In the recently reported case of YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB) judgment was given in the High Court on 5th November 2018 and the claimant, anonymised as YAH, was successful in her claim for compensation for psychiatric injuries that she sustained following the birth of her daughter who was born with cerebral palsy for which the trust had previously admitted liability. They had admitted that there was a culpable delay in delivery after clear signs of distress were evident on the CTG trace. The mother, YAH, claims damages for psychiatric injury she sustained associated with the birth. The daughters claim for her injuries is proceeding as a separate claim.

The central issues in the claim were whether YAH was classed as a primary victim or a secondary victim; was it necessary for her to show that the psychiatric injury was caused by shock; whether the psychiatric damage that she suffered was too remote from the defendant’s admitted negligence to permit recovery of damages; and whether YAH has an alternative claim as a secondary victim.

YAH maintained that she was a primary victim. If she was a secondary victim then she would need to show that the psychiatric illness was caused by shock such as involving the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. The Judge accepted the Claimants submission that she was a primary victim. It is settled law that a baby is part of its mother until birth, there is up to that point a single legal person. The mother is a primary victim in so far as she suffers personal injury consequent on negligence which occurs before the baby is born.

The next issue the Judge had to decide was whether shock was a necessary component for a primary victim claim. The defendants argued that in the case of “pure” psychiatric injury claims (ie where there is no physical injury) the claimant must demonstrate that the injury had been caused by shock. The leading House of Lords case of Page v Smith [1996] 1 AC 155 however establishes that their is no requirement for a primary victim who brings a claim for “pure” psychiatric injury to show that the injury was caused by shock. Therefore it was not necessary to establish shock as a primary victim.

The next point that the defendants argued was that the damage sustained by the claimant was too remote from the defendants negligence. This issue ultimately turns on the evidence of fact and expert evidence. The claimant relied upon expert evidence from Dr Tattersall, a consultant psychiatrist. The Judge accepted Dr Tattersall’s evidence and concluded that the claimant suffered an anxiety disorder shortly after she had given birth as a response to her experience of the birth and afterwards. She became depressed later, triggered in large part by a recognition of the extent of her daughter’s brain damage. The conditions combined to form a single indivisible mental disorder which has varied in intensity over time and which is ongoing and will likely fluctuate in the future. The difficulties experienced by the claimant during labour and the worry immediately afterwards of not knowing whether her daughter would survive were contributors to the mental disorder.

In the light of the established causation of the claimants mental disorder the judge was satisfied that the claim for damage was not too remote and that the claimant succeeded in her claim as a primary victim.

(The Judge did point out that although the mothers experiences during the delivery of her child and afterwards were shocking and traumatic they do not constitute shock in the legal sense and if the claimant had been a secondary victim she would not have been entitled to recover damages).

Damages were assessed at £76,183 of which £34,000 was for pain, suffering and loss of amenity and the remainder was for past and future losses and expenses such as loss of earnings and medical treatment.

Although this is a relatively small amount of damages by comparison with some cases which come before the court this was a case which raised some complex issues and was obviously of great importance to the parties.