Stricter control mechanisms for secondary victim claims: Liverpool Women’s Hospital NHS Foundation v Ronayne

Today’s Court of Appeal judgment in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 is an early front runner for the most important tort law case of 2015. It is very good news for hard-pressed NHS Trusts defending claims by relatives shocked by the effect on loved-ones of acts of clinical negligence. Such claims will rarely succeed in the light of today’s decision.

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

The key points from today’s Court of Appeal judgment, overturning the award of compensation to Mr Ronayne made by the experienced injury and clinical negligence specialist trial judge, HHJ Gore QC, are:

• To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was (a) exceptional; and (b) sudden; and (c) horrifying;
• There was only one previous reported case in which a Claimant had succeeded in a secondary victim claim in consequence of observing in a hospital setting the consequences of clinical negligence. The Court of Appeal Judges found that unsurprising.
• 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.
• There was no sudden appreciation of an event here because there was a series of events giving rise to an accumulation of gradual assaults on the Claimant’s mind. At each stage, Mr Ronayne was conditioned for what he was about to perceive and that his wife’s life was in danger. There was nothing sudden or unexpected about being ushered in to see his wife and finding her connected to medical equipment.
• Whether an event was sufficiently horrifying must be judged by objective standards and by reference to persons of ordinary susceptibility, not by examining the Claimant’s medical knowledge and its effect upon the particular reaction of the individual concerned.
• 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.
• The reaction of most people of ordinary robustness 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.
• Whilst Mrs Ronayne’s swollen ‘Michelin Man’ appearance must have been both alarming and distressing it was not in context exceptional or horrifying. Certainly that sight did not lead to a sudden violent agitation of the mind, because the Claimant was prepared to witness a person in a desperate condition.
• The circumstances in the Ronayne case fell ‘far short’ of those in which it has been recognised by the law as founding secondary victim liability. This is notwithstanding that the Court of Appeal held that this was an appalling sequence of events which caused profound distress to Mr Ronayne, for which they had profound sympathy and which caused psychiatric illness.
• The Court made it clear that the death of a loved one in hospital (although not the facts of the Ronayne case) would not qualify unless accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify.
• The House of Lords decision in McLoughlin v O’Brien [1983] AC 410, where a ‘hospital visit’ secondary victim claim by a mother visiting her husband and children injured in a car accident succeeded, is best understood as being a case where the Claimant, although arriving in the aftermath, came upon the accident, albeit transposed into the setting of the hospital.

Today’s decision refines, and arguably renders more strict, the control mechanisms for secondary victim claims which were shaped by the seminal House of Lords decisions arising out of the Hillsborough disaster, particularly Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

This latest appeal builds on the series of reported cases since December 2014. Prior to the 2013 Court of Appeal decision in Taylor v Novo, it was very difficult to reconcile the various decisions in the years since the seminal Hillsborough cases. There has been a much more consistent thread of principle through the decisions since Taylor v Novo. They all highlight the strictness of the control mechanisms and the difficulties for Claimants in establishing such claims. Indeed, the author is not aware of any reported secondary victim claim which has succeeded since the Court of Appeal clarified the law in Taylor v Novo in 2013, a decision which itself overturned a trial judge’s award of compensation in such a case.

Charles Bagot KC, specialist injury and clinical negligence practitioner, 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.