Judgment has recently been given by Mrs Justice Whipple in the case of YAH v Medway NHS Foundation Trust – judgment can be found here. This gave useful clarification of the law regarding psychiatric claims by mothers following the birth of a brain damaged baby due to negligence.
The law in respect of psychiatric injuries has been fast moving recently. One of the key questions is whether a claimant is a 'primary victim' or a 'secondary victim'. A secondary victim is generally where the negligence happened to someone else, but the claimant witnessed or experienced the effect of it causing psychiatric problems. If a claimant is classified a secondary victim then damages would only be awarded if the claimant established the criteria set out following the Hillsborough disaster in the case of Alcock v Chief Constable of South Yorkshire, including the requirement that the claimant's psychiatric illness was caused by shock, and more particularly the “sudden appreciation by sight or sound of a horrifying event which violently agitates the mind”.
In the case of YAH, the defendant Trust had admitted liability for the baby's brain injury due to negligent obstetric care. The issues before the Court were whether the mother was a primary or secondary victim, and depending on that, whether the psychiatric problems that it was agreed she suffered from were compensatable.
The judge found the following:
- As the baby was part of the mother (so one legal entity) until birth, and the negligence was pre-birth, the mother was a primary victim
- As a primary victim there was no requirement to show shock (as per Alcock) was the cause of the psychiatric injury.
On the facts of the case the judge found that the mother suffered indivisible psychiatric problems from various causes, importantly including anxiety due to the effects of the delivery. The defendant had argued that the psychiatric injury was due to the stresses of bringing up a disabled child (and not by the events of the birth). It seems that if the judge had accepted this then the mother would not have succeeded as this was too remote to be compensated.
In the circumstances, the judge awarded damages to the mother.
This is useful clarification of one aspect of the often complicated law of psychiatric primary/secondary victims. Claims are often made on behalf of mothers following the birth of a brain damaged child. These can still be defended if there is either no recognised psychiatric injury or the Defendant can show that any psychiatric injury was caused by the general stresses of bringing up a disabled child and not by the particular events of delivery.