Further important ruling on secondary victim claim: Ronayne v Liverpool Women’s Hospital NHS Foundation Trust (Court of Appeal,17 June 2015)

Introduction

The claimant was the husband of Julie Ronayne who had been admitted to the defendant’s hospital for a hysterectomy. It was agreed that this procedure was performed negligently because a suture was misplaced in the patient’s colon, in consequence of which she developed septicaemia and peritonitis. Liability in her claim was admitted and the case successfully resolved.

Mr Ronayne claimed to have suffered mental trauma as a consequence of what had happened to his wife in hospital following the trust’s negligence. This occurred in two episodes:

Shortly before his wife underwent emergency exploratory surgery, he observed her connected to various machines including drips, monitors ,etc.;

The law

In relation to secondary victim claims, the House of Lords in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 held that the claimant must establish all of the following:

A close tie of love and affection with the primary victim;

In Alcock, Lord Ackner stated:

“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.

In Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 QB, Mrs Justice Swift concluded that in this context, “the ‘event’ must be one which would be recognised as ‘horrifying’ by a person of ordinary susceptibility.”

In Ward v Leeds Teaching Hospital NHS Trust [2004] EWHC 2106 QB, the High Court held that “an event outside the range of human experience, sadly, does not…… encompass the death of a loved one in hospital unless also accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify.”

Since Alcock, there has been only one ruling of the Court of Appeal in a case where a claimant succeeded in recovering damages as a secondary victim for observing in a hospital setting the consequences of clinical negligence. That was Walters v North Glamorgan NHS Trust [2003] PIQR P16, where a mother witnessed at first hand her child undergoing a fit in consequence of negligence, and thereafter was unprepared for what followed because she had been reassured by incorrect medical advice. After some 36 hours and transfer to King’s College Hospital in London, the baby died in his mother’s arms. The Court of Appeal concluded in this case that there had been an “inexorable progression” from the moment when the fit occurred to the child’s death, which constituted “one drawn-out experience.”

Analysis and conclusions

In the present case, there was no doubt that the claimant had suffered profound distress as a consequence of the sequence of events which unfolded after initial realisation that his wife was not recovering as expected from surgery. However, the circumstances with which Mr Ronayne was confronted “fall far short of those which have been recognised by the law as founding secondary victim liability.”

The judge was wrong in his conclusion. The events were not, unlike those in Walters, “a seamless tale with an obvious beginning and an equally obvious end.” Rather, there was a series of events over a period of time and no inexorable progression. Mr Ronayne suffered nothing like the “assault upon the senses” to which Mrs Walters awoke. He knew before seeing his wife that she was due to go into theatre for immediate surgery, and knew that meant her condition was serious.

It followed that this was not a case where there was a sudden appreciation of a shocking event. On the contrary, there was a series of events which gave rise to an accumulation of gradual assaults upon the claimant’s mind. At each stage in this sequence the claimant “was conditioned for what he was about to perceive.” There was nothing sudden or unexpected about being ushered in to see his wife and finding her connected to medical equipment.

Overall, what the claimant saw was not horrifying by objective standards. On both the first and second occasions, what Mr Ronayne saw was such as would ordinarily be expected of a person in hospital in the circumstances in which Mrs Ronayne found herself. What was required in order to found liability was something exceptional in nature.

The court could readily accept that the appearance of Mrs Ronayne on the second occasion must have been alarming and distressing. However, it was not in context exceptional. Furthermore, the fact that Mr Ronayne did not suffer intrusive recollection of events told against the visual images of his wife being the trigger for his psychological condition.

For all these reasons, the ruling of the judge would be overturned and judgment would be entered for the trust.

Amanda Yip QC and Simon Fox (instructed by Maxwell Hodge) appeared for Mr Ronayne.

Charles Cory-Wright QC (instructed by Hill Dickinson) appeared for the trust.

Comment

There is no doubt that the claimant suffered psychologically as a consequence of what had happened to his wife. However, the law places restrictions on recoverability by secondary victims in order to avoid defendants being open to a large spectrum of claims. Some commentators have criticised the constraints laid down by the House of Lords in Alcock, but no sensible or realistic alternatives have ever been proposed which maintain a fair balance between claimant and defendant. Following the Walters decision, it appeared that the courts were becoming more amenable to allowing secondary victim claims, but recently the Court of Appeal has handed down two rulings – the other being Taylor v Novo (2014) – which have reiterated the thinking of the House of Lords in Alcock. Sympathy on a human level for someone who has suffered, and legal liability in negligence, are two very distinct and separate concepts.

Learning points

The ruling of the House of Lords in Alcock remains the leading judgment on secondary victim claims.