A relatively recent decision of the English High Court appears to have expanded the circumstances in which a mother can bring her own legal claim for psychological injuries when her child has sustained a physical injury during the course of his/her birth as a result of the negligent management of the labour and delivery. Traditionally, mothers in such cases were viewed as “secondary victims” of the negligence which had resulted in physical injuries to their then unborn child (“the primary victim”). The law has developed “control mechanisms” to limit the circumstances in which a “secondary victim” is entitled to compensation with respect to an alleged psychiatric injury arising from witnessing injuries occasioned to a “primary victim”. These “control mechanisms” or required conditions for liability have included that the “secondary victim” must be a close relative of or have a close emotional relationship with the “primary victim”, the “secondary victim” must suffer a recognised psychiatric injury caused by “shock” of the perceived sudden death or serious injury of the “primary victim” and the claimant must be either present at the scene of the accident resulting in death or serious injury or must be involved in its immediate aftermath.
The psychiatric injury or “shock” which has been required in the decided cases to justify an award of damages to a “secondary victim” has been described as: “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind” (Alcock -v- Chief Constable of South Yorkshire [1992] 1 AC 310 approved by the Supreme Court in Delvin -v- National Maternity Hospital [2008] 2 IR 222). It has also been stated that “the shock must come through sight or hearing of the event or of its immediate aftermath” (McLoughlin -v- O’Brien [1983] 1 AC 410) whilst grief, sorrow and distress from the death or serious injury of a loved one is not compensable under the common law.
In Yah -v- Medway NHS Foundation Trust [2018] EWHC 2964 (QB), the English High Court considered a claim for damages for psychiatric injury brought by a mother whose daughter had been born in a poor condition following an emergency caesarean section, requiring prolonged resuscitation and intensive care over the early weeks of her life and who was subsequently diagnosed with cerebral palsy. A legal claim brought on behalf of the injured child resulted in an admission of liability by the responsible Hospital for failing to observe signs of foetal distress during the course of labour which resulted in a negligent delay in the child being delivered. The mother of the injured child also brought a claim alleging that she had suffered psychiatric injuries (an anxiety disorder which subsequently developed into a prolonged depressive illness) which was caused by the traumatic circumstances of her daughter’s birth and its aftermath including the subsequent diagnosis of her daughter’s severe brain damage.
In Yah, Mrs Justice Whipple found that whilst the events surrounding her daughter’s birth were traumatic, her mother had not been exposed to the type of “shock” described in Alcock as being required to justify an award of damages to a “secondary victim”. However, the learned Judge found that the mother in Yah was a “primary victim” and therefore her entitlement to damages was not restricted in the manner which was applicable to “secondary victims”. The mother was therefore entitled to compensation to the extent she had suffered any foreseeable psychiatric injury as a result of the circumstances of her daughter’s birth. The reasons the English High Court found the mother to be a “primary victim” included that as a baby is part of its mother until birth, there was only a single legal person prior to the delivery. It therefore followed that the mother was a primary victim insofar as she suffered any personal injury consequent upon negligence which occurred before her baby had been born. The fact that the mother’s psychiatric damage became manifest later in time, namely after her daughter was born, did not change the fact that she suffered personal injury caused by negligence which had occurred before her daughter’s birth.
Yah confirms that mothers who experience traumatic births as a result of negligence of the responsible Hospital or other care providers which have resulted in physical injuries to their unborn child will have a right to bring a claim as a “primary victim” in the event they suffer a psychiatric injury related to the circumstances of the birth. In such claims, damages will be recoverable where the psychiatric illness sustained was a foreseeable consequence of the mother’s unborn child being damaged during the course of his/her birth as a result of the negligence of the relevant Hospital concerned. In most cases it is likely that such a psychiatric injury will be viewed as having been reasonably foreseeable so that damages will be recoverable based upon usual negligence principles.
