West Law Report

JONES v ROYAL DEVON & EXETER NHS FOUNDATION TRUST

Posted in Clinical negligence, Measure of damages, Psychiatric harm, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division
King J
March 20, 2008

Clinical negligence – Measure of damages – Psychiatric harm – Death of newborn baby – Prolonged pathological grief reaction – Recoverable damages – Fatal Accidents Act 1976 – s. 3(1) Fatal Accidents Act 1976

FACTS

The court was required to determine the quantum of damages to be awarded to the claimant (J) in respect of her claim for damages for bereavement and psychiatric injuries with consequential loss arising from the death of her daughter (B) through the admitted negligence of the defendant NHS trust (D). B had suffered from hypoxic ischemic encephalopathy at birth, which meant that she could only survive on life support and the outlook for her was hopeless. The life support was withdrawn the day after B’s birth resulting in her death. A coroner’s inquest into B’s death did not begin until two years afterwards and D did not admit liability for B’s death until three years after it occurred. The medical experts jointly agreed that J suffered from an adjustment disorder that manifested itself through a number of symptoms that included sleeping disorders, loss of concentration and anxiety. J contended that she was entitled to damages for (1) psychiatric injury she had suffered through B’s death and the prolonged investigation into that death; (2) counselling sessions and other non-medical therapies that she had completed; (3) the cost of a wake following B’s death.

ISSUES

(1) Whether J was entitled to damages for psychiatric injury she had suffered through B’s death and the prolonged investigation into that death.

(2) Whether J was entitled to counselling sessions and other non-medical therapies that she had completed.

(3) Whether J was entitled to the cost of a wake following B’s death.

HELD (damages assessed)

(1) J suffered from the effects of a prolonged pathological grief reaction exacerbated by the effects of trauma, guilt and self-blame, and regardless of whether J’s mental health symptoms warranted a diagnostic term she continued to be affected in a negative way by her experiences. Applying the Judicial Studies Guidelines, that psychiatric injury fell within the moderately severe category and J was entitled to recover general damages of £20,000 in respect of it.

(2) There was no strict test that, for the cost of non-medical therapies to be recoverable they had to have been recommended by a medical practitioner, McMahon v Brett [2003] EWHC 2706 (QB) considered. The appropriate test was whether such treatment was reasonable, not remote and was proportionate. That assessment included a consideration of whether the alternative therapies were akin to medical expenses in that an individual had shown that he obtained positive benefit from them in the relief of his condition, whether for physical or psychological reasons. J had undoubtedly obtained real benefit from the counselling that she received from various therapists and she was entitled to damages of £2,000.

(3) J was entitled pursuant to the Fatal Accidents Act 1976 to bereavement damages of £10,000 and a further £2,763 in respect of the costs of B’s funeral and the erection of a headstone. However, the cost of a wake was not a recoverable expense within the meaning of s. 3(1) of the Act.

Simon Readhead QC (instructed by Parlett Kent, Exeter) for the claimant. Abhijeet Mukherjee (instructed by in-house solicitor) for the defendant.

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