Kari S Carstairs & Nicholas Tubb explore the implications of a proposed new diagnosis of a pathological grief reaction for PI claims
The courts limit the circumstances in which damages may be recovered for psychiatric injury where there has been negligence. This is so particularly where the claimant has not been physically involved and is a so-called secondary victim or “bystander”. With a stillbirth or the death of a new born baby, where the events leading to the death follow directly from labour, both parents may be categorised as primary victims or “participants”. Alternatively, where events leading to the death are separate from the birth both parents may fall into the category of secondary victims.
The courts have explicitly limited the scope of liability with secondary victims. Such claimants must show they satisfy the four-limb legal test for a duty of care before going on to consider whether they have suffered a psychiatric injury as a result of clinical negligence.
This test was set out in McLoughlin v O’Brien [1983] AC 410 HL, Alcock v Chief Constable of South Yorkshire [1992] 1 AC
