Legal Watch: Personal Injury 8th April 2015 Issue: 059
Psychiatric injury/secondary victims In Legal Watch: Personal Injury 56 we reported the clinical
negligence case of Baker and others v Cambridgeshire
In this issue:
consideration of a claim for psychiatric injury by a secondary
• Psychiatric injury/secondary victims
& Peterborough NHS Foundation Trust as one including
victim. We now have a similar case in Shorter v Surrey &
• Damages
Sussex Healthcare NHS Trust (2015) EWHC 614 (QB).
The claimant’s sister had collapsed with a severe headache
and had been admitted to hospital. A CT scan was performed
and she was told that she had not suffered a sub-arachnoid haemorrhage. She was discharged after two days. Seven days
later she was readmitted with head and neck pain and a review
of the CT scan showed that a week earlier she had suffered a haemorrhage. The sister’s husband telephoned the claimant to inform her that there had been an undetected haemorrhage and that her sister’s condition had worsened.
The claimant was a senior sister in a neuro-intensive care unit and was aware of the seriousness of her sister’s condition
Events
the hospital accident and emergency department and claimed
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and the possibility of a further haemorrhage. She attended that she saw her sister rolling around on a trolley, crying with
pain, clutching her head and saying that she was in agony. The claimant returned home some hours later. She received
a call from her sister’s husband informing her that her sister
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she had started fitting. She attended the hospital and saw her
London
had suffered a seizure and then later another call to say that
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sister on life support and was told by the sister’s husband that
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she had “gone”. The sister died shortly afterwards.
The claimant suffered from a major depressive disorder and sought damages from the defendant Trust. It admitted that the
sister would probably have survived if it had not negligently failed to diagnose a haemorrhage and accepted that the close
relationship between the claimant and her sister was such as
to bring her within the class of persons eligible to bring a claim as a secondary victim.
The claimant argued that she had been exposed to a
It was not until she saw her sister on life support that
witnessed and/or in which she had directly and immediately
unexpected shock. There had not been a seamless single
seamless single horrendous event which she had directly been involved, either by direct sight or by sound. The defendant’s case was that the claimant did not have the
required degree of proximity to a specific and shocking event because the realisation of the danger to her sister had been gradual.
Dismissing the claim the High Court judge held that on
the balance of probabilities, the incidents over the two
days of the second hospital admission had all contributed to the development of the claimant’s psychiatric disorder.
However, she had to show that her psychiatric illness had
been caused by the sight or sound causing an assault on her senses. She had to establish sufficient proximity to the event, a sudden and direct visual impression on her mind
of witnessing the event or its aftermath. There had been no
physical proximity when the claimant had been informed by telephone of the defendant’s negligence. When she saw her
sister on the trolley she had not been in such a condition that to see her could be described as a horrifying event or cause violent agitation of the mind.
‘There had not been a seamless single horrifying event; there had been a series of events over a period…’’ It was necessary to be cautious in finding that the claimant’s
professional expertise made the sight of her sister more
horrifying than it would have been to a person without that knowledge. The event had to be one that would be recognised
as horrifying by a person of ordinary susceptibility; in other words, by objective standards. After the claimant left the
hospital, all the information she gained over the following nine hours had been by telephone, she had not seen her
sister and had not been proximate to the unfolding events. 02
the reality had become clear, but it was not a sudden or
horrifying event; there had been a series of events over a period of time. The claimant had been proximate to some
of those events, but most of her fear, panic and anxiety
had been caused by information communicated to her by telephone or face-to-face by her sister’s husband when
he told her that her sister had gone. None of the individual events within the series actually witnessed by the claimant had given rise to the sudden and direct appreciation of a horrifying event. Even when she had witnessed her sister on the life support machine, her perception had been informed
by the information she had been receiving over the previous 15 hours and by her own professional knowledge.
Damages All personal injury cases are dealt with on their own facts
and the evidence heard but the next two cases contain some points of general interest.
In Tait v Gloucestershire Hospitals NHS Foundation Trust (2015) EWHC 848 (QB) the claimant had been a
photographer and run her own business, while also deriving income from a separate family business. She suffered an
acute episode of lower back pain and was taken to hospital. Although clinicians suspected a disc prolapse and planned
an MRI scan, she was discharged with no scan having taken place. The next day she was admitted to hospital again with suspected cauda equina syndrome. An MRI scan revealed a
massive prolapsed disc and surgery was carried out. Had the
claimant had surgery when first admitted, she would have had: some mild bowel and bladder symptoms that would not have impeded her ability to work and live a relatively normal life; some residual disturbance of sensation in the perineum;
mechanical back pain and leg weakness which would have
prevented her doing heavy manual work. As a result of the delay, the claimant had cauda equina syndrome, was doubly incontinent, had suffered a loss of sexual sensation and
some psychiatric damage, and suffered some leg weakness
and pain beyond that which she would have experienced
in any event. The defendant disputed the extent to which the claimant suffered neuropathic back pain, contending that she had not mentioned such pain when first examined
to intimate areas of her body was understandable; over
time, her focus would inevitably have changed. She was not
someone who would exaggerate her symptoms for profit:
she was a high achiever who had worked hard throughout her life. Further, had she been attempting to exaggerate her symptoms of neuropathic pain, she would have given a history reflecting that pain to the medico-legal experts when first examined. She had suffered neuropathic pain as she
described and her symptoms were attributable to the delay. On the basis of the claimant’s evidence, although she would
have had to avoid heavy lifting and heavy manual work, she would have been able to carry on with the vast majority of her domestic and work activities had she not sustained the injuries caused by the delay.
Photography was an uncertain profession and earnings were erratic and often modest. However, the claimant had made
a very good start to her career. A broad brush approach was appropriate, based on income from the photography
business and salary and dividend from the family business. An appropriate net overall annual figure was £45,000 (net of childcare). (The judge commented that ‘the extent to
which the employment experts can assist the court in this case is limited’. He rejected the claimant’s suggested figure
as ‘extremely optimistic whilst that contended for by the defendant is in all probability unduly pessimistic’).
and was exaggerating it. The issues to be determined were
At the date of the judgment the claimant was 34. The judge
neuropathic pain; (ii) how her life and career would have
have been 68. (The defendant had argued for 65). The judge
have suffered in any event; (iii) how her career would have
chance that she would have achieved higher earnings than
quantification of the claim.
A full-time nanny was allowed until the claimant’s youngest
(i) whether and to what extent the claimant suffered from
held that her retirement age, but for the accident, would
been impeded by the mechanical back pain she would
also allowed the claimant £261,830 to represent a 50%
progressed but for the injury caused by the delay; (iv) the
those reflected in his base calculation.
The deputy High Court judge held that there was no
child was five, after which two hours of childcare would be
She would have had difficulties in describing pain in a
day of domestic support.
evidence that the claimant had exaggerated her symptoms.
allowed until the youngest child was 14, with one hour per
numb area. Her reluctance to discuss symptoms relating 03
‘A full time nanny was allowed until the claimant’s youngest child was five...’ Case management was allowed for only three more years, to
enable the claimant to implement various recommendations.
The judge found that she was an intelligent and articulate
for which the defendant was responsible. His delivery in
February 2002 was complicated by shoulder dystocia
causing a brachial plexus injury to his right shoulder
resulting in permanent damage. His right arm and fingers were significantly smaller and shorter than those on his left and that relative deformity would increase proportionately as he grew. The movement, dexterity and function of his
right arm and hand was greatly reduced, and he experienced
difficulties in daily life. Liability, causation and quantum were all in issue.
woman who should not then require further assistance.
The deputy High Court judge found in favour of the claimant
therapy. A claim for a swim spa was dismissed as being
at £95,000.
For that reason he also disallowed a claim for occupational
on the issue of liability and causation and assessed PSLA
neither reasonable, nor proportionate.
The parties’ figures for past care were all estimates, the
The judge found in favour of the claimant as regards a claim
exact amount of time varying from year-to-year depending
a claim for the cost of a property finder and substantially
treatment in any given year. The suggested mid-point figure
expert’s figures on many items.
a realistic estimate of the amount of time actually spent.
for larger, single storey accommodation but dismissed
on whether there had been surgery or otherwise extensive
reduced costings for adaptations, preferring the defendant’s
of £65,973 put forward on the claimant’s behalf reflected
The court made awards in respect of other past and future losses that are not fully detailed in the judgment.
The JSC guidelines gave a top level general damages
award for total loss of natural bowel function causing faecal
incontinence of £110,300 and up to £103,250 for complete loss of control of urinary incontinence. In addition, the
claimant suffered pain and leg weakness and neuropathic pain and there was psychiatric injury and sexual dysfunction. Her incontinence was likely to increase. Her entire day was
dominated by her toileting needs and she relied entirely on pads, nappies and the like to manage that incontinence. It was not appropriate simply to combine awards for bowel and bladder incontinence; there had to be some reduction
A discount of 25 per cent was applied to that sum. The defendant had argued for a discount of one-third.
‘An award for travel was based on an appropriate mile rate of 25 pence. The judge dismissed the claimant’s claim for 40 pence per mile…’
for overlap. On the evidence, the appropriate figure was
An award for travel was based on an appropriate mile rate of
about one-third, rounded)
pence per mile for which he could see no justification. The
The same judge heard the case of FM (An infant) v Ipswich
not recoverable, since they did not arise from any breach
£140,000. (On the face of it, this is a discount for overlap of
Hospital NHS Trust (2015) EWHC 775 (QB).
The claimant claimed damages for clinical negligence in respect of injury sustained during his birth at a hospital 04
25 pence. The judge dismissed the claimant’s claim for 40
cost of attending swimming training and competitions were of duty; rather, they were the costs of pursuing an activity at which the claimant excelled and which his parents supported him to undertake.
The parties had agreed needs and rates for future care
until the claimant was 21. Beyond that, it was very difficult
to predict what the course of his future life would be. A reasonable approach was to adopt six hours per week until the age of 30 and then to reduce that to three hours per week
to reflect that by that time he may well have a partner with
whom to share chores, coupled with a further allowance of
£20,000 for childcare. There should also be some allowance for the likelihood that at least some of the care involved in
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The claimant was awarded £900 per annum from age 25 to
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at higher cost, and a further sum of £10,000 was added in
Quarterly:
70 for DIY, decorating and gardening.
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The claimant was 13. The defendant argued for a lump
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sum Blamire award of £50,000. The judge made an award
for future earnings based on a multiplicand of £14,721 net. This represented the difference between the claimant’s
‘uninjured’ earnings and what he was likely to achieve in the future. The ‘base’ multiplier was taken as 27.14 on a
working life between 21 and 68. The judgment is not clear but it appears that was initially reduced to 22.33, to reflect the acceleration of the payment and then to 6.92, to reflect the claimant’s continuing disability.
A claim for loss of pension was refused as wholly speculative. Damages were awarded on a lump sum basis.
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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.