A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s brain damage was so severe that he would have no quality of life. The claimant and her husband then decided that E’s life support should be terminated and E died in her arms approximately 36 hours after the seizure. Negligence in the Hospital was admitted, and the issue was the award of damages for nervous shock.
Held: The Trust’s appeal failed. The circumstances witnessed by her were distressing in the extreme and capable of producing an effect going well beyond that of grief and sorrow. Without the sudden and direct visual impression on the claimant’s mind of actually witnessing the event or its immediate aftermath there is no liability. The elements of proximity and causation are closely linked together. The case involved no new step in the award of such damages.
Ward LJ said: ‘In my judgment the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary ‘event’. Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: ‘An item in a sports programme, or the programme as a whole’. It is a useful metaphor or at least a convenient description for the ‘fact and consequence of the defendant’s negligence’, per Lord Wilberforce [in McLoughlin], or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be. It is a matter of judgment from case to case depending on the facts and circumstance of each case. In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child’s life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.’
When considering whether the event was ‘horrifying’, Ward LJ said: ‘For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an assault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat? Her fear and anxiety was undoubtedly calmed not only afterwards when given an incorrect medical opinion that it was very unlikely and would be very unlucky if Elliot had suffered serious damage. Every mother would seize upon the good news for her comfort to reduce the impact of the horror. Consequently, all the more likely it is that she should have felt numb, panic stricken and terrified by the sudden turn in events when she arrived at King’s College Hospital. That left her stunned. As the consultant observed she ‘responded as if half in a dream . . in a state of emotional shock’. Her hopes were lifted then they were dashed and finally destroyed when shortly thereafter she was advised to terminate treatment on the life support machine. That she should have felt that ‘this was a complete shock’ seems to me to be inevitable. That her immediate reaction should have been one of anger is understandable. Anger is part of the grieving process. But the agreed medical evidence made it plain that the combination of events ‘witnessed and experienced’ caused her pathological grief reaction and was different from a normal grief reaction. They must have been chilling moments, truly shocking events, as the experts agreed in answer to the seventh question put to them, and thus amply justifying the conclusion that this was a horrifying event.’
Lord Justice Clarke, Lord Justice Ward, Sir Anthony Evans
[2002] EWCA 1792, [2003] PIQR 232
Bailii
England and Wales
Citing:
Cited – Sion v Hampstead Health Authority CA 27-May-1994
An amendment to pleadings was allowed after the limitation period had expired in order to add a claim based on the same facts. The claim was brought by the father of a young man injured in a motor cycle accident. For fourteen days the father stayed . .
Cited – Tredget and Tredget v Bexley Health Authority 1994
(Central London County Court) As a result of the defendant hospital’s negligent management of Mrs Tredget’s labour, her baby was born in a severely asphyxiated state and died two days later. The actual birth of the child with its ‘chaos’ or . .
Cited – Taylorson v Shieldness Produce Ltd 1994
A fourteen year old boy died three days after he had been crushed by a reversing vehicle. The appellants were informed of the accident soon after it occurred and went to the hospital. The boy was seen in the ambulance and as he was rushed to the . .
Cited – Chadwick v British Railways Board 1967
Mr Chadwick tried to bring relief and comfort to the victims of the Lewisham train disaster in December 1967. His widow claimed in nervous shock, saying that it had eventually led to his own death.
Held: Where an accident is of a particular . .
Cited by:
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.178461