Mothers in Childbirth – Primary or Secondary Victims? Yah v Medway NHS Foundation Trust

In this blog Vanessa Cashman of 12KBW examines the recent decision of Whipple J in Yah v Medway NHS Foundation Trust [2018] EWHC 2964 (QB), a case concerning a claim by a mother for psychiatric damage arising out of the birth of her daughter.

The Claimant brought a claim for psychiatric damage arising out of the birth of her daughter on 9 July 2012. Her daughter was born with cerebral palsy following a period of hypoxia prior to delivery. The Defendant admitted liability for the delay in delivery.

Immediately after delivery and before the Claimant was able to see her, the baby was taken to the special care baby unit for cooling and intubation. The Claimant first saw her the next morning when she was in a box, surrounded by medical equipment, tubes and monitors. She was not allowed to hold her or touch her.

The Claimant pleaded that she was a primary victim and in the alternative, that she was a secondary victim.

The issues for Whipple J were as follows:
1. Whether the Claimant was a primary victim.
2. Whether she must show that her injury was caused by shock.
3. Whether her injury was too remote from the admitted negligence to permit recovery.
4. Whether in the alternative she was a secondary victim.

Issue 1: Whether the Claimant was a primary victim
Whipple J had no difficulty in answering the first issue in the affirmative; the Claimant was a primary victim as she suffered personal injury consequent on negligence which occurred before the baby was born. She said that this was settled law and the fact that her psychiatric damage manifested later in time did not change her status as a primary victim.

Issue 2: Whether she must show that her injury was caused by shock
Whilst citing the parties’ arguments in detail, Whipple J also had no difficulty in answering this question as invited to by the Claimant. She reiterated that Page v Smith established the approach in personal injury claims where the injuries consist of physical or psychiatric injuries or both: 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. That remains a criterion for secondary victims only.

Issue 3: Whether her injury was too remote from the admitted negligence to permit recovery
It appears from the judgment that this was the Defendant’s main argument. The issue in dispute centred on what the trigger for the Claimant’s psychiatric problems was, which then led to differing diagnoses by the experts.

The Defendant argued that her injury was caused by the stress of having to care for a disabled child. The Claimant said it was multi-factorial: the difficult labour culminating in an emergency c-section; the worry of not knowing if the baby would survive; and the strain of looking after her.

Whipple J reminded us that psychiatric injury is a single and indivisible injury.

She summarised the evidence of fact and the evidence of both experts and concluded that she preferred the Claimant’s expert’s evidence. She found that the Defendant’s expert offered no support for the Defendant’s case in the light of a joint statement which confirmed that the cause of the injury was multi-factorial, in exactly the way the Claimant alleged.

She therefore found that the contribution of all three causes was material to the outcome and thus rejected the Defendant’s argument that the injury was too remote. The first two causes were very proximate to the breach of duty.

Issue 4: secondary victim
The judge went on to say that if the Claimant had not been a primary victim, her experiences during delivery and afterward although shocking and traumatic did not constitute “shock” in the Alcock sense. Therefore she would not have succeeded in recovering damages as a secondary victim.

Discussion
This case does no more than reiterate the authority of Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) in respect of the proposition that when negligence occurs prior to birth, the mother and the baby are to be treated as one legal entity. Thus any injury to the baby is an injury to the mother and she is therefore the primary victim.

The Defendant argued a novel and interesting point in attempting to undermine this proposition. It was argued that where the child survives and can sue in its own right pursuant to the Congenital Disabilities (Civil Liability) Act 1976, the mother ceases to be a primary victim and becomes a secondary victim. In effect, the child supplants the mother as primary victim. The argument appears to be premised on the suggestion that there can only be one primary victim. It was roundly dismissed by Whipple J who considered that the Act does not remove rights from the mother and such an argument would present a departure from the general common law rule that a person who suffers injury at the negligent hands of another can sue them for damages.

The case also does no more than restate what has been long established in respect of the control mechanism of “shock” only applying to secondary victims.

Although not a major part of the judgment, it having been found that the Claimant was a primary victim, it may be instructive that the judge considered that the Claimant’s experiences would not have satisfied that particular criterion in the event that she was a secondary victim. There is no further discussion in the judgment as to what she would have had to witness or experience in order to satisfy that criterion, but it is something which all practitioners must consider carefully when pursuing secondary victim claims in clinical negligence cases.

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