In RE (A minor by her mother and Litigation Friend LE) and others v Calderdale & Huddersfield NHS Foundation Trust, the High Court found that the defendant hospital trust’s negligence in the delivery of the infant claimant had caused her hypoxic injury. It also held that the trust’s negligence had caused her mother (the second claimant) to develop post-traumatic stress disorder (PTSD). More significantly for this area of law, the court ruled that the infant claimant’s grandmother, who had been present at the birth, had suffered PTSD as a result and could recover damages.

The case was managed through a split trial and this judgment related to liability only. It concluded that there were a number of failings in the care provided to the infant claimant and her mother and that these resulted in a delayed and traumatic delivery and significant brain injury being suffered by the baby.

Philippa Luscombe, a partner in the clinical negligence team at Penningtons Manches LLP, comments: “This case is interesting because the recent ‘trend’ at trial has been for courts to restrict the scope of claims for psychiatric injury arising out of a hospital’s negligence. NHS Resolution (formerly the NHSLA) which deals with all claims against UK hospital NHS trusts, has been taking quite a stand in these cases and in the main it has succeeded in narrowing the definition of the circumstances in which a claim for the non primary victim of the negligence can be made. This is one of the few cases taking a step to expand this scope.

“The case law is fairly clear. In a claim involving negligence during the management of labour and before the child is born, if the mother sustains psychiatric injury due to hospital errors, she should recover damages as a primary victim (Wells and Smith v University Hospital Southampton NHS Foundation Trust). The mother’s claim in this case was therefore upheld by the court on the basis that she was a primary victim.

“The greater issue was in relation to the infant claimant’s grandmother and whether she was a primary victim or a secondary victim. If she was a secondary victim, the court needed to determine whether she fulfilled the criteria set out in Alcock v Chief Constable of South Yorkshire Police and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne. It was held that she could not be a primary victim and therefore the court had to consider the tests applicable for establishing recovery of damages for a secondary victim. The main argument at trial was whether the events were sufficiently shocking to satisfy those tests and amounted to a sudden assault on the senses.

It was clear that the grandmother had been present throughout the events in question and had developed PTSD subsequently. The court considered the events which occurred on the day of the baby’s birth and held that the sight of her when born was sufficiently and objectively shocking to justify an award of damages.

“While every case of this type is very fact specific, this is the first for a number of years where a claim for psychiatric injury from someone deemed to be a secondary victim has succeeded. It seems likely that there will be further trials in similar cases. Gradually the law is being refined and defined to give guidance on the circumstances in which secondary victims can recover compensation.”