1. Parents as plaintiffs
Parents can bring claims in negligence for losses related to their children in specific scenarios:
(i) Psychiatric injury
A parent may claim damages if, due to a defendant’s negligence, he suffers a medically recognised psychiatric illness after witnessing his child being killed or injured, or after coming upon the immediate aftermath. Because of the close relationship between parent and child, the law usually recognises the existence of a strong emotional bond between them and regards the parent as a “secondary victim”. However, these claims are subject to strict rules, and ordinary grief, distress or anxiety is not enough.
The event witnessed must be an “accident”, a discrete, unexpected event involving violent external means. A parent cannot recover damages for psychiatric injury caused by witnessing a child’s clinical decline or death resulting from a doctor’s negligent failure to diagnose a condition, as this is not an “accident”.
Courts have also been reluctant to allow a parent to get compensated for psychiatric injury caused by witnessing the consequences of the child’s own negligent, self-inflicted injuries.
For more information, please refer to “Psychiatric injury”
(ii) Wrongful birth
Parents may, in some circumstances, sue where negligent medical treatment, such as a failed sterilisation or negligent contraceptive advice, leads to unwanted birth.
If the child is healthy, the parents generally cannot recover the ordinary costs of bringing up the child, although a fixed conventional award may be available for the loss of reproductive autonomy.
If the child is born disabled, additional costs attributable to the disability may be recoverable.
Contributory negligence
When a child is injured and sues for damages, the defendant may argue the child was partly at fault.
As a general rule, a parent’s carelessness is not treated as the child’s own fault, so the child’s damages are not usually reduced just because the parent was negligent.
