0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

North Glamorgan NHS Trust v Walters, Court of Appeal

11 December 2002
The issues

Foreseeability – nervous shock – proximity – pathological grief reaction.

The facts

The Claimant was a mother of a child who had been admitted at the age of 10 months to the Defendant hospital suffering from jaundice. As a result of the hospital’s negligent misdiagnosis the child failed to have the required liver transplant which he actually needed. His mother was sleeping in the same room in the hospital and woke in the night to find the child fitting. The child was sent to London for a liver transplant. On arrival the child was found to have suffered irreparable brain damage, and the mother was informed of the gravity of the baby’s condition. The following day the mother was informed that it would be now appropriate to take the baby off life support. The child died minutes later in the Claimant mother’s arms. The mother suffered a pathological grief reaction. The Judge at first instance found that the 36 hour period from the fit to the death was capable of amounting in law to one horrifying event. The Defendant appealed the decision, on the grounds that:-

(a) A 36 hour period could not be held to be one event in law;

(b) That the Claimant’s appreciation of that event was not sudden but was a gradual assault of the mind over a period of time;

(c) That the Judge had expanded the established control mechanisms with insufficient regard to the recognised policy constraints against innovation in this field of law.

The Claimants had responded that this was an area where if necessary the Court of Appeal should take a small incremental step to place the requirement of “shock” with a requirement that the psychiatric illness need only be caused by directly witnessing or experiencing some trauma.

The decision

1. The Judge had asked himself whether Claimant was a primary or secondary victim. He rightly concluded that she was a secondary victim.

2. As such, she was subject to control mechanisms which might bar her claim. It was noted however:-

(a) That she had the necessary close relationship with the victim
(b) That she had suffered a recognisable psychiatric illness which;
(c) Was foreseeable

3. The Judge had found that the psychiatric illness had been brought about “through the sudden appreciation by sight or sound of a horrifying event that effected her mind”.

4. He concluded that he was not barred from finding that an “event” was capable of occurring over several days.

5. The word event was not to be construed as it was a legislative term. It was at best “a useful metaphor” or a convenient description for what Lord Wilberforce had described in McLoughlin v O’Brien as the “facts and consequences of the Defendant’s negligence”. In this case, there had been “an inexorable progression from the moment when the fit occurred%u2026.. to the dreadful climax when the child died%u2026.. it is a seamless tale with a obvious beginning and an equally obvious end”.

6. The Court was entitled to take account of what the mother was told about her son’s condition from time to time since information given as to unfolding events which were happening before the Claimant’s eyes were part of the circumstances of the case to which the Court was entitled to have regard.

7. The psychiatric evidence was clear that her condition was caused by shock. This however was a clinical and not a legal judgement. Had the Trial Judge been entitled to find that the claimant’s appreciation of events were sudden rather than a more gradual assault on her mind over a period of time? in fact there had been not one assault but three – when she had been woken by her child’s convulsions – when she had been told of the child’s condition by the second hospital – and when she was told that the life support machine should be switched off.

8. Could an incremental step be taken? No such step was necessary liability for nervous shock in medical negligence cases involved no new application of principle.

9. Finally, there was no policy reason to constrain the Court of Appeal from rejecting the Defendant’s Appeal. Policy could not govern findings of fact existing principles of law had been applied by the Trial Judge, and correctly. Appeal dismissed.

Comments

Although the Court concluded that they did not need to take any incremental step preferring a common sense interpretation of when an “event” amounted to, it is hard not to see this as an extension of the principles governing nervous shock claims. Interestingly, Lord Justice Clark who gave a short concurring Judgment commented that whilst he agreed with Lord Justice Ward that this case fell within the existing law, that had he found it necessary to advance the frontiers of liability he would have done so on the facts of this case.

focus on...

Legal updates

Contingent loss in negligence claims

Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).

View

Legal updates

Legal and regulatory monthly update - September 2019

The latest update covering delegated authority, insurance product development, the senior insurance managers regime, data protection, operational control frameworks, Lloyds market, and horizon scanning.

View

Legal updates

Kuoni referred to the CJEU by Supreme Court for clarification - possible impact on breach of contract, vicarious liability and assumption of responsibility claims for sexual abuse and assault

We were hoping to be able to give you some interesting insights following the judgment of X v Kuoni Travel Ltd but that will have to wait for another day.

View

Legal updates

The disappearance of LIBOR

Companies should undertake a comprehensive review and audit to identify those products and legacy contracts that are LIBOR-linked and carry out an in-depth risk assessment of discontinuation. Where possible, companies should look at appointing an individual to oversee the programme.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up