Edward Ronayne –v- Liverpool Women’s NHS Foundation Trust [2015] EWCA Civ 588

Joanne Hughes, senior associate in Hill Dickinson’s health litigation team has represented the NHS Litigation Authority and the Liverpool Women’s NHS Foundation Trust in a case to the Court of Appeal in which a trial judge’s decision to award Mr Ronayne damages as a secondary victim, has been overturned.

Mr Ronayne brought a claim for damages against the Liverpool Women’s NHS Foundation Trust alleging that he was a ‘secondary victim’ and had sustained Post Traumatic Stress Disorder (PTSD) caused by the shock of seeing his wife’s deterioration in hospital, due to injuries caused by the trust’s admitted negligence. 

Background circumstances

On 8 July 2008, the claimant’s wife had undergone a hysterectomy and unfortunately due to a negligently misplaced suture, she developed a colonic leak leading to septicaemia and peritonitis. She was admitted to the A&E department at the Royal Liverpool University Hospital on 18 July 2008 to undergo emergency surgery. During a period of around 24 hours following his wife’s admission, the claimant observed a rapid deterioration in her condition, which to his mind, manifested itself most vividly in two distinct episodes:

  • At around 5pm on 18 July and shortly before she underwent emergency exploratory surgery, Mr Ronayne observed his wife hooked up to machines, drips and monitors. He gave evidence that he was in complete shock at seeing the extent of her deterioration.
  • On the following day he observed his wife in her post-operative condition. She was connected to a ventilator and was swollen with her ‘arms, legs and face blown up because of the amount of fluid’. Three years later, he described his wife’s then appearance to his trial expert Dr Eileen Bradbury, consultant psychologist, as resembling ‘The Michelin Man’.

The matter came to trial on 9 and 10 July 2013 and was presided over by His Honour Judge Gore QC sitting as a high court judge in the Liverpool County Court. On 5 August 2013 the claimant succeeded and was awarded £9,165.88 in damages.

The law

A secondary victim is someone who has suffered a psychiatric injury as a consequence of witnessing a negligent event or the injuries of another person caused by that negligent event. 

To be successful in a claim for damages as a secondary victim, it is necessary that the claimant satisfy the so-called ‘control mechanisms’ as set out by Lord Oliver in Alcock –v- Chief Constable of South Yorkshire Police [1992] 1AC 310 which can be summarised as:

  1. A close tie of love and affection with a person killed, injured or imperilled.=
  2. The claimant was close to the incident in time and space.
  3. The claimant directly perceived the incident rather than, for example, hearing about it from a third person.
  4. The illness was induced by a sudden shocking event.
  5. As a consequence, the claimant suffered a frank psychiatric illness or injury.

At this trial, only criteria four and five above remained to be determined by the court, whether the claimant had been exposed to a sudden shocking event and, if so, whether he had sustained a frank psychiatric illness or injury as a result of witnessing that event.

The case of North Glamorgan NHS Trust –v- Walters [2003] PIQR P16 is worthy of mention here. The Court of Appeal found that the claimant, a mother, had suffered shock and a recognised psychiatric illness as a result of what she had witnessed and experienced over a period of some 36 hours between her son’s seizure and his death. Ward LJ, in addressing what constituted an ‘event’ said that “there was an inexorable progression from the moment when the fit occurred … 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”. The trial judge had been satisfied that what the mother witnessed over that 36 hour period was not an accumulation over a period of time of more gradual assaults on the nervous system, but a horrifying event that she suddenly appreciated.

Trial at first instance

The claimant argued that the ‘sudden shocking event’ that caused his PTSD, were the two incidents referred to above.

The diagnosis of PTSD was rejected by the trial judge but he found that the claimant had sustained an adjustment disorder and that it was the “sight of the sudden shocking state and condition of his wife during that period of one or two days that constituted the event for this purpose” and “that there was a sudden and shocking trigger to the mental illness that I have found”. He further found that the account the claimant had given to himself and to others went “well beyond the incidents of life that must be suffered without compensation…”. He stated “the totality of events over two or even three months was distressing but I have formed the clear view from the claimant’s description … that lead me to the conclusion that it was the sight of the sudden shocking state and condition of his wife during that period of one or two days that constituted the event for this purpose and there was a sudden and shocking trigger to the mental illness that I have found”.

The appeal

The trust argued that there was no qualifying ‘event’ in the sense that it was neither sudden nor sufficiently shocking and that the psychiatric illness was not caused by that sudden and shocking event.

The matter came before Lord Justices Sullivan, Tomlinson and Bateson on 22 April 2015 and judgment was handed down on 17 June 2015.

LJ Tomlinson concluded that the trial judge was wrong to regard the events of the period of around 36 hours as one event, and he distinguished this case from that of Walters with ‘a seamless tale with an obvious beginning and an equally obvious end’. In contrast, he found there was ‘a series of events over a period of time’ and that the claimant’s perception of what he saw on the two critical occasions was in each case, conditioned or informed by the information which he had received in advance and by way of preparation. As such, there was no sudden appreciation of an event but a ‘series of events which gave rise to an accumulation … of gradual assaults on the claimant’s mind’ and that at each stage in the sequence of events, the claimant had been conditioned for what he was about to perceive and therefore what occurred could not be said to have the necessary element of suddenness.

In delivering his judgment, LJ Tomlinson agreed with the observations of Swift J in Shorter v Surrey & Suffolk HC NHS Trust [2015] EWHC 614 QB, that for an event to be recognised as in the relevant sense ‘horrifying’ it must be judged by objective standards and by reference to persons of ordinary susceptibility. The court found that the appearance of the claimant’s wife in hospital was as would ordinarily be expected of a person in hospital, in the circumstances in which she found herself, and that it was not horrifying by objective standards - ’what is required in order to found liability is something which is exceptional in nature’.   

Whilst it did not fall to the Court of Appeal to address the cause of the adjustment disorder, the claim having failed for want of a sudden and shocking event, it was held that the trial judge had been wrong to be dismissive of the utility of diagnosis or label, and that close attention to diagnostic criteria is of assistance in resolving complex questions of causation. 

This is a welcome result for the NHS. To have allowed recovery in this case, would be to allow recovery for almost any person who developed a psychiatric disorder after witnessing their loved ones in a hospital setting following treatment for clinical negligence. Such a wide ambit for recovery would significantly increase the NHS’s liability for clinical negligence claims.