Zeromska-Smith v United Lincolnshire Hospitals NHS Trust

A mother whose child is stillborn as a result of negligence is a primary victim. She need not satisfy the Alcock control mechanisms or prove that her injury arose from witnessing a shocking event. Damages may be recovered for abnormal bereavement or pathological grief even where the condition lacks a formal ICD or DSM diagnosis. Normal grief is not compensable, but injury may arise where grief remains abnormally intense and prolonged, where avoidance delays its expression until later deterioration, or where the stillbirth creates vulnerability to a subsequent psychiatric illness. Assessment must distinguish normal grief from pathological grief by considering the expected recovery trajectory, functioning, avoidance and later psychiatric deterioration.

The claimant sought damages for psychiatric injury following the negligent stillbirth of her daughter. Breach of duty was admitted, as was some damage. The trial therefore concerned the extent, causation and duration of the psychiatric injury, prognosis, treatment and quantification of loss.

The central issues were whether the claimant was a primary or secondary victim, when compensable psychiatric injury began, whether her grief amounted to pathological grief despite the absence of a formal diagnostic classification, and the appropriate treatment and prognosis.

1. The claim was assessed on the basis that the claimant was a primary victim. The law treats mother and foetus as one legal person. The claimant therefore did not need to satisfy the Alcock criteria or prove psychiatric illness caused by witnessing a shocking event. The court endorsed the reasoning in YAH v Medway NHS Foundation Trust, [2018] EWHC 2964 (QB), and the decisions in Wells v University Hospital Southampton NHS Foundation Trust, [2015] EWHC 2376 (QB), RE v Calderdale and Huddersfield NHS Foundation Trust, [2017] EWHC 824 (QB), and Wild v Southend University Hospital NHS Foundation Trust, [2014] EWHC 4053 (QB).
2. Although normal bereavement is not compensable, damages may be recovered for abnormal bereavement or pathological grief. A formal diagnosis under ICD-10 or DSM-5 is unnecessary. Normal grief ordinarily follows a recovery trajectory over about a year or 18 months, although complete recovery from the death of a child is not expected.
3. Compensable injury may arise where grief remains abnormally intense and prolonged; where avoidance permits apparently normal functioning until the grief re-emerges with depressive illness; or where the stillbirth creates vulnerability to a later psychiatric illness, such as post-natal depression.
4. The claimant’s grief initially followed a broadly normal trajectory. Her psychiatric injury began at about 1 June 2015, after discovering that her second child was a boy. This ended the possibility, in her mind, of replacing her daughter and led to pathological grief and severe depression from December 2015. She had recovered from the severe depression by trial but continued to suffer pathological grief, separation anxiety and agoraphobia.
5. The court preferred the prognosis and treatment approach supported by Dr Jackson and Ms Madar. A holistic, multidisciplinary programme involving psychiatric, psychological, occupational-therapy and case-management support was appropriate. Recovery was expected within about two years of trial. Home-schooling losses were rejected as inconsistent with the likely recovery and the children’s interests.
6. Damages were awarded in the lump sum of £271,901.

First-instance decision. No appellate history was stated in the judgment.