Introduction

The recent English decision in the case of Megan Tanner (a child by her father and litigation friend) v Sarkar (2017) LTL 4 April (HHJ Buckingham, Hull CC) is the first reported secondary victim claim involving a child. The decision provides further insight on the proximity test arising from the Alcock control mechanisms particularly in clinical negligence cases.

Facts

The Plaintiff was a child (aged 16 at trial and aged 5 at the time of the relevant events). A claim was brought arguing that she sustained a psychiatric injury after witnessing the incidents surrounding her brother’s death between 16 and 19 December 2004. This included seeing an ambulance arrive to her house to take her brother away and seeing his body in the hospital mortuary and at the funeral home. This was after the Defendant GP’s was negligent in failing to urgently to refer her brother for hospital treatment for sepsis the day previous.

The Plaintiff alleged that the circumstances were a “seamless tale” within the context of the decision of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792. At hearing, the Plaintiffs’ case was altered and it was put forward that the “relevant event” within the meaning of the Alcock control mechanisms began when the Plaintiff was woken up by her father in the early hours of 20 December 2004; the events prior to this date were just to be viewed as context to the matter as a whole.

Liability was accepted by the Defendant in relation to her brother’s death. However, this aspect of the claim: being the secondary victim claim was defended on the grounds as set out below:

  1. It was denied that the Plaintiff had suffered a recognised psychiatric disorder as a result of witnessing the deterioration and death of her brother. The Defendant’s expert Psychiatrist concluded that she did not meet the full diagnostic criteria.
  2. The Defendant denied the GP owed a legal duty of care to the Plaintiff. The Defendant argued that on the basis of the case of Taylor v A. Novo (UK) Ltd [2014] QB 150, that there was a lack of proximity in time and space to the relevant event or its immediate aftermath. The Defendant put forward that the “relevant event” was the negligence in not referring the Plaintiff’s brother to hospital on 19 December 2004 and the occurrences in the aftermath should only be considered as a later consequence of the negligence. Therefore, they argued that the arrival of the ambulance was not part of the “immediate aftermath” and it was not part of a “seamless tale” that could be construed forming part of the relevant event. The Defendant put forward that following the case of McLoughlin v O’Brian [1983] AC 410 it must be the fact and consequence of the negligence that caused the ‘shock’, not merely the later consequence.

The Verdict

Her Honour Judge Buckingham found in the defendant’s favour and accepted that the relevant event was the negligence of the GP to not refer her brother. The subsequent events being the ambulance arriving and so on, did not form part of the relevant event or its immediate aftermath and were to be seen as the consequence of the earlier negligence. HHJ Buckingham then went to say that these events lacked proximity in time and space to the “relevant event” as they occurred 12 hours after the family had returned home from the GP appointment.

It is also interesting to note that HHJ Buckingham preferred the Defendant’s expert evidence, noting that the Plaintiff’s expert was a General Psychiatrist, while the Defendant’s expert was a Child Psychiatrist and in the Judges view more qualified to comment on a child’s mental state. In that regard, the Defendants expert evidence that the child did not have enough comprehension to process what was occurring around her was accepted by the court.

Relevance

Although this is a English decision, the Irish law in this area is mirrors closely the decisions of the English Courts. This case offers a further insight into the proximity test arising from the Alcock principles particularly in clinical negligence cases. In that respect, the “relevant event” was the appointment with the GP and his decision not to refer the Plaintiff’s brother to hospital was not a “shocking event”. The gap in time thereafter to the subsequent events which could possibly be construed as “shocking” was sufficient to render these events a “later consequence” of the relevant event and as such these events lacked the necessary proximity to the relevant event. The Judgment also highlights the gravity of importance, of medical evidence in cases such as these and to have an appropriate expert specifically qualified to assess the individual alleging psychiatric illness.