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Secondary Victims and Nervous Shock - Guideline High Court Ruling

It is not uncommon for people to suffer psychiatric injury as a result of witnessing a shocking event caused by someone else's negligence. However, as a High Court ruling showed, the circumstances in which compensation will be awarded to so-called secondary victims are tightly constrained by law.

The case involved a father whose son died five days after he was starved of oxygen during his hospital birth. Psychiatric experts were agreed that he had suffered post-traumatic stress disorder (PTSD) due to the psychological impact of seeing his critically ill son in the hospital's neonatal intensive care unit (NICU).

The NHS trust that managed the hospital admitted liability for the boy's death in not providing care that would have given the option of an earlier delivery. It conceded that, had his birth been expedited, he would have been uninjured. However, it denied that the father was entitled to compensation as a secondary victim.

There was no dispute that the father was physically present in the NICU and directly perceived his son, with whom he had a close tie of love and affection, fighting for life. In order to succeed in his claim, however, he had to establish that the scene he witnessed was so exceptionally shocking or horrifying as to render it reasonably foreseeable by the trust that he would suffer psychiatric injury. Ruling on the case, the Court accepted that what the father saw in the NICU was, as a matter of ordinary language, horrifying. He was awaiting what should have been the joyous birth of his second child but was instead told that his son was gravely ill and might die. That would be a nightmare for any parent.

Dismissing the claim, however, the Court noted that such events, although rare, inevitably occur from time to time, with or without clinical negligence. When his father saw him, the boy had the appearance of a sleeping newborn baby except for the many wires and tubes to which he was attached. He was peaceful, not showing any signs of distress, and there was no sense of panic in the NICU.

The Court noted that the father's visit to the NICU must have vividly brought home to him the gravity of his son's condition. It was undisputed that the experience triggered his PTSD. However, the scene he witnessed in the NICU was, in context, not so objectively shocking or horrifying as to fall outside the realm of ordinary human experience. The trust was therefore not liable for his psychiatric injury.