Jones v Royal Devon & Exeter NHS Foundation Trust

In assessing damages for psychiatric injury following neonatal death, apparent functioning in employment, education or family life does not necessarily disprove continuing disability. A claimant may suffer a continuing adjustment disorder, with traumatic symptoms, guilt and self-blame, even where the evidence does not establish formal post-traumatic stress disorder. The court must assess the claimant’s actual functioning and the demands of the relevant work or study. A full-time PhD is not necessarily equivalent to full-time employment. Costs of non-conventional therapy are not subject to a strict requirement of prior medical recommendation. They are recoverable where reasonable, sufficiently connected with the injury and proportionate, and where the claimant has obtained real benefit. Funeral expenses under the Fatal Accidents Act 1976 exclude the cost of a wake but may include a reasonably incurred headstone.

The defendant admitted breach of duty and liability for the neonatal death of the claimant’s daughter. The hearing concerned assessment of damages only.

The claimant sought bereavement damages and funeral expenses under the Fatal Accidents Act 1976. She also claimed damages for physical and psychiatric injury, treatment expenses, and past and future loss of earnings and pension.

The central disputes were whether she had suffered continuing psychiatric injury, the appropriate diagnosis and prognosis, the effect of that injury on her employment capacity, and the recoverability of counselling, bereavement-group and related expenses.

1. Psychiatric injury. The claimant was not a malingerer. She had suffered a prolonged pathological grief reaction, exacerbated by trauma, guilt and self-blame. She continued to experience symptoms and had not returned to her pre-loss level of functioning.
2. Diagnosis. The evidence did not establish post-traumatic stress disorder in the formal sense, particularly because the recognised avoidance criteria were not satisfied. The claimant had initially suffered an adjustment disorder. The court accepted the diagnosis of a continuing adjustment disorder with persistent affective disturbance, exacerbated by trauma and guilt, requiring intensive psychotherapy.
3. Functioning and loss of earnings. Employment, international travel, a new relationship and doctoral study did not establish normal functioning. The claimant’s work at Dementia Voice had deteriorated, and her PhD had therapeutic significance and lacked the routine and social demands of a structured full-time research post. Her reduced capacity justified past and future loss of earnings. Future losses were limited on the basis that significant recovery was likely by 2010, with allowance for a further period of disadvantage and handicap on the labour market.
4. Non-conventional treatment costs. The court rejected the suggestion, based on McMahon v Robert Brett and Sons Ltd [2003] EWHC 2706, that recovery required a prior medical recommendation. The proper approach was to apply reasonableness, remoteness and proportionality, asking whether the treatment was analogous to medical expense and whether the claimant obtained real benefit. Counselling expenses were recoverable on that basis, but other claimed items were reduced or excluded.
5. Fatal Accidents Act claim. Under section 3(1) of the Fatal Accidents Act 1976, the cost of the wake was not a recoverable funeral expense. Other reasonable expenses, including a headstone not yet purchased but shown to be intended and reasonably priced, were recoverable.
6. The court awarded damages totalling £206,071.59, subject to submissions on interest and costs.