A few weeks ago I wrote about Yapp v Foreign & Commonwealth Office, a recent case demonstrating the courts’ determination to limit potential claims for psychiatric injury, even in cases where there has been an obvious injustice.

I lamented how unsatisfactory it is that many innocent people who suffer serious psychiatric injury as a result of unfair treatment are unable to bring claims.  As I said then, it’s unlikely this area of law will change unless there is a show of public pressure and desire for reform.

Unfortunately today, I do not have good news to report but instead have another recent case that again illustrates how unfair the current law can be.

In the tragic case of Brock and another v Northampton General Hospital NHS Trust and another, claims of negligence were brought against Northampton Hospital and University Hospital Birmingham by both parents following the death of their young daughter.  In the claim against University Hospital Birmingham, the parents also included a claim for their own psychiatric injury arising, which is what interests me.

University Hospital Birmingham admitted that it had been negligent in placing an intra intracranial pressure monitoring bolt into the daughter’s brain which caused her to haemorrhage and subsequently die. The parents both developed psychiatric disorders as a result of the trauma of their daughter’s death and brought claims against the hospital for psychiatric injury.

The judge considered two key points, the first being that it was agreed the child was likely to have died not long after she did in any event, even if the hospital had not been negligent.  Therefore the parents could not recover damages for the portion of their injury caused by their daughter’s untimely death in general rather than the specifics of the hospital’s negligence.

However, the second key point, which is something unique to psychiatric injury claims, required the judge to examine the method of communication by which the parents learnt of their daughter’s deterioration and imminent death.

The parents initially learnt of their daughter’s deterioration by a telephone call from a nurse at the hospital, rather than being at the hospital in person (although they made numerous visits to the hospital throughout).  The parents pinpointed this moment as the time they first suffered injury.

The judge noted that in line with previous case law, the parents could not recover damages for any psychiatric reaction caused at the time they received the telephone call. This is part of a wider “test” that the courts use to limit the number of claimants who can recover for psychiatric injury – only those people who are physically close in time and space to an incident or its immediate aftermath can recover.  A telephone call from a third party is not deemed sufficiently close in space to allow a claimant to recover.

The unfairness of this can be clearly demonstrated by imaging a scenario where the daughter died only as a result of the hospital’s negligence and learning of this caused trauma to the parents who develop psychiatric condition as a result.  If the parents experienced trauma in person at the hospital, they may be able to recover damages (although there are many other tests to pass). However if the parents experienced trauma as a result of being given the news by a phone call they would be prevented from recovering damages.

What difference is it for a parent whether they learn about their child’s deterioration through a telephone call or whether instead they learn about it in hospital? It is easy to imagine a case where a parent, on their way to a hospital, receives terrible news causing them to have a breakdown resulting in them being unable to make their way to the hospital.  Why should they be unable to recover damages, when the parent who has already made it to the hospital might be?

It is simply another example of the unfairness of the law when it comes to treating victims of psychiatric injury.

It is impossible not to have a great deal of sympathy for those involved in this case.