RE (a minor) v Huddersfield and Calderdale NHS Foundation Trust [2017] EWHC 824 (QB); primary and secondary victims succeed in birth case

In RE (a minor) v Huddersfield and Calderdale NHS Foundation Trust [2017] EWHC 824 (QB) the infant claimant suffered a brain injury during her protracted birth. Her mother and grandmother sustained psychiatric injuries following sight of the baby, who was born in an extremely poor condition.

William Featherby QC and Vanessa Cashman of 12KBW succeeded in obtaining judgment on behalf of all three claimants. Vanessa discusses the case in this post.

Liability in respect of the infant claimant and liability and quantum in respect of the other claimants were tried between 21 and 28 March 2017 before Goss J. In giving judgment for all three claimants, Goss J found that the infant had suffered from a shoulder dystocia following crowning of the head and had become stuck. As a result, she suffered a hypoxic insult. He found that lack of prompt recognition by the midwife of the dystocia, which had occurred much earlier than the Trust alleged, and her failure to call for help had caused a negligent delay in the infant’s delivery.

In relation to the psychiatric injury claims, Goss J accepted that the mother was a primary victim. This was on the basis that at the point at which the negligence occurred, and the onset of the condition (PTSD), the infant was not a legally separate entity from her mother, still being in the birth canal. Therefore the mother was a primary victim and was entitled to damages for her injury.

In the alternative, she was a secondary victim (as was the grandmother) and satisfied not only the Alcock criteria but also the new criterion set out in Ronayne v Liverpool Women’s Hospital NHS Foundation Trust [2015] PIQR P20, that there must be a sudden appreciation of an objectively horrifying event. Goss J found that the sight of the baby satisfied that criterion. Judgment was accordingly entered for all three claimants.

The case has potentially powerful implications for secondary victim claims in a clinical negligence setting. Aside from Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 this is the first case in which such a claim has been established.

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