The case of King v Royal United Hospitals Bath NHS Foundation concerned a claim brought by a father who experienced PTSD after seeing his newborn son in NICU with a doctor saying “we might lose him”. The claimant was found to not have satisfied the fourth control mechanism established in Alcock v South Yorkshire Police: that his illness must have been induced by a “sudden shocking event”.
The Claimant was an actor who brought a claim for psychiatric injury and consequential loss following the birth of his second son, Benjamin, born by emergency caesarean section on the 5th of May 2016. The Defendant (Royal United Hospital Bath NHS Foundation Trust) accepted liability in a separate claim for the death of Benjamin. Following his birth, Benjamin was taken to a Neonatal Intensive Care Unit (‘NICU’) where C was informed that Benjamin was “alive, but…very sick and we might still lose him” (para 14; see also para 20).
It was agreed by both parties instructed psychologists that C suffered post-traumatic stress disorder (“PTSD”), with the accepted clinical cause being “[the] psychological impact of seeing his critically ill son on his first visit to NICU after his son’s birth” (para 10).
Given the importance of factual matters in the Alcock criteria and the divergent factual pictures presented by the two parties, a substantial portion of Philip Mott QC’s judgment was devoted to finding the facts of what happened. In summary, the judge found that:
i. the Claimant had a discussion with the doctors about his son before (not after) his first visit to the NICU (para 27);
ii. during this discussion he was “fully prepared for all the interventions and machinery he would see” (para 29);
iii. on his first visit to the NICU he saw Benjamin “like a sleeping new-born baby except for the many tubes and wires” (para 30); and
iv. while sitting at the cot side in NICU, he had a conversation with a doctor (Dr. Jones), who told him that Benjamin was very ill and that they “could lose him” (para 20; see also para 14).
Philip Mott QC then turned to consider whether the sight of Benjamin in the NICU and comments made by Dr. Jones would constitute “shocking and horrifying” in the Alcock sense. Guidance was provided in Shorter v Surrey and Sussex Healthcare NHS Trust [2015], in which the qualifying test was an event which would be “horrifying by a person of ordinary susceptibility” (para 35), and more specific direction in the case of Ward v The Leeds Teaching Hospital NHS Trust [2004] in which HHJ Hawkesworth stated that “death of a loved one in hospital [wouldn’t be horrifying] unless the circumstances were wholly exceptional in some way so as to shock or horrify” (para 35).
As such, despite accepting that the events witnessed by C were “horrifying” in “ordinary language” (para 39), the sight of Benjamin in NICU was not by itself “objectively shocking and horrifying in the Alcock sense” (para 40).
Finally, the judge considered whether conjunctively the words “might lose him” would push the case over the horrifying threshold. Despite accepting that Dr. Jones could have tempered his comments more than he did, the judge accepted that Dr. Jones has tempered his warning with information that other babies in Benjamin’s condition have recovered well. As such, even taken as an aggregate the case did not pass the “sudden shocking event” Alcock criterion.
As a consequence, the claim failed on liability. Although the Judge did go on to consider the Claimant’s quantum claim (including his loss of chance of a “big break” in his acting career) in some detail, in case any appeal is successful.
Tom Gibson, a barrister in Outer Temple’s clinical negligence team, comments on the case as follows:
This decision illustrates how hard it is for claimants to prove that they witnessed a “sudden shocking event”, in a hospital setting, when bringing secondary victim psychiatric injury claims based on clinical negligence.
This follows a relatively long line of recent cases – including Liverpool Women’s NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, Wells & Smith v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB), Owers v Medway NHS Foundation Trust [2015] EWHC 2363 (QB), and Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB) – where claimants have failed to prove that what they saw and heard in the hospital was a “sudden shocking event” in the Alcock sense. However secondary victim claims based on hospital treatment are not impossible. This was illustrated by the grandmother’s successful claim in RE & Ors v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB), which was also referred to in the judgment.
As a result, a close factual analysis of precisely what a claimant saw and heard – as was conducted by Philip Mott QC in this case – is key to determining whether a secondary victim claim succeeds or fails.
