YAH v Medway NHS Foundation Trust (rev 1)

At 18.15 on 9 July 2012 the Claimant’s daughter, referred to in this judgment as XAS, was born at the Medway Maritime Hospital, Gillingham, Kent. She was born by emergency caesarean section. She was in poor condition, extremely acidotic, and required resuscitation. Her mother, the Claimant, knew that something was wrong. Before the Claimant was able to see her new baby, XAS was taken to the special care baby unit where she was cooled and intubated. The Claimant saw XAS for the first time the next morning. At that time, XAS was in a box, surrounded by medical equipment, tubes and monitors, and her mother could not hold her or touch her.

XAS has since been diagnosed with cerebral palsy for which the Defendant, the trust responsible for the hospital, has admitted liability. The basis of that admission is a culpable delay in delivering XAS after clear signs of distress were evident on the CTG trace. Judgment has been entered in XAS’s claim which is proceeding to an assessment of damages.

This claim concerns XAS’s mother, the Claimant (anonymised in these proceedings as YAH). She was 30 when she had XAS, who was her first baby. The Claimant claims damages for psychiatric injuries associated with XAS’s birth.

The Defendant resists this claim and argues that the Claimant is not entitled to recover damages for psychiatric injury.

The central issues going to liability are:

If liability is established as either a primary or secondary victim, I must determine the value of damages due to her (“quantum”).

On 8 October 2014, the Claimant’s solicitors wrote a letter of claim to the Defendant’s solicitors. That set out the facts in outline and asserted that the Claimant had suffered pain, injury, loss and damage. The damage was particularised to include “a psychiatric injury as a result of the traumatic birth, XAS’s time in SCBU and XAS’s diagnosis of cerebral palsy”.

On 20 January 2015, the Defendant’s solicitors responded rejecting the Claimant’s claim. That letter stated that “It is the Defendant’s position that the [Second] Claimant must fulfil the criteria for the recovery of damages as a secondary victim in this claim….”. The Defendant accepted that the Claimant met some of the criteria which attach to secondary victim claims (she had the tie of love and affection and thus sufficient proximity was established) but the Defendant asserted that the Claimant had not shown that she had suffered a recognised psychiatric injury, or that the injury was caused by shock resulting from the relevant events or their immediate aftermath.

The Claim Form was issued on 9 June 2016 and particulars of claim drafted by Richard Booth QC, who has appeared for the Claimant at this trial, were served. The particulars asserted at [2] that the Second Claimant was a primary victim, and that she claimed damages for psychiatric injury caused by directly experiencing the shocking trauma of her daughter’s extremely poor condition at birth. The Claimant gave voluntary particulars of her case on causation at [25] which included the assertion that she had been shocked and horrified by XAS’s very poor condition and apparent lifelessness following her birth and that this was a truly shocking and horrifying event. It was again asserted that she was a primary victim.

The Defendant served a defence (it is not clear to me who drafted that defence in its original form) which denied the Claimant’s claim, and specifically denied (at [14]) that the Claimant was a primary victim, but went on to state that if she was a primary victim, she would still have to prove that she suffered her psychiatric injury by sudden appreciation of a horrifying event, which the defence asserted she would be unable to do.

On 28 August 2018, the Claimant amended her particulars of claim (again, by the hand of Mr Booth). At [2], her claim to be a primary victim was restated, but it was now said that the psychiatric injury was caused by the Claimant directly experiencing the shocking trauma of XAS’s extremely poor condition “on the day after her birth” (rather than “at” her birth as previously pleaded). More substantial amendments were made at [25]. The Claimant now asserted that “… as a primary victim, [she] does not need to prove that this was a truly shocking and horrifying event, viewed both objectively and subjectively….”; that the negligence which had caused her psychiatric injury had occurred “when [XAS] was in her womb”; and that “the [Second] Claimant’s anxiety disorder and depression were caused or materially contributed to by the Defendant’s admitted negligence”.

The Defendant served an Amended Defence dated 7 September 2018. The Amended Defence is in the name of Mr Bishop QC (who has appeared for the Defendant at this trial). Responding amendments were made. Paragraph 14 now stated:

“14.

As to Paragraphs 25(d) and (e), it is denied that the Second Claimant is a “primary victim”, in the sense of which that description is used in claims for damages for psychiatric injury and/or that the description of her as a “primary victim” entitles her to damages for psychiatric injury caused by the realisation of the extent and effect of the First Claimant’s injuries in the months and years following her birth. Even if she is, she must still prove that she suffered her psychiatric injury by sudden appreciation of a horrifying event. For the reasons already set out, this is denied. The Defendant admits that its negligence caused the First Claimant’s injuries but denies that the Second Claimant’s realisation of the extent and effects of those injuries entitles her to claim damages caused by such realisation.”

The Claimant’s skeleton prepared for trial, dated 10 October 2018, again stated that the Claimant was a primary victim who was placed at foreseeable risk of injury by the Defendant’s admitted negligence and who was therefore entitled to recover damages for injuries, whether physical or psychiatric, caused or contributed to by that negligence (see [5]). The Claimant disputed the Defendant’s case that she was in law a secondary victim ([6]). Further, the Claimant pointed to the joint statement of the expert psychiatrists where it was agreed that the difficult labour, the worry of not knowing whether XAS would survive, and the strain of looking after XAS had contributed to the Claimant’s mental disorder ([7], referring to a passage from the second joint statement dated 17 September 2018) and argued that this agreement meant that the Claimant was entitled to damages.

The Defendant’s skeleton in response dated 9 October 2018 denied that the events around XAS’s birth were shocking; rather, the Defendant asserted that the Claimant’s mental health problems were caused predominantly by the stress of having to look after XAS (see [14]). It was said that the distinction between primary and secondary victims was not helpful and that there was a blurring of the lines when injury was sustained in the course of a traumatic birth and its aftermath; but in this case, the Claimant could not recover damages for the stress of coping with a disabled child ([26]).

Primary Victim

The Claimant has always maintained that she is a primary victim. The Defendant has asserted, by way of denial of her claim, that she is a secondary victim, although the Defendant’s skeleton suggests that the distinction is unimportant.

It is well established in law that a secondary victim must bring him or herself within the criteria which were established in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, including the requirement that the Claimant’s psychiatric illness must be caused by shock, defined by Lord Ackner in the following way at p 401F:

“ ‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

By contrast, a primary victim does not have to satisfy the Alcock criteria (or the Alcock “control mechanisms”, as they are sometimes called). Specifically, a primary victim does not have to demonstrate that his or her psychiatric illness has been caused by witnessing the sort of shocking event described by Lord Ackner.

I accept Mr Booth’s submission that it is important to identify, at the outset, whether the Claimant is a primary or a secondary victim. The two categories of claim are governed by different rules. I reject Mr Bishop’s submission that categorisation does not matter.

Mr Booth submits that the Claimant is, quite plainly, a primary victim. XAS was unborn at the time of the negligence; as a matter of law, mother and daughter were at that time one and the same legal person. Mr Booth reminds me of a passage in Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), where I was counsel for the father who was suing as a secondary victim for psychiatric damage consequent on witnessing the stillbirth of his child, Matthew. The Defendant hospital argued that the father could not recover because his concern was for the baby, not the mother, and the baby could not be the primary victim in relation to whom the father was the “secondary victim” because the baby had no separate legal personality at that time. The Judge (Michael Kent QC, sitting as a deputy high court judge) rejected that argument, in the following passage:

“20.

[…] The law regards the mother and the foetus as one legal person and, in the words of the editors of Grubb and Kennedy Principles of Medical Law (Third edition) paragraph 5.167, “a court will inevitably conclude that one who, in the eyes of the law, has never become a ‘person’, cannot be said to have obtained life, and therefore cannot be said to have suffered death”. Mr Bagot [counsel for the Defendant] accepts the latter proposition and builds on it to say that, for that reasons, there is no primary victim in this case. […] He says that the [father’s] case and the psychiatric opinion are based upon [the father’s] reaction to the death of his son, yet Matthew is neither said to be the primary victim nor could he be the primary victim.

21.

Miss Whipple’s response is to say that one must not confuse legal with factual analysis. As a matter of law there is no distinction between Matthew in the womb and his mother. As a matter of fact, however, the circumstances that gave rise to the psychological injury related to the death of Matthew in the womb, but because he was considered in law part of his mother, [the mother] was properly described as the primary victim. The law does not fail to give legal protection to the foetus. A child negligently injured in utero but born alive has a claim for damages (Burton v Islington Health Authority [1993] QB 204) and the perpetrator of an assault on a pregnant woman may be convicted of manslaughter if the child is born alive but dies as a result of the injury in the womb: Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245. Therefore, although the [father] cannot as a matter of law treat Matthew as the primary victim, for the purposes of a claim such as this, his potential for separate existence cannot be ignored either on the facts or as a matter of law.

22.

I think Miss Whipple is right on this point: in such cases the only proper way to characterise the situation is to say that the mother is a primary victim. She indeed has a claim whether or not she has suffered psychiatric illness as a result of the events leading to the still-birth. Even though the alleged secondary victim’s shock-induced psychiatric illness may be more to do with his concern for the unborn child than for the mother, nevertheless his shock is a consequence of the injury or threatened injury to the mother in that her foetus is damaged or destroyed by the relevant negligent act. […]”

Mr Booth took me to two recent cases where the analysis in Wild has been accepted: Wells v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB) at [82]-[83] (Dingemans J) and RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) at [40] (Goss J). In both of these cases the mother sued for psychiatric injury consequent on obstetric negligence and in both the court concluded that the mother was a primary victim (although I accept that in Wells, the conclusion was obiter because no breach of duty was established; and in RE the mother was entitled to damages for psychiatric injury as primary and alternatively as secondary victim).

In answer, Mr Bishop submits that Wild is to be distinguished because in that case the issue of primary victim arose in a different context (namely, to deal with one aspect of the defendant’s challenge to the father’s secondary victim claim) and the judge’s conclusion that the mother was the primary victim does not transpose to this case where the mother is bringing her own claim. Mr Bishop also submitted, in arguments not presaged in his skeleton argument or elsewhere in advance of trial, so far as I am aware, that the effect of the Congenital Disabilities (Civil Liability) Act 1976, which gives a child the right to sue for damages resulting from negligence before the child’s birth, modifies the common law position so that where the child survives and can sue independently pursuant to the 1976 Act, the mother is to be understood as losing her status as the primary victim; he also suggested (again, in an unheralded argument) that the status of the mother alters at the time a baby is born so that she becomes at that moment a secondary victim.

I answer Mr Bishop’s various submissions in the following ways. First, it is settled law that a baby is part of its mother until birth; there is, up to that point, a single legal person. Each of the three cases to which I was referred (Wild, Wells and RE) illustrate this principle. There is, of course, a much larger body of case law and commentary which establishes the principle – the deputy judgetouched on some of it at [21] of Wild.

It flows from that principle that the mother is a primary victim in so far as she suffers personal injury consequent on negligence which occurs before the baby is born. I believe this also to be settled law. Certainly, it is endorsed in the three cases to which I was referred.

As to the effect of the 1976 Act, Mr Bishop is right to point out that if the baby lives, he or she may sue for damages for events which occurred before birth. The Act thus confers on the baby a right which he or she would not otherwise have, to sue for injuries caused by events occurring before birth (at which point the baby lacked a separate legal personality). But I do not accept Mr Bishop’s submission that the effect of the statute is to deprive the mother of the co-existing right to sue as primary victim. The Act does not, on its face, interfere with any of the mother’s rights; specifically, it does not remove rights from the mother to sue for injuries sustained as a result of those same acts. If that was what was intended by the Act, clear words would be required, and there are none. Further, if Mr Bishop is right, the Act creates an exception to the general common law rule that a person who sustains personal injury as a consequence of the negligence of another can sue for compensatory damages. Mr Bishop did not explain how such an exception was justified and for my part, I fail to see what legitimate policy objective it would promote; specifically, the policy objective cannot be the avoidance of double recovery because the compensatory principle would prevent either mother or baby from recovering the same loss twice.

Mr Bishop did not press his third argument at the hearing, preferring to re-cast it as an aspect of his remoteness argument (to which I shall come). But it is important to be clear that the Claimant did not cease to be a primary victim at the moment XAS was born. The fact that the Claimant’s psychiatric damage became manifest later in time, after XAS was born, does not change the Claimant’s status. She was and is a primary victim, in so far as she suffered personal injury caused by negligence which occurred before XAS was born.

The Claimant is a primary victim. Accordingly, this claim falls to be determined according to the ordinary rules governing personal injury claims in negligence. It does not fall to be determined by reference to the Alcock criteria, which attach only to secondary victim claims.

Shock: is it a component of a primary victim claim?

There is a dispute between the parties as to what the ordinary rules for personal injury claims require. Mr Bishop draws a distinction between personal injury claims which are for physical injury with or without a claim for psychiatric harm, on the one hand; and “pure” psychiatric injury claims where the claim is only for psychiatric injury and includes no claim for any physical injury at all, on the other. In relation to the first category, he accepts a claimant can in principle recover damages for any recognised psychiatric condition which results from the defendant’s negligence, regardless of its precise trigger. So, he accepts that it is not necessary in that sort of a case for a claimant to show that the recognised psychiatric condition was caused by shock (in the Alcock sense or in any sense); any form of psychiatric illness, which falls into a recognised diagnostic category, can be the subject of a claim. However, he argues, the position is different for the separate category of “pure” psychiatric injury claims, which he says can only succeed if the claimant can demonstrate that the injury has been caused by “shock”.

For this submission, Mr Bishop takes Alcock as his starting point. There are a number of references in that case to nervous shock claims, which he argued encompassed both participant claims, where the claimant is the primary victim, and witness claims, where the claimant is a secondary victim. So, as examples, he points to Lord Ackner’s statement at 400E that “it is now generally accepted that an analysis of the reported cases of nervous shock establishes that it is a type of claim in a category of its own”, and Lord Oliver’s statement at p 407 C-E:

“It is customary to classify cases in which damages are claimed for injury occasioned in this way under a single generic label as cases of “liability for nervous shock.” This may be convenient but in fact the label is misleading if and to the extent that it is assumed to lead to a conclusion that they have more in common than the factual similarity of the medium through which the injury is sustained – that of an assault upon the nervous system of the plaintiff through witnessing or taking part in an event – and that they will, on account of this factor, provide a single common test for the circumstances which give rise to a duty of care. Broadly they divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. In the context of the instant appeals the cases of the former type are not particularly helpful, except to the extent that they yield a number of illuminating dicta, for they illustrate only a directness of relationship (and thus a duty) which is almost self-evident from a mere recital of the facts.”

In anticipation of Mr Booth’s submissions based on Page v Smith [1996] 1 AC 155, Mr Bishop submitted that that case is authority for the proposition that there is no separate test of foreseeability for pure psychiatric claims, but that is all; Page v Smith did not eradicate the requirement established by Alcock for the Claimant to demonstrate that the psychiatric illness was caused by shock. Mr Bishop submitted that Page v Smith modified the test of “shock” as it applied to primary victim claims for pure psychiatric damage, to include a subjective component which would reflect the legal principle that the tortfeasor must take his victim as he finds him - with an egg-shell skull if that is what the victim has - as well as an objective component which would remain faithful to the Alcock approach which requires the victim to be judged by the standards of a person of “ordinary phlegm”. But Mr Bishop could not be more specific about the test of shock which on his case applied to this or other similar claims, he said he could find no help on the point from Page v Smith and could not show me any other authority on the point beyond Alcock.

Mr Booth disagreed with Mr Bishop’s analysis, which he said was misconceived in law. Mr Booth starts with Alcock, and suggests that the House of Lords in that case drew a very clear distinction between primary victims and secondary victims, and applied the “shock” criterion only to the latter category of cases. In passing, Mr Booth noted that the language used in Alcock and other cases of that vintage was rather old-fashioned, with the term “nervous shock” being used in places to describe what would now be called, simply, psychiatric injury or psychiatric illness – the point being that medicine has moved on and psychiatrists now recognise that mental illness comes in many different forms and can be triggered by many different factors, not all of which fit under the umbrella term of “nervous shock”.

Mr Booth argues that, whatever the position following Alcock, the matter has been clarified by the House of Lords in Page v Smith. In that case, the majority (Lords Ackner, Browne-Wilkinson and Lloyd) upheld the trial judge’s conclusion in favour of Mr Page. Mr Booth reminded me that the accident in which Mr Page was involved fell a long way short of the sort of shocking event envisaged in Alcock - it was a low impact collision in which no one was hurt. By allowing the appeal, the House of Lords necessarily accepted that shock as described in Alcock was not a necessary component of Mr Page’s claim. Mr Booth submitted that shock, however it is defined, is not a necessary component in law for any ordinary (primary victim) claim for damages for personal injury, whether the claim is for physical injury or psychiatric injury or a combination of both. To make good that submission, he took me to Lord Lloyd’s leading speech, where the distinction between primary and secondary victims was confirmed as having important legal consequences (p 184 F); Lord Lloyd then posed the rhetorical question at p 187 B:

“Can it be the law that the fortuitous absence of actual physical injury means that a different test has to be applied? Is it to become necessary, in ordinary personal injury claims, where the plaintiff is the primary victim, for the court to concern itself with different “kinds” of injury?”

Lord Lloyd’s answer was no and no. He said at p 188 F:

“In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.”

Lord Lloyd confirmed that the Alcock control mechanisms were not required in the case of a primary victim (p 189 D); nor was it necessary to ask whether the plaintiff was of “ordinary phlegm” because in the case of physical injury there is no such requirement and the negligent defendant must take his victim as he finds him (p 189 E); there was no justification for regarding physical and psychiatric injury as different kinds of injury, once established that the defendant is under a duty of care to avoid causing personal injury to a person, it matters not whether the injury in fact sustained is physical, psychiatric or both, a single test applies (p 190 E).

Mr Booth also took me to Lord Browne-Wilkinson’s speech in agreement with Lord Lloyd. Lord Browne-Wilkinson said that it was irrelevant that Mr Page had suffered no physical injury because he had, on the judge’s findings, suffered personal injury in the form of psychiatric harm (p 181 E). The question was whether the defendant in such a case should reasonably foresee that a person may suffer psychiatric injury “of some kind”, whether or not accompanied by physical injury (p 181 F). The defendant owed a duty of care to prevent foreseeable damage which included psychiatric damage (p 182 G). There was a danger in the Court drawing distinctions between physical illness and psychiatric illness; the time had come for the law to accept that the same criteria should apply for both types of claim (p 183 B).

Mr Booth finally drew my attention to the absurdity of Mr Bishop’s argument on the facts of this case, where on any view the Claimant had endured a longer and more stressful birth than she should have done, by virtue of the Defendant’s negligence. She therefore had a claim for physical injury (in the form of additional pain and suffering), if she had wished to bring it. If she had included a claim for physical injury of that sort, and whether or not she succeeded on that aspect of her claim, Mr Bishop accepted that she would not have to demonstrate that shock was the trigger for the psychiatric element of her claim: that made a nonsense of Mr Bishop’s distinction.

I accept Mr Booth’s submissions and reject those of Mr Bishop on this issue. Page v Smith establishes the approach in personal injury claims, whether the injuries consist of physical or psychiatric injuries or both. There is no requirement for a primary victim who brings a claim for “pure” psychiatric injury to show that the injury was caused by shock. To return to Lord Ackner’s axiom, old-fashioned though it is, a primary victim can in principle claim for psychiatric injury which has been caused not by shock, but by “the accumulation over a period of time of more gradual assaults on the nervous system”, which have given rise to a recognised psychiatric condition.

Remoteness

Having clarified the legal basis on which this claim proceeds, I turn to the mainstay of Mr Bishop’s case (at least as presented at trial) which is that the damage sustained by the Claimant is too remote from the Defendant’s negligence to sound in damages.

This issue ultimately turns on the evidence of fact and expert evidence. There is no dispute that the Claimant has suffered psychiatric illness (in the form of a recognised psychiatric condition), nor that her psychiatric illness was caused or materially contributed to by the Defendant’s negligence: these matters are agreed in the first joint statement of the experts, dated 12 May 2018 (albeit with some differences of emphasis between the experts, which I do not need to go into). What is in dispute is the precise trigger for the Claimant’s psychiatric problems, which itself leads to differing views on the correct diagnosis. Those points build up to the divergent overarching submissions on remoteness.

The Claimant’s case is that the Claimant’s mental disorder was caused by a number of factors associated with XAS’s birth, including (i) a difficult labour culminating in an emergency caesarean section and (ii) the worry immediately after XAS was born in not knowing whether XAS would survive; and (iii) the strain of looking after XAS. Each factor has made a material contribution to the psychiatric injury; and the psychiatric injury, however diagnosed, is a single and indivisible injury. The first two factors go back to the events of 9 July 2012 when XAS was born and the days immediately following XAS’s birth. Thus, the psychiatric injury is closely related in time to the Defendant’s negligence and is sufficiently proximate to sound in damages. I did not understand Mr Bishop to dispute her entitlement to damages if she made out her case on the cause of her mental health problems, accepting on that case that the damage was not too remote.

The Defendant’s case is that the Claimant’s psychiatric illness was caused predominantly by the stress of having to care for a disabled child. The Defendant challenges the assertion that the Claimant’s difficult labour contributed at all, and suggests that the Claimant’s distress in the first few days after having XAS did not go beyond “normal” upset and distress that any parent would suffer in these circumstances and so was not causative of the Claimant’s problems, which came later in time once she knew the likely extent of XAS’s brain injury.

To resolve this dispute, it is necessary to consider the basic facts (which are not in dispute), the evidence from the Claimant about her condition over time, and critically the expert evidence adduced by each party.

The Claimant was born on 22 December 1981. She had an episode of depression which lasted from October 2003 to November 2004. She fell pregnant with twins in late 2011 or 2012 but lost one twin in February 2012. The pregnancy progressed with the remaining twin. There were some medical issues in pregnancy, none of which are relevant to this case.

On 9 July 2012, the Claimant was admitted at 06.45 in labour. She was given pethidine for pain relief. At 07.40 the CTG trace showed reduced variability and the Claimant’s blood pressure was raised to 155/83. At 10.45, her membranes ruptured spontaneously. Liquor stained with meconium was noted. At 12.30, the first admitted breach of duty occurred. The Defendant failed to recognise that the CTG trace had become pathological. At 13.00, there was a further admitted breach of duty in the failure to obtain a fetal blood sample. At 13.10, the Claimant was reviewed by Dr Katab who noted the presence of thick meconium liquor. The CTG trace showed reduced variability, a few accelerations and no decelerations. There was a further admitted breach of duty at this point, in the Defendant’s plan to continue to monitor and assess later. If a decision had been made to deliver XAS at this point, by caesarean section, she would have been delivered by 13.40.

During the afternoon, the Claimant’s blood pressure was raised. The Claimant was asking for an epidural. There was a further fresh vaginal bleed at 15.00. Dr Katab returned at 15.37 at which time the CTG trace showed reduced variability, no accelerations or decelerations. There were three failed attempts to obtain a fetal blood sample. Caput and vaginal bleeding were noted. The Claimant was 8cm dilated. There was a further admitted breach of duty in allowing the labour to continue at this point. The Defendant admits that XAS should have been delivered by caesarean section by 16.10 at the latest.

At 16.35, the registrar reviewed the CTG and was happy to continue the labour. There was a fresh vaginal bleed at 17.00 and the Claimant was still requesting an epidural. At 17.30 the Claimant was reviewed by the obstetrician at the request of the midwives. The CTG was noted to be abnormal and bleeding “+++” was noted. A decision was taken to transfer the Claimant to theatre for trial of instrumental delivery and/or emergency caesarean section. At 17.45 the decision was made for caesarean section and the Claimant signed a consent form. At 18.05, spinal anaesthesia was administered (the Claimant never was, until this point, given an epidural). Knife to skin was at 18.10 and XAS was delivered at 18.15.

XAS was in very poor condition at birth, making no respiratory effort. The cord was around her neck. Meconium was noted and the liquor was offensive leading to suspicion of chorioamnionitis (bacterial infection of the fetal membranes). Resuscitation was commenced and XAS’s first gasp was at 18.17. The neonatal registrar arrived at 18.23. At 18.30 XAS’s first regular respirations were recorded. She was intubated and transferred to neonatal ICU. Seizures were observed.

The Claimant was stitched up and returned to the ward.

The Claimant’s account is set out in a number of witness statements. She has repeated her account to each of the expert psychiatrists who have reported (Dr Tattersall for the Claimant, and Dr Faith for the Defendant). She gave evidence at trial. Her case was supported by her husband and her sister. I had available to me contemporaneous hospital medical notes. I also had the GP notes and other documentary evidence. The Claimant provided some photographs of XAS in her early days.

To the extent that there were discrepancies in what the Claimant said at different stages of this litigation (which relates to events 6 years ago), I am sure that these were trivial but honest mistakes, from a woman who has not, on any view, been in good mental health during that period. I accept the Claimant’s evidence. I also accept the evidence of her husband and sister.

The Claimant records how she became concerned during the afternoon when the midwife told her that the heart beat on the CTG was dropping and that she might need a forceps delivery or a caesarean section. She recalls that “suddenly” the staff were getting ready to take her to theatre and the staff were running about and panicking. The pethidine by this point had worn off and she felt a lot of pain. She got into theatre and was told that the baby was in a bad position so she would have to be delivered by caesarean section. Although her recollections of some of that day were just fragments or glimpses (for example she remembers her husband eating a sandwich) she has a good recollection of the last part once the pethidine had worn off.

XAS was taken away as soon as she was born. The Claimant could not see her and could not hear her. There was no crying. The Claimant could see her husband crying and could hear suction and gargling. It took what seemed like forever before the Claimant heard the first noise, which she described as very weak and very quiet murmurs. The midwife told the Claimant that XAS was “in a bad way” but tried to be reassuring. The Claimant felt numb and overwhelmed.

The Claimant was taken back to the ward. She was given some photographs of XAS. She said these were “not the nicest”, because XAS, who was intubated, looks like she is screaming with the tube in her mouth. The Claimant spoke to her sister that evening and her sister told me that at this time the Claimant “was a mess”.

The Claimant saw XAS for the first time at about 6.30am the following morning, 10 July 2012. The Claimant described herself as being “heartbroken” when she saw her. XAS was not moving with tubes all around her (the tubes are evident on the photographs taken at this time), being in a plastic box in a cooling jacket. The Claimant was not allowed to touch her. The Claimant felt useless. She put her hands on the box and had wishful thoughts that XAS would be ok.

The Claimant and her husband saw Dr Aung Soe, consultant neonatologist, at about 18.15 that evening. The medical records note that the Claimant was anxious. The Claimant recalls that she was at this stage told that XAS’s chances were about 50/50 for the first three days but that “we take it day by day”. She felt devastated by this news.

The Claimant and her husband saw Dr Soe again on 11 July 2012. Dr Soe explained that some parents might want to withdraw care. The Claimant is noted to have broken down. However, the Claimant recalls saying to Dr Soe that the hospital should do everything possible to keep XAS going, even if XAS ended up “with one arm and one leg”.

XAS was extubated on 13 July 2012. The cooling blanket was removed and she was warmed up. Dr Soe told the parents that he thought XAS would survive but there was significant concern about the neurodevelopmental outcome. The Claimant was happy that XAS was fighting and the Claimant was trying very hard to be positive. She was first allowed to hold XAS at about this time (day 4).

There are a number of entries in the nursing and medical notes from 9 July 2012 onwards, describing the Claimant as anxious and tearful. There are others, but fewer, which suggest the Claimant is happy and the baby was doing well.

The Claimant and XAS were discharged from hospital on 22 July 2012.

The Claimant presented to her GP on 27 September 2012 for her maternal post-natal examination. She was noted to be “depressed due to her baby” and a suggestion was recorded that the baby had cerebral palsy. The Claimant was prescribed an anti-depressant.

It is not clear precisely when XAS was diagnosed with cerebral palsy, formally. The first time the diagnosis of cerebral palsy is recorded in the hospital records is in a letter following a visit to Dr Soe’s clinic on 11 January 2013. But it was plain from the Claimant’s oral evidence that she was worried about the possibility of that diagnosis well before that date. She had googled cerebral palsy on her phone while she was in hospital; and a physiotherapist had mentioned that term to her at some point, probably a month or two after they were released from hospital, which she said made her feel “crushed” because all her “positiveness” had not helped.

Dr Soe had at an early stage told the Claimant that there were a variety of possible outcomes, from autism at best to cerebral palsy at worst. When Dr Soe confirmed it was cerebral palsy, the Claimant told me it was a “knock back” which really hit her, the diagnosis of cerebral palsy had brought everything out, but she was struggling even before then, going downhill, although she had tried to stay strong.

The Claimant says that she cried a lot during this time. Her husband was back at work and no one was around. At one point they thought XAS was blind and the Claimant “cried a lot for that”. She grew clingy to XAS and XAS grew clingy to her: she would not let XAS out of her sight. But she tried to get on with it; she tried to cope as best she could. She was offered counselling by her GP but nothing ever happened.

By June 2016 she was pregnant with her son. She was referred to Think Action for counselling. They gave her therapies and techniques to cope with anxiety. These sessions helped and she got a bit better, although she was still petrified about going into labour. She had arranged for an elective caesarean section because of what had happened with XAS. She chose to go to a different hospital because she did not want to go back to the same hospital where XAS was born. But on the day of her son’s birth, everything crumbled and she ended up a mess.

She has not had any more counselling since then. She said that with anxiety and depression, she just does not really want to leave the house, it is just too much effort.

As things currently stand, she has ups and downs, mainly downs, particularly running up to the trial. She ran away from home around 10 days ago and turned her phone off so no one could get hold of her. Her sister found her and has since taken her to the GP and made her start taking anti-depressants.

Her husband told me about how the Claimant runs away when she cannot cope. He thought she had done that about 10 times. It happens unpredictably. She did not do this before XAS was born. He gets very worried about her because she does not answer her phone when she goes. He thinks she blames herself for XAS’s birth and has lost confidence and independence. Their relationship has suffered as a result. He also confirmed that she had been very up and down in the days running up to this trial. This culminated in her running away and being out of contact for about 4 hours a couple of weeks ago. She was found by her sister.

Her sister says that the Claimant “is a mess”. She does not go out, she does not have any hobbies, she does not want to do anything. She has lost all her independence. Her sister remains very close to the Claimant and knows she has quite dark feelings so that when she runs away, her sister fears she will do something stupid. When the Claimant ran away about 10 days ago, her sister found her sitting in the car in a park. She was crying, blaming herself, and would not go home. Her sister took the Claimant to the GP and has checked every day since that her sister is taking her medication.

Dr Tattersall is a consultant psychiatrist who has specialised in general adult psychiatry for the last 21 years. He was instructed for the Claimant and authored a number of reports for the Court. He met his counterpart Dr Faith at two meetings of experts (leading to two joint statements). He gave oral evidence before me.

In his oral evidence, he explained the difficulties presented by the Claimant’s case, in diagnostic terms. He described the Claimant as having flashbacks. He said that she developed an anxiety disorder straight after XAS’s birth which was “quite pronounced” in the early months. That disorder was an “adjustment” disorder focussed on her experience of the delivery and its aftermath, it was a specific response to that stressor and was not a “generalised” anxiety disorder of the sort described by Dr Faith. When it was put to him that the Claimant had tried to “keep going” during this period, he described that as a typical human coping strategy; he thought she had tried her best to be positive and had held on to an image of XAS making a good recovery until the evidence that she would not overwhelmed her. It was at that point that the “whole emotional richness” was acquired. He accepted that the nightmares and flashbacks were not typical of an anxiety disorder (rather they typified a post-traumatic presentation) but she fulfilled the diagnostic criteria for an anxiety disorder. He accepted that he had characterised the Claimant’s mental health at the time of having XAS and immediately afterwards in different ways in his reports, and that he had not specifically mentioned difficulty in labour as a causal element before the second joint statement, but he maintained that the whole experience had been shocking and distressing for her and had contributed to the development of her mental illness. The anxiety and stress in the period after XAS was born led to the depression: there was an interaction between that depression and her anxiety. Under cross-examination, he accepted that of the various factors which had contributed to her mental illness, the burden of looking after XAS weighed the heaviest, but he maintained that the difficulties in labour and the worry of not knowing whether XAS would survive were material contributors too. He accepted the diagnosis of adjustment disorder had only emerged in the second joint statement, but that he had been trying to differentiate between the many different anxiety disorders and wished to be clear that this was not a generalised anxiety disorder as Dr Faith suggested. He had been trying “to fit the round peg of clinically significant symptoms into the square hole of classification” and that was a difficult exercise; his approach from the outset had been to try to identify and explain her symptoms and their impact on her and that he had therefore concentrated on the link between her experiences and her symptoms, rather than focussing on classification in the first instance.

I found Dr Tattersall to be a compelling expert witness in whom I had confidence. He appeared to have thought carefully about the Claimant’s case. He has met the Claimant twice (for 2 hours on 7 July 2014 and 1 hour on 22 November 2017). He observed her in the witness box. He had tried to identify and explain the Claimant’s symptoms, first and foremost, before coming to any conclusion on classification. He evidently found it difficult to fit her symptoms within the gridlines of classification (under ICD 10, to which he referred) – that difficulty informed his reference in evidence to round pegs and square holes. Dr Tattersall had flagged up in the first joint statement dated 12 May 2018 that classification was difficult: he said at [2] that the Claimant’s early symptoms

“met diagnostic criteria for anxiety disorder (and did not meet the full diagnostic criteria for post-traumatic stress disorder) [but] were better understood as falling within the constellation of post-traumatic stress symptoms”.

This seemed to me to be another way, like the reference to round pegs in square holes, of explaining that in this case the Claimant’s symptoms do not fit neatly into any particular classification, that the picture presented is complex, and that, crucially, many of the Claimant’s psychiatric problems are post-traumatic in nature even though they do not meet the criteria for PTSD.

Dr Faith was the Defendant’s expert psychiatrist. She too has authored a number of reports for the Court. She met the Claimant only once, on 4 May 2017. The duration of that meeting is in dispute: the Claimant said that it lasted an hour and was not cross examined on that point; Dr Faith countered that it lasted 90 minutes but was confused in her evidence on the point. I prefer the Claimant’s account that the interview lasted one hour. I also accept that the Claimant was “in a state”, as she said, on the day she saw Dr Faith. Dr Faith has collaborated with Dr Tattersall in the production of two joint reports, and she too gave evidence before me. Dr Faith’s diagnosis was one of depression, triggered by the Claimant being told of XAS’s extensive injuries and the recognition that she would require substantial care, this happening some time after XAS was born; this was later coupled with a “generalised anxiety disorder” which came on when the Claimant fell pregnant again in 2016 and which was largely genetic in origin, with perhaps some contribution from the Claimant’s experiences when XAS was born.

I was not persuaded that Dr Faith had a great deal of experience in dealing with patients in a similar position to the Claimant. Dr Faith’s main professional endeavour has been the running of a secure unit which housed psychiatric patients who, she accepted, would typically have mental health problems of a completely different type and seriousness from what is in issue in this case; she did this for 16 years until 2014. During that time (and, I think, now) she had and has a private practice. But her private practice appears to have been a small part of her overall work, historically, and now appears to involve a lot of medico-legal work.

Dr Faith had been instructed on the basis that this was a claim for nervous shock to a secondary victim. For that reason, her reports focussed on the “shock” or lack of it at the time of XAS’s birth. This was, of course, the wrong target. That mistaken approach appeared to have coloured much of her thinking.

There were a number of other problems with Dr Faith’s evidence too. But the main problem, so far as I was concerned, was the confusion which lay at the heart of her evidence. She had drafted and signed the second joint statement after she met with Dr Tattersall. That joint statement was dated 17 September 2018. One paragraph of that statement read as follows:

“We agreed that a number of factors had contributed to [YAH] having suffered a mental disorder, including the experience of a difficult labour; the worry of knowing whether or not [XAS] would survive and, importantly, the strain of looking after a child with significant disability.”

This was the passage which Mr Booth had focussed on in his skeleton, for obvious reasons, and on which he placed substantial emphasis in his opening. It contains a seemingly simple statement that three elements were causative of the Claimant’s psychiatric problems: (i) the experience of a difficult labour; (ii) the worry of not knowing if XAS would survive; and (iii) the strain of looking after a child with a significant disability.

When Dr Faith came to the stand, she was asked to explain how the experience of a difficult labour and the worry of not knowing whether XAS would survive (ie factors (i) and (ii) above) fitted into the overall psychiatric picture. She said this:

“It was obviously a very torrid time, and it would affect anyone, and particularly someone with a vulnerability, such as [the Claimant]. So, those factors will have increased her vulnerability to developing a mental disorder. And once she has developed a mental disorder, and I will come back to that in a second, those experiences will colour the pathology she has experienced that goes with the mental disorder. So, once you become depressed, especially if you become depressed and feel guilty about something, as unfortunately [the Claimant] did, irrationally, but nonetheless she felt guilty, she looked back at the labour and thinks "Was it my fault? Did I do something wrong?" All of that is entirely normal and natural. Of course, she did not do anything wrong, but it is quite common, very common indeed, for people to ruminate on such thoughts when they have a damaged baby. So, those factors have acted as sensitising and also to colour the pathology, but it is, nonetheless, my view that if it had been a perfectly normal labour, and [XAS] went straight home in the normal course of events, but later started to drop off her developmental trajectory, that ultimately the same outcome would have pertained.”

This was an unexpected response, in light of the joint statement. I was not sure I understood what she was trying to say. But she seemed, to my ear at least, to be suggesting that factors (i) and (ii) “increased her vulnerability” and “coloured the pathology” but, if I understood her correctly, might not have caused the Claimant’s problems, rather they were in some way symptoms of it. Further, she seemed to be suggesting that the Claimant had felt irrationally guilty about the outcome and had ruminated on it and looked back (not, as far as I am aware, something Dr Faith had suggested in any earlier report) and that the outcome would have been the same even if those factors had not been present (again, not something which I understand Dr Faith to have suggested before).

Mr Booth came back to this answer in cross examination. He asked Dr Faith if she was now seeking to resile from the agreed answer in the joint statement. She said that she was not. By way of explanation, she said this:

“The mental disorder was suffered as a result of the immense strain of looking after a disabled child with other factors having had influence on the psychopathology…”

Here, again, I was unclear what she meant by having “an influence on the pyschopathology”. Mr Booth asked her again if she was intending to resile from the joint statement. Again, Dr Faith said that she was not.

At this point, given that Dr Faith’s evidence was not only confusing but becoming circular, I asked her if I could simply take the joint statement “as read”, and she confirmed that I could. She did not ask me to add any rider or caveat to the agreed passage in the joint statement. The joint statement, as I have said, is a straightforward agreement on the cause of the Claimant’s psychiatric injury. It attributes the injury to three elements. That is what I shall take as read.

In light of that joint statement, I am not persuaded that Dr Faith offers any support for the Defendant’s case. That case depends on showing that causation of the injury is limited to the third of the three factors, namely, the strain of looking after a disabled child. Dr Faith’s evidence, incorporated in the agreed paragraph in the second joint statement and confirmed by her twice in evidence, is that causation cannot be so limited. The Defendant’s case, in light of that, must fail.

In case I am wrong in my understanding of Dr Faith’s evidence, I can add that I did not find her to be a helpful witness for a number of reasons, and would have rejected her evidence in any event. Quite apart from the shortcomings I have already mentioned, I found her to be overly dogmatic about the classification of mental illness, at the expense, at times, of the evidence. I was not impressed by her stated preference for working for Defendants and the reasons she gave for doing so. I was not impressed by her inclusion of the hospital records in her report as “seen” in circumstances where she accepted that she had not read them at the time she authored her report. I was not impressed by her defensiveness in answering questions about those records and her repeated assertion that they made no difference to her view, which she purported to offer as an explanation for why she had not addressed them in any one of her reports, even after she had read them. Ultimately, I did not find her analysis of the Claimant’s mental health problems to be plausible, because - putting aside what she had agreed in the joint statement, for the moment – her analysis hinged on the Claimant’s mental illness not having been caused, in any significant way, by the Claimant’s experience when XAS was born and shortly afterwards; that analysis simply does not fit with the evidence, which presented a clear picture of a woman who was deeply and immediately affected by the events of 9 July 2012: I could not accept Dr Faith’s attempts to write those events out of the analysis.

In line with Dr Tattersall’s evidence, I therefore conclude that the Claimant suffered an anxiety disorder shortly after she had XAS as a response to her experience at XAS’s birth and afterwards. The depression came later, triggered in large part by a recognition of the extent of XAS’s brain damage. The conditions combined to form a single indivisible mental disorder which has varied in intensity over time and which is ongoing, currently resurgent with the stress of the trial, and with fluctuations likely in future.

It follows that I also accept that the difficulties experienced by the Claimant during labour, and the worry immediately afterwards of not knowing whether XAS would survive, were contributors to the mental disorder. This is, of course, agreed by the experts and on Dr Faith’s own evidence, to be taken “as read”. I accept that the recognition of XAS’s injuries came later in time and is more remote from the negligence itself.

I find that the contribution of all of those causes was material to the outcome.

In light of the established causation of the Claimant’s mental disorder, I reject Mr Bishop’s submission that the Claimant’s damage is too remote. The first two contributors are very proximate indeed to the Defendant’s breach of duty. The Claimant’s mental disorder is inexorably bound up with the Claimant’s experiences in the delivery room and with her worry about XAS’s likelihood of survival in the first few hours and days of XAS’s life. The causes of the mental disorder are closely linked to the Defendant’s obstetric negligence just before XAS was born. The first factor is directly contemporaneous with that negligence, because the difficult labour was the reflection and direct consequence of the failure to deliver XAS earlier.

The Claimant therefore establishes her claim for damages as a primary victim.

Secondary victim

Although the Claimant’s experiences during the delivery of XAS and afterwards were shocking and traumatic, using those terms in the ordinary way, they do not constitute “shock” in an Alcock sense. Thus, the Claimant would not, if she was a secondary victim, have been entitled to recover damages.