In our latest Personal Injury Briefing Edward Bishop QC, who appeared for the successful defendants in Speirs v St George’s Healt h N HS Trust , a claim for damages for psychiatric injury, looks at problems for claimants which arise out of recent case law.
PSYCHIATRIC DAMAGE – PROBLEMS FOR CLAIMANTS
Claims for damages for psychiatric illness suffered by those who witness injuries to others (ie “secondary victims”) are subject to common law “control mechanisms”. Despite rec- ommendations by the Law Commission for change, and the fact that mental illness has become so much better under- stood over recent years, these obstacles continue to cause claimants difficulties, as some recent Court of Appeal and first instance decisions show.
A secondary victim must prove (a) a close tie of love and affection with the person killed, injured or imperilled (b) physical proximity to the incident in time and space (c) di- rect perception of the incident (rather than, for example, hearing about it from a third person or watching it on televi- sion) and (d) that he or she suffered a recognised psychiatric illness as a result of witnessing a sudden, shocking event. Though none of these is necessarily easy to define or apply, it is (d) that has arisen for particular consideration recently. Did seeing the “event” cause a “recognised psychiatric ill- ness”? What is meant by “an event”? And how “shocking” must it be?
Recognised psychiatric illness
A secondary victim has to have suffered a recognised psychi- atric illness. As Lord Oliver said in Alcock v. Chief Constable of South Yorkshire Police  1AC 310:
“Grief, sorrow, deprivation and necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation”.
Whilst in some cases there may be no dispute that a claimant has suffered a recognised psychiatric illness (as opposed to grief, sorrow etc.), it may still be important to identify what the psychiatric illness is. Indeed, the definition of the illness may assist in determining whether or not it was caused by wit- nessing a sudden shocking event.
For example, in Liverpool Women’s Hospital NHS Foundation Trust v. Ronayne  EWCA Civ. 588 the claimant husband succeeded at first instance having witnessed the effects – some ten days after the operation – of a negligent hysterectomy performed on his wife. The judge rejected the claimant’s case that he had suffered from post traumatic stress disorder (“PTSD”), but nonetheless found that he suffered from a “frank psychiatric illness”. As the Court of Appeal pointed out, the judge thought it “unnecessary to specify [the illness] by reference to the established taxonomy”. The Court of Appeal criticised this ap- proach, Tomlinson LJ saying (at paragraph 9):
“Close attention to diagnostic criteria is in my view likely in this field to be of assistance in resolving what are often com- plex questions of causation”.
In other words, where – as in Ronayne – a claimant suffers a less well-defined psychiatric illness than PTSD (depression or an adjustment disorder, for example), it may be less likely that the psychiatric illness has been caused by witnessing a sudden, shocking event.
On the other hand, the mere existence of PTSD does not neces- sarily prove that the illness has been caused by witnessing a sudden, shocking event. In Owers v. Medway NHS Foundation Trust  EWHC 2363 (QB), Stewart J dismissed a claim brought by a husband who witnessed negligent treatment of his wife’s stroke at hospital. The judge found that the claimant had suffered PTSD as a result of witnessing the negligent treatment, but that this of itself was not sufficient to establish that what he saw amounted to a sudden shock- ing event sufficient to found liability. The Judge said that PTSD is “an indicator (but not determinative) of a sudden, shocking event”.
There must be “an event”
There must be a single shocking event, rather than a series of separate events over a period of time. As Lord Ackner said in Alcock:
“Shock” in the context of this cause of action…has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system”
Two Court of Appeal decisions, over ten years ago, suggest- ed that the courts might be expanding – or at least taking a more lenient view of - the definition of “event”. In Galli- Atkinson v. Seghal  EWCA Civ. 697, the claimant’s 16 year old daughter was knocked down and killed by a car driven by the defendant. The claimant reached the scene of the accident after her daughter’s body was re- moved and was then taken to the mortuary to see her daughter’s body, arriving more than two hours after the accident. The claim failed at first in- stance, but the Court of Appeal allowed the claimant’s ap- peal, stating that there was a single seamless event and that the judge had artificially separated out the mortuary visit from “an uninterrupted series of events”.
In Walters v. North Glamorgan NHS Trust  EWCA Civ 1792, a mother witnessed the consequences of negligent treatment of her young baby, beginning with seeing her ba- by making choking noises and having a fit. Over the next 36 hours the baby deteriorated, causing a sequence of horrific events culminating with the baby’s life support machines being switched off. The Court of Appeal agreed with the trial judge that an event could cover “in ordinary parlance something that occurs over several days”.
However, judges recently have hardened the line on the need to identify a single shocking event, particularly in cases in- volving witnesses of the effects of clinical negligence. Recent examples include: Shorter v Surrey and Sussex Healthcare NHS Trust  EWHC 614 (QB) (Swift J), Liverpool Women’s Hospital NHS Foundation Trust v Ronayne  EWCA Civ 588, Wells v University Hospital Southampton NHS Foundation Trust  EWHC 2376 (QB) (Dingemans J), Wild v Southend University Hospital NHS Foundation Trust  EWHC 4053 (QB) (Michael Kent QC), and Owers v Medway NHS Foundation Trust  EWHC 2363 (QB) (Stewart J).
And claimants face an additional problem, illustrated by the facts of Taylor v. Novo  EWCA Civ. 194  QB 150. A woman was injured in an accident at work. She was at home three weeks later and apparently making a good recov- ery when - and as a consequence of her injuries - she suddenly collapsed and died. Her death was witnessed by her daugh- ter, the claimant, who had not been present at the original accident. As a result of witnessing her mother’s death, the claimant suffered PTSD. She succeeded at first instance, but lost on appeal.
The Court of Appeal decided that the defendant’s negligence had caused a single event which had two consequences. The first was the initial accident and injury. The second conse- quence was the death. In these circumstances the defendant should not be liable to the claimant for witnessing the second consequence, rather than the actual event.
At first sight it may be hard to discern why the mother in Wal- ters should succeed whereas the daughter in Taylor should not. After all, the mother witnessed injury to her baby that manifested itself well after the negligence that caused it, just as the daughter saw her mother die three weeks after the negligence that caused her sudden death. The answer may lie in the fact that in Walters, as in many clinical negligence cas- es, damage is not apparent at the time of the negligence and the “event” continues until such damage is revealed and a cause of action is complete. This may explain why this point – ie that the negligent event was long in the past – was appar- ently not taken in Ronayne, (in which a husband witnessed the effects of his wife’s injuries 10 days after the negligence that caused them).
An alternative (or perhaps additional) explanation may be that the requirement for a claimant to witness a single shock- ing event in order to succeed in a secondary victim claim relates to legal proximity. Indeed, this is how Dyson MR approached the issue in Taylor. It seems that in that case the Court of Appeal was reluctant to decide that it should have been in the contemplation of the defendant that a consequence of its negligence might be the victim’s sudden death in three weeks later, and that it might occur within sight of a family member.
The effect of Taylor, and the need for a claimant to wit- ness the event or its immediate aftermath was emphasized in the strike out case of Berisha v Stone Superstore (Manchester County Court, 2.12.14, unreported), and in Baker v Cambridgeshire and Peterborough NHS Foundation Trust  EWHC 609 (QB) (David Pittaway QC).
How “shocking” must the event be?
A secondary victim must show that the event he or she witnessed was objectively horrifying. As Swift J put it in Shorter v. Surrey & Sussex HC NHS Trust  EWHC 614 (QB):
“I consider that the event must be one which would be recognised as horrifying by a person of ordinary suscepti- bility; in other words by objective standard”.
The Court of Appeal in Ronayne agreed with this observa- tion saying that the event must be “judged by objective standards and by reference to persons of ordinary suscep- tibility”.
The claimants in Ronayne, Shorter, and Owers all wit- nessed the complications of alleged medical negligence in hospital. Judged by objective standards, whilst no doubt unpleasant, the sight of an injured or severely ill loved one in hospital is not objectively sufficiently “horrifying”. There must be something more, described by HHJ Hawks- worth QC in Ward v, Leeds Teaching Hospital NHS Trust  EWHC 2106 (QB) (and cited with Court of Appeal approval in Ronayne) as “wholly exceptional”. Thus, in Owers, Stewart J said:
“[The events] were not “horrifying” as judged by objective standards and by reference to persons of ordinary susceptibility. They were not wholly exceptional.”
A final word on causation
Claimants’ advisers must be alert to the need for psychiatric experts to attribute recognised illness to the shock of seeing a horrific event, rather than other factors. The situation may be more complex where the causes of a psychiatric illness include sight of the shocking event amongst a number of other factors (eg grief, recurrent or pre-existing depression etc). Can a claimant rely on the shocking event making a material contribu- tion to global psychiatric illness, and therefore recover in full? Readers may like to look at Smith and Sedley LLJ’s remarks in Dickins v O2PLC (which suggest that a material contribution will be enough to establish a claim), and contrast this with Tomlin- son LJ’s final observations in Ronayne, which tend to suggest the opposite.