Case Review: North Glamorgan NHS v Walters [2003] Lloyd’s Rep. Med 49

The set of rules developed for policy reasons to limit the claims for psychiatric injury to secondary victims (the Alcock criteria) in the Hillsborough tragedy was hard to justify in terms of logic and morality . Lord Steyn in Frost v Chief Constable of South Yorkshire Poice described it as “a patchwork quilt of distinctions which are difficult to justify.” The Law Commision expressed the view in its report that the common law had in some respects “taken a wrong turn” . Here was another case concerning the interpretation of “sudden appreciation of a horrifying event” criterion of Alcock. It showed mallowing of the Alcock criteria by the court, but this also added more uncertainty to cases concerning psychiatric injury.

The material facts

This was an appeal by North Glamorgan NHS against the decision by Thomas J to hold Ms Walters entilted to damages for the pathological grief reaction resulting from negligent medical treatment of her ten month old son, Elliot. Elliot was admitted to the Prince Charles Hospital because of jaundice. He turned out to be suffering from acute hepatitis, which resulted in fulminant hepatic failure. One morning, Ms Walters woke up and found Elliot in convulsion. She was wrongly reassured about his condition, and only be told of the truth when Elliot was transferred to King’s College Hospital that he sufferred severe brain damage. Finally, Ms Walters had to come to a decision of turning off the life support machine and Elliot died in her arm, 36 hours after his convulsion.

The appellant’s case was as follows:

1. The 36 hour period could not be held in law to be one horrifying event

2. The claimant’s appreciation of the 36 hour period was not sudden but a more gradual assault of the mind over a period of time.

3. An incremental step had been taken advancing the frontiers of liability

4. They are to be constrained by policy condiserations to allow this appeal.

The court’s decision

1. The law permitted a realistic view being taken from case to case of what constituted the necessary "event". In this case there was a seamless tale with an obvious beginning and an equally obvious end. It was played out over 36 hours but was undoubtedly one drawn-out experience, and was horrifying.

2. The claimant’s appreciation was sudden in contradistinction to an accumulation of gradual assaults on her mind. The necessary proximity in space and time was satisfied.

3. The judge had not taken an incremental step advancing the frontiers of liability.

4. As no incremental step was involved and as the appeal was essentially against the judge's findings of fact, considerations of public policy did not apply.

Legal principles

For psychiatric injury resulting from negligence, the court had traditionally adopted a more restrictive approach. The claimant still needed to prove the breaching of a duty of care owed by the defendant towards him, causing actionable damage which was not too remote. There were in addition several “hurdles” set for the claimant before he could succeed in his case.The first hurdle was to satisfy that he had sustained a recognised psychiatric illness. The second point would be to classify whether he belonged to the group of primary or secondary victim. A claimant who did not come within the group of primary victim would be classed as a secondary victim and would be owed a duty of care only if he satisfied the policy hurdles set in Alcock as follows:

1. that psychiatric harm to a claimant of reasonable fortitude was reasonably foreseeable;

2. a close tie of love and a!ection between the claimant and a primary victim;

3. that the claimant was proximate in time and space to the incident or the immediate aftermath;

4. that the harm was triggered by the sudden appreciation of a horrifying event; and

5. that they perceived the event through their own unaided senses.

Application of principles

In this case, there was no dispute that:

Ms Walter suffered a recognised psychiatric illness (pathological grief reaction).

She was a secondary victim, and so she was subjected to the Alcock criteria.

The psychiatric illness that she suffered was reasonably foreseeable.

She had the necessary close relationship with the victim (mother and son).

She was proximate in time and space to the incident (she witnessed the fit and her son died in her arms)

She perceived the event through her own unaided senses (she witnessed the fit and her son died in her arms)

The main issue in dispute was the shock requirement for causation, whether Ms Walters’ psychiatric harm was due to “the sudden appreciation by sight or sound of a horrifying event”.

By referring to McLoughlin , Ward LJ analysed “the event” as “the fact and consequence of the defendant’s negligence…”. And that “event can constitute more than a single moment in time” . He also quoted Lord Ackner in Alcock that ““Shock”, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

Ward LJ also quoted Judge White in Tredget & Tredget v Bexley Health Authority in support of his analysis: “It is unrealistic to separate out and isolate the delivery as an event, from the other sequence of happening from the onsset of labour to Callum’s death two days later, as a whole. Although lasting for over forty-eight hours from the onset of labour to the death, this effectively was one event.”

Cases distinguished

This case was distinguished from Sion v Hampstead HA . In Sion, a father had looked after his son in an ICU for fourteen days before his death resulting from the negligent management of the hospital for a traffic accident. The father sufferred psychiatric injury but failed to claim damage as a secondary victim because of failing of the sudden shock criterion . The medical evidence showed that there was no sudden and unexpected shock to the father’s nervous system..

Taylorson v Shieldness Products Ltd was also distinguished. In this case the parents failed their claim for psychiatric damage after staying with their injured son in the ICU for 48 hours. The court held that it failed the shocking criterion because the mother had a dawning consciousness that they were going to lose their son. The court thus declined to extend the notion of proximity to this “elongated process”.

Impact of the case

There was an unanimous decision that a 36 hour period could be considered one horrifying event. There were cases in line with the decision in Walters.

In Froggatt v Chesterfield & North Derbyshire Royal Hospital NHSTrust , the hasband and son of Mrs Froggatt were awarded damages for their psychiatric injury because of a masectomy negligently done for Mrs Froggatt, in mistake that there was a malignant condition of her breast. The judge found that both the claimants did suffer a direct horrifying event and thus fully fulfilled the Alcock criteria.The horrifying event for Mr. Froggatt occurred “when he saw her undressed for the first time after the mastectomy. He was quite unprepared for what he saw and he was profoundly and lastingly shocked by it.” For the son, Dane, “the sudden appreciation came as a result of overhearing his mother’s telephone conversaton and his immediate belief,….,that she had cancer and was likely to die. He was completely unprepared for such a shock”

In Atkinson v Seghal , the judges decided that an aftermath could be made up of several components. In that case, the immediate aftermath extended from the moment of the accident until the moment that the appellant left the mortuary. The claimant heard of her daughter’s death from a traffic accident from a police cordon. She later saw the body of her daughter as confirmed by her husband at the morturay. Latham LJ decided that the claimant was proximate in time and space to the incident or the immediate aftermath

However, apart from Sion and Taylorson mentioned, there were cases not in line with the decision in the present case.

In Tan v East London and City HA , the claimant failed to claim psychiatric damage as secondary victim after being told over the phone of his son’s death in utero due to mismanagement, and travelled to witness the stillbirth of his child three and a half hours later. It was decided that the stillbirth was inevitable after a death in utero and it was thus the death itself which constitiuted the traumatic event. The phone call did not qualify as direct perception of the traumatic event.

In a recent case, Julia Ward v Leeds Teaching Hospitals NHS Trust , Walters was distinguished and the claimant failed in respect of causation. The claimant claimed damages for his post-tramatic stress disorder because of viewing his daughter’s death in hospital 48 hours after dental surgery. It was decided that the diagnostic criteria for a finding of post traumatic stress disorder required a shocking event of a particularly horrific nature. The death of a loved one in hospital did not meet that description unless also accompanied by circumstances that were wholly exceptional in some way so as to shock or horrify. Such shock was not identified: “Although the Claimant's case places great reliance upon the decision of the Court of Appeal in Walters v. South Glamorgan NHS Trust, that case proceeded upon an agreed basis of causation, namely that the claimant had suffered a pathological grief reaction as a result of witnessing, experiencing and participating in the events at the hospital and that without those events the pathological grief reaction would not have occurred. Psychiatric evidence was clear therefore that the Claimant's illness had been caused by shock. On my findings, despite every feeling of sympathy for the Claimant's loss, such a basis for liability does not exist.”

Comments

These cases involving the Alcock criterion of “the sudden appreciation by sight or sound of a horrifying event” were difficult to reconcile. The finding of the shocking events were artificial and arbitury. This case together with Froggatt and Atkinson, had been suggested to show mellowing of the application of Alcock criteria in medical cases. Although Ward LJ had specifically stated that “no incremental step had been taken advancing the frontiers of liability”, he would “unrepentantly prefer to do justice than to achieve fiscal expediency” . Clarke LJ in his judgement, said that the Alcock mechanisms should not be applied too rigidly or mechanistically. In the circumstances of this case, if he needed to, he would take that incremental step advancing the frontiers of liability.

However, cases liked Sion, Taylorson and Tan were still referred to and relied upon. Case like Julia Ward reflected the difficulties in the application of the Alcock mechanism. Certainty was sacrified in doing justice by the judges.

Reforms

It had been proposed in the Law Commission Report that in relation to secondary victims, all of the Alcock control mechanism should be abolished except that of “close ties of love and affection” criterion. This criterion together with the requirement for proof of known psychiatric illness, could control the floodgate of litigation. There is no need to show that the claimant was proximate in time and space to the incident or the immediate aftermath; or that the harm be triggered by the sudden appreciation of a horrifying event; or that they perceived the event through their own unaided senses.

Conclusion

This was a case in which the judge circumvented the “sudden appreciation by sight or sound of a horrifying event” criterion in Alcock by adjudcating that an event could be made up of several events in a span of 36 hours. Although justice was done, it introduced more uncertainty in the case law for secondary victims in psychiatric shock. Reform in the direction of the proposal by the Law Commission would be welcome.

Biblography

Books
Tort, Paula Giliker & Silas Beckwith, Sweet & Maxwell Textbook Series, 2001.

Textbook on Torts, Michael A Jones, Oxford University Press, 8th Edition

Articles
1. A Remedy for Nervous Shock or Psychiatric Harm – Who Pays? Nicholas N Chin; Murdoch University School of Law; Torts Australia (Other articles), Volume 9, Number 4 (December 2002)

2. Case Comment: Ceri Ann Walters v North Glamorgan NHS Trust (2002), Rosalind English One Crown Office Row,14/3/2002

3. Damages for Nervous Shock Following Medical Negligence; Howard Watson; 2003, http://www.lawinabox.net/

4. Deaths in hospital and psychiatric injury, Nigel Spencer Ley, personal injury and clinical negligence specialist, of Farrar’s Building, 27/9/2004

5. Discussion Paper on Damages for Psychiatric Injury; Scottish Law Commision, Discussion Paper No 120

6. Discussion Paper on Liability for Negligently Inflicted Psychiatric Illness, Assoc Professor Tan Keng Feng, National University of Singapore, Prepared for the Law Reform Committee, Singapore Academy of Law, 22 August, 2000

7. Liability for Psychiatric Illness, The Law Commision Report 249

8. Report on Damages for Psychiatric Injury; SCOT LAW COM No 196, SE/2004/129

9. Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error; Paula Case, Institute of Medicine, Law& Bioethics,University of Liverpool; Medico-Legal Issues Arising Out of Death, a conference of the Association for Victims of Medical Accidents (London, 20May 2003).

Cases

1. Alcock v Chief Constable of South Yorkshire Police; sub nom. Jones v Wright [1992] 1 AC 310; [1991] 3 WLR 1057, HL

2. Atkinson v Seghal 2003 WL 21047373

3. Froggatt v Chesterfield & North Derbyshire Royal Hospital NHSTrust [2002] All ER (D) 218 (Dec)

4. Frost v Chief Constable of South Yorkshire Poice [1999] 2 AC 455

5. Julia Ward v Leeds Teaching Hospitals NHS Trust [2004] Lloyd's Rep Med 530

6. McLoughlin v O’ Brian [1982] 2 All ER 298, per Lord Bridge

7. Page v Smith [1995] 2 All ER 736

8. Sion v Hampstead HA [1994] 5 Med LR 170

9. Tan v East London and City HA [1999] Lloyd’s Rep Med 389

10. Taylorson v Shieldness Products Ltd [1994] PIQR 329

11. Tredget & Tredget v Bexley Health Authority [1994] 5 Med LR 178