YAH v Medway NHS Foundation Trust (rev 1)

A mother may be a primary victim where negligent obstetric treatment occurs before her child’s birth, because mother and unborn child are treated as one legal person at that stage. Her status is not altered by the child’s subsequent birth or by the child’s statutory right to sue. The ordinary principles governing personal injury claims apply. A primary victim claiming psychiatric injury need not prove that the injury was caused by shock. A recognised psychiatric disorder may result from the cumulative effect of events closely connected with the negligence. Where psychiatric injury is materially caused by the negligent labour and the immediate uncertainty about the child’s survival, later contributing factors do not necessarily make the injury too remote.

The claimant’s daughter was born by emergency caesarean section after the defendant admitted negligent delay in delivery. The child suffered cerebral palsy, and liability in her claim had been admitted. The claimant brought a separate claim for psychiatric injury arising from the difficult labour, her daughter’s condition immediately after birth, and the later realisation of the extent of the child’s injuries.

The principal issues were whether the claimant was a primary or secondary victim, whether a primary victim had to establish shock, whether her psychiatric injury was too remote, and, alternatively, whether she could recover as a secondary victim. Quantum was also determined.

1. Primary victim. The claimant was a primary victim. Before birth, the mother and unborn child were, as a matter of law, one legal person. Negligence occurring before birth could therefore cause personal injury to the mother. The child’s independent right to sue under the Congenital Disabilities (Civil Liability) Act 1976 did not remove or displace the mother’s co-existing right. The claimant did not cease to be a primary victim when her daughter was born, and the later manifestation of psychiatric injury did not alter that status.
2. Shock. The control mechanisms in [1992] 1 AC 310 applied to secondary victims, not primary victims. Following the approach in Page v Smith [1996] 1 AC 155, there was no legal distinction requiring different tests for physical and psychiatric injury in an ordinary personal injury claim. A primary victim therefore did not have to prove that a recognised psychiatric condition was caused by shock.
3. Causation and remoteness. The claimant developed an anxiety disorder shortly after the birth, followed by depression, forming one indivisible mental disorder. The difficult labour, the immediate worry about whether the child would survive, and the strain of caring for a severely disabled child were all material contributors. The first two factors were closely connected with the admitted negligence. The injury was therefore not too remote.
4. Alternative claim. Although the claimant’s experiences were shocking and traumatic in ordinary language, they did not amount to shock in the specific sense required for a secondary-victim claim under Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. The alternative claim would accordingly have failed.
5. The claim succeeded. Judgment was entered for the claimant in the sum of £76,183, including general damages, loss of earnings, care and assistance, travel, treatment and future losses.

First-instance decision. The judgment states that liability for the child’s cerebral palsy claim had already been admitted, but gives no citation for that decision.