High Court Ruling Clarifies Scope Of Maternal Psychiatric Claims

Judgment has recently been given by Mrs Justice Whipple in the case of YAH v Medway NHS Foundation Trust - judgment can be found here. This gave useful clarification of the law regarding psychiatric claims by mothers following the birth of a brain damaged baby due to negligence.

The law in respect of psychiatric injuries has been fast moving recently. One of the key questions is whether a claimant is a 'primary victim' or a 'secondary victim'. A secondary victim is generally where the negligence happened to someone else, but the claimant witnessed or experienced the effect of it causing psychiatric problems. If a claimant is classified a secondary victim then damages would only be awarded if the claimant established the criteria set out following the Hillsborough disaster in the case of Alcock v Chief Constable of South Yorkshire, including the requirement that the claimant's psychiatric illness was caused by shock, and more particularly the "sudden appreciation by sight or sound of a horrifying event which violently agitates the mind".

In the case of YAH, the defendant Trust had admitted liability for the baby's brain injury due to negligent obstetric care. The issues before the Court were whether the mother was a primary or secondary victim, and depending on that, whether the psychiatric problems that it was agreed she suffered from were compensatable.

The judge found the following:

As the baby was part of the mother (so one legal entity) until birth, and the negligence was pre-birth, the mother was a primary victim As a primary victim...