YAH v Medway: psychiatric injury claim by the mother of an injured baby

At the beginning of this year, I wrote a blog looking at how claims for pure psychiatric injury are treated differently to claims for physical injury.  This can be found here.  With the recently held decision of YAH -v- Medway NHS Foundation Trust [2018]  I am taking the opportunity to comment further on this area of law.  In this recent case, the defendant had argued that where there is pure psychiatric injury a claimant must prove that the injury had been caused by a “shock” whether or not the injured party is a primary or secondary victim.  The claim related to the psychiatric injury suffered by a mother whose baby was born with cerebral palsy as a result of the defendant’s negligence.

In my previous blog, I took you back to 1992 and the decision of Alcock v Chief Constable of South Yorkshire.  I refer to this for an explanation of the difference between a primary and secondary victim.  In YAH, the defendant argued that the claimant was a secondary victim and as such would need to fulfil the criteria of having suffered a “shock”.

Before talking about shock further, I will deal with whether or not mothers of brain-damaged babies at birth are primary victims.  There is established case law on this point, some of which was referred to in YAH.  Please see Wild v Southend University Hospital NHS Foundation Trust [2014], Wells v University Hospital Southampton NHS Foundation Trust [2015] and RE v Calderdale and Huddersfield NHS Foundation Trust [2017].  In their various forms, these cases confirm that a baby is part of its mother until birth and as such the mother and baby are a single legal person.  The judge in YAH went on to say that it was her belief that it was also settled case law that the mother is a “primary victim in so far as she suffers personal injury consequent on negligence which occurs before the baby is born” (see paragraph 22).  Therefore, the mother in YAH was held to be a primary victim.   

Returning to the issue of “shock”, Lord Ackner defined it as involving “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”.  Rather bizarrely, in YAH the defendant argued that even if the court held that the claimant was a primary victim, she still had to show that the psychiatric injury was as a result of a “shock”.

I say rather bizarrely because three years after the decision in Alcock, Page -v- Smith [1995] was decided.  This case involved a claimant who was involved in a minor car accident (so a primary victim) who suffered no physical harm.  He did, however, suffer from a recurrence of chronic fatigue syndrome (CFS – classed as a psychiatric condition for the purpose of this claim.. Whether or not that is a correct description falls outside the scope of this blog).  As accepted by the judge in YAH, the accident in Page fell a long way short of “a horrifying event” and it had been my understanding that since Page was decided it was settled case law that primary victims do not need to fulfil the criterion of “shock”.  This only applied to secondary victims.  The judge in YAH did not disagree.

Page is also an important decision in clarifying foreseeability in pure psychiatric cases.  As found by the judge in YAH, in primary victim cases it is irrelevant whether the injury was physical or psychiatric, the defendant owed a duty of care to prevent foreseeable “injury”, both physical and psychiatric or a combination of the two.  It was not necessary to ask if the claimant was of “ordinary phlegm”; this is a control mechanism relevant to secondary victims.  The defendant needs to take a primary victim as they find them.

As an aside, I wholly agree with the claimant”s counsel’s point that using the term “nervous shock” when referring to persons who have been psychiatrically injured is outdated language.  I also consider it causes unnecessary confusion.  As I have previously expounded, the law needs to catch up with our current understanding of mental health and the legal profession needs to embrace the medical terminology and not hide under an umbrella term.  This would be a small step towards eradicating any differences between how we deal with pure psychiatric claims as opposed to those involving physical injury.  I am not saying anything new.  I”ll leave you with the 23-year-old words of Lord Lloyd in Page:  “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law.”