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PI and Civil Litigation

Law - practice - procedure

28 SEP 2015

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

Psychiatric harm – secondary victims

Court of Appeal: Sullivan LJ, Tomlinson LJ, Beatson LJ

  17 June 2015

This claim arose from the negligence on the part of the defendant in respect of a hysterectomy performed on the claimant’s wife on 8 July 2008. As a result she became very unwell and deteriorated rapidly over a period of 24 hours from 18 July, before later making a full recovery. The claimant claimed that he had suffered psychiatric injury in the form of post-traumatic stress disorder (‘PTSD’) consequent upon the shock of seeing his wife’s deterioration. He succeeded in obtaining an award of £9,165.88 from Liverpool County Court. The defendant successfully appealed this decision.

At first instance Judge Allan Gore QC rejected the claimant’s case that he suffered from PTSD, but he found that he suffered from a frank psychiatric illness. This was disputed by the defendant. Their appeal concentrated upon two interrelated points: (a) whether the events concerned were of a nature capable of founding a secondary victim case, ie were they in the necessary sense ‘horrifying’; and (b) whether the sudden appreciation of that event of those events, ie shock, cause the claimant’s psychiatric illness.

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The appeal looked at the facts of the case which involved a period of one or two days during which the claimant observed a rapid deterioration in his wife’s condition. He described two particularly distressing episodes, the first being when he saw his wife before she underwent emergency surgery, when he observed her connected to various machines such as drips and monitors. The second was the following day when he saw her in her post-operative condition. She was unconscious and connected to a ventilator. Her arms, legs and face were very swollen and pressure pads were in place.

The court held that the circumstances of the case fell far short of those which had been recognised as founding secondary victim liability. It was wrong to treat this as a single shocking event before rather there was a series of events over a period of time perception of what he saw on the two specific occasions was in each case informed by information which he had received in advance. As he had been made aware of severity of his wife’s condition it was held that what occurred did not have the necessary element of suddenness, and in the court’s opinion the two occasions the claimant described as being particularly distressing were not horrifying by objective standards.

The claim fell at the first hurdle. It was therefore unnecessary to determine whether the judge had been justified in finding that R's adjustment disorder had been caused by W's appearance on the two distinct occasions concerned, as opposed to being caused by her ill health.

This is not a surprising decision given recent case-law (eg Taylor v A Novo and Shorter v Surrey and Sussex Healthcare NHS Trust). Had the original decision been upheld it would have significantly widened the ambit for recovery from secondary victims who develop a psychiatric disorder after witnessing a loved one in hospital following an incident of clinical negligence. It seems unlikely that many cases would meet the necessary threshold so as to be classified ‘horrifying’ in the necessary sense.

Adam Dyl & Hannah Swarbrick, Anthony Gold Solicitors