Actor Jamie King has lost a High Court bid for damages against an NHS trust after claiming he lost work and missed out on the chance of a role in the film Dunkirk when his five-day-old son died.
Benjamin King died from severe brain damage in May 2016 after being born by an emergency Caesarean section at the Royal United Hospital (RUH) in Bath, Somerset.
He is likely to have been deprived of oxygen after his mother, Canadian actress Tamara Podemski, had her C-section delayed by 12 hours despite being 14 days overdue, an inquest found in 2017.
The Royal United Hospitals Bath NHS Foundation Trust later admitted liability for Benjamin’s death, accepting that if he had been delivered earlier he would have survived.
Mad Men and The Tudors actor Mr King, 39, brought legal action against the NHS trust for damages and loss of earnings.
Mr King sought damages on the grounds of psychiatric injury, which would have to be based on a “single shocking event” of what he saw and was told on his first visit to see Benjamin in the neonatal intensive care unit (NICU).
“The stress of the next few days which culminated in the claimant and his wife having to make the terrible decision to move to palliative care and therefore to allow Benjamin to die as he did on May 10 2016 can form no part of this claim,” Judge Philip Mott QC said.
The actor was diagnosed with PTSD, with two experts agreeing that it was caused by seeing his son critically ill in the NICU on his first visit.
Describing seeing his son after he was born on May 5 2016, Mr King said: “There were a lot of different people working around the cot and there seemed like a lot of panic.”
He continued: “As I looked down at Benjamin, I felt sick to my stomach. I desperately wanted to hold him but I couldn’t. He was all hooked up to machines, looking like a science experiment and I couldn’t get close to him. At that point I remember my knees feeling weak.”
Recounting his feelings when Benjamin died five days after he was born, Mr King said: “I felt my world cracking apart… The whole experience was deeply traumatising.”
Doctors at the hospital denied there was a sense of panic and the trust’s barrister said that while it would have been distressing for Mr King, it was not legally a “shocking” event.
Mr King’s lawyers argued he was on the “verge of a big break” before his son’s death, with his future loss of earnings exceeding £8.5 million, including losing a chance of a role in the critically acclaimed film Dunkirk.
In February 2016, Mr King was asked to a meeting with director Christopher Nolan, who was preparing to start the film, which would go on to win three Oscars.
Mr King said that while his agent said he had “nailed” the audition, he pulled out of contention for a part after Benjamin’s death.
The court heard evidence from film director Mike Leigh, who described Mr King as “a talented actor who I would have expected to have a successful career ahead of him”.
However, Judge Mott refused to award damages, finding the trust was not liable for his loss of earnings and that it was not a legally “shocking” event.
He said: “He had been waiting for the birth of his second child, what should have been a joyous event, and instead he was told that Benjamin was seriously unwell and might die. That would be a nightmare for any parent.
“I have no doubt that the claimant is a person especially affected by visual triggers and with a capacity to imagine and empathise with suffering which is invaluable to him as an actor.”
Judge Mott also refused to award money for loss of earnings, finding there was a “substantial and significant chance of a big break for the claimant if he had not suffered PTSD but this was very far from certain”.
He continued: “The claimant was unable to work at all for 12 months due to his PTSD. Thereafter he was fit to audition and find work, but there were still a few roles he could not take because they would trigger reminders of Benjamin.”
The judge said there was a 75% chance of getting a sufficiently significant part in Dunkirk, adding “the chance of ending up with a significant part which remained in the final film was a very uncertain process”.