Know your victim - Primary or Secondary!

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Know your victim: Primary or Secondary!

Published 21 November 2018

The recent High Court decision in YAH -v- Medway NHS Foundation Trust is a helpful reminder of the principles to be considered when deciding the 'status' of an injured party and the importance of getting it right.  An entirely different set of rules and criteria are applied for primary or secondary victims which can mark the difference between trial success or trial failure.  We look at the Court's assessment of the 'victim' in this case and the relevant criteria. 

The facts

YAH is the mother of XAS, a child born with cerebral palsy and associated significant disability. XAS suffered injury through the admitted negligence of the defendant trust, which resulting in delayed delivery despite clear signs of fetal distress. The assessment of that claim proceeds separately – and is not relevant for the purpose of this recent decision.

YAH brought her own 'stand-alone' claim for psychiatric injury, suffered as a result of the distressing delivery of XAS and subsequent knowledge of XAS's diagnosis. YAH brought the claim on the basis that she is, in law, a "primary victim".

The trust disputed the claim and argued that YAH must fulfil the well-established Alcock criteria to recover damages as a "secondary victim". Specifically – she was unable to demonstrate a "recognised psychiatric injury, or that the injury was caused by shock resulting from the relevant events or their immediate aftermath". The trust argued that her injuries were caused predominantly by the stress of looking after XAS, rather than the "shocking" birth.

The Judgment

It is important to identify whether a claimant is a primary or a secondary victim as the two categories are governed by very different rules. It is settled law that a baby is part of its mother until birth. It flows from that principle that the mother is a primary victim in so far as she suffers personal injury consequent on negligence which occurs before the baby is born.

If the baby is born and lives – he or she may sue for damage which occurs before birth, pursuant to the Congenital Disabilities (Civil Liability) Act 1976. That Act however does not have the effect of depriving the mother of a co-existing right to sue as a primary victim. That fact the YAH's psychiatric damage became manifest later in time, after the birth, does not change her status as primary victim.

As a primary victim – YAH's claim fell to be determined according the 'ordinary' rules governing personal injury claims in negligence. The 'Alcock' criteria was irrelevant and the Court provided guidance as to those 'ordinary' rules:

The Court found that there is no requirement for a primary victim who brings a claim for "pure" psychiatric injury to show that the injury was caused by shock. A primary victim can claim for psychiatric injury which has been caused by the accumulation over a period of time of more 'gradual assaults on the nervous system'.

The psychiatric experts agreed that YAH suffered psychiatric illness caused by or materially contributed to by the Defendant's negligence, although the precise 'trigger' remained in dispute.  YAS argued a combination of the difficult labour, worry whether XAS would survive and the resulting strain of caring for XAS. The Defendant argued that the first few days after the birth did not go beyond "normal" upset and distress and that the cause came later, when YAH learnt the extent of XAS's brain injury.

The Judge accepted the evidence of the Claimant, her witnesses and her expert psychiatrist, that she suffered an anxiety disorder shortly after the birth and that the depression came later; that the combination was a single indivisible mental disorder. It was found that the birth, immediate anxiety whether XAS would survive and the later recognition of the severity of injuries each materially contributed to the outcome. YAH was awarded £76,183 inclusive of general and special damages.

Key lesson

It is crucial to establish at an early stage whether a claimant is a "primary" or "secondary" victim – each category falling to be determined by different rules and criteria. Interestingly in this case – if YAH had been found to be a 'secondary victim' – she would not have been entitled to damages. Her claim would have failed to 'Alcock' criteria on the basis the delivery, whilst obviously distressing and traumatic, would not constitute a "shock".

Our national teams of clinical risk lawyers have extensive experience of supporting and advising healthcare providers in matters just like this and we are on hand to provide advice on the impact of this High Court decision.

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