‘Not waving but drowning’

The term Primary and Secondary Victims applies to many scenarios but the focus of my research into clarifying the terms is related to the birth injury scenario. Unfortunately it is not good news for the families of babies injured at birth.

There is obviously a huge amount of legal process behind this aspect of primary and secondary victim, but for simplicity I have split the process into bite size chunks to save everyone from a migraine.

Birth Litigation UK Blog

Paul v. Royal Wolverhampton NHS Trust; Polmear v. Royal Cornwall Hospitals NHS Trust; Purchase v. Dr. Ahmed (Supreme Court – 11 January 2024)

The Difference between Primary and Secondary Victims in relation to Birth Injury Claims.

Recently, (2024) There has been a significant ruling by the Supreme Court (the highest court in the land) on what defines a secondary victim in negligence cases (clinical and general) and by default what defines a primary victim. This has significant implications for people pursuing a birth injury case and seeking damages for psychiatric injury. I’ve therefore looked at past and current legal rulings, pulled together the relevant case law and tried to make the subject simpler to understand. I’ve added drop down boxes so people can look at all the legal stuff if they like, but I’ve also summarised what a primary victim is, what a secondary victim is and how the new Judgement affects claimants.

What is not included in the secondary victim concept are parental loss of careers, earnings, financial security, pensions, normal family life etc because, although we as families lose so much, the law as it stands does not recognise our losses apart from our gratuitous care. Looking at it dispassionately it would be a ‘floodgate’ scenario and need a major change in the law or a major financial investment into the (uncertain) court system. Sadly, parents and the wider family are just collateral damage left to pick up the pieces of someones else’s mistakes. As always, I am not legally trained so for further clarification always ask your solicitor. They are paid far more than me!

Source material for the following information is in the legal rulings cited

What is a Primary Victim?

A primary victim is a person who is injured by the negligence of another. Most compensation claims are concerned with primary victims. They are the easiest to prove and rely on the basic tenets of civil law. That: a duty of care is owed; that duty of care has been breached; and that breach of care has caused the injury.

In the case of a birth negligence injury the baby will be the primary victim if they sustain an injury that has lasting implications, such a cerebral palsy, caused by negligence.

If the mother of the baby sustains a psychiatric injury due to the circumstances around the negligent birth, generally speaking, she is also a primary victim. This is because the trauma occurs before the baby is born and she and the baby are considered under the law, as ‘one entity’ until the baby is delivered. In YAH v Medway NHS Foundation Trust [2018] the defendant argued that the psychiatric injury developed over time after the baby was born, but this was dismissed because the combination of the difficult labour, the worry of not knowing whether her baby would survive, and the strain of looking after the severely disabled child caused her to suffer the psychiatric injury. Most cases will fall into this category in the case of the mother.

Equally, if a baby is negligently stillborn the mother is regarded as a primary victim because the injury was occurring before birth when they were regarded as one entity.

The mothers case has a time limit of 3 years from the incident but can run alongside the child’s case.

More information on the cases that demonstrate how it worked in practice. Click here …

https://www.boyesturnerclaims.com/news/landmark-court-ruling-confirmation-mother-brain-damaged-baby-primary-victim

Explains in more depth, and clarifies the situation confirming a mother can make a claim for compensation. It seems clear in law in most cases that mothers who give birth to brain injured babies where there is established negligence and who develop a psychiatric illness are primary victims and are entitled to claim compensation for ‘personal injury’.

Wells v University Hospital Southampton NHS Foundation Trust [2015] https://www.casemine.com/judgement/uk/5a8ff7d360d03e7f57eb2532

C mother was a primary victim because she and the baby were one when the negligence occurred. On the facts though she could not recover as there was no negligent breach by D.

Wild v Southend University Hospital NHS Foundation Trust [2014] https://www.casemine.com/judgement/uk/5a8ff7d060d03e7f57eb243e

Where C mother is told that a child she is carrying has suffered (negligent) injuries, and witnessing the birth is a psychiatrically triggering experience, that mother will be a primary victim.

Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] https://www.casemine.com/judgement/uk/5cbea1972c94e06006b09dab

The same approach was again endorsed by Martin Spencer J who found the Claimant mother of a stillborn child to be a primary victim

What is a Secondary Victim?

Secondary victim claims are an exception to the general rule that the ‘common law does not recognise one person as having any legally compensable interest in the physical well-being of another’. Over time the law has developed to allow a class of claimants, known as secondary victims, to bring claims where they have been “no more than the passive and unwilling witness of injury caused to others”

The term secondary victim in legal cases came to prominence in the case following the Hillsborough disaster. Alcock v Chief Constable of South Yorkshire [1992]. The case revolved around the close family of people who had died in the tragedy and who were present at the time. The cases for family members viewing the scenes on television were dismissed because they did not meet the criteria.

Secondary victims must satisfy the criteria established in Alcock v CC of South Yorkshire Police [1992]

The Claimant must have a close tie of love and affection with the primary victim
The Claimant must have been present at the relevant event or its immediate aftermath (proximity in time and space)
The psychiatric injury must have been caused by direct perception of a shocking event or its immediate aftermath.
Whether the event concerned was in the necessary sense ‘horrifying’?
Whether the sudden appreciation of that event i.e. shock, caused his psychiatric illness?

In the early 1980s this area of law extended one step further, enabling those who had not witnessed the primary event but who had come upon its immediate aftermath, to bring a claim in certain circumstances. This is known as “the immediate aftermath extension” and its principles are set out in McLoughlin v O’Brian [1983]

The reasoning and summary are set out here…

http://e-lawresources.co.uk/cases/McLoughlin-v-O-Brian.php

It is slightly different in that the mother of the injured child was not on the actual scene but did see the immediate aftermath in hospital where she suffered her ‘nervous shock’.

Lord Wilberforce:

“Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the ” aftermath ” doctrine, one who, from close proximity comes very soon upon the scene, should not be excluded…. and by way of reinforcement of ” aftermath ” cases, I would accept, by analogy with ” rescue ” situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene—normally a parent or a spouse, could be regarded as being within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible. Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts.”

So, secondary victim criteria was clarified to include people like the mother of the child, not direct witness to the accident but shocked at the aftermath when she saw her daughters body.

Judging by the above criteria it would seem to a lay person that a husband or partner who witnessed their partner give birth in a traumatic way and saw their seriously injured baby resuscitated would fulfil all the above criteria? This has been the case for many years, but there have been ongoing rumblings in the legal spheres due to the different interpretations made, differing judgements and inconsistency. If there is one thing the law hates it is inconsistency, uncertainty and muddled thinking. The cases below, judged at the time of the above criteria succeeded, but in my purely personal opinion I think now they would fail because of the updated judgement from the Supreme Court.

Successful secondary victim cases here, demonstrating the criteria listed above….

North Glamorgan NHS Trust v Walters [2002] https://www.lawteacher.net/cases/walters-v-north-glamorgan.php

C mother witnessed the traumatic seizure and subsequent death of her baby son 36 hours later, caused by negligent misdiagnosis. Such an event was not confined to one moment in time and, taking a realistic approach to the facts, the 36 hour period prior to death could be classed as a single horrifying event.

RE (a minor) v Huddersfield and Calderdale NHS Foundation Trust [2017] https://www.casemine.com/judgement/uk/5a8ff7b960d03e7f57eb18d1

The case succeeded on all three counts with negligence to the mother and baby, both primary victims and the grandmother as a secondary victim.

The above cases fell within the previous boundaries of Primary and Secondary victims and are, in the case of Secondary Victims no longer always valid. The following ruling and cases set out the new guidance for courts to follow.

New Supreme Court Ruling on Secondary Victims

The cases that are now clarifying secondary victim status are those of Paul (and others) v Royal Wolverhampton NHS Trust (and others) 2024
In January 2024 the Supreme Court made a landmark ruling regarding secondary victims in the clinical negligence field. The Supreme Court is the highest court in the land so this ruling cannot be appealed by a lower court and will stand unless an act of Parliament rules.

In Paul (and others) v Royal Wolverhampton NHS Trust (and others) [2024], the claimants sought compensation for psychiatric injuries after witnessing the death of close family members following the alleged negligent failure of the defendants to treat or diagnose life-threatening medical conditions. The claims failed at first instance. These decisions were appealed and eventually reached the Supreme Court, where the appeals were all dismissed. The court held that a negligent failure to treat or diagnose an illness did not constitute an “accident”.

The three cases are not birth injury cases but do involve clinical negligence, and clinical negligence encompasses birth injury. The law now requires that the claimant witness an accident or its immediate aftermath. The bounds of what constitutes “the aftermath’ are limited and set out in one of the case laws used (McCloughlin)(see above). However, it is no longer a requirement that the claimant sustains a “sudden shock to the nervous system” caused by a “horrifying” event. This reflects modern understandings of psychiatric illness which recognises that it is not caused by an “assault on the nervous system”. Referring to the psychiatric harm element, the criteria is for the psychological injury to be a recognised psychiatric illness such as depression or generalized anxiety disorder.

The court held that a negligent failure to treat or diagnose an illness did not constitute an “accident”.
The judgement also defined an “accident” as “an unexpected and unintended event which caused injury (or a risk of injury) by violent external means to one or more primary victims”, and observed that:
“In medical negligence cases the event (or its aftermath) witnessed by the secondary victim is generally not an accident; it is the suffering or death of their relative from illness. As a shorthand and without intending it to be a term of art, we will refer to such an event as a “medical crisis”.”

The Court gave a number of reasons why it considered that witnessing an accident was legally significant: Click here…

Legal certainty: “an accident is, by definition, a discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place, in a particular way. Whether someone was present at the scene and whether they directly perceived an accident are in most cases questions which admit of a clear and straightforward answer.”
“Witnessing an accident involving a close family member is itself likely to be a disturbing and upsetting event even if that person in fact escapes unharmed and all the more so if that person is physically injured or killed.”
Difficulties distinguishing between primary and secondary victims in accident cases, which militate in favour of allowing recovery in accident cases but not otherwise: “in a case where, for example, both a mother and her child are put in physical peril, it would not only be unjust but practically impossible to distinguish between the mother’s emotions of fear for herself and fear for her child”.

In contrast the court expressed the view that:

It can be more difficult to identify a discrete event in many cases involving a “medical crisis”. Whilst there are cases such as Paul where there is a readily identifiable event, in other cases such as Walters and Shorter events the symptoms of injury or disease is variable, potentially being minutes, hours, days or weeks. “This gives rise to uncertainty about what qualifies as an “event” capable of founding a claim”. As a result the court favoured the certainty of restricting recovery to accidents.
The extent to which the experience of witnessing injury or illness in a medical crisis case is traumatic is variable. The court felt that an adequate test had not been identified to distinguish between those cases that could found a claim and those that could not.
The difficulties distinguishing between primary and secondary victims that are part of the reasoning for secondary victim claims do not apply in medical cases.

The court raised two further justifications for drawing the line at claims arising out of the witnessing of an accident:

The court made a qualitative assessment that an “ordinary reasonable person” would think it unfair for a daughter to recover damages for seeing a parent die from a heart attack or pulmonary embolism, but a mother denied recovery where she identifies the mutilated body of her child in the mortuary or is present at the hospital many days after an accident when the child dies from his or her injuries.
The court felt that “ It is undesirable for decisions about end-of-life care to be complicated by the risk that, if it is said that the death ought to have been prevented, the hospital will be exposed to potential legal liability to family members as a result of them seeing and remaining with the patient.”

The reasoning concludes “such an experience [witnessing the death from disease of a close family member] is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition”. This may strike some as a harsh characterisation in circumstances where the allegation is that the medical practitioner has failed to prevent the injury or death in question due to negligence. It is difficult to see how this might appropriately be described as a “vicissitude of life”.

The Duty of Care Aspect

There is also the issue of duty of care and how this duty is extended only to the mother and baby. Duty of care is very important in all cases of negligence and always highlighted in birth injury cases.

This was said in regard to duty of care, …

“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

Horrifying, and suddenly shocking to the nervous system are unquantifiable terms and It seems like the incident must be an actual ‘accident’ rather than an unfolding series of incidents, such as childbirth. The accident doesn’t even have to be witnessed, but be part of a distressing series of events ending usually in the death of the relative (such as a daughter) of the claimant

Updated Criteria for Secondary Victims

The Claimant now needs to prove: (2024 onwards criteria)

A duty of care owed to the secondary victim by the defendant not to cause that person a recognised psychiatric illness consequent upon the death, injury or imperilment of the primary victim.
That they have suffered a recognised psychiatric illness as distinct from mental distress (which includes upset, grief and anxiety).
It must have been reasonably foreseeable to the defendant that the claimant, as a person of reasonable fortitude, might suffer a psychiatric illness as a result of the negligent conduct leading to the death, injury or imperilment of the primary victim.
There are then the four addition factors / controls that go to the question of proximity that the claimant must prove:
That they have a close tie of love and affection with the primary victim;
That they were close to the accident in time and space, or came upon its immediate aftermath, where the primary victim was killed, injured or imperilled;
That they perceived the accident through his or her unaided senses (rather than being for example told about it by another); and
That there is a causal connection between the witnessing of that event and the illness suffered by the claimant. It is not necessary to demonstrate the neurological or psychological mechanism by which the illness was induced.

Details of the cases ruled on by the Supreme Court which now define Secondary Victims in Clinical Negligence cases. Click here….

https://www.supremecourt.uk/cases/docs/uksc-2022-0038-0044-0049-judgment.pdf

Mr. Paul had been treated in hospital for acute coronary symptoms in November 2012 and was discharged. In January 2014, whilst out shopping with his two daughters, he suffered a cardiac arrest in the street and collapsed, hitting his head on the pavement. He died shortly afterwards. His daughters both claimed for psychiatric illness caused by witnessing this event, maintaining that his earlier treatment should have revealed significant coronary artery disease that would have been successfully treated by re-vascularisation.

The Claimants’ daughter Esmee was treated by the Defendant’s hospital in December 2014 – January 2015, when she was 6 years old. The hospital failed – negligently – to diagnose Esmee’s Pulmonary Veno-Occlusive Disease. Esmee continued to suffer several “very concerning episodes” of breathlessness and vomiting during spring 2015. Her GP re-referred her to the hospital in April 2015. However, before Esmee was seen again at the hospital, she collapsed and died on 1 July 2015. Esmee’s parents claimed damages for psychiatric injury, as secondary victims, “as a result of witnessing the sudden and horrifying events” surrounding Esmee’s death on 1 July 2015.

Evelyn Purchase died on 7 April 2013 at the age of 20 from severe pneumonia. Three days before, having been unwell for several weeks and having made two previous visits to her GP, Evelyn attended the out-of-hours clinic with her mother. She was examined by the defendant, Dr Ahmed. He failed to diagnose her condition and sent her home with a prescription for antibiotics and an antidepressant. Evelyn’s condition did not improve and on 6 April 2013 she was also complaining of heart palpitations. That evening her mother found Evelyn lying motionless on her bed and not moving. Her skin was slightly warm and she looked alive but was not moving. When paramedics arrived, their attempts at resuscitation were unsuccessful and Evelyn was declared dead.

As stated above, all three cases were dismissed by the Supreme Court so cannot be overturned.

As this ruling came from the Supreme Court it will stand. The Supreme court is the highest court in the land and all lower tier courts must adhere to the ruling. The majority decision means that in virtually all circumstances of medical negligence it will not be possible for loved ones to bring a secondary victim claim for psychiatric injury unless there is an “accident“, an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means.” “An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event”
A traumatic birth is classified as an ‘incident’ or a ‘medical crisis’, and not an accident.
Going forward, the case for psychiatric illness for the mother will remain unchanged as a Primary Victim, but the case for partners or family members as a Secondary Victim will almost always fail. Therefore, solicitors will be reluctant to take on these cases, but do discuss this with them at the beginning of the claim in case there are exceptional circumstances.

I’ve tried on this website not to give opinion or direct advice, but on the matter of psychological injury to the mother, I would advise putting this into your claim as soon as the child’s case is taken on, bearing in mind the 3 year limit. My reason is, the litigation journey, the affects of the birth injury on your child and the stress on yourself and family will almost always take it’s toll on your mental health.