Secondary victim claims for psychiatric injury present claimants with a particular set of difficulties, namely the control mechanisms laid out in the case of Alcock v Chief Constable of South Yorkshire Police (which followed the Hillsborough stadium disaster). In order to succeed, a secondary victim must prove that he or she: (1) witnessed a shocking or horrifying event (or its immediate aftermath), (2) suffered a recognised psychiatric injury, (3) had a close tie of love and affection with the primary victim of the event, (4) witnessed the event directly and (5) was sufficiently “proximate” to the event in both time and space.
On Monday 30 January the Department of Health published its long-awaited consultation paper on introducing fixed recoverable costs for clinical negligence claims. These would be mandatory for all clinical negligence claims (i.e. applying to claims arising in the health service as well as in other/private treatment settings) valued between £1,000 and £25,000 and the consultation includes detailed costs figures.
Approximately 80% of all claims settled for damages against the NHS in England in 2015/16 fall within this range. It is also at these relatively lower levels of damages that the disproportionality of claimant legal costs appears at its greatest – the consultation reports that in these cases total claimant costs are more than double, 220%, the damages awarded. The consultation will close on 1 May 2017.
Headlines about Bristow v Princess Alexandra Hospital tend to suggest that failure to mediate the costs aspects landed the defence with a huge costs sanction at detailed assessment.
In fact, the very first sentence of the brief costs judgment shows that the claimants lost over 43% at the assessment: “A bill was originally lodged for approximately £239,000 and the basic fact is that upon a detailed assessment this was reduced to £135,486.90.” Continue reading