged following the
Hillsborough tragedy in April 1989 where
96 individuals died in a crush at a football
match as a result of the police letting
too many people into the stadium. Many
individuals claimed to have seen their
friends and relatives die in the crush,
causing them to suffer nervous shock
or psychiatric damage as a result. The
leading legal cases resulting from this
tragedy defined the criteria that had to
be satisfied in order to succeed with
a claim for psychiatric harm injury as
a secondary victim. These criteria still
stand today, although they have been
variously interpreted by the Court in the
years since the Hillsborough cases.
First, a secondary victim has to establish
that they witnessed a shocking event
or its immediate aftermath. (Witnessing
events unfold on the TV or being
informed by another person would not
qualify). Secondly, a victim has to show
that they have what is deemed to be
‘a close tie of love and affection’ to the
person harmed or killed in the event.
Finally, it must be deemed reasonably
foreseeable that a person of “normal
fortitude” in the victim’s position would
suffer psychiatric damage.
The first part of the test is usually
satisfied where, for example, a victim
is involved in a fatal car accident and
witnesses the immediate injury or death
of a loved one. However, in the context
of clinical negligence, it has always been
difficult to establish that relatives are
suddenly and unexpectedly involved in
a single and traumatic event, as there is
often a series of events leading up to a
shocking outcome. This is not to say that
the events are not traumatic, however
“the Courts are currently unlikely to allow any
secondary victim claims in a clinical context
regardless of the extent of injury or the degree of
negligence.”
the law makes a firm distinction between
witnessing an immediate and sudden
event and gradually learning about an
unexpected and tragic outcome.
Objectively speaking, there is often a
delay in time between the allegedly
negligent event and the injury; a relative
will rarely be present at the moment that
the negligence has actually occurred.
Furthermore, steps are often taken
by staff to inform and ‘prepare’ the
relatives for the tragic news, softening
the imme diacy of the shocking event.
There may be some exceptions to cases
involving a birth injury, where partners
or relatives are not forewarned of any
problems, but even those cases may
struggle to succeed.
A recent Court of Appeal judgment from
the case of Liverpool Women’s Hospital
NHS Foundation Trust v Ronayne [2015]
suggests that secondary victim claims
will rarely succeed in a clinical negligence
claim. Mr Ronayne sustained psychiatric
injury from the shock of seeing his
wife in hospital after complications
arising from a routine hysterectomy (a
misplaced suture in her colon caused
her to undergo emergency surgery for
septicaemia). Mr Ronayne described
his wife as looking like the ‘Michelin
Man’ as her arms, legs and face were
very swollen; she was unconscious and
connected to a ventilator, drips and
monitors whilst being administered four
types of antibiotics intravenously.
The Court of Appeal held that, whilst the
appearance must have been alarming
and distressing, it did not satisfy the
criteria of being a) exceptional, b) sudden
and c) horrifying. Although it was noted
to be a distressing sequence of events
by any standard, it was considered that
Mr Ronayne was mentally ‘prepared’
to witness his wife being in a poor
condition, given her deterioration and
subsequent admission to A&E. At first
instance, Judge Gore QC stated that
“anyone entering a hospital is bound to
see things that they don’t want to see”
and that “a visitor is to some extent
conditioned as to what to expect”. It was
decided that, by objective standards,
there was nothing sudden or unexpected
about Mr Ronayne seeing his wife
connected to medical equipment and,
if anything, should perhaps be grateful
that she was in the care of medical
professionals.
Whilst the changes proposed by the new
Bill are welcomed, secondary victims of
clinical negligence will need to be aware
of the difficulty in bringing a claim for
psychiatric harm. It would appear that
this recent decision is largely influenced
by policy considerations to prevent the
“floodgates” from opening up to further
litigation. To some extent, controls do
need to be in place to distinguish the
“exceptional” and “shocking” from the
very unfortunate but real vicissitudes of
life and the Courts clearly need criteria
to distinguish between those Claimants
who should recover damages and those
who should not. However, Ronayne and
other recently decided cases suggest
an increasingly unfair application of the
criteria in a clinical context. The trauma
sustained is no less severe for the lack
of a “shock”, as defined by the law.
Indeed, one could argue that the impact
is greater on a relative who, as a result of
negligence, has witnessed the lingering
demise of loved one over a number of
hours or days.
The Mayo Wynne Baxter clinical
negligence team frequently advises on
claims for psychiatric injury and it was
already our experience that potential
claimants struggled to understand why
the Courts should be allowed to restrict
secondary victim claims on an apparently
arbitrary basis. We will now have to be
delivering the unpalatable message that
save in exceptional cases, the Courts are
currently unlikely to allow any secondary
victim claims in a clinical context
regardless of the extent of injury or the
degree of negligence. The Court’s job is
to interpret and uphold the law: “It is not
wisdom but Authority that makes a law”
(Thomas Hobbes).
By Magda Zimnicki
91