Owers & Anor v Medway NHS Foundation Trust & Anor

In a clinical negligence claim, breach of duty does not establish liability without proof that the breach caused the injury on the balance of probabilities. Where stroke symptoms are difficult to classify, a competent pathway must ensure urgent review by an appropriately senior doctor if stroke cannot be excluded. A later failure to prescribe aspirin may constitute negligence, but causation still requires proof of a probable beneficial outcome.

A secondary victim must establish the recognised control mechanisms, including close relational ties, proximity, direct perception and psychiatric illness caused by a sudden appreciation of an objectively horrifying event. Distressing deterioration and negligent treatment in hospital will not ordinarily satisfy that demanding threshold.

The first claimant alleged that the defendants negligently failed to diagnose and treat her basilar artery stroke at Medway Maritime Hospital on 14 March 2010. The disputed issues included the onset of symptoms, the timing of the required aspirin treatment and whether the omission caused her eventual disability.

The second claimant, her husband, claimed psychiatric injury as a secondary victim after witnessing her deterioration, the alleged failure to treat her and her discharge from hospital. The court therefore had to determine breach, causation and whether the events constituted a sufficiently sudden and horrifying event for secondary-victim liability.

1. First claimant. The evidence did not establish that thrombolysis should have been given. The defendants were not negligent in failing to prescribe aspirin before the deterioration at about 09:40. Thereafter, however, they admitted, and the court found, negligence in failing promptly to diagnose the probable stroke, undertake appropriate investigation and prescribe aspirin. The Medway Stroke Pathway was deficient because it did not allocate responsibility for difficult cases in which stroke could not be excluded. At minimum, the claimant should have been reviewed urgently by an A&E or medical registrar.
2. The claimant failed to prove causation. The medical literature concerning antithrombotic treatment of basilar artery occlusion was complex and inconclusive. The evidence did not establish on the balance of probabilities that aspirin given before 09:40, or at about 11:00, would have produced a materially better outcome. The alternative cumulative-cause approach in Bailey v Ministry of Defence [2008] EWCA Civ 883 was unnecessary because the case could be decided on the ordinary balance-of-probabilities test.
3. Second claimant. The control mechanisms governing secondary victims were applied. The husband had the necessary relationship, temporal and physical proximity and direct perception. Nevertheless, the events he witnessed were distressing but not objectively horrifying or wholly exceptional. They formed a series of events and a gradual accumulation of distress, rather than a sudden appreciation of a horrifying event. The approach in Shorter v Surrey & Sussex Healthcare NHS Trust [2015] EWHC 614 (QB) and Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was applied.
4. Both claims therefore failed. The first claimant established breach but not causation. The second claimant established that breach caused his PTSD, but failed the shocking-event control mechanism.