Being a figure in a statistic does not of itself prove causation

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“Being a figure in a statistic does not of itself prove causation” : The Queen (on the application of Paul Chidlow) and HM Senior Coroner for Blackpool and Fylde and (1) Chief Constable of Merseyside and (2) Northwest Ambulance Service [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”][2019] EWHC 581 (Admin)

Overview:

The issue before the divisional court on judicial review by the family of the deceased was whether the Coroner’s decision not to leave causation to the jury empaneled in an Article 2 inquest was lawful having regard to the Galbraith Plus test. Despite the involvement of a number of pathologists the cause of death remained unascertained. It was in the context of an unascertainable death that the Coroner had concerns about leaving causation to the jury, the second limb of Galbraith, namely whether it was safe to do so being the basis of his ruling. 

Instructed to provide expert evidence was a Consultant in Accident and Emergency, Dr. Andrews. Whilst initially tasked to look at the chance of survival had the deceased arrived at an A&E department, given the admission by NWAS that but for a coding error they would have arrived some 26 minutes earlier than they did, his focus shifted to whether the deceased would have survived had paramedics arrived either prior to cardiac arrest or immediately post cardiac arrest. Integral to the evidence he gave was the Denver study, which had looked at survivability in emergency situations in the US. The study evidenced an 80% survival rate for critically ill patients attended upon by paramedics prior to cardiac arrest post discharge from hospital.

The applicant contended that whilst there was no cause of death the post mortem had excluded various health problems such that Dr. Andrew’s did have sufficient information to be able to form a view as to the chance of survival based on individual characteristics as opposed to statistics alone coupled with his own expertise and experience.

Submissions made by the Coroner, as echoed on behalf of the Ambulance service, focused on statistical evidence being insufficient in the absence of being able to specifically tailor the same towards the characteristics of the individual and that, in the absence of a cause of death, it was not safe to ask the Jury to make a finding as to whether the Deceased would have fallen in the 20% or the 80% category. 

In a helpful Judgment for those specialising in both Coronial Law and Clinical Negligence the Court set out and affirmed case law supporting the Coroner and NWAS’s contention that statistical evidence alone was insufficient. Nevertheless, the Divisional Court took the view that Dr. Andrews based his evidence, that the deceased would have on balance survived with earlier paramedic attendance, on more than just statistical evidence. In addition to the Denver study he had relied upon a) his own expertise/experience b) his reading of the other medical evidence in particular findings that could be excluded from the post mortem evidence c) contemporaneous evidence as to the deceased’s condition from the police and ambulance service. Accordingly it was held that the Coroner erred in law and the matter was remitted for a fresh inquest.

Practical implications of this decision:

Many Coroners and medical experts instructed by Coroners have been quick to rely on statistical evidence alone. As such this is a welcome ruling clearly setting out the principle that more is required in order to establish causation or safely leave causation to a jury. 

Ana Samuel

(Complete Counsel) 

Counsel for the North West Ambulance Service.

Pro-Vide Law will be hosting a major conference on Epidemiology and Legal Causation on 11th July at Wadham College, Oxford . Further details will be published soon

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RSA v Bothnia – Conceding the Frame?

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Conceding the frame?

On 8th March, the Court of Appeal made an Order by Consent dismissing the Claimant’s Appeal against the judgment of His Honour Judge Brian Rawlings

(https://www.bailii.org/ew/cases/EWHC/QB/2018/1237.html).

The circumstances in which this Order was made are a little surprising in that on 7th February the Court of Appeal (Eleanor King, Simon, and Lindblom LJJ) had heard argument on the Appeal, with judgment reserved.  The Claimant’s decision to discontinue the Appeal without awaiting the judgment was realistic, but at one level unfortunate.  His Honour Judge Rawlings had granted permission to appeal on the Claimant’s application because he felt that guidance from the Court of Appeal was appropriate, as there was some controversy between authorities as to the issues in the case.  We discussed these issues and the judgment in an earlier piece (https://pro-vide-law.co.uk/rsa-v-generali-life-in-the-enclave/).  In particular, the case involved significant debate as to whether a claim for contribution as between insurers, following the decision of the Supreme Court in IEG v. Zurich, should be considered one for debt or damages.  If the claim was one for debt, then it would not come within the Civil Liability (Contribution) Act 1978 and therefore would not be subject to a two year limitation period.

Ironically, on the same day as the Court of Appeal heard argument in the RSA case, Mark Allen (the well known snooker player) landed in hot water by conceding a match-winning frame while there were still 11 red balls left on the table in the Snooker World Grand Prix.  Allen was subsequently fined and deserted by one of his sponsors. Whilst a similar approach in the Court of Appeal would result in all cases involving significant principle proceeding to a reasoned judgment, it is unlikely that Court of Appeal practice will be altered in this respect.

Therefore, whilst at one level the lack of any Court of Appeal authority on the issue is disappointing, nonetheless the decision of the Claimant to abandon their appeal after argument would make it very difficult for the point to be raised again. The Claimant’s essential argument was that the claim for contribution did not fall under the 1978 Act because the claim should be characterised as one in debt, which is specifically excluded from the operation of the Act.  Whilst there has been debate at both high judicial and high academic level as to the correct characterisation of the cause of action, ultimately, on careful analysis of the authorities, it appeared clear, as reflected in the judgment of His Honour Judge Brian Rawlings, that the action was one for damages and that there was no actual precedent for considering that a claim for contribution was an action in debt.  That an action for damages appears incongruous can be readily conceded but there is authority at House of Lords level indicating that a claim against an insurer under a liability insurance contract is one for unliquidated damages.  On the other hand, whilst the Claimants could point to analogous contracts such as a surety or guarantee which had been considered to give rise to a cause of action in debt, these were only analogies. There was no case in which a claim for indemnity under an insurance contract could be considered to be one of debt. In reality, the exclusion of debt from the operation of the 1978 Act only applied to cases of simple debt where the rules as to apportionment were well established and there was no need or justification for the judicial discretion under the Act.

The Claimants’ argument would also have produced a very anomalous position in relation to claims for contribution as between insurers.  On the basis that the 1978 Act did not apply, there would either be a six year limitation period, by analogy with the limitation period for contract under the Limitation Act 1939, or in the alternative no limitation period at all, but the possibility of the equitable defence of laches.  Such a result would be considered arcane in the context of the modern law. The two year period under the 1978 Act would be considered reasonable in circumstances in which the existence of the right to contribution would be known prior to the determination of the initial claim.

Therefore, whilst there is no Court of Appeal authority on this issue, it appears unlikely that any insurer will now attempt to rely upon a limitation period longer than two years.  In practical terms, waiting beyond the two year period would not be a risk that any insurer should entertain.

Michael Kent QC and Peter Houghton instructed by Steve Phillips, Plexus for Appellants and Charles Feeny instructed by Tony McDonach, Hill Dickinson, London for the Respondents. The name of the Respondent was changed in consequence of the acquisition of the relevant book by Bothnia International, a Compre managed company.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Costs consequences of late acceptance of a Defendant’s downgraded offer

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This article first appeared in the March 2019 edition of the Liverpool Law Society magazine

What are the costs consequences when a Defendant makes a Part 36 offer and then without withdrawing it simply reduces the value of that offer under CPR 36.9, thereby leaving the offer open for acceptance throughout – but in its downgraded state? Should the reduction be treated as a new offer, thereby entitling C to a new 21-day period for consideration? This issue was considered recently in a County Court case in which I acted for the Defendant.

The claim arose from an RTA which was uploaded to the portal. Proceedings were issued and shortly afterwards in October 17, the Defendant made a Part 36 Offer of £17,000. That offer expired in early December, following which the matter was allocated. In March 18 the Defendant notified the Claimant that the terms of the offer had been varied to offer £10,000, i.e. the offer had been downgraded. The matter was listed for trial but 11 days before the trial, the Claimant accepted the £10,000.

The parties agreed that, pursuant to CPR 36.20(4), as a result of accepting the offer out of time C was entitled to costs for the stage applicable at the date on which the ‘relevant period’ expired and that the claimant was liable for the defendant’s costs for the period from the date of expiry of the relevant period to the date of acceptance, but there was a dispute between the parties as to when the relevant period expired.

D contended that there was just one offer and therefore C was entitled to costs limited to the expiry of the initial Part 36 offer (post-issue/pre-allocation) and C had to pay D’s fixed costs calculated as the difference between the costs applicable at the time when the offer was accepted (post listing/pre-trial) and the costs to which C was entitled (post-issue/pre- allocation). By contrast, C contended that C was liable to pay only those costs arising after the expiry of 21 days following the revision of the offer and thus from 6th April 18 (post-listing /pre-trial).

The parties agreed that the question for the Court was when the ‘relevant period’ expired.

D argued that there had been only one offer and that the variation simply meant that the terms of that offer had been changed pursuant to CPR 36.9 which permits an offeror to change the terms of the offer without permission. CPR 36.9(5) expressly provides for an upgraded offer to create a new offer and a new period of 21 days in which to consider it. D argued that the Court could infer that if the draftsman had intended that a downgraded offer would amount to a new offer he would surely have drafted 35.9 to apply to any varied offer rather than only an improved offer.

D further argued that the Court need only step back and look at the justice of the situation; if an offeror decides that the existing offer is too low and that more should be offered, it is only right that C recover the costs for the period between expiry of the first offer and the expiry of the improved offer (which, pursuant to 36.9(5) is a new offer) since the improved offer shows that C was justified in not accepting the lower offer and entitles C to time to consider the improved offer. However, where an offer is revised downwards, C has in effect had the opportunity to accept a sum equal to or greater than the settlement sum since the offer was made (in this case since October 17). In these circumstances C was not justified in declining to accept the offer and causing D to incur continuing costs for 9 months after expiry of the higher offer. Moreover, justice demanded that C ought not to be compensated for recovering less than the sum that had initially been on offer.

The Claimant argued that the immediate impression given was of two offers, especially since the event which triggered the settlement of the case was the ‘second’ offer. C argued that the purpose of Part 36 was to encourage parties to settle and that an offer had to be taken in context. At the stage C accepted the offer a trial was looming and the perception of risk had changed. C argued that the earlier offer had impliedly been withdrawn and D ought not to have the costs benefits of that offer when it was no longer available for acceptance.

C argued that there was no express provision in the rules which set out the relevant period where an offer was downgraded and therefore it would be dangerous to draw any inference from the rule about upgraded offers attracting an extra 21 days. Had the rule drafters intended that downgraded offers would not attract an extra 21 days then given that they went to the trouble of making an express provision as to the existence of a second ‘relevant period’ when an offer was upgraded, the fact that nothing had been said about downgraded offers could not give rise to any inference at all.

Having heard the argument, the Deputy District Judge accepted D’s proposition because he found that it would be unjust to award costs to C for the extra period.

Although this was a fixed costs case there are parallels with the operation of 36.13(5) in standard costs cases which require the Court, unless it considers it unjust to do so, to order that C have costs up to the date on which the relevant period expired and that the offeree pay the offeror’s costs thereafter, until acceptance. In deciding if it is “unjust’ the Court must consider ‘all the circumstances’ including the list of factors in 36.17(5), hence there is potentially a higher hurdle to cross. However, in the writer’s view, the injustice of an offeree having costs for a period after expiry having declined to accept the earlier offer and later settled for less, will weigh heavily in the balance against the other factors.

Michelle Fanneran, Barrister Complete Counsel