This is the clear takeaway from Whipple J’s powerfully reasoned judgment in YAH v. Medway Foundation Trust, judgment 5th November 2018. The facts are typical of many cerebral palsy cases. The Claimant’s daughter was born after a negligent delay in intervention in the face of signs of fetal distress. The Claimant suffered psychiatric injury. In the joint statement the psychiatrists stated:

“We agreed that a number of factors had contributed to YAH having suffered a mental disorder, including the experience of a difficult labour; the worry of knowing whether or not [XAS] would survive and, importantly, the strain of looking after a child with significant disability.”

The Defendant Trust argued that a) the Claimant was a secondary victim not a primary victim; b) whether a primary or secondary victim she could only recover if her injury had been caused by shock.


Both arguments were comprehensively rejected. The judge re-visited Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) and whether that Court had correctly concluded that a mother and child in utero should be considered as one legal person. 

Those with good memories will recall that in Wild this analysis was relevant in the context of the father’s attempts to advance a claim as a secondary victim. Whipple J noted that the Wild analysis and categorisation of mothers as primary victims had been accepted in other cases since (see Wells v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB), and RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB), and affirmed that where a mother’s psychiatric injury is contributed to by the circumstances of a negligent delivery she will recover damages on conventional principles. Her status as ‘primary’ victim did not alter following delivery of the baby if her injuries were consequent on negligence which occurred before her baby was born (§22). This is not ‘nervous shock’/ secondary victim territory at all.

The judge was critical of Defendant psychiatric expert, Dr Faith. The joint statement she had signed did not support the Defendant’s case and Whipple J additionally determined that she “did not find her to be a helpful witness” citing her as being “overly dogmatic about the classification of mental illness”, being unimpressed by “her preference for working for Defendants and the reasons she gave for doing so” and noting she had recorded “hospital records in her report as ‘seen’ in circumstances where she accepted that she had not read them at the time she authored her report”. Ultimately, the judge “did not find her analysis of the Claimant's mental health problems to be plausible”. (See paragraph 80)

Practitioners may recall that, in contrast, the Appeal Court relied upon the evidence of Dr Faith as part of the rationale for closing the door on any but the most exceptional secondary victim claims arising out of hospital treatment in Ronayne v. Liverpool Women’s Hospital [2015] EWCA Civ 588.

YAH v. Medway Foundation Trust reasserts a welcome certainty in at least one aspect of the usually convoluted legal framework of nervous shock: a mother whose psychiatric injury is materially contributed to by a negligently caused “shocking” delivery and child-birth should be treated simply as a primary victim.