Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588

[2015] EWCA Civ 588Case No B2/2013/2430
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE GORE QC
1IR21287
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/06/2015
Before
LORD JUSTICE SULLIVANLORD JUSTICE TOMLINSONLORD JUSTICE BEATSON
Between
Liverpool Women’s Hospital NHS Foundation TrustAppellant/Mr Edward RonayneRespondent/Claimant
Charles Cory-Wright QC (instructed by Hill Dickinson LLP) for AppellantAmanda Yip QC and Simon Fox (instructed by Maxwell Hodge Solicitors) for RespondentHearing Hearing dates: 22 April 2015
Judgment

Introduction

[1]In July 2008 the Respondent Edward Ronayne, Claimant at trial, was 53 years old. He was an ambulance driver. Although working on the non-emergency side, he was used to seeing people on life support in the course of his work.[2]On 8 July 2008 the Claimant’s wife, Julie Ronayne, was admitted to the Liverpool Women’s Hospital, administered by the Appellant NHS Foundation Trust, Defendant at trial, where she underwent a hysterectomy.[3]A few days after discharge Mrs Ronayne became unwell with a high temperature, thirst and shallow breathing. In the early morning of 18 July she was admitted to the Royal Liverpool University Hospital by way of its Accident and Emergency department. During the course of a period of about 24 hours the Claimant observed a rapid deterioration in the condition of his wife, manifested most vividly in two distinct episodes:-(a) At about 5.00pm on 18 July, shortly before she underwent emergency exploratory surgery, he observed her connected to various machines, including drips, monitors etcetera;(b) Sometime on the following day he observed her in her post-operative condition. She was unconscious, connected to a ventilator and was being administered four types of antibiotic intravenously. Her arms, legs and face were very swollen. Pressure pads were in place to keep the blood in her legs flowing. Three years later Mr Ronayne described his wife’s then appearance to a consultant psychologist, Dr Eileen Bradbury, who gave evidence at trial, as resembling the “Michelin Man.”[4]It is common ground that Mrs Ronayne’s condition on 18 and 19 July was a consequence of the negligence of the Appellant Trust in the performance of the hysterectomy. A suture was misplaced in her colon, in consequence of which she developed septicaemia and peritonitis. Although Mrs Ronayne remained in intensive care for a further nine weeks, developed a MRSA infection and had to deal with other extremely unpleasant complications, happily she has, so far as I am aware, made a complete recovery. This case is not concerned with her grievous suffering.[5]The Claimant alleged at trial that he suffered psychiatric injury in the shape of post traumatic stress disorder, “PTSD”, consequent upon the shock of seeing his wife’s sudden deterioration on 18 July, and in particular her appearance on the two distinct occasions I have described. At trial therefore he claimed damages as a secondary victim of the Appellant’s admitted negligence.[6]His claim succeeded in the Liverpool County Court, although not on the basis asserted, before His Honour Judge Allan Gore QC, a judge of immense experience in this field. The judge rejected his case that he suffered from PTSD, but nonetheless found that he suffered from a frank psychiatric illness which the judge thought it unnecessary to specify by reference to the established taxonomy. He was awarded damages of £9,165.88 inclusive of interest. The Appellant appeals. It will be immediately apparent that, leaving on one side costs, which are not insignificant, this case has an importance to health authorities which goes far beyond the award here made.[7]The Appellant does not accept the judge’s somewhat enigmatic conclusion that the Claimant suffered a frank psychiatric disorder, to which the judge, expressing an aversion to the attribution of what he called labels, would have attached the description adjustment disorder had that been thought relevant. Mr Charles Cory-Wright QC, for the Appellant, did however accept that the court may feel that the judge had just sufficient evidence to find that the Claimant had suffered adjustment disorder, as opposed to anger and stress falling short of psychiatric illness, which was the opinion of Dr Lesley Faith, the consultant psychiatrist called by the Appellant. This is an important point for, as pointed out by Lord Steyn in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491H, in this field “only recognisable psychiatric illness ranks for consideration” by which he meant, in context, compensation. Nonetheless, the position adopted by Mr Cory-Wright was realistic.[8]The appeal has therefore concentrated upon two interrelated points:-(a) Whether the events concerned were of a nature capable of founding a secondary victim case, i.e. were they in the necessary sense “horrifying”; and(b) Whether the sudden appreciation of that event or those events, i.e. shock, caused the Claimant’s psychiatric illness. Bound up in those questions is the distinct issue, what was here the event or events said to be of a sufficiently horrifying character?[9]Although it is inappropriate to revisit the judge’s conclusion that the Claimant suffered from an adjustment disorder, I should indicate that for my part I think that the judge was, with great respect, wrong to be dismissive of the utility of diagnosis or label. Whilst I understand his point that he was concerned only to ascertain whether the Claimant had sustained a frank psychiatric illness, close attention to diagnostic criteria is in my view likely in this field to be of assistance in resolving what are often complex questions of causation. At the very least, attribution of a label introduces what might be characterised either as a discipline or as a cross-check, according to taste. I am not sure that the judge would have come to the conclusion he did on causation had he paid closer attention to the diagnostic criteria for adjustment disorder, and to the significance of the fact that he had found the elements of PTSD not to be made out.

The law

[10]It is common ground that on the points in dispute on this appeal the judge directed himself correctly in law, founding on Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and White, above, by identifying the four requirements for recovery established by those authorities, viz:-(a) The Claimant must have a close tie of love and affection with the person killed, injured or imperilled;(b) The Claimant must have been close to the incident in time and space;(c) The Claimant must have directly perceived the incident rather than, for example, hearing about it from a third person; and(d) The Claimant’s illness must have been induced by a sudden shocking event. To this list the judge added a fifth requirement to which I have already adverted, that the Claimant must have suffered frank psychiatric illness or injury as opposed to what Lord Oliver described in Alcock at page 410E as “grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune [which] must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation.”[11]It is unnecessary on this appeal to revisit the “control mechanisms” which regulate recovery in this field, which can be said to be both arbitrary and pragmatic but which are well-understood, binding on us, and which were considered only recently by this court in Taylor v Novo [2014] QB 150. The question is whether the judge correctly applied the principles and in particular the fourth criterion as broken down into the two issues identified at paragraph 8 above.[12]In Alcock, Lord Ackner said, at page 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.”[13]In Shorter v Surrey & Sussex HC NHS Trust [2015] EWHC 614 QB Swift J, who also has enormous experience in this field, was concerned with a claimant who saw her sister in undeniably distressing circumstances in hospital. It was suggested that the claimant’s professional background – she was a radiographer – gave her an unusual degree of insight into her sister’s medical condition and that, as a result, she would have been more sensitive to events at the hospital and therefore more likely to find them “horrifying”. Swift J said this, at paragraph 214:- “… it seems to me that it is necessary to be cautious in finding that the Claimant’s professional expertise made the sight of Mrs Sharma more “horrifying” than it would have been to a person without that knowledge. I consider that the “event” must be one which would be recognised as “horrifying” by a person of ordinary susceptibility; in other words, by objective standards. After all, certain people would find it more frightening to have no medical knowledge and not to know what was going on; they may feel helpless and isolated. Others may have armed themselves in advance with medical information from the internet which leads them to feel far greater fear than is in fact justified. It would be unfortunate if secondary victims’ claims were to become embroiled in debates about an individual claimant’s level of medical knowledge and its effects upon whether an “event” should be classified as “horrifying”.” I respectfully agree with those observations, and in particular with the judge’s view that the question whether an event is for these purposes to be recognised as in the relevant sense “horrifying” must be judged by objective standards and by reference to persons of ordinary susceptibility.[14]I have also found helpful in orientating myself in this jurisprudential field the observations of another judge, His Honour Judge Hawkesworth QC. In Ward v The Leeds Teaching Hospital NHS Trust [2004] EWHC 2106 (QB) he was dealing with a claim by a mother who had witnessed her 22 year old daughter motionless in the recovery unit after failing to emerge from anaesthesia following a routine operation to remove a wisdom tooth. Four events said to be shocking were relied upon:-(a) Seeing Catherine motionless in the recovery unit and touching her hand;(b) Seeing her in the intensive care unit with a variety of tubes present;(c) Seeing her in the chapel of rest bleeding from her ears with her neck and chest area bruised as if she had been battered;(d) Being informed that the brain would be kept for examination. The judge had to decide whether Mrs Ward had suffered PTSD. At paragraph 21 he said this of the evidence of the Defendants’ consultant psychiatrist:- “Dr Reveley’s opinion as to PTSD is founded upon a wide experience of reporting upon incidents which without question met the relevant criteria for PTSD – Kings Cross, Hillsborough and other such major disasters. Her insistence that a necessary criterion must be a clearly shocking event of a particularly horrific nature seemed to me to accord with the diagnostic criteria produced in evidence. An event outside the range of human experience, sadly, does not it seems to me 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. Mrs Ward’s own descriptions of these incidents did not strike me as shocking at the time in that sense, although undoubtedly they were distressing. To describe an event as shocking in common parlance is to use an epithet so devalued that it can embrace a very wide range of circumstances. But the sense in which it is used in the diagnostic criteria for PTSD must carry more than that colloquial meaning.” That was said in the context of a determination whether PTSD had been suffered, as opposed to a severe and prolonged bereavement reaction, but the same principles apply, mutatis mutandis, to an assessment whether an event should properly be characterised as shocking in the sense intended by Lord Ackner in Alcock.[15]In seeking to allocate to this case its appropriate place on the spectrum between circumstances which attract compensation and those which do not, I have also found it helpful to consider the facts in the decided cases. In addition to the cases to which I have already made reference we were also referred by Counsel to McLoughlin v O’Brian [1983] AC 410; Taylor v Somerset Health Authority [1993] PIQR P262; Taylorson v Shieldness Produce Limited [1994] PIQR P329; Sion v Hampstead HA [1994] 5 Med LR 170 – 193-200; North Glamorgan NHS Trust v Walters [2003] PIQR P16; Galli-Atkinson v Seghal [2003] Lloyds Rep Med 285; Wild v Southend University Hospital NHS Trust [2014] EWHC 4053 (QB); and Brock v Northampton General Hospital NHS Trust [2014] 4244 (QB).[16]I do not propose to rehearse here the facts in all those cases. McLoughlin v O’Brian was however the first “nervous shock” case to reach the House of Lords since the rejection of the claim in Bourhill v Young [1943] A.C. 92. The facts as recounted by Lord Wilberforce at pages 416-7 can perhaps be regarded as a paradigm of those in which the pragmatic control mechanisms permit recovery:- “This appeal arises from a very serious and tragic road accident which occurred on 19th October 1973 near Withersfield, Suffolk. The appellant's husband, Thomas McLoughlin, and three of her children, George, aged 17, Kathleen, aged 7 and Gillian, nearly 3, were in a Ford motor car: George was driving. A fourth child, Michael, then aged 11, was a passenger in a following motor car driven by Mr. Pilgrim: this car did not become involved in the accident. The Ford car was in collision with a lorry driven by the first respondent and owned by the second respondent. That lorry had been in collision with another lorry driven by the third respondent and ownedby the fourth respondent. It is admitted that the accident to the Ford car was caused by the respondents' negligence. It is necessary to state what followed in full detail. As a result of the accident, the appellant's husband suffered bruising and shock; George suffered injuries to his head and face, cerebral concussion, fractures of both scapulae and bruising and abrasions; Kathleen suffered concussion, fracture of the right clavicle, bruising, abrasions and shock; Gillian was so seriously injured that she died almost immediately. At the time, the appellant was at her home about two miles away; an hour or so afterwards the accident was reported to her by Mr. Pilgrim, who told her that he thought George was dying, and that he did not know the whereabouts of her husband or the condition of her daughter. He then drove her to Addenbrooke's hospital, Cambridge. There she saw Michael, who told her that Gillian was dead. She was taken down a corridor andthrough a window she saw Kathleen, crying, with her face cut and begrimed with dirt and oil. She could hear George shouting and screaming. She was taken to her husband who was sitting with his head in his hands. His shirt was hanging off him and he was covered in mud and oil. He saw the appellant and started sobbing. The appellant was then taken to seeGeorge. The whole of his left face and left side was covered. He appeared to recognise the appellant and then lapsed into unconsciousness. Finally, the appellant was taken to Kathleen who by now had been cleaned up. The child was too upset to speak and simply clung to her mother. There can be no doubt that these circumstances, witnessed by the appellant, weredistressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow.” Of this case Mr Cory-Wright rightly observed that whilst it was an “aftermath” case, it could properly be said that Mrs McLoughlin came upon the accident, albeit transposed into the setting of the hospital.[17]I consider it telling that there is, so far as the experienced Counsel who appeared before us were aware, only one reported case in which a claimant has succeeded at trial in a claim of this type in consequence of observing in a hospital setting the consequences of clinical negligence. That is in my view unsurprising. In hospital one must expect to see patients connected to machines and drips, and as Mr Cory-Wright put it, expect to see things that one may not like to see. A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing.[18]The exceptional case is Walters, which had the unusual feature of a mother witnessing at first hand her infant child undergoing a fit in consequence of negligence, and the circumstance that thereafter she was unprepared for the sequelae because she had been reassured by further incorrect medical advice. I gratefully adopt, with only one or two adaptations, Swift J’s account of the facts of this case, as set out in her judgment in Shorter.[19]The case concerned the negligent treatment of the respondent’s young baby. When he was aged ten months, he became unwell and was admitted to hospital. He was mistakenly diagnosed as suffering from hepatitis A. In fact, he was suffering from acute hepatitis which led to liver failure. The NHS Trust responsible for the relevant hospital (the appellant) admitted that he had not been properly diagnosed or treated and that, if he had been, he would have been given a liver transplant and would probably have lived.[20]In the event, the baby was kept in the hospital whilst various tests were carried out, but was allowed home at weekends. One weekend, his condition deteriorated and his parents took him back to hospital. The respondent mother stayed with him there, sleeping in the same room. Two days or so after his readmission, the respondent awoke to hear the baby making choking noises in his cot. She saw a blood-like substance and his body was still. A nurse told the respondent that he was having a fit. He was transferred to the ICU and, shortly afterwards, the respondent was told by a doctor that it was very unlikely that the baby would have serious damage as a result of the fit. She understood that he might at worst be slightly brain damaged; she did not consider it was life threatening. This information was, in fact, wholly wrong. The baby had suffered a major epileptic seizure leading to a coma and irreparable brain damage. A few hours later, after a CAT scan, the respondent was told that there was no damage to her baby’s brain, but that he should be transferred to King’s College Hospital, London for a liver transplant. He was taken there by ambulance later that day and underwent on arrival a further CAT scan which showed diffuse brain injury consistent with a profound hypoxic ischaemic insult. The respondent and her husband followed the ambulance by car.[21]Approximately two and a half hours after his admission to King’s College Hospital, the respondent and the baby’s father arrived at the hospital in the evening. There, she was told by doctors that the baby had suffered severe brain damage as a result of the fit and was on a life support machine. She was told that, if he had a liver transplant, the chances of success were only 50-50 and he would be severely handicapped. The respondent described herself as “numb, panic stricken and terrified” at what she was told. On the following day, she was told that the brain damage was so severe that her son would have no quality of life if he survived. The parents were asked whether or not they felt that it was in their son’s interest to continue with life support. They made the decision that life support should be terminated, this was done shortly afterwards and the baby died in the respondent’s arms.[22]The psychiatrists who gave expert evidence agreed that the respondent had suffered a recognised psychiatric illness, namely pathological grief reaction. They also agreed that, absent the events that were witnessed, experienced and participated in by the respondent over the period of her son’s illness, her pathological grief reaction would not have occurred.[23]The trial judge, Thomas J as he then was, directed himself that:
“… the essence of what the claimant must show is that the psychiatric illness was brought about through the sudden appreciation by sight or sound of a horrifying event that affected her mind. Although the psychiatrists are agreed that she suffered “shock” and I am satisfied that her mind was violently agitated, the question is whether what happened was a sudden appreciation by sight or sound of a horrifying event rather than an accumulation over a period of time of more gradual assaults on the nervous system and that it was that sudden appreciation that caused the pathological grief reaction.”
He identified “the essence of the [respondent’s] case” as being that the 36 hour period beginning with the moment at which she was wakened by her son’s fit until the moment at which the life support machine was switched off could be looked on as a “horrifying event” which she suddenly appreciated, in contradistinction to the accumulation over a period of time of more gradual assaults on the nervous system. He held that an event could cover “in ordinary parlance something that occurs over several days”.[24]Giving the leading judgment in the Court of Appeal, Ward LJ approved the trial judge’s decision. At paragraph 34 he dealt with the meaning of the word “event”:
“ In my judgment the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary “event”
. Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as:
“An item in a sports programme, or the programme as a whole”
. It is a useful metaphor or at least a convenient description for the “fact and consequence of the defendant’s negligence”, per Lord Wilberforce, or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be. It is a matter of judgment from case to case depending on the facts and circumstances of each case. In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child’s life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.” At paragraph 36, when considering whether the event was “horrifying”, Ward LJ said:
“For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an assault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat? Her fear and anxiety was undoubtedly calmed not only afterwards when given an incorrect medical opinion that it was very unlikely and would be very unlucky if Elliot had suffered serious damage. Every mother would seize upon the good news for her comfort to reduce the impact of the horror. Consequently, all the more likely it is that she should have felt numb, panic stricken and terrified by the sudden turn in events when she arrived at King’s College Hospital. That left her stunned. As the consultant observed she “responded as if half in a dream…in a state of emotional shock”
. Her hopes were lifted then they were dashed and finally destroyed when shortly thereafter she was advised to terminate treatment on the life support machine. That she should have felt that “this was a complete shock” seems to me to be inevitable. That her immediate reaction should have been one of anger is understandable. Anger is part of the grieving process. But the agreed medical evidence made it plain that the combination of events “witnessed and experienced” caused her pathological grief reaction and was different from a normal grief reaction. They must have been chilling moments, truly shocking events, as the experts agreed in answer to the seventh question put to them, and thus amply justifying the conclusion that this was a horrifying event.”[25]Ward LJ then went on to deal with the element of “sudden appreciation of the horrifying event” which is an aspect of proximity necessary to establish liability. As he observed at paragraph 38:
“Without the sudden and direct visual impression on the claimant’s mind of actually witnessing the event or its immediate aftermath, there is no liability”
. He considered that the judge had been fully justified in coming to the conclusion that the respondent’s appreciation had been “sudden”. Being awoken by her baby’s convulsion and seeing his state had been “a sudden assault on her mind”. In the same way, the bad news given to her at King’s College Hospital the following morning could, he found, be characterised as “sudden and unexpected assaults on her mind”. He summarised the effects thus:
“The first…event in the series is her being woken by her child’s convulsion. What she saw was unexpected. That amounted to a sudden assault on her mind. The next event is arriving at the hospital, hopes high. She is given news she did not expect and did not want. The reaction was to leave her stunned. That was a sudden and unexpected assault on her mind. The next day she is told she should switch off the life support machine. Perhaps she feared it might be so but does one doubt the consultant’s evidence that she and her partner “found it particularly devastating because they thought they had been reassured prior to Elliot’s transfer that his condition was treatable”? Each of these three events had their impact there and then. This is not a case of gradual dawning of realisation that her child’s life had been put in danger by the defendant’s negligence. A consequence of that negligence was that the child was seized with convulsion. She was there witnessing the effect of that damage to her child. The necessary proximity in space and time is satisfied. The assault on her nervous system had begun and she reeled under successive blows as each was delivered. It comes as no surprise to me that when her new baby was ill she should suffer the flashbacks of 36 horrendous hours which wreaked havoc upon her mind”
The Court of Appeal dismissed the appeal against the judge’s decision. The facts[26]With that introduction I turn to the facts in the present case. The judge did not set out the facts in the traditional manner but referred to the most relevant episodes in the course of expressing his conclusions, particularly at paragraphs 10, 19 and 21 of his judgment. I think it helpful to set out the facts in a little more detail, since it assists in an evaluation of the critical period which the judge regarded as constituting the relevant “event”. The judge regarded the Claimant as an honest and reliable witness and so I can take the relevant facts from his own witness statement prepared for use at the trial.[27]Mrs Ronayne was discharged from the Liverpool Women’s Hospital on 10 July. The surgery had apparently gone well. Mr Ronayne collected her and took her home. His account of what transpired thereafter is as follows:- “4. Julie was sore immediately after the operation, which we expected, and aside from her temperature being slightly raised, she seemed generally fine. She was taking Paracetamol for the temperature. 5. I suppose things started to go wrong when Julie’s temperature continued to stay high for a few days, and rather than her postoperative discomfort improving, it seemed to be getting worse. I suggested she go back to hospital but Julie was reluctant because she hates hospitals. She said just leave it until Monday. 6. Over that weekend, Julie spent most of her time lying down. I was on 12-hour shifts at the time, but I was calling home periodically to speak to her to see how she was. She was telling me that she was okay, although I think she was probably downplaying things. 7. On Thursday night, 17th July 2008, I arrived home from work. I asked the kids how their mum was? They said she was not too good and so she had gone upstairs to bed. Her temperature was still high. 8. I went upstairs to see Julie and told her I wanted to call the hospital because she had had a week of high temperature, and she needs to get it sorted. Julie still wouldn’t have it, saying she would just take more Paracetamol. 9. I went back downstairs to have my dinner. When I went up, I got into my son Phil’s bed because Julie was struggling to get any sleep. I then heard Julie calling me. I got up and found her in the bathroom. She was white, her breathing was shallow and her temperature was still high. I told her I wanted to take her to hospital. Julie suggested I ring the Liverpool Women’s Hospital first, which I did, and spoke to a nurse. The nurse asked me to put Julie on. She managed to convince Julie that she should go to the Royal Liverpool University Hospital Accident & Emergency Department. 10. We went to A&E on 18th July. The doctors said they would need to carry out tests, including bloods, urine tests and an x-ray. We were there all night. The doctors told us there was a shadow over Julie’s lower lung and her bloods were abnormal. They wanted to do further tests. As I had been up over 24 hours, I went home to get some sleep. I was concerned at that point, but thought Julie would ultimately be ok, now that she was at hospital. 11. I received a phone call from the hospital late afternoon on Friday, 18th July 2008. I was told Julie was going in for an operation. They just told me they had found abnormalities in her blood and suggested I come down to speak to the doctor to find out more. 12. My son and I went straight to the hospital and went to the Assessment Unit where Julie was. When we spoke to the doctor, she again said Julie’s bloods had shown abnormalities. Julie had undergone a CT scan, and they found a mass in her abdomen. They said they did not know what it was. I was very very worried, although God knows what I was thinking at that stage. 13. They then took us to see Julie. I was in complete shock at seeing her due to the extent of deterioration. She was hooked up to machines, including drips, monitors, etc. I had taken her into hospital just 12 hours or so before with a high temperature and feeling unwell. I could not believe the difference. My son was very upset, as was I, but I had to hold back my emotions for his sake, to try to be strong for him. I was trying to reassure him that his mum would be okay, whilst wondering in my own mind if she would be. 14. In the job I do, I have seen very sick people. However, when it is your own wife, it really hits home. When I walked in and saw Julie in the bed after I had left her just hours earlier, it was like being punched. To see your own flesh and blood with all of those tubes hanging out was extremely difficult. 15. We were told the doctors did not know what was causing the problem, but Julie would have to go to theatre. We were told to say our goodbyes before she went. I was very, very concerned. I recall thinking what the hell is going on? I knew that her condition – whatever it was – was deadly serious if they were taking her straight to theatre. I kept telling my son they were just checking things out, but inside I knew something really serious was wrong. 16. Julie was taken to theatre at about 5.30/5.45p.m. on Friday 18th July 2008. At the time, Julie did not know much of what was going on. She was disorientated. The doctors and nurses were not giving her much information, although she was pretty out of the game on all of the drugs. 17. I could not believe she had gone in a week earlier for a simple hysterectomy and now she was going for a further operation and God only knows what the outcome of that would be. I simply could not believe it. 18. Julie was in theatre for a few hours. During this time, my son and I returned home. We rang every hour for an update. We were just told again and again that Julie was still in theatre and they don’t know what the result would be. 19. Eventually, about 11.30p.m. we were told Julie had returned from theatre and she was in the Post Operative Critical Care Unit (POCCU). I said we wanted to come down to the hospital, but the nurse told us there was no point, Julie was unconscious. She told us to visit the following day. 20. I did not know what procedure had taken place, but the nurse had told me that things had gone well, This provided some relief, but I only managed about 2 hours sleep that night. I was struggling to cope. I was lying in the bed I shared with my wife, and she was not there. My mind kept running though what could happen. It was horrendous. 21. We went to see her the next day, along with my daughter too. When we got up to POCCU, we rang the buzzer to enter the ward. A sister came to meet us and told us the doctor wants to have a word. 22. They took us to a quiet room. At this stage I was thinking what the hell is going on? The doctor came in and told us that they had found a mass on the CT scan and discovered Julie had bad peritonitis. She was being treated with a cocktail of antibiotics, but the next 24 hours were critical. The doctor was saying it could go either way. I asked what the doctor meant? Is he saying she could die? The doctor said yes, but if the antibiotics work she could be saved. It just depends if they work. I asked what caused the peritonitis and the doctor said she had septicaemia and her body was in the early stages of closing down. The doctor said a litre of abscess had been drained and they had found a suture in her colon. Bacteria had been leaking into the abdominal wall and poisoning her blood. 23. I was so angry I just wanted to hit someone. I thought – how could they make such a mistake and nearly kill my wife? I thought it was all a dream. I thought, I’m not hearing this, it is not right. 7 days ago she was fine. Now I am being told she could die? 24. The kids were extremely upset because they were present during this conversation. 25. I remember blaming myself, as I felt I should have brought Julie back to hospital sooner. The doctor told me no, I brought her in at the right time. He said if I had brought her in earlier they would not necessarily have found the problem. I am not sure if this is true or if the doctor was just trying to make me feel better because of the state I was in. 26. We were told during the same conversation that Julie had a colostomy. I remember just thinking I was going to wake up from a dream at some point. I still cannot believe it now. It was crazy. 27. After speaking with the doctor and sister, we were taken in to see Julie. I have seen people on life support before, in the course of my work, but when you see your own wife lying there, it really hits you. I did not recognise her even from the day before, when she was bad enough. She was connected to a ventilator and was being administered 4 types of antibiotic intravenously. She had pressure pads to keep the blood in her legs flowing. They were monitoring her every hour. She was so swollen; her arms, legs and face were blown up with the amount of fluids. I could not believe this was the same woman. 28. My children had never seen anyone on life support before, let alone their own mum, and they were really, really upset. I was trying to be the hero, telling them that Julie would be ok. For their sake, I put on a front. I was fighting to keep my emotions back for the kids. It was torture. Just seeing her lying there was terrible. ” Mr Ronayne thereafter goes on to describe events during the seven days before his wife regained consciousness as the antibiotics began to overcome the infection, the nine weeks in intensive care, the MRSA infection, which he describes as a nightmare, and the slow recovery culminating in reversal of the colostomy in October 2009.[28]The main issue at trial was the principal issue which divided the expert witnesses, whether Mr Ronayne had suffered PTSD, as Dr Bradbury asserted. Dr Faith rejected Dr Bradbury’s diagnosis, “essentially because in her opinion neither did the Claimant suffer an experience shockingly outwith human experience nor did the effects subjectively described by him demonstrate to a pathological degree an impact beyond the incidents of life ordinarily faced in such stressful situations” – Judgment, paragraph 15. However, as the judge continued at paragraph 16 of his judgment, Dr Faith “was prepared to concede, but only conditionally,… a diagnosis of a mild adjustment disorder, the condition being that she would only concede that if the court accepted as a matter of fact that the Claimant had suffered social disengagement in and about his activities and that he had done so due to the impact of this event impairing his ability to function. She did not find that, but it is material to note that she examined a year after Dr Bradbury, that is on 4th July 2012 and she accepted also that the natural history of mental conditions under discussion was of progressive improvement over time whether or not treatment occurred.”[29]The judge proceeded first to make his finding on what here constituted the relevant “event”. Having first directed himself by reference to the guidance on this topic given by Ward LJ in Walters, he concluded:- “In my judgment, the event for this purpose is not the stitch on the 8th July 2008, but the injury flowing from it, as and when it became actionable harm, and that was when it became apparent on the 17th July 2008 that the Claimant’s wife had or may have suffered the development of life-threatening infection, just as in Walters, the event was not the negligent delay in diagnosis and institution of treatment, whenever that had occurred, but rather the observation by the secondary victim of the injury that flowed from it, namely the epileptic seizure and also its aftermath.”[30]The judge then turned to the question whether the Claimant had suffered the development of a frank psychiatric illness. At paragraph 17 he said this:- “17. In evaluating the dispute between the experts I have to also take account of the Claimant’s evidence and history to the extent to which that persuades me. It is right therefore to note and observe that by the Claimant’s own admission, both his initial response to the events and his general approach has been to look after and be strong for his wife and his children. He returned to work and has functioned at work since September 2008. He has made no relevant complaints of symptoms or history to his general practitioner in the 5 years in question during which time he has been a recurrent visitor to his GP for a variety of what Mr Rahman characterises as relatively minor ailments or complaints including cough, flatulence, but also back, shoulder and foot aches and pains. In particular he has neither taken the diagnosis of Dr Bradbury nor her recommendation for treatment made in 2011 to his GP until, some might say disingenuously, shortly before his trial. His explanation is that although work behaviour effects are described, no work ability effects were suffered and he only took to his doctor things “affecting my work” and he preferred to keep his mental well-being that did not fall into that category, separate and to himself. I am entitled to take judicial notice of this to be a well-known and observed feature of men of the Claimant’s age or generation. He described having to be persuaded to seek help and interestingly, the persuader, and this was not challenged, was not his lawyer or his medico-legal adviser, but his wife. He told me that his mental feelings were always in the background, but he thought he could cope, and the other problems were more urgent because they affected his job.”[31]The judge’s essential conclusions on diagnosis were as follows:- “19. He has given accounts to others and to me, that in my judgment go well beyond the incidents of life that must be suffered without compensation, including feeling overwhelmed, powerless, out of control, detached, intensely angry, shocked, tense, tearful, agitated, irritable with others including children and work colleagues and drivers on the road, sleep disturbed, negative in outlook and pessimistic, low in mood, unable to do things he used to do, inability to get thoughts of the events out of his head, intrusive memories and reminders, all stemming from what he told me and I accept were the first two days which were the worst days of his entire life. Those two days and in particular two events in them, namely first seeing his wife connected to drips and machines after admission and then seeing her swollen and distended looking like the proverbial Michelin Man after surgery, were, as he described it, ‘particularly distressing’. When it was suggested to him that it was the entire long event extending on into September that was distressing and traumatic and causative of what he complains of, as opposed to the first two days, he denied that, although he accepted that the whole period was distressing. He told me that he was brought up not to complain, that he thought he could cope and did not need to see a doctor and that he should be as he saw it ‘the main man’ and do things by himself. He described more and more problems in the marriage resulting in his wife persuading him that he needed to see someone. In my judgment this is not the history reflective of the normal incidents of life, but is the history of a man who developed mental illness or injury as a result of his experience. I do not accept as accurate Dr Faith’s assertion that his functioning was not impaired and there is in my judgment evidence of numbing, not no such evidence as she asserted. Moreover, I reject the suggestion that effects such as loss of empathy must be global before they can be characterised as pathological. Extent of effect may vary in intensity and over time as regards focus in that it might disable in some areas of life and not in others, and at some times not others and in some circumstances not others. Thus what she described as the incredible empathy that he did show his wife is not in my judgment demonstrative of the absence of mental illness. In my judgment his symptoms and described effects were pathological and went beyond simply the distress and anger that a man would suffer due to the near terminal illness of his wife. 20. Lest others determine that diagnosis of label is relevant, I should add however that I am not satisfied that the diagnosis of PTSD is proven or correct. I prefer to rely on the honed diagnostic skills of the medically trained Dr Faith than the treatment oriented skills and experience of Dr Bradbury. Moreover while acknowledging that the diagnostic manual should not be used in cookbook fashion, I struggle to find in the evidence demonstration of any of the section B criteria and certainly none of the persistent recurrent flashbacks or/and nightmares that commonly characterise that condition. If label is relevant therefore, I would find the Claimant’s condition to be an adjustment order.”[32]Finally the judge turned to the issue of causation and the question whether what the Claimant perceived during the relevant event was in the necessary sense horrifying or shocking. He concluded, at paragraph 21:- “21. What is the accident or event that made him ill? Was it induced by a sudden shocking event? In my judgment, the ‘event’ for this purpose is not the passage of time from admission to hospital on 18th July 2008 to release on 5th September 2008 but was the period from admission on the 18th July 2008 to the sight of his wife after surgery in her swollen state, and the immediate aftermath thereof. While we debated during the trial and what I suspect I initially called a two day period, the critical period in fact was probably no more than 24 hours and the most shocking images were all on 18th July 2008. I accept that the totality of events over two or even three months was distressing but I have formed the clear view from the Claimant’s description, but also from the observation of Dr Bradbury of him giving the description causing him to become tearful, and my and her observation of the loss of control of his stammer, that lead me to the conclusion that it was sight of the sudden shocking state and condition of his wife during that period of 1 or 2 days that constituted the event for this purpose and was a sudden and shocking trigger to the mental illness that I have found.”

Discussion and Conclusions

[33]I do not for a moment doubt the profound distress which the Claimant must have suffered in consequence of the appalling sequence of events which unfolded after the initial realisation that his wife was not recovering as expected from the surgery which she underwent on 8 July. Anyone would have the most profound sympathy for a loving husband and father who has in consequence suffered psychiatric illness. Nonetheless, the circumstances with which the Claimant was confronted in my judgment fall far short of those which have been recognised by the law as founding secondary victim liability.[34]There is some confusion in the judge’s paragraphs 10, 19 and 21 as to the precise dates involved, but it is I think clear that the judge treated as the relevant event here the period beginning with “the sight of the sudden shocking state and condition of his wife” when he first saw her at about 1700 on 18 July prior to surgery connected to drips, monitors etc through to the first moment when he saw her in her post-operative swollen condition, connected to life support systems.[35]In my judgment the judge was wrong to regard the events of this period of probably about 36 hours as, for present purposes, one event. It was not, like Walters, “a seamless tale with an obvious beginning and an equally obvious end.” In Walters the obvious beginning was the mother awakening to see her baby rigid and choking after a convulsion, with blood pouring out of his mouth. The obvious end was the tragic death of the baby in the mother’s arms. The working out of the tragedy, with the raising of hopes, the journey up the motorway to London following in the wake of the ambulance, and the dashing of hopes and then their final destruction was almost Sophoclean in its seamlessness.[36]The present case is in my judgment not comparable, just as Swift J found the facts in Shorter not comparable. As there, so here, there was in my judgment a series of events over a period of time. There was no “inexorable progression” and the Claimant’s perception of what he saw on the two critical occasions was in each case conditioned or informed by the information which he had received in advance and by way of preparation.[37]In the first place, I do not regard the sight of his wife at about 1700 on 18 July as the obvious beginning of a distinct event. It is nothing like the “assault upon the senses” to which Mrs Walters awoke which Ward LJ equiparated with the mother seeing her child bleeding in a seat after a road traffic accident, and compare also the facts in McLoughlin v O’Brian. The Claimant knew from his time at the hospital earlier in the morning that abnormalities had been found, a shadow on his wife’s lower lung and abnormalities in the blood. Before he saw her later in the day he knew that, as a result of a CT scan, a mass had been found in her abdomen which the doctors could not identify. He knew before seeing her that she was to go into theatre for immediate surgery, and he knew that that meant that her condition, whatever it was, was, in his own words, “deadly serious.” In these circumstances I regard it as artificial to regard the sight of his wife in her pre-operative condition as constituting the beginning of an event distinct from what had gone before.[38]Equally I regard it as wholly artificial to describe the sight of his wife in her post-operative condition as the end of a distinct event. It was all part of a continuum. Thankfully it was very different in nature from the death which occurred in Walters. The Claimant knew that the next 24 hours were critical, and that the story was far from over. As it turned out, the story had many weeks and months to run.[39]Furthermore this sequence of events was far from seamless. The Claimant went home whilst his wife underwent surgery. At 11.30 that evening the Claimant was told that things had gone well and that there was no point in his returning to hospital as his wife was unconscious. He was told to visit the next day. Before next seeing his wife it was explained to him that the mass on the CT scan had been discovered to be “bad peritonitis” and it was further explained to him that she was being treated with a cocktail of antibiotics, but that the next 24 hours were critical. In other words, it was explained to him that her life was in danger. It was explained to him that a suture had been found in her colon which had permitted bacteria to leak into the abdominal wall and had poisoned her blood. The Claimant deduced, if it was not explained, that a mistake had been made in carrying out the hysterectomy. He was overwhelmed by anger.[40]It follows that this was not in my judgment a case in which there was a sudden appreciation of an event. As Swift J found in Shorter, there was a series of events which gave rise to an accumulation during that period of gradual assaults on the Claimant’s mind. Ward LJ in Walters contrasted what there occurred with a “gradual dawning of realisation that her child’s life had been put in danger by the defendant’s negligence,” which would not have amounted to a sudden and unexpected assault on her mind. That in my judgment is an apt description of what here occurred – a gradual realisation by the Claimant that his wife’s life was in danger in consequence of a mistake made in carrying out the initial operation. At each stage in this sequence of events the Claimant was conditioned for what he was about to perceive. Before first seeing his wife connected to drips, monitors etc he knew, of course, that she was in hospital, and that that was because she was not recovering as expected from her operation and was running a high temperature. He knew that abnormalities had been found and that she was to undergo immediate exploratory surgery. There was in these circumstances nothing sudden or unexpected about being ushered in to see her and finding her connected to medical equipment as she was. Similarly the next day. One important purpose of the doctor wishing to have a word with Mr Ronayne before he visited his wife for the first time after the operation was no doubt to prepare him for the condition in which he would find her. There is no evidence that the doctor warned of her swollen appearance, and I will assume that he did not, but he did warn that she was gravely ill. The really bad news, that her life was in real danger, was imparted orally. Further, it was the explanation of the mistake which had led to this state of affairs which induced in the Claimant extreme anger before the second of the incidents said to be part of the shocking event, the sight of his swollen wife on life support. Having been told of the severity of his wife’s condition and that she was being administered a cocktail of antibiotics, it cannot in my judgment be said that what thereafter occurred had the necessary element of suddenness.[41]Furthermore what the Claimant saw on these two occasions was not in my judgment horrifying by objective standards. Both on the first occasion and on the second the appearance of the Claimant’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. What is required in order to found liability is something which is exceptional in nature. On the first occasion she was connected to monitors and drips. The reaction of most people of ordinary robustness to that sight, given the circumstances in which she had been taken into the A. and E. Department, and the knowledge that abnormalities had been found, including a shadow over the lung, necessitating immediate exploratory surgery, would surely be one of relief that the matter was in the hands of the medical professionals, with perhaps a grateful nod to the ready availability of modern medical equipment. The same is more or less true of her swollen appearance on the second occasion. There is I think a danger of the “Michelin Man” epithet acquiring a significance greater than it deserves. The Claimant was conditioned to see someone from whom a litre of abscess had been drained and whose life was in grave danger. The pressure pads, routine medical equipment, no doubt contributed to the swollen appearance. I can readily accept that the appearance of Mrs Ronayne on this occasion must have been both alarming and distressing to the Claimant, but it was not in context exceptional and it was not I think horrifying in the sense in which that word has been used in the authorities. Certainly however it did not lead to a sudden violent agitation of the mind, because the Claimant was prepared to witness a person in a desperate condition and was moreover already extremely angry.[42]In my judgment therefore the claim fails at the first hurdle. This renders it unnecessary to decide whether the judge was justified in finding that it was the appearance of his wife on these two distinct occasions, as opposed to his wife’s ill-health, which caused the adjustment disorder.[43]I feel it right to record however that I am very doubtful about the judge’s conclusion in this regard. It was Dr Bradbury’s evidence that the Claimant had suffered PTSD, and she did not address the question whether what the judge called this “visceral two day, subjective perception or experience” either could or did cause the diagnostically different condition adjustment disorder. The judge initiated a long discussion with Dr Faith during her cross examination with the question:- “How can you say, with respect Dr Faith, that it is his wife’s health that is the cause of an adjustment disorder as opposed to the viscerality of his subjective perception of it in the two days that it was most acute?” To which the answer was:- “The characteristics of his response. He was distressed and angry and upset with people he considered were then talking about trivial matters, all kinds of things that, that would normally happen during a, a critical period in somebody’s life when they have had a threatened loss and are dealing with stress. If it were the result of a visceral attack it would be that specific psychopathology, I can’t think of another word, the, the intrusive recollection of that, which would cause clinically significant impairment, and it has not.” The judge pressed Dr Faith, and in a later answer she said:- “The description given by Mr Ronayne was what I would expect from somebody who had been through what he described. That is the core of it. There is nothing abnormal about it. If it were a direct result of distressing imagery then that distressing imagery would have to be a significant part in the clinical disturbance thereafter, but what he described was being angry that he nearly lost his wife and that she was suffering.” The judge then noted that the absence of nightmares and flashbacks might be indicative that the condition from which the Claimant suffered was not PTSD, to which Dr Faith responded:- “No, but, but if it, if it was, if this entire, several years of mental ill health has been caused by two days of particular events, whether it was PTSD or not, forgetting the labels as you say, it would be there, it would be the core of the picture. I, I can’t get on with my work because it’s there in front of me all the time; when I look at my wife all I can see is her looking like the Michelin Man. These, that’s what I would have expected to see or hear, I beg your pardon.” “The characteristics of his response. He was distressed and angry and upset with people he considered were then talking about trivial matters, all kinds of things that, that would normally happen during a, a critical period in somebody’s life when they have had a threatened loss and are dealing with stress. If it were the result of a visceral attack it would be that specific psychopathology, I can’t think of another word, the, the intrusive recollection of that, which would cause clinically significant impairment, and it has not.” “The description given by Mr Ronayne was what I would expect from somebody who had been through what he described. That is the core of it. There is nothing abnormal about it. If it were a direct result of distressing imagery then that distressing imagery would have to be a significant part in the clinical disturbance thereafter, but what he described was being angry that he nearly lost his wife and that she was suffering.” “No, but, but if it, if it was, if this entire, several years of mental ill health has been caused by two days of particular events, whether it was PTSD or not, forgetting the labels as you say, it would be there, it would be the core of the picture. I, I can’t get on with my work because it’s there in front of me all the time; when I look at my wife all I can see is her looking like the Michelin Man. These, that’s what I would have expected to see or hear, I beg your pardon.”[44]The judge seems to have thought that the circumstance that the Claimant had on occasion, if not with Dr Faith, been tearful in giving his account of these events, and the loss of control of his stammer, pointed towards the conclusion that it was the enormity of the event over the two days that the Claimant described, rather than his wife’s ill health in general, which caused the adjustment disorder. With respect, I do not understand how those two factors assist in reaching that conclusion, and the judge does not explain why that is so. Furthermore Dr Faith pointed out that many people become tearful when talking about the deaths of their parents maybe 20 years ago. This is simply because it recalls something very unpleasant and very unhappy, and is not representative of a psychiatric disorder.[45]With respect to the judge, I think he gave insufficient weight to the circumstance that Mr Ronayne was already extremely angry before he saw his wife on the second occasion, which might properly be regarded as the more distressing of the two. In fairness to the judge, I am not sure that that was a point noticed or argued at trial. Furthermore, having found none of the persistent recurrent flashbacks and/or nightmares that characterise PTSD, the judge should in my judgment have been far less ready to attribute causative potency to the two visual images, rather than to the whole set of circumstances which overcame Mrs Ronayne and the consequential effect upon her husband. It was Dr Faith’s uncontradicted evidence that if the Claimant’s psychiatric condition were the result of a sudden visceral attack of the type posited by the judge, then one would expect it to manifest itself in intrusive recollection. Lack of intrusive recollection therefore told against the visual images being the trigger of or for the condition.[46]On the other hand, it was not the evidence of Dr Faith that adjustment disorder could not be caused by sudden exposure to a horrifying image, rather that the presentation of Mr Ronayne and his affect overall was not indicative of a condition which had been so caused and was far more consistent with a condition caused by the entirety of the circumstances in which his wife became unwell.[47]Had the point been live before us, it may be that the judge’s conclusion could be justified on the basis that the Claimant’s experiences on 18 and 19 July played a part in the cause and development of the adjustment disorder, as Dr Faith unsurprisingly accepted to be the case. Had it been necessary to consider the case on this basis however, I would for my part have wanted to give further consideration to the question whether, in a case of adjustment disorder as opposed to PTSD, it is logically defensible to isolate one or two events from a larger continuum in an attempt to attract that liability which attaches to the perception of a tortiously caused horrifying event. As it is, the point does not arise and I need express no concluded view on the question whether causation was in this case made out as the judge thought.[48]I would allow the appeal.[49]I agree.[50]I also agree.

Cited in 7 later judgments