First Reported Decision On A Secondary Victim Claim Involving A Child

Introduction

The recent English decision in the case of Megan Tanner (a child by her father and litigation friend) v Sarkar (2017) LTL 4 April (HHJ Buckingham, Hull CC) is the first reported secondary victim claim involving a child. The decision provides further insight on the proximity test arising from the Alcock control mechanisms particularly in clinical negligence cases.

Facts

The Plaintiff was a child (aged 16 at trial and aged 5 at the time of the relevant events). A claim was brought arguing that she sustained a psychiatric injury after witnessing the incidents surrounding her brother's death between 16 and 19 December 2004. This included seeing an ambulance arrive to her house to take her brother away and seeing his body in the hospital mortuary and at the funeral home. This was after the Defendant GP's was negligent in failing to urgently to refer her brother for hospital treatment for sepsis the day previous.

The Plaintiff alleged that the circumstances were a “seamless tale” within the context of the decision of Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792. At hearing, the Plaintiffs' case was altered and it was put forward that the “relevant event” within the meaning of the Alcock control mechanisms began when the Plaintiff was woken up by her father in the early hours of 20 December 2004; the events prior to this date were just to be viewed as context to the matter as a whole.

Liability was accepted by the Defendant in relation to her brother's death. However, this aspect of the claim: being the secondary victim claim was defended on the grounds as set out below:

It was denied that the Plaintiff had suffered a recognised psychiatric disorder as a result of witnessing the deterioration and death of her brother. The Defendant's expert Psychiatrist concluded that she did not meet the full diagnostic criteria. The Defendant denied the GP owed a legal duty of care to the Plaintiff. The Defendant argued that on the basis of the case of Taylor v A. Novo (UK) Ltd [2014] QB 150, that there was a lack of proximity in time and space to the relevant event or its immediate aftermath. The Defendant put forward that therelevant event was the negligence in not referring the Plaintiff's brother to hospital on 19 December 2004 and the occurrences in the aftermath should only be considered as a later consequence of the negligence. Therefore, they argued that the arrival of the ambulance was not part of theimmediate aftermath and it...