Getting to the heart of it

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[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][fusion_vimeo id=”79135477″ width=”767″ height=”450″ autoplay=”yes” api_params=”” class=””][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”20px” sep_color=”#dbdbdb” border_size=”1px” icon=”fa-play” icon_circle=”yes” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][/fusion_builder_column][fusion_builder_column type=”2_3″ last=”no” spacing=”yes” center_content=”no” hide_on_mobile=”no” background_color=”” background_image=”” background_repeat=”no-repeat” background_position=”left top” hover_type=”none” link=”” border_position=”all” border_size=”0px” border_color=”” border_style=”” padding=”” margin_top=”” margin_bottom=”” animation_type=”” animation_direction=”” animation_speed=”0.1″ animation_offset=”” class=”” id=””][fusion_title size=”3″ content_align=”left” style_type=”default” sep_color=”” margin_top=”” margin_bottom=”20px” class=”” id=””]About this Webinar[/fusion_title][fusion_text]A webinar exploring legal and technical issues surrounding causation and coronary artery disease.

The content is split into three parts. The first part is a presentation by Per Laleng, an academic at the University of Kent, on the law of causation with particular reference to the application of Bailey v MoD.

The second part involves a presentation by Professor Kevin Channer on coronary artery disease and is followed by an interactive session where Professor Channer and Dr Stephen Saltissi provide evidence on a ‘hot-tubbing’ basis. The evidence explores causation in a fatal claim involving an alleged case of death caused by coronary artery disease. The trial provides a platform for analysis and discussion of both legal and technical issues in clinical negligence cases generally, and cardiac cases specifically.

Participants:

  • Charles Feeny, St Johns Buildings Chambers
  • Wendy J Owen, St Johns Buildings Chambers
  • Rebecca Sutton, St Johns Buildings Chambers
  • Per Laleng, Lecturer in Law at the University of Kent
  • Prof. Kevin Channer, Consultant Cardiologist
  • Dr Stephen Saltissi, Consultant Cardiologist

We are grateful to Charles Austin for his help in writing the content of this webinar.

CPD points: 1.5 (SRA accreditation only).[/fusion_text][/fusion_builder_column][fusion_builder_column type=”1_3″ last=”yes” spacing=”yes” center_content=”no” hide_on_mobile=”no” background_color=”” background_image=”” background_repeat=”no-repeat” background_position=”left top” hover_type=”none” link=”” border_position=”all” border_size=”0px” border_color=”” border_style=”” padding=”” margin_top=”” margin_bottom=”” animation_type=”” animation_direction=”” animation_speed=”0.1″ animation_offset=”” class=”” id=””][fusion_title size=”3″ content_align=”left” style_type=”default” sep_color=”” margin_top=”” margin_bottom=”20px” class=”” id=””]Supporting Documents[/fusion_title][fusion_button link=”http://pvl.helloplaza.uk/wp-content/uploads/2016/04/Prof-Channer-medical-report.pdf” color=”default” size=”” stretch=”yes” type=”” shape=”” target=”_blank” title=”Download” gradient_colors=”|” gradient_hover_colors=”|” accent_color=”” accent_hover_color=”” bevel_color=”” border_width=”” icon=”fa-folder” icon_position=”left” icon_divider=”yes” modal=”” animation_type=”0″ animation_direction=”left” animation_speed=”1″ animation_offset=”” alignment=”center” class=”” id=””]Prof. Channer Report[/fusion_button][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”” sep_color=”” border_size=”” icon=”” icon_circle=”” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][fusion_button link=”http://pvl.helloplaza.uk/wp-content/uploads/2016/04/Dr-Saltissi-medical-report.pdf” color=”default” size=”” stretch=”yes” type=”” shape=”” target=”_blank” title=”Download” gradient_colors=”|” gradient_hover_colors=”|” accent_color=”” accent_hover_color=”” bevel_color=”” border_width=”” icon=”fa-folder” icon_position=”left” icon_divider=”yes” modal=”” animation_type=”0″ animation_direction=”left” animation_speed=”1″ animation_offset=”” alignment=”center” class=”” id=””]Dr Saltissi Report[/fusion_button][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”” sep_color=”” border_size=”” icon=”” icon_circle=”” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][fusion_button link=”http://pvl.helloplaza.uk/wp-content/uploads/2016/04/Getting-to-the-heart-of-it-questions-and-CPD-code.pdf” color=”default” size=”” stretch=”yes” type=”” shape=”” target=”_blank” title=”Download” gradient_colors=”|” gradient_hover_colors=”|” accent_color=”” accent_hover_color=”” bevel_color=”” border_width=”” icon=”fa-folder” icon_position=”left” icon_divider=”yes” modal=”” animation_type=”0″ animation_direction=”left” animation_speed=”1″ animation_offset=”” alignment=”center” class=”” id=””]Supporting questions and CPD code[/fusion_button][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”” sep_color=”” border_size=”” icon=”” icon_circle=”” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][fusion_button link=”http://pvl.helloplaza.uk/wp-content/uploads/2016/04/Feedback-questions-2.doc” color=”default” size=”” stretch=”yes” type=”” shape=”” target=”_blank” title=”Download” gradient_colors=”|” gradient_hover_colors=”|” accent_color=”” accent_hover_color=”” bevel_color=”” border_width=”” icon=”fa-folder” icon_position=”left” icon_divider=”yes” modal=”” animation_type=”0″ animation_direction=”left” animation_speed=”1″ animation_offset=”” alignment=”center” class=”” id=””]Feedback questionnaire[/fusion_button][fusion_separator style_type=”none” top_margin=”20px” bottom_margin=”” sep_color=”” border_size=”” icon=”” icon_circle=”” icon_circle_color=”” width=”” alignment=”center” class=”” id=””/][fusion_button link=”http://pvl.helloplaza.uk/wp-content/uploads/2016/04/Intro-to-Pers-lecture.pdf” color=”default” size=”” stretch=”yes” type=”” shape=”” target=”_blank” title=”Download” gradient_colors=”|” gradient_hover_colors=”|” accent_color=”” accent_hover_color=”” bevel_color=”” border_width=”” icon=”fa-folder” icon_position=”left” icon_divider=”yes” modal=”” animation_type=”0″ animation_direction=”left” animation_speed=”1″ animation_offset=”” alignment=”center” class=”” id=””]Introduction to Per Laleng’s talk[/fusion_button][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Causation in asbestos- a great success!

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Pro-VIDE-Law marked their launch with the event ‘Causation in asbestos: Minimal or material? Risk or probability’. The seminar was a great success and will shortly be available to download as a webinar. Delegates rated the event as excellent and particularly relevant to their practice.

For more information on the event, future events and webinars please email editors@pro-vide-law.co.uk.

Breach of duty in historic hearing loss cases – adverse inferences

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Case Background

Keefe -v- Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683

Shawe-Lincoln -v- Dr. Arul Chezhayan Neelakandan [2012] EWHC 1150 (QB)

Heavey -v- TMD Friction Limited, Wakefield County Court, 25th October 2012, HHJ Cockcroft, Lawtel report 14 November 2013.

Contributor Comments

All of these cases concern the difficulties faced by Claimants in proving breach of duty due to excessive noise, often from many years ago, and by Defendants in defending the same issue.

In Keefe, the deceased (the claim was brought by his widow) worked in the galley of a sea going ferry between Heysham in Lancashire and the Isle of Man from 1978 and June 1998. The deceased (ante mortem) contended that he was exposed to noise from vehicles being driven onto and off the Ro-Ro ferry on which he worked and from the galley. Two of the deceased’s shipmates corroborated the deceased’s account that it was noisy in the galley. Specifically, one witness said that it was necessary to shout or augment oral communication with hand signals.

The trial judge dismissed the claim because the Claimant had not proved that the deceased was exposed to daily average noise levels in excess of the relevant daily limits (90dB(A) LEp,d before 1st January 1990, 85dB(A) LEp,d thereafter).  Specifically, he recorded that the lay evidence did not show that the daily average noise levels exceeded those limits and that the disclosure from the Defendant did not assist him in reaching such a conclusion as the Defendant had not recorded the noise levels in the galley.

However, the trial judge’s decision was reversed on appeal. In particular, the Court of Appeal (Longmore LJ) held that:

  1. the Defendant was subject to a duty to measure noise levels where the deceased’s exposure was likely to exceed the relevant limits (based on the Code of Practice for the Reduction of the Exposure of Employed Persons to Noise 1972);
  2. the Defendant’s failure to record the noise levels was in breach of that duty, especially where there was ‘colloquial’ evidence (that is, lay evidence) that suggested that such levels may have been exceeded (paragraph 18);
  3. accordingly, “any difficulty of proof for the Claimant has been caused by the Defendant’s breach of duty in failing to take any measurements” (paragraph 18);
  4. “If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive.”  His Lordship relied on the principle that where a party can adduce evidence to rebut a fact and fails to do so, an adverse finding can be made by the court (see British Railways Board -v- Herrington [1972] AC 877); and
  5. “In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically.” (paragraph 19)

However, the ambit of this case appears to be misunderstood (or, at least, wrongly cited). To imply that where a Defendant does not have records regarding the noise levels in question, then the court should view the Defendant’s evidence critically and that of the Claimant benevolently. This misapplication often arises in historic cases, in which the Defendant’s inability to adduce evidence regarding noise levels has been caused by long delay since the cause of action accrued or other factors such as the destruction of historic records.

This misunderstanding ignores the important qualification set out in the numbered list above at 1 and 2. Specifically, the court may draw an adverse inference from the Defendant’s failure to record noise levels if  that failure can be proven to be in breach of its duty of care. Not in circumstances in which records that are likely to have existed have been destroyed or lost due to the passage of time, lost through the dissolution of the company or for some other ‘innocent’ reason.

In clinical negligence, an attempt was made to misapply Keefe to urge a court to draw an adverse inference (and effectively to reverse the burden of proof) in Shawe-Lincoln v Dr. Arul Chezhayan Neelakandan [2012] EWHC 1150 (QB) in which the Claimant sought to utilise the Defendant’s failure to take a full note to reverse the burden of proof regarding delay in diagnosis and treatment (paragraphs 79 to 82). Claimant’s Counsel correctly conceded that there was very little evidence to support his case on deterioration. The trial judge, Mr Justice Lloyd Jones, held that even adopting a benevolent approach to the evidence relied on by the Claimant, that evidence did not discharge the burden of proof. Simply put, the Defendant’s admitted negligence in taking a full note did not reverse the burden of proof, nor enable the court to make findings that were not grounded in the evidence relied upon. (It is of note that the judge held that the principle in Keefe was not limited to occupational disease cases.)

In Heavey -v- TMD Friction Limited, the Claimant failed to adduce any engineering evidence at trial and sought to rely upon the (misapplication of the) principle in Keefe to argue that, in the absence of noise measurement records, it was probably noisy. In fact, the learned judge correctly held that in order to bring the case within the ambit of Keefe (as set out above in the numbered list), the Claimant would need to show that the noise levels to which he was exposed were likely to have exceeded 90dB(A) LEp,d at the relevant times. Specifically, His Honour Judge Cockcroft said (at paragraph 24):

“in Keefe, it is apparent from the transcript that there was some expert evidence that, based upon the anecdotal evidence given about sign language and hand signals for communication at a distance of 10 feet or so, an inference could be drawn that noise levels were at or about 90 decibels, and that such levels were maintained for eight hours or more in a 16 hour shift. Here, there is no such evidence. I find it quite impossible, in the circumstances, to make any safe and proper inferences about decibel levels reached at the claimant’s workplace, or the length of time the highest level of noise was maintained, with obvious implications when I come to consider liability.”

In extremis, if His Honour Judge Cockcroft was wrong to limit the application of Keefe and it was not necessary for the Claimant to discharge the burden of proof, the principle would have its widest application in quiet environments where the Defendant did not measure noise levels because it simply was not noisy (thus the duty to measure was not ‘triggered’ by paragraph 5.1 of the Code of Practice or Regulation 4 (1) of the Noise at Work Regulations 1989).

Summary

The burden remains on the Claimant to prove, in rudimentary terms but nevertheless on the balance of probabilities, that he was exposed to noise levels that were in breach of duty before Keefe applies (to bring the case within the ambit of the principle). Keefe only then permits a court to make an adverse finding where proving to what extent the noise levels exceed the relevant limits (such as where specialist machinery or circumstances exist) in the absence of noise surveys or engineering evidence (which would be based on such measurements anyway). It does not reverse the burden of proof nor does it relieve the Claimant of the duty of discharging his evidential burden. The cases to which Keefe assists the Claimant are likely to be limited.

DOUG R. COOPER
St Johns Buildings

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Law, Medicine and Science: Reflections from Brussels and Newby Bridge

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Two meeting in which I have recently participated in illustrate the serious issues to be confronted in litigation where law, medicine and epidemiology inevitably meet.

On 1st November 2013, Per Laleng and I attended a meeting in Brussels organised by Claire McIvor of the University of Birmingham, which resulted in the inception of the International Association of Epidemiology and Law.

The participants of the meeting could reasonably be described as an eclectic mix of medics, epidemiologists and lawyers from all over the world.

 

The photograph shows, in no particular order,

  • Derek Adamson, Solicitor, DWF LLP, Birmingham
  • Jyoti Ahuja, Law, University of Birmingham
  • Colin Aitken, Forensic Statistics, University of Edinburgh
  • Oana Badarau, Biomedical Ethics, University of Basel
  • Alex Broadbent, Philosophy, University of Johannesburg
  • David Egilman, Medicine, Brown University
  • Charles Feeny, Barrister, St Johns Buildings Chambers, Liverpool
  • Michael Freeman, Forensic Medicine and Epidemiology, Oregon Health & Science University
  • Beatrice Loan, Forensic Pathology, Grigore T Popa University of Medicine and Pharmacy, Institute of Forensic Medicine, Iasi, Romania
  • Per Laleng, Law, University of Kent
  • Sana Loue, Epidemiology, Cast Western University
  • Claire McIvor, Law, University of Birmingham
  • Calin Sciparu, Forensic Pathology, Institute of Forensic Medicine, Iasi, Romania

The breadth of experience could reasonably be described as diverse, but it was easy to identify common issues in terms of the translation of scientific or epidemiological evidence into the forensic context.  Colin Aitken of the University of Edinburgh is responsible for the Royal Statistical Society Advice and Guidelines following the Sally Clark case, and he was able to advise that this work is already 500 pages long.  The perspective of David Egilman, of Brown University, Boston, showed clear concern for corporate bias achieved through financial muscle in the American litigation system.

Derek Adamson, of DWF, and I were able to talk of the English litigation system and its perhaps rather tortuous relationship with scientific and epidemiological evidence.  The last decade might reasonably be considered a somewhat embarrassing one for the British judicial process in terms of its appreciation of scientific and epidemiological evidence.  The Sally Clark case needs only to be mentioned to confirm this view.  This was compounded by the Supreme Court’s discussion of epidemiological evidence in the Sienkiewicz case where no such evidence had been before the Courts at any stage in the process of the litigation, and where the Supreme Court Justices relied upon their own understanding and interpretation of epidemiological evidence.

Part of my own perspective is that the appellant process in the United Kingdom is not well suited to the determination of important issues of principle, or the giving of guidance for future cases.  This is particularly so, because the appellant process works on the basis that the factual situation is crystallised at an early stage.  This results in cases proceeding as appeals apparently on important points of principle but where factual uncertainty, or ambiguity, means that they are not the best vehicle for resolution of principle or further guidance.  Sienkiewicz is clearly such an example, as is Gregg v Scott.

A week later I was invited to speak on clinical negligence at the North West Obstetric and Gynaecological Consultants’ Meeting held at the Swan Hotel, Newby Bridge, Cumbria.  It was a very different venue although equally agreeable, and a very different type of meeting.  The attendees were essentially working consultants and the meeting essentially practical.

It proved to be an opportune day to be speaking to consultants about clinical negligence claims.  The morning papers and television reported the National Audit Office report which indicated that birth injury claims are now costing the NHS £500 million per annum, that is the equivalent of £700 for every live birth in England and Wales.  The total cost of clinical negligence cases to the NHSLA now comfortably exceeds £1 billion.

It is fair to say that the consultants whom I met, and who are clearly doing their very best to achieve optimal treatment for their patients, are bemused by the environment in which they have to operate and the cost of such claims to the overall NHS budget.  Often the breach of duty found in such cases could be described as marginal; that is an error of judgement over a few minutes whilst observing a CTG trace, but nonetheless the financial consequences are enormous running into several million pounds.  It was also hard to explain why the appropriate provision for a child injured in these circumstances should be considered so extravagant by comparison to the circumstances of children who are born severely impaired but where there is no obvious fault or explanation.  Whilst fault liability is ingrained in our society and legal system, the consequences of the same appear to many to be disproportionate.

A common theme of both meetings was that the interaction between expert evidence and judicial decision must be significantly improved.  Any activity which costs the general public in excess of £1 billion might be thought to be the subject of specific scrutiny and critical thought.  However, it is not unfair to say that the key players in clinical negligence, that is doctors, lawyers and judges, treat it in the same way as when it was thought it was difficult to sue your doctor, and judges were perceived as being protective of the medical profession.

Whilst the courts have improved their approach to expert evidence, in particular through CPR part 35, and parallel approaches in criminal and family litigation this has been, in reality, from a very low base level.  Practitioners and judges in the middle of the last century were confronted with a situation where a professor would go into the witness box without any clear understanding on the part of the opposing advocate, or the judge, as to precisely what the professor was going to say.  However, such procedural improvements have arguably not moved the position significantly forward from one where a great deal depends upon the performance of a particular witness in the witness box and the judge’s ability to understand the expert evidence which may, with respect, not be entirely easy.  These problems are compounded by the factor mentioned above, that is the crystallising of the factual enquiry at an early stage of a litigation process.

Reflecting on these meetings, it was impossible not to feel daunted by the challenges in affecting the type of improvements required, and which Claire McIvor and others reasonably, and forcefully, believe are necessary.  Such improvement is probably only likely to occur if all involved participate.  Whilst lawyers and judges can reasonably be criticised for the failure to modernise, both procedurally and intellectually, the legal system, expert witnesses must understand that in respect of their specialty these lawyers and judges are, in essence, lay people who can easily be blinded by science.

It is always preferable to end on a positive note so I will quote the old Chinese proverb that the longest journey began with a single step.  Also, I have to record how much I enjoyed both events and the companionship and stimulation of the participants in them.

The only downside of the Brussels event was there seemed to be some fault with the air conditioning, which meant that by the end of the meeting I had a very dry mouth and might account for my somewhat lugubrious appearance in the photograph.  However, being in Brussels, I was able to deal with this immediately and effectively by sampling the local liquid produce.

Charles Feeny.

Charles Feeny and Per Laleng participate in International Legal Epidemiology Association

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Charles Feeny and Per Laleng took part in the launch of a new International Legal Epidemiology Association on Friday 1st November. This is a collaborative venture designed to bring together lawyers, scientists and philosophers interested in legal applications of scientific knowledge and technological advances.

For more information please contact editors@pro-vide-law.co.uk.