Wednesday, 7 November 2018

The Mother of an Unborn Child is a Primary Victim When Claiming Psychiatric Injury

There have been a number of trials in secondary victim claims in recent years, suggesting that the NHS has adopted a policy of challenging these claims. In the latest case of YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB), however, the defendant seems to have chosen the wrong battle to fight.

The claimant gave birth to a daughter by emergency Caesarean section. The child was born in a poor state and suffers cerebral palsy. The mother suffered psychiatric injury but not, Mrs Justice Whipple found, due to "shock" sufficient to support a claim as a secondary victim. On the expert evidence, as it was found to be, the claimant's psychiatric injury was due to three elements - the trauma of the labour, the fear of knowing that her baby's life was in danger, and the strain of caring for a significantly disabled child.



The defendant contended that (i) the claimant was a secondary victim; (ii) if she was a primary victim then she still had to establish that her psychiatric injury was caused by shock; (iii) if she was a primary victim the psychiatric injury was nevertheless too remote from the negligence.

The Court rejected those contentions.


  • The mother was a primary victim. Up to the point of birth, mother and baby are a single legal person. The fact that the mother suffered psychiatric harm later, after delivery, did not mean that she was not a primary victim at the time of the negligence. This is well established by recent case law including Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), in which Mrs Justice Whipple, when at the Bar, had appeared for the claimant, and  RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) at [40] (Goss J).
  • Following Page v Smith [1996] 1AC 155 there was no requirement for a primary victim to establish that psychiatric injury due to negligence had been caused by "shock" in the same way as a secondary victim has to do.
  • On the expert evidence, the claimant had established that the trauma of the labour and the distress of knowing her baby's life was in danger were causative elements (consequent on the defendant's negligence) in her psychiatric injury and therefore she established causation and the injury was not remote from the negligence.
In assessing the expert psychiatric evidence - Dr  Tattersall for the Claimant and Dr Faith for the Defendant - Mrs Justice Whipple made clear her dissatisfaction with the defendant expert's evidence. It was "confused" and circular, "overly dogmatic" and she was an unhelpful witness "for a number of reasons". The Judge accepted the evidence of the claimant over that of the expert as to the length of time the expert had taken to carry out her assessment of the claimant for the purpose of her reports.