Setting the bar high for secondary victim claims

This article was first published in the Solicitors Journal.

It had been 10 years since a secondary victim claim had reached the Court of Appeal when the important Taylor v A.Novo(UK) Ltd. [2014] QB 150 case was decided, in March 2013. By contrast, the last six months have seen a series of key decisions illustrating the approach first-instance Courts will take in the light of Taylor, namely Wild v Southend NHS; Brock v Northampton NHS; Berisha v Stone Superstore; Shorter v Surrey & Sussex NHS and culminating in another landmark Appeal decision in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588.

As long ago as 1999, in White, Lord Hoffmann observed, “It seems to me that in this area of the law, the search for principle was called off in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle.” This lack of principle made it hard to advise clients on likely outcomes. A series of decisions followed Alcock and White which were difficult to reconcile with each other. But taken as a whole, the five cases decided in the months since December 2014 bring some welcome consistency for practitioners advising in this complex and policy driven area of law.

Whilst being factually varied, ranging from a death in the womb (Wild), to a fatal workplace accident (Berisha) and clinical negligence (Brock; Shorter), there has been a consistent theme in these recent cases of going back to first principles. In the Taylor appeal, Lord Dyson MR had reiterated that the Courts should confine the right of action of secondary victims by means of the strict control mechanisms set out in Alcock. Any substantial extension of the right of action should only be done by Parliament. This has led first-instance Judges to apply those control mechanisms with renewed rigour. It is perhaps no surprise that there is no reported decision in which a secondary victim claim has succeeded since Taylor, a decision which itself overturned a trial judge’s award of compensation in such a case.

The Ronayne decision is so significant because it arguably tightens those strict control mechanisms. This will be welcomed by NHS Trusts and liability insurers, who have seen a rise in ‘bolt-on’ secondary victim claims.

Mr Ronayne sustained a psychiatric injury from the shock of his seriously ill wife’s appearance in hospital. A few days after surgery, it was discovered that a misplaced suture in her colon had caused complications. Shortly before she underwent emergency surgery, he saw his wife connected to various machines including drips and monitors. After surgery he saw her unconscious, connected to a ventilator and being administered antibiotics intravenously. Her arms, legs and face were very swollen. He described his shock at her looking like ‘the Michelin Man’.

The judgment clarifies and adds to the ingredients necessary to establish the control mechanism of a ‘shocking event’ that it must be (a) exceptional; and (b) sudden; and (c) horrifying. Unquestionably, this will be a high threshold for Claimants. This will be judged by objective standards by reference to persons of ordinary susceptibility, not by examining the Claimant’s medical knowledge. In hospital, one must expect to see things that one may not like to see, such as patients connected to machines and drips. A visitor is to a degree conditioned as to what to expect and it is likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing. Indeed, the Judges went as far as to observe that the reaction of most people of ordinary robustness, in such a situation, would surely be one of relief that the matter was in the hands of medical professionals with perhaps a grateful nod to the ready availability of modern medical equipment.

Notwithstanding that the Appeal Judges accepted that this was an appalling sequence of events which caused profound distress to Mr Ronayne, the Court unanimously held that the circumstances fell “far short” of those recognised by the law in previous cases as founding secondary victim liability. This was not a horrifying event by objective standards as the appearance of Mr Ronayne’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. It was not exceptional.

This all goes to underline how high the bar has been set for future Claimants given the need for the shocking event to be ‘exceptional’. It is likely that many cases currently being litigated will be abandoned as having no realistic prospect of meeting that threshold and fewer cases will be brought in future. Secondary victim law has come back to its roots where such claims were felt to be the exception rather than the rule.

Charles Bagot was Counsel for the successful parties in the key secondary victim cases of Taylor v Novo [2014] QB 150; Wild v Southend University Hospital NHS Trust [2014] EWHC 4053; and Berisha v Stone Superstore [2014] LTL 18/12/2014.