Holly Tibbitts considers psychiatric injury claims following infant birth injuries
Is the mother a primary or secondary victim? And can the secondary victim test be met?
In claims for psychiatric injury, the distinction between primary and secondary victims is well established. Primary victims are directly involved in a shocking - often life threatening - event and suffer psychiatric injury as a result. Secondary victims are those who sustain psychiatric injuries by witnessing an event involving a primary victim. In order to recover damages as a secondary victim a claimant must fulfil the well know criteria set out in Alcock v Chief Constable of South Yorkshire Police  1 AC 310, namely that:
- they have a sufficient closeness both in terms of love and affection to the person killed or injured and are in sight or sound of the directly injurious event giving rise to tortious liability; and
- they sustain psychiatric injury by shock, meaning "the sudden appreciation by sight or sound of a horrifying event which violently agitated the mind".
It is also clear from the body of case law in this area that a secondary victim claim will rarely be established where the injurious event has occurred in a hospital. As Tomlinson LJ emphasised in Liverpool Women's Hospital NHS Foundation Trust v Ronayne  EWCA Civ 588:
"A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove distressing… What is required in order to found liability is something exceptional in nature."
But what is the position of a mother who suffers psychiatric injury as a result of injury to her baby sustained during birth? Is she a primary victim of the injury or does she have to meet the secondary victim criteria in order to establish her claim?
This was one of the key issues considered by Goss J in RE & ors v Calderdale & Huddersfield NHS Foundation Trust  EWHC 824 (QBD). The first claimant, RE, was a baby who had sustained an acute profound hypoxic ischaemic insult in the minutes before her delivery. The background was that she was known to be a large fetus before birth, which gave rise to an increased risk of shoulder dystocia. As her head was being delivered she became stuck. The judge concluded that this was probably the result of a shoulder dystocia. This should have been recognised and assistance called. In the event there was a significant delay in seeking assistance to deliver RE and in that time she sustained the injury. When she was eventually born she was white, floppy and lifeless with a purple swollen head and required prolonged resuscitation.
The mother had not sustained any physical injuries outside of those that would normally be expected during birth. However, both she and RE's grandmother, who had been present at the birth, developed Post-Traumatic Stress Disorder and brought psychiatric injury claims as a result. It was self-evident that the grandmother was a secondary victim but the mother argued that she was a primary victim and consequently did not need to fulfil the Alcock criteria.
In considering this issue the court reviewed the cases of Wild v Southend University Hospital NHS Trust  EWHC 4053 (QB), Wells v University Hospital Southampton NHS Foundation Trust  EWHC 2376 (QB) and Farrell v Merton Sutton and Wandsworth Health Authority (2001) 57 BMLR 158. In Wild the court considered the mother of a baby who died in utero to be a primary victim on the basis that the mother and child were one legal entity. In the case of Wells, which ultimately failed on breach, the court went one step further and suggested that the mother would have been a primary victim if the negligence had happened when mother and baby were one legal entity even if the death occurred after birth. In Farrell the mother was considered a primary victim where the psychiatric injury was said to have arisen from the "trauma of birth", which was found to include not only the events of the operating theatre but also the position up to and including the first sight of the baby and the realisation of his disability.
Applying this reasoning to the claim by RE's mother, Goss J concluded that the negligence had occurred when RE's head had crowned but her body remained in the birth canal. At this stage RE was not a separate legal entity from her mother and they consequently had to be treated as one, rendering the mother a primary victim who did not need to fulfil the Alcock criteria.
The court went one step further and concluded that not only the mother but also the grandmother fulfilled the secondary victim criteria in any event. Both clearly had sufficient closeness to RE to leap the first hurdle. As to whether they had experience "shock", the court noted that they both suffered PTSD, which required a trigger event of first-hand experience of a life-endangering event. Further, it was noted that there was no conditioning or warning that when the baby was delivered she would be in a lifeless state and in need of extensive resuscitation. The court was satisfied that for both mother and grandmother the birth of a flat apnoeic baby was an outwardly shocking experience that was exceptional in nature and horrifying as judged by objective standards and by reference to persons of ordinary susceptibility. It was not 'part and parcel' of the demands and experience of childbirth and both were entitled to damages for nervous shock.
Therefore, as well as providing welcome clarity of the position of mothers in these claims, this case is also another relatively rare example of a secondary victim claim succeeding in a hospital context. The fact that there had been no warning of the likely perilous state of the baby at birth appears to have been a key factor, combined with directly and immediately witnessing the baby in a lifeless condition. While the bar for fulfilling the Alcock criteria is likely to remain high, for now this case should give some reassurance that in appropriate circumstances claimants can succeed in secondary victim psychiatric injury claims arising out of clinical negligence in a hospital context. However, permission to appeal has been sought so it remains to be seen whether this will remain the case in future.