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CAUSATION

Wright v Cambridge Medical Group [2011] EWCA Civ 669.

The facts

The claimant ought to have been referred by her doctor to hospital on the Wednesday; in fact, she

was referred on the Friday evening. Had she been referred on the Wednesday, and had the

hospital acted competently, she would have made a full recovery. But also, if appropriate steps

been taken by the hospital on the Friday, permanent damage to her hip would have been avoided.

The hospital failed to administer appropriate antibiotics over the weekend. By the time the

consultant saw the patient on the Monday, nothing could be done to prevent the permanent

injury.

The Judge took a dim view of the paediatric department at the hospital. He considered that on

the balance of probabilities even if the claimant had been admitted on the Wednesday the hospital

would have acted incompetently. Therefore he dismissed the claim: the breach of duty on the

part of the GP did not as a matter of fact cause loss.

The decision in Wright

Held that this was wrong. All three judges held that there was an evidential presumption that had

there been an admission on the Wednesday the hospital would have treated appropriately. All

three held that this evidential presumption had not been displaced. Therefore if promptly referred

C would have avoided injury. Lord Neuberger and Dame Janet Smith considered that the delay

contributed to the failure on the part of the hospital to diagnose and treat adequately. The

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negligence of the defendants and the failings of the Hospital had "a synergistic interaction, in

that each tends to make the other worse". Therefore causation was established. Elias LJ held

that the delay had not materially increased the risk of injury (because it did not make appropriate

action on the part of the hospital more difficult, although it did limit the opportunity of the

hospital to put right any errors it had made) and consequently the injury sustained was not within

the scope of the defendants’ duty. Thus, he would have dismissed the appeal.

Analysis

If that had been where the dicta ended all would be well. We might have considered this decision

surprising (after all, the trial judge had damned the systemic failures of the hospital’s system) but

that would have been a surprising result on the facts. Moreover, even if surprising on the facts

that Lord Neuberger and Dame Janet Smith considered the delay in referring increased the risk of

injury that would not have elevated this case to one of legal importance.

But Lord Neuberger MR held that even if it was proved that the hospital would have failed to

treat C adequately had she been admitted 2 days earlier as she should have been, that was

irrelevant.

“In a case where a doctor has negligently failed to refer his patient to a hospital, and, as a

consequence, she has lost the opportunity to be treated as she should have been by a hospital, the

doctor cannot escape liability by establishing that the hospital would have negligently failed to

treat the patient appropriately, even if he had promptly referred her. Even if the doctor

established this, it would not enable him to escape liability, because, by negligently failing to

refer the patient promptly, he deprived her of the opportunity to be treated properly by the

hospital, and, if they had not treated her properly, that opportunity would be reflected by the fact

that she would have been able to recover damages from them”.

This is what Dame Janet Smith referred to as ‘the irebuttable presumption’ that the hospital

would not have acted incompetently if C had been admitted 2 days earlier. Of course, it is no

such thing. It is instead an argument that the failure on the part of the GP would, in

circumstances where the hospital would probably have acted incompetently, have deprived C

from having an action against the hospital.

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Thus, the issue of importance is this:

Is it relevant whether, had there been an earlier referral, the injury would still have

occurred? Lord Neuberger says ‘no’ because C would have been deprived by the GP’s

breach of having a right to sue the hospital. Presumably Elias LJ would say ‘no’ on the

basis that what may or may not have happened in a hypothetical situation is not what

matters; what matters is whether the breach materially increased the risk in fact. Dame

Janet Smith thinks the answer may or may not be ‘no’, but if it is ‘no’ it is because there

is an irrebuttable presumption that an earlier referral would have avoided injury (whatever

the facts might be).

Taaffe v East of England Ambulance Service NHS Trust [2012] EWHC 1335 (QB)

The claimant’s mother (the deceased) suffered extreme chest pains and the claimant telephoned

an ambulance.

The paramedics did not advise the deceased to attend hospital. They considered it sufficient that

she attend an already pre-planned visit to her GP the next day. The GP who examined her next

day did not advise her to attend hospital. Five days later the deceased suffered an acute

myocardial infarction from which she died.

Not argued by the paramedics that GP’s failure had broken the chain of causation or that GP had

not materially increased the risk of injury being sustained: on the facts such arguments were not

available. But paramedics argued that the visit to the GP was a reasonable ‘safety-net’ that meant

they had not been in breach of duty. Held it the visit to the GP was unlikely to provide a

safeguard to the Claimant and did not assist in determining the reasonableness of the decision

made by the paramedics. The GP's examination was in very different circumstances.

Maher v Pennine Acute Hospitals NHS Trust [2012] J.P.I. Law 25

The claimants were the personal executors of a woman (D) who had died in the NHS Trust

hospital. The deceased was a Jehovah’s Witness, and whilst having an emergency caesarean

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section she also suffered a concealed haemorrhage. The deceased also refused a blood transfusion

that would have saved her life.

A decision not to accept a blood transfusion would be considered unreasonable unless the

justification was, as in the instant case, one of religious belief. It was reasonable for the NHS

Trust to bear the burden of the deceased’s religious beliefs given the circumstances of the case.

Popple v Birmingham Women's NHS Foundation Trust [2011] EWHC 2320 (QB)

Delay in achieving delivery. Because of inadequate monitoring by midwifery staff it was not

possible to say what part of a terminal bradycardia could have been avoided. Held, D was liable

for the whole of the damage caused because the negligence of midwifery staff made a material

contribution to that damage. The argument that Court should assume that delivery would have

occurred at the mid-point of the damaging hypoxia was rejected. Some damaging hypoxia was

consequent upon the breach of duty and consequently C was entitled to succeed in full.

Hussain v Bradford Teaching Hospital NHS Foundation [2011] EWHC 2914 (QB)

Delay in diagnosing and treating cauda equina syndrome. Judge held that negligent 48 hour delay

did not cause injuries sustained. Coulson J reiterated that the test was that set out in Tahir v

Haringey Health Authority [1998] Lloyds Rep (Med) 104.

(1) The burden of proving causation was upon the Plaintiff.

(2) Causation is a question of past fact, to be decided on a balance of probabilities: see Mallett

v McMonagle

(3) If he proves that the negligence was the sole cause, or a substantial cause, or that it

materially contributed to the damage, he will succeed in full: see Bonnington Castings v

Wardlaw and McGhee v National Coal Board

(4) If he fails to cross this threshold then he fails to recover any damages: see Barnett v

Chelsea & Kensington Hospital Management Committee.

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(5) A Plaintiff cannot recover damages for the loss of a chance of a complete or better

recovery: see Hotson v East Berkshire District Health Authority."

Coulson J also held that although there was some evidence that earlier treatment may (or even

probably would) have led to a better outcome there had to be evidence of a “significant,

discernible or measurable improvement”. The vague, general assertion that without the delay C

would have been ‘better off’ will not do.

This case obviously has implications on the impact of Bailey v MOD.

CONFLICT OF LAWS

Naraji v Shelbourne [2011] EWHC 3298 (QB)

The claimant professional footballer had signed for Sheffield United Football Club and claimed

that his football career was destroyed at the age of 22 due to a negligent surgical operation to

reconstruct the anterior cruciate ligament (‘ACL’) of his right knee, and by negligent medical

aftercare. The first defendant was based in Indiana in the USA where the surgery was performed.

A claim in contract could have been pursued in Indiana so it could be pursued in England (albeit

under Indiana law) and res judicata did not apply. The claim was dismissed because Indiana law

applied and the claim was time barred by a two-year limitation period. In any event the Claimant

could not prove that he would have been able to play football at the level for which he claimed

had the procedure been carried out non-negligently.

DAMAGES

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Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066 (QB)

With a total award of nearly £6 million this report provides a detailed assessment of heads of

damage for a claimant with a catastrophic injury. The judge considered the selection of good care

experts and the package of support which should be provided for a claimant suffering with long-

term problems. The damages included PSLA at £235,000.

The judge awarded the cost of adaptation and equipment at the grandparents’ home in Barbados,

which the Defendant accepted. She also awarded 70% of the annual flight costs to travel to

Barbados until the claimant attained the age of 12 years. But she did not allow an award to pay

for a property in Northern France and to adapt and equip it to meet the claimant’s needs so that

the family can use it for holidays. She held instead that the claimant’s needs would be met

satisfactorily if his parents, with the assistance of his case manager, were to identify, a property

or properties with appropriate accommodation for a person with his disabilities.

Sedge v Prime QBD 25 April 2012 Unreported

S had suffered a serious brain injury in a road traffic accident. S’s affairs were subject to the

Mental Capacity Act 2005 and, under s.1(5), decisions made for him under the Act had to be in

his best interests. S sought a further interim payment £300,000 to enable him to move, on a trial

basis, into an adapted, rented bungalow with a 24-hour care regime. The medical evidence was

divided over whether the move was a good idea. However, those responsible for S's welfare

under the Act, concluded, at a “best interests” meeting, that the move would be in his best

interests within the meaning of s.1(5).

The application was granted in part. For a claimant who had previously lived in the community,

the starting point was care in the community, but where the cost of community care was much

greater than that of residential care, it was for the claimant to prove that community care was

reasonable. However, insofar as there was a risk of the allegedly level playing field being altered

by making an interim payment in the instant case, it would not be plainly wrong to make an

interim payment amounting to a reasonable proportion of the final award. While the "best

interests" decision made by those responsible for S under the Act was not binding on the court, it

was not irrelevant, as had been suggested by P. On the contrary, it suggested that a considerable

body of experienced opinion did not reject community care as a potentially realistic option.

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Having said that, the “best interests” decision offered limited support for S’s case, since the test

to be applied by the court was different. However, the final award was likely to be in the region

of £508,214, and an interim payment of £300,000 would, together with the £175,000 already

paid, far exceed a reasonable proportion of that sum (paras 53, 55). (3)

Brown (A Child) v Guy's and St Thomas' NHS Foundation Trust [2011] Med. L.R. 387

The claimant sustained a brain injury as a result of an excessive dose of medication administered

during surgery shortly after his birth. He was severely handicapped and wheelchair-dependent.

The prognosis was that he would never be able to live an independent life. He had a life

expectancy of 70 years. The claimant sought an interim payment in the sum of £1,750,000 to

purchase suitable accommodation and set up a professional care regime. The claimant currently

lived in a bungalow with only two rooms. There was a caravan in the garden that provided

additional living space. It was common ground between the parties that the accommodation was

unsuitable. The claimant’s advisors had identified a substantial property suitable for his needs, set

in 4.6 acres and valued at £1 million.

The court accepted that there was an urgent need to relocate the claimant but to enable the

purchase of the property suggested would unfairly and unreasonably tie the hands of the trial

judge and would involve employing substantial sums from heads of damage designed to meet the

applicant’s future needs. The price of the property under consideration exceeded what was

reasonable to incur for suitable accommodation for the Claimant. There would therefore be no

interim payment. The most sensible means for providing suitable accommodation for B, though

not the option that he was pursuing, was the purchase and alteration of a bungalow. It was

important to remember that the assessment had to be carried out on a conservative basis, Eeles

followed.

FP v Taunton and Somerset NHS Trust [2011] EWHC 3380 (QB)

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The defendant had admitted liability and voluntary interim payments of £500,000 had already

been made, together with an interim payment of £1.2 million which had been ordered by a judge

in July 2009. The claimant applied for a further interim payment of £643,500.

The application was granted in part. Eeles required a disciplined and structured approach to

interim payments that ensured that awards were made in a principled way, avoiding the twin risks

of over-compensating a claimant and keeping him out of damages at a time when he was likely

particularly to require the money to enable him to cope with the injuries caused by the defendant.

There had been material changes since the judge made his order in July 2009. Medical evidence

indicated that S's life expectancy had improved significantly. Further, the estimated costs of

altering new accommodation to be occupied by P and S had increased.

Thompson v Middleton [2012] EWCA Civ 231;

After a road traffic accident of relatively minor force causation and quantum of special damages

were decided as preliminary issues. The judge made findings of fact that the claimant was

genuinely suffering from continuing pain due to facet joint damage caused by the accident and

that the only psychological element in the case arose from depression. Subsequently a consultant

psychologist who had been instructed by the defendant, expressed the view at a second hearing,

that by the time of the accident, M was well on the way to suffering from a psychosomatic

disorder. The judge rejected this evidence. However, he accepted that M had made more of his

injuries than other people might and therefore reduced the award for loss of future earnings.

On appeal the Court of Appeal said the judge's reasons for rejecting the expert's diagnosis of an

individual were full, clearly expressed, factually accurate and more than adequately explained the

judge's thinking. The expert had expressed a view about causation; but the judge had already

decided that issue. It was simply too late for the defendants to advance this theory at the second

hearing. Fresh evidence on an issue already determined could only be admitted on, or following,

an appeal where permission had been given because the requirements in Ladd v Marshall [1953]

1 WLR 1489 had been met. In the instant case, there was no appeal and in any event, those

requirements could not have been met. There were no reasons for not calling W's evidence at the

first hearing when it could have been admissible, relevant and possibly persuasive. The judge

would have been entitled to reject W's evidence for that reason alone. He did not do so, however,

expressing his concern that his earlier findings should not be undermined.

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APPLICATION FOR A GIFT TO THE COURT OF PROTECTION

Re JDS [2012] W.T.L.R. 475

The application was for a gift to be made to the parents of a young man (James) who had been

awarded damages for clinical negligence. The purpose of the gift was to reduce the amount of

Inheritance Tax that they may have to pay on his death. The proposed scheme was that James

should transfer £325,000 into a Flexible Power of Appointment Trust. At the initial hearing the

Official Solicitor did not support the application, mainly because he did not believe that it was in

James’ best interests to dispose of such a large amount of capital which he may need in years to

come. A balance sheet was created counterbalancing the advantages and disadvantages of a

proposed gift to James’ parents. There were more disadvantages than advantages found.

The court found that the factor of magnetic importance was the purpose for which the

compensation was awarded. Denzil Lush Senior Judge stated, ‘In very simple terms, if the

calculation for James's future care costs was correct back in 2001 when his claim settled, then,

on the last day of his life, he should be in the process of spending the last pound of that head of

damages. There should be nothing left over after his death. If the sum awarded runs out before

then, it could be said that his parents and his deputy have been extravagant and imprudent.

Conversely, if there are substantial funds left over, it could be argued that they have been

parsimonious and may have denied him the care, attention and quality of life to which he was

entitled’ [paragraph 36].

It was therefore not in James’ best interests to make any gift to his parents to mitigate the

incidence of inheritance tax on his death. The court was generally sympathetic towards family

members who took on a caring role and dedicated their lives to looking after an injured relative.

However, it was not the court’s function to anticipate, ring-fence or maximise any potential

inheritance for the benefit of family members on the death of a protected party, as that was not

the purpose for which the personal injury compensation was intended.

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APPEAL OF FINDINGS OF FACT

Burnett v Lynch [2012] EWCA Civ 347

The Appellant GP appealed, on breach of duty only when judgment was given for the respondent

in a clinical negligence claim for damages arising from the delayed diagnosis of breast cancer.

The decision was said to be unjust since the Judge made findings of fact which were inconsistent

and perverse, failed to take into account material parts of the respondent's evidence which he

should have considered carefully before preferring her recollection and failed to give any or any

adequate reasons for rejecting the evidence of the appellant.

The Court of Appeal found that the judge’s findings were not inconsistent, he had assessed each

party's competing cases and he had been entitled to conclude that the patient's evidence that the

GP had previously misdiagnosed a lump in her breast as a blocked milk duct was to be preferred.

In appeals on findings of facts which turned wholly on oral evidence at trial, an appellate court

should be slow to interfere and should not do so unless satisfied that the findings of fact were

plainly wrong.

COSTS

Medway Primary Care Trust v Marcus [2011] EWCA Civ 750;

The claimant had been awarded £2,000 damages in respect of a clinical negligence claim which

had initially been valued at £525,000, for wrongful amputation. The court said the starting point

for costs should be in the defendants' favour. They were the de facto winners. The £2,000

recovered by M did not constitute vindication for him. The trust and H had admitted breaches of

duty but that and the £2,000 would have been scant consolation for M whose only real claim was

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for the amputation. A reduction was ordered for the fact that the claimant had succeeded to a

very small extent and the fact that the trust did not concede liability until a very late stage.

However, the real claim failed and no rational person would have issued the proceedings which

were issued to recover only £2,000.

CLAIMS UNDER THE HUMAN RIGHTS ACT

Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 W.L.R. 381;

The appellant’s daughter (M) had suffered from recurrent depressive episodes and had been

informally (voluntarily) admitted to hospital following a suicide attempt. She was assessed as a

high risk of suicide and noted to be suffering from suicidal ideation yet was allowed two days'

home leave during which she killed herself. M’s parents (the appellants) brought proceedings

against P for negligence and breach of Article 2 of the ECHR. The negligence claim was settled

but the High Court held that there had been no duty on the hospital under Article 2. The appellant

parents (R) appealed the Court of Appeal’s decision to affirm the trial judge’s ruling on Article 2.

The Supreme Court held that the NHST owed an operational duty to M to take reasonable steps

to protect her from any real and immediate risk of suicide. The NHST had assumed responsibility

for her and she was under its control. The NHST could have prevented her from leaving the

hospital under the Mental Health Act. The difference between M and a patient who had been

detained under the Act was one of form and not substance. Furthermore there was a real risk that

M would commit suicide if and when she were allowed home. That risk was immediate at the

time she left the hospital. The NHST was or should have been aware of that risk. No reasonable

psychiatric practitioner would have allowed M two-day’s home leave at that time.

The Supreme Court added that European jurisprudence had repeatedly stated that family

members could bring claims in their own right in relation to substantive obligations under Article

2. Such a claim was in no way renounced by the settlement of the negligence action because

there had been no compensation at all for the non-pecuniary damage suffered by M’s parents as a

result of the breach of article 2. In the circumstances the Supreme Court made an award of

£5,000 to each of M's parents.

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LEGAL  AID,  SENTENCING AND  PUNISHMENT OF  OFFENDERS ACT 2012

The Act received royal assent on 1st May 2012 and is scheduled to commence (so far as is

relevant below) on 1st April 2013.

The Act reverses of the position under the Access to Justice Act 1999, whereby civil legal aid is

available for any matter not specifically excluded. Now certain cases are removed from the

scope and others are not eligible unless specified. A new executive agency in the Ministry of

Justice is in charge of the administration and delivery of civil legal aid.

The reforms are due to be implemented on 1st April 2013.

From that date, clinical negligence cases will no longer be eligible for public funding (legal aid)

unless the claim is an obstetric case involving a child with a neurological injury resulting in

severe disability for a period beginning with the mother's pregnancy and continuing until eight

weeks after birth.

CFAs

Part 2 of the Act deals with Litigation Funding and costs.

Section 44 requires that CFAs are subject to a maximum limit expressed as a percentage of

damages. Uplifts will be paid out of the claimant’s damages (the maximum success fee uplift

will remain at 100%, but it will be capped at 25% of the claimant’s damages, excluding damages

for future loss.

Going forward, a costs order may not include provision requiring the payment by one party of all

or part of a success fee payable by another party under a conditional fee agreement.

ATE

Section 46 amends the Courts and Legal Services Act 1990 inserting section 58 C which restricts

the recovery of ATE premiums save that an order may be made allowing the recover of such

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premiums in clinical negligence proceedings of a prescribed description for a policy insuring

against the risk of incurring a liability to pay for one or more expert reports in respect of clinical

negligence in connection with the proceedings. Clinical negligence under the act means a breach

of a duty of care or trespass to the person committed in the course of the provision of clinical or

medical services (including dental or nursing services).

Referral Fees

Referral fees are effectively banned by sections 56 and 57 of the Act but note that a payment

might not be a referral fee if that payment was made as consideration for the provision of

services, or for another reason (s.57 (8).)

Qualified One Way Costs Shifting

This change to the liability of a claimant to a defendant’s costs is not set out in the Act but is to

be introduced via the Civil Procedure Rule Committee. Issues remain outstanding, particularly

regarding the interaction of Part 36 and QOCS.

Simeon Maskrey QC 22nd

June 2012

Conor Dufficy

7, Bedford Row

London, WC1R 4BS