This case concerns whether MIM has any prospect of succeeding in his claim for damages for psychiatric injury he suffered as a result of witnessing the labour of his wife and subsequent delivery of his son who, due to the admitted negligence of D in the management of the labour, was born requiring resuscitation having suffered an acute profound hypoxic brain injury, or whether his claim must fail following the decision of the Supreme Court in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1. [1]
C pleaded case in the Particulars of Claim is that what he witnessed amounted to an “external, traumatic, event which immediately caused injury to his son; the Claimant directly perceived the event and its immediate aftermath”. [6]
Defence pleads, amongst other things, that nothing in the account pleaded in the Particulars of Claim is capable of constituting an “accident” as required by Paul. In particular, the requirement of the injury having been caused by violent external means and/or being external to the primary victim is not met. D’s case is that this was a medical crisis or medical mishap rather than an accident. [7]
By way of Reply C pleads that “the episodes he witnessed and experienced did amount to an accident’, alternatively that it is not only an “accident” that can give rise to a claim from a secondary victim. [8]
The issue in the appeal was whether a claim for damages by a secondary victim could only be brought where the claimant witnessed an accident, that is “an unexpected and intended event which causes injury (or a risk of injury) to a victim by violent external means” (per Lord Leggatt and Lady Rose, para 24), or whether witnessing the suffering or death of a relative from illness, termed by Lord Leggatt and Lady Rose as a “medical crisis”, rather than an accident, could in principle found such a claim where the medical crisis was negligently caused (para 53). [11]
In my judgment the ordinary person would not say that what happened here was that MIM witnessed an accident which caused injury to his son. The ordinary person would say that MIM witnessed the process of labour and the birth of his son in an injured condition such that he required resuscitation – a description of a negligently caused medical crisis, rather than an accident. [28]
the facts as pleaded here do not disclose any legally recognisable claim against the Defendant, because they cannot amount to the witnessing of an accident as is required for MIM to be able to recover as a secondary victim. As in the conjoined appeals in Paul, the claim falls to be struck out… [37]
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