Can fathers claim for psychiatric injury following stillbirth?

Claiming for psychiatric injury as a secondary victim.

Who or what is a “Secondary Victim”?

Since the case of Alcock v Chief Constable of Yorkshire Police was decided following the Hillsborough disaster in 1989, it has been well established that if certain criteria are met by the Claimant, he or she may bring a compensation claim for psychiatric injury as a “secondary victim”, even if they were not directly injured in the event in question. So what is a “secondary victim” and how does that differ from any other Claimant?

Logically, if there is a “secondary victim” there must be a “first” or “primary victim”. A primary victim was described by Lord Oliver in the case of Alcock as an injured Claimant “who was involved, either mediately or immediately as a participant”. Thus mothers who have given birth, will be primary victims if they suffer an injury as a result of negligent treatment.

A “secondary victim” was described in Alcock as a witness to that negligent treatment who “was no more than a passive and unwilling witness of injury caused to others”.

In other words, a “secondary victim” is someone who suffers psychiatric injury solely as a result of witnessing the injury or risk of harm to another person. Fathers and birth partners may in some circumstances fall into the category of “secondary victim”.

Claiming compensation as a secondary victim

To successfully recover compensation for psychiatric injury as a secondary victim, the following criteria must be demonstrated by the Claimant:

1. A close tie of love and affection with the person killed or injured;
2. That he or she was close to the incident in time and space;
3. That he or she has suffered a recognisable psychiatric illness;
4. That it was reasonably foreseeable in the circumstances that someone of ordinary fortitude would suffer psychiatric injury in the same circumstances; and
5. That the mechanism by which the injury was suffered can properly be described as “the sudden appreciation by sight or sound of a horrifying event”.

Demonstrating “the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind” can be quite difficult. In recent cases the Courts have sometimes interpreted what constitutes a “horrifying event” quite narrowly and suggested that witnessing a death at a hospital bedside is not sufficiently “horrifying” to justify a claim. However each case must be judged on its own facts.

Secondary Victims in Stillbirth Claims

It may seem then that fathers who are present at the birth of a child would be able to recover as secondary victims, in the event of the child being stillborn. However, there are other cases where Courts have taken a more restrictive approach such as the Court of Appeal decision in Sion v Hampstead Health Authority in 1994. The Claimant sought damages for psychiatric injury following the death of his son who died in hospital fourteen days after being involved in a road traffic accident. The Claimant remained at his son’s bedside throughout and suffered psychiatric injury as a result of witnessing his son’s deterioration. The Claimant brought an action against the hospital alleging their negligent treatment of his son caused him to suffer psychiatric injury. The hospital applied to have the claim struck out as disclosing no cause of action. Brooke J found for the hospital and the Claimant appealed.

The appeal was dismissed with Staughton LJ stating “In my opinion there is no trace in that report of “shock” as defined by Lord Ackner, no sudden appreciation by sight or sound of a horrifying event. On the contrary, the report describes a process continuing for some time, from first arrival at the hospital to the appreciation of medical negligence after the inquest. In particular, the son’s death when it occurred was not surprising but expected.”

As we can see, the Courts are not sympathetic to Claimants and apply the principles dispassionately, sometimes with harsh results.

In the case of Wild v Southend Hospital NHS Trust in 2014 The High Court held that a father could not recover damages as a secondary victim following shock from discovering his unborn son had died in the womb and witnessing the still birth. The justification for this decision was that the father developed acute anxiety starting at a time when the baby had already died, rather than witnessing horrific events leading to a death or serious injury. The Trust had already admitted they were liable to the mother as a primary victim for the nervous shock she experienced as a result of their negligence.

On 5 February 2021, Master Cook handed down judgment in the case of Polmear and another v Royal Cornwall Hospitals NHS Trust [2021] EWHC 196 (QB). The issue to be determined again by the Court was whether there could be a period of delay between negligence and the “sudden and horrifying events.” In that case, the Claimant’s daughter had collapsed and died as a result of undiagnosed Pulmonary Veno-Occlusive Disease. Both parents were present and witnessed the events and attempts to resuscitate her. Both suffered severe Post Traumatic Stress Disorder. The Defendant admitted breach in failing to diagnose the underlying condition, accepting that this should have been diagnosed months earlier. During the intervening period the child suffered episodes of shortness of breath and vomiting. Master Cook saw these episodes as “regular and clearly very worrying”. He concluded that the “collapse was a sudden event, external to the secondary victims and it led very rapidly to her death. The event would have been horrifying to any close family member…It seems to be that…. final episode can be appropriately described as a fact and consequence of the Defendant’s negligence.” Master Cook dismissed the Defendant’s application to strike out the claim. However, he gave permission to appeal to the Court of Appeal and we await the Court of Appeals decision on this issue.

Summary

As set out above, on the basis of the current case law, a father will only be able to recover when he “witnesses” the harm to the baby. In most cases of stillbirth, the harm will have already occurred before the baby is born. Frequently, parents may be told that there is no heartbeat prior to the birth actually taking place. In these circumstances, the Courts have determined that fathers have not “witnessed” the harm itself only the consequences of that harm and they have not been able to recover compensation as a secondary victim. This therefore makes the prospects of claiming as a secondary victim following stillbirth, extremely limited.

There continues to be considerable uncertainty in this area of law, with Courts often applying the criteria in such a way as to restrict secondary victim claims and then at times interpreting the criteria more liberally. The law is clearly in need of clarification and certainty. Despite the Law Commission criticising the distinction between Primary and Secondary victims, the Court of Appeal have made it clear that any substantial development to the law in this area should be left to Parliament.

Contact a specialist clinical negligence solicitor

If you would like to discuss any issue arising from a psychiatric injury, please call 0800 316 8892 or get in touch online for a free, no-obligation consultation with a specialist injury solicitor.

We can meet wherever is most convenient to you – either in one of our offices or at your home. We have solicitors based in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.