Children of Heart Attack Victim Can Pursue ‘Nervous Shock’ Damages Claims

Anyone who witnesses a shocking event may suffer psychiatric injuries as a result – but should they be compensated if that event arises from negligence? The High Court confronted that burning issue in a ground-breaking case.

The case concerned a father who suffered a fatal heart attack whilst on a shopping trip with his two children, aged 12 and nine. The children were said to have suffered psychiatric injuries as a result of witnessing his collapse and the harrowing events that followed. A claim for damages was launched on the children’s behalf against an NHS trust on the basis that their father’s shocking death would not have occurred had his heart condition been correctly diagnosed and treated during a hospital admission about 14 months earlier.

The trust accepted that it owed a duty of care to the father, the primary victim of the alleged clinical negligence. However, it denied that it owed any such duty to the children as secondary victims. Following a preliminary hearing, the children’s case was struck out on the basis that it was bound to fail.

Ruling on the children’s appeal against that outcome, the Court noted that the issue of liability to secondary victims has exercised legal brains for many years. No clear principles had, however, emerged from a string of so-called ‘nervous shock’ cases and it was an area of the law which remained unsatisfactory. A number of similar claims were waiting in the wings pending resolution of the children’s case.

Upholding the children’s appeal and directing that their case should proceed to a full trial, the Court noted that the primary question was whether the trust could be said to have reasonably foreseen their psychiatric injuries. That in turn depended on, amongst other things, their proximity to the shocking event.

They had a close relationship of affection with their father and his rapid death would have been horrifying to ones so young. They were personally present at the scene and had endured a sudden and unexpected shock to their nervous systems. Their father’s collapse was said to be the first manifestation of the alleged clinical negligence and the 14-month lapse of time was not fatal to their claim.

The Court acknowledged that the father’s death could not be viewed as an ‘accident’ in the ordinary sense. Claims in respect of psychiatric injuries sustained months or years after a negligent act or omission might also be considered undesirable. However, it rejected arguments that enabling the children to pursue their case would open the floodgates to an unacceptable number of similar claims.

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