Wild & Anor v Southend University Hospital NHS Foundation Trust

In a secondary-victim claim arising from a stillbirth, the mother is the primary victim because the law treats the foetus and mother as one legal person. The father may therefore, in principle, bring a claim. He must nevertheless satisfy all the established control mechanisms, including direct perception of a horrifying event causing injury or death to the primary victim. Realising that a foetus has already died, even in circumstances producing a foreseeable psychiatric illness, is not the witnessing of such an event. The court declined to extend the control mechanisms to address their acknowledged arbitrariness. A clinical-negligence case involving a single, seamless sequence of events was distinguishable.

The mother’s claim for negligent antenatal care leading to the death of her unborn child had been admitted and settled. Her husband pursued a separate claim for a recognised psychiatric illness as a secondary victim. He contended that the shocking event was the unfolding realisation at hospital that the child had died, followed by the stillbirth the next day.

The defendant relied on the control mechanisms governing secondary-victim claims, particularly the requirements of physical and temporal proximity and direct perception of an external event causing injury or death to the primary victim. The central issues were whether the mother could be treated as the primary victim and whether the events constituted a qualifying event under the authorities, including North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792; [2003] PIQR P232 and Taylor v A Novo (UK) Ltd [2014] QB 150.

1. The claim was dismissed. The court accepted that the psychiatric illness was genuine, recognised, and foreseeably caused by the shock experienced by Mr Wild. Those matters did not, however, establish legal proximity.

2. The mother was properly characterised as the primary victim. Although the foetus had no separate legal personality, the law treated the foetus and mother as one legal person. The father’s claim was therefore not barred merely because it related to the death of an unborn child. The court rejected the suggested legal “black hole”.

3. The control mechanisms identified in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 remained applicable. They required, cumulatively, the necessary close relationship, a sudden and unexpected shock, physical and temporal proximity, injury or death of the primary victim witnessed by the claimant, and a close connection between the event and its perception.

4. Mr Wild experienced an acute and shocking realisation, inferred from the staff’s conduct and the failure to detect a heartbeat, that his child had already died. He did not, however, witness an external horrifying event causing injury or death to the primary victim. The fact that the experience foreseeably caused psychiatric illness could not overcome that control mechanism.

5. Walters was distinguishable. It concerned a single, seamless and continuing sequence beginning with the manifestation of the child’s illness and ending in death. This case began with the realisation that death had already occurred. The acknowledged arbitrariness of the control mechanisms was not a reason for judicial extension or modification, particularly in an area comprehensively addressed by higher authority.