Further clarity in psychiatric secondary victim cases

09 Jun 2017

Megan Tanner (a child by her father and litigation friend) v Sarkar (2017) LTL 4 April

Judgment has been handed down in a case which relates to the issue of secondary victims. The outcome provides further clarity on the proximity test arising from the Alcock control mechanisms particularly in clinical negligence omission cases. 

The facts

The claimant in this case, M, was the older sister of H, who died on 20 December 2004 aged two years from sepsis. M was five years old at the time. She brought a damages claim for psychiatric injury alleged to have been suffered as a secondary victim when she witnessed the lead up to her brother’s death.

Briefly, H became unwell with flu-like symptoms on around 16 December 2004. He was taken to see his GP by his mother on 19 December 2004 when he had a raised temperature, non-specific rash and congestion of the throat. The GP prescribed amoxicillin. For the rest of the day H lay unwell at home on the sofa and M was present in the house during this time. 

M was put to bed around 7/8pm and H was put to bed around 10pm. Sometime after midnight his parents found him face down in his cot, apparently not breathing. An ambulance was called and the parents commenced CPR. Paramedics arrived at 00.34 on 20 December 2004 and H was taken to hospital by ambulance. Just prior to the ambulance leaving, M was woken and lifted from her bed by her father and carried into the ambulance. M alleged she caught sight of H’s discoloured hand and glimpses of the paramedics attending to H during the ambulance journey, although her father sought to shield her view of what was happening. 

Once at hospital, M was taken to the family room with her aunt before being taken back home. H was pronounced dead at hospital shortly afterwards, at 01.20 hours. Later that morning M’s mother returned home and told M of her brother’s death. 

The claim was brought on the basis that M suffered psychiatric illness (post-traumatic stress disorder) as a result of shock through witnessing her brother’s decline between 16 and 19 December 2004, the events in the ambulance and subsequently seeing his body in the hospital mortuary and at the funeral home. It was initially alleged the entire sequence was a “seamless tale” within the meaning of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792. At trial the claimant’s case was modified to allege the “relevant event” for the purposes of the Alcock control mechanisms commenced when M was awoken by her father in the early hours of 20 December 2004; the events prior to this date were simply context. The claimant relied on expert evidence from a Consultant Psychiatrist.

The defendant admitted breach of duty and causation in respect of H’s death, by reason of the failure of the GP urgently to refer H for hospital treatment which would probably have prevented his death. However the secondary victim claim was defended to trial on several grounds. 

Firstly, it was denied M had suffered a recognised psychiatric disorder as a consequence of shock through witnessing the events surrounding H’s death. The defendant relied on the expert evidence of Dr Oppenheim, a Consultant Child and Adolescent Psychiatrist who, whilst recognising M had some symptoms of PTSD, concluded she did not meet the full diagnostic criteria and had not suffered this through “shock”.

Secondly, the defendant denied the GP owed a legal duty of care to M, applying the Alcock control mechanisms. Following Taylor v A. Novo (UK) Ltd [2014] QB 150, the defendant argued there was a lack of proximity in time and space to the relevant event or its immediate aftermath. In the defendant’s submissions the “relevant event” was the negligent treatment on 19 December 2004 and what happened later that evening/early the following day was the later consequence of the negligence.  The arrival of the ambulance was not part of the “immediate aftermath” and it was not part of a “seamless tale” so as to bring it within the relevant event.  The defendant submitted that following McLoughlin v O’Brian [1983] AC 410 it must be the fact and consequence of the negligence that caused the ‘shock’, not merely the later consequence.

The decision

At trial, Her Honour Judge Buckingham found in the defendant’s favour on all aspects of the case. Whilst she expressed much sympathy with M and her family and the distress and grief they had undoubtedly suffered, she agreed with the defendant that the claim could not succeed in law. 

HHJ Buckingham accepted the defendant’s submission that the only event capable of constituting the “relevant event” in law was the negligence at the consultation on 19 December 2004. The consultation was not of itself a shocking and horrifying event and not capable of causing injury to M.  HHJ Buckingham also accepted the defendant’s submission that the later ambulance scene was not the “relevant event” or its “immediate aftermath” but the consequences that flowed from the earlier negligent omission. Those later events lacked proximity in time and space to the “relevant event” as they happened 12 hours after the family had returned home from the GP appointment and in the meantime M had been put to bed and had been sleeping.

HHJ Buckingham preferred the defendant’s expert evidence, noting the claimant’s expert (a general psychiatrist) accepted she was not qualified to comment upon, psychiatric symptoms and presentation in a child under the age of 13. In contrast Dr Oppenheim, the defendant’s expert, regularly works with young children and adolescents.

HHJ Buckingham preferred the defendant’s psychiatrist’s evidence that whilst what M witnessed would have been alarming and disturbing for a five year old, she would not have had sufficient comprehension of what she was witnessing to be able to process what was happening, to permit her to feel shocked by the realisation of H’s impending death. She did not have sufficient information or understanding to make sense of the gravity of the situation.

HHJ Buckingham did not find that M suffered a recognised psychiatric injury in the form of PTSD as a result of shocking events in December 2004.

What this means for you

This judgment is another in a line of decisions on the issue of secondary victims and it provides further clarity on the proximity test arising from the Alcock control mechanisms particularly in clinical negligence omission cases. It highlights the exceptional nature of the secondary victim claims that can succeed.

The judgment also highlights the importance of selecting the most appropriate expert to give evidence at trial. Here, the claimant’s expert accepted under questioning by HHJ Buckingham that as she did not treat children under the age of 13, she was not qualified to comment on the symptoms and presentation of a child under 13. 

Claire Fitzgerald, associate at BLM and Charles Bagot, Counsel at Hardwicke, represented the successful defendant and were instructed by Medical Protection.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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