Nervous Shock in Child BirthPark Square Barristers
In RE (a minor) and others v Calderdale & Huddersfield NHS Foundation Trust  EWHC 824 (QB) RE suffered a hypoxic brain injury sustained as a result of a negligent delay in her delivery during birth. The case is of particular interest because claims were also brought by RE’s mother and grandmother (who was present throughout the delivery) for nervous shock.
It was accepted that both the mother and grandmother had suffered post-traumatic stress disorder as a result of witnessing the delivery of RE and that the witnessing of the life-threatening events to RE were a sufficient trigger for PTSD.
RE’s mother claimed as a primary victim and her grandmother as a secondary victim.
Goss J held that RE started to sustain negligently caused damage when her head was crowned but her body remained in the birth canal, and was therefore still in utero. Being in utero, at law, RE and her mother were to be considered a single legal entity and therefore RE’s mother was a primary victim of the negligent injury and not merely a secondary witness to it. As a primary victim RE’s mother was not subject to the stringent control mechanisms set out in Mcloughlin v O’Brian and Alcock v Chief Constable of South Yorkshire Police for secondary victims.
For completeness Goss J also considered whether RE’s mother, as well as her grandmother, satisfied the criteria for secondary victims.
It was not disputed that both mother and grandmother had sufficiently close personal relationships in terms of love and affection with RE to give rise to tortious liability in the event of RE suffering injury. It was also accepted that both had witnessed the injurious event directly and so were sufficiently close in terms of both relationship to RE and to the events to be considered secondary victims. The only issue was whether the injurious event was sufficiently horrifying to establish a claim.
Goss J considered the case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne in which it was observed that visitors to hospitals could expect to be exposed to distressing events and that “What is required in order to found liability is something that is exceptional in nature.” He went on to find that the birth of a flat, apnoeic, lifeless baby (as RE was), who required skilled resuscitation to save her life, was a sudden and unexpected event, which was exceptional in nature and objectively horrifying. It was not “part and parcel” of the demands and experiences of child birth.
As such both RE’s mother and grandmother satisfied the strict conditions required to be compensated as secondary victims.
Many women unfortunately experience births which do not fulfil their expectations. For some these can be deeply traumatic experiences, leading to psychiatric injury, such as depression. Whilst the findings in RE in relation to secondary victims will be of limited application (as such cases would require a horrifying event such as the death or near death of the baby), the finding that RE’s mother was a primary victim could open the door to further claims – if the defendant (whether hospital, obstetrician or midwife) has been negligent whilst the baby is still in utero and personal injury (either to the child or mother) was a foreseeable consequence, then the mother could recover compensation for her psychiatric injury.
Richard Paige specialises in clinical negligence and acts on behalf of claimants and defendants.