We continue to act for Miss Sheen, who was referred to us by Action against Medical Accidents (AvMA). We were instructed to investigate the standard of treatment Morgan Sheen received from Dr Amali Subesinghe on the 5th November 2013 at Queens Road Surgery. The claim arose from the failure to prescribe the correct inhaler on the 5th November 2013, following which Morgan suffered a deterioration in his asthmatic condition on the 12th November 2013, which resulted in his death on the 13th November 2013.
The Coroner's Verdict
An inquest was held on the 5th and 6th May 2015. The Coroner’s narrative verdict was as follows:
Morgan Sheen who was seven, had brittle asthma using bronchodilators and steroids, and after an unplanned move of home, ran out of his usual inhalers and became wheezy. At a consultation to seek a repeat prescription at a new general practice on 5.11.13, he was unintentionally prescribed bronchodilator salmeterol, instead of seretide, which contains both bronchodilator and steroid. He became restless due to hypoxia and collapsed with cardiorespiratory arrest in the car taking him to hospital. Despite prompt attendance and appropriate resuscitation by LAS (London Ambulance Service), he died of status asthmaticus at 02.24 on 13.11.13 at KCH (King’s College Hospital). The unintentional change of prescription and failure to ensure he returned for an early consultation and review by a doctor contributed to his death.
A claim was successfully pursued against Dr Subesinghe on behalf of Morgan’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
We were instructed by Miss Sheen to pursue a nervous shock claim against Dr Subesinghe. Following several Court of Appeal and High Court authorities in the past 3 years (Taylor v Novo, Ronayne v Liverpool Women’s Hospital, Shorter v Surrey), it has become increasingly difficult for a Claimant to succeed with a nervous shock claim.
Proceedings were served on the 8th March 2017. The Defence acknowledged that the Defendant was in breach of the duty of care owed in mistakenly prescribing the wrong inhaler and that this error materially contributed to Morgan’s death. However, the Defence also positively asserted that Miss Sheen did not satisfy all of the Alcock criteria necessary for the recovery of damages for a psychiatric injury as a secondary victim.
The Defendant served an Application to strike out the claim pursuant to CPR 3.4(2)(a) and 3.4(2)(b). The Defendant’s Application was founded on the argument that Miss Sheen failed to meet the Alcock criteria, primarily because there was no proximity in time and space between the breach of duty on 5th November 2013 in prescribing the incorrect inhaler which caused the injury to Morgan and the psychiatric injury to Miss Sheen on the 12th and 13th November 2013.
The hearing of the Defendant’s Application was heard before Master Eastman on Monday 11th December 2017. Miss Sheen was represented at the hearing by Mr John de Bono QC. Master Eastman declined to strike out Miss Sheen’s secondary victim claim. This was the second failed strike out application for a nervous shock claim before the Queen’s Bench Masters in 2017, following on from Master Robert’s decision in Werb v Solent NHS Trust on the 15th March 2017.
In Sheen v Subesinghe the Defendant submitted that proximity was required to the breach of duty. Mr John de Bono QC argued that proximity was required to the ‘event’ and that this was the fact and consequence of the breach of duty rather than the breach of duty itself. Mr de Bono noted that there was no authority which definitively ruled on whether proximity was required to the breach of duty or only to its consequences. This argument is of particular importance in clinical negligence cases where it is common to have a material gap between the breach of duty and the moment of physical harm.
The Law Relating to Nervous Shock Claims
Currently, the law relating to nervous shock claims remains unclear in relation to the position, as in this case, where there is a delay between the breach of duty and the primary victim suffering an injury. It has been assumed by many, primarily due to the decision in Taylor v Novo, that cases of delayed injury lack the proximity required to succeed. It should be noted that there is no authority for the argument that there must be proximity to the breach of duty. Proximity must be to the ‘event’. It would be a strange situation where a breach of duty alone, without any damage, could give rise to a claim in tort. It is logical therefore, that no cause of action for nervous shock can accrue until damage has been caused to the primary victim.
Mr John de Bono QC
Mr John de Bono QC has lectured and written widely on nervous shock claims and is a specialist in this area. Please find below a link to John de Bono’s recent article on nervous shock claims in which he has considered the position where there has been a delayed injury to the primary victim.
We Can Help
The Personal Injury team at McMillan Williams Solicitors Limited has been instructed on a number of personal injury and clinical negligence nervous shock claims.
At MW, our mission is "to make quality legal services accessible to everyone", including those who have suffered the trauma of nervous shock. If you would like to speak to a specialist to discuss your case call us today on 0203 551 8500 or use our Contact Us form to arrange a callback.