Shorter v Surrey And Sussex Healthcare NHS Trust

For a secondary victim to recover damages for psychiatric injury, it is insufficient to show a close relationship, a recognised illness and causation. The claimant must also satisfy the control mechanisms governing proximity. The illness must result from a sudden and direct visual or auditory perception of a horrifying event or its immediate aftermath. A sequence of information, fear, anxiety and distress developing over time will not ordinarily qualify. The relevant event must be objectively horrifying to a person of ordinary susceptibility. A claimant’s specialist medical knowledge may explain the intensity of the reaction, but does not alter that objective standard. The court rejected the characterisation of a prolonged clinical-negligence sequence as one seamless horrifying event.

The claimant’s sister died from a subarachnoid haemorrhage after the defendant NHS Trust admitted negligently failing to detect and treat the initial bleed. The claimant, who was accepted as having a sufficiently close relationship with the deceased, witnessed some events at hospital and received other information by telephone. She developed Major Depressive Disorder.

The claim concerned whether the claimant’s psychiatric illness resulted from a qualifying event for secondary-victim purposes, or instead from an accumulation of distressing experiences and gradual realisation over 12 and 13 May 2009.

1. Claim dismissed. The claimant had established a close relationship with the deceased and a recognised psychiatric illness caused by the incidents surrounding the death. Those matters did not, however, satisfy the additional control mechanisms required in a secondary-victim claim.
2. Following McLoughlin v O’Brian [1983] 1 AC 40 and Alcock v Chief Constable of South Yorkshire Police [1982] 1 AC 310, recovery requires, among other things, a sufficiently close relationship, physical and temporal proximity to the event or its immediate aftermath, and a sudden and direct perception by sight or hearing of a horrifying event.
3. The negligence began several days before its consequences became known. The claimant’s initial knowledge came by telephone, and much of her fear and anxiety arose from telephone conversations, her own professional understanding and information given by relatives. Those features did not provide the necessary physical proximity or sudden direct perception.
4. The claimant’s sister was unwell and in pain at the first hospital, but was not in an objectively horrifying condition. The later sight of her on life support was deeply distressing, but was neither sudden nor unexpected. It followed approximately 15 hours of accumulating information and anxiety.
5. The court distinguished the sequence of events in North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. The present case involved successive assaults on the claimant’s mind rather than one seamless horrifying event. The standard was objective: professional medical knowledge could not make an otherwise non-horrifying event qualify.
6. The psychiatric illness resulted from an accumulation of gradual assaults during 12 and 13 May, rather than the sudden appreciation of a qualifying event. The claim therefore failed.