Fundamental dishonesty: spin as law?

/in /by

The most conspicuous development in 2024 in clinical negligence litigation has been the increasing tendency of Defendants to rely upon allegations of fundamental dishonesty, either as a defence to a primary claim or in related proceedings for contempt of court.    Two cases in 2024, not cases of clinical negligence but nonetheless relevant to such litigation, saw judges dismiss actions for fundamental dishonesty in circumstances in which they assessed damages in very substantial sums.  In April in Williams-Henry v. Associated British Ports Holdings Ltd, Mr Justice Ritchie assessed damages (before an agreed deduction for liability) at just under £900k.  In July in Shaw v Wilde, Mr Justice Ritchie was trumped by His Honour Judge Sephton KC in July with £1.2 million.

 Parliament is a law-making body. Given the prevalence of spin in politics, it is not surprising that spin is now being enacted into law.  This can be seen in other contexts, for example a very specific law reflecting a named victim which has little overall practical effect, or the criminalising of conduct that is already criminal, such as upskirting and covering up child abuse. 

Section 57 of the Criminal Justice and Courts Act 2015, which introduced the defence of fundamental dishonesty in personal injury litigation, results from the narrative of the insurance industry that fraud was a major and increasing problem against a background of rapidly increasing insurance premiums.  Whilst the extent of fraud can be debated  there can be no doubt that the civil justice system is well acquainted with dishonesty and has developed  remedies which should deter such behaviour, including adverse costs orders and applications to commit to prison.  The premise of Section 57 was that such remedies were not sufficiently adequate to deter fraud and that if a more Draconian remedy was available, this would have a positive effect on motor premiums. 

Section 57 was presaged by a series of cases culminating in the decision of the Supreme Court in Summers v. Fairclough Homes Ltd.   Defendants  sought to argue that dishonesty in presentation could be sufficient in itself to amount to an abuse of process resulting in strikeout pursuant to CPR 3.4(2).  In Summers, a Judge at first instance had found that a Claimant had grossly and dishonestly exaggerated his claim, .  The Schedule had been pleaded at more than £800,000 but the Claimant  was only awarded £88,716.  The Supreme Court, disagreeing in principle with the Court of Appeal, considered that in an appropriate case a Court could strike out for dishonesty as an abuse of process, but this would require an exceptional case.  Lord Clarke, giving the Judgment of the Supreme Court, had difficulty in identifying what might amount to an exceptional case.  He tentatively identified a situation in which the Claimant’s damages were trivial compared with the claim as present

In the wake of Summers, Section 57 represented a positive outcome for insurers in the face of lobbying on their behalf and counter-lobbying by claimant representatives.  Section 57 enjoins a Court to dismiss an action for fundamental dishonesty unless there is substantial injustice.  Neither fundamental dishonesty nor substantial injustice are defined in the Act.  This task was left to the judiciary.

In debate in the House of Lords, Lord Faulks indicated the Government’s approach as follows: 

“Clause 45 (now Section 57) seeks to strengthen the law so that the dismissal of the entire claim should become the norm in such cases.  However, at the same time, it recognises that the dismissal of the claim will not always be appropriate and gives the Court discretion not to do so where it would cause substantial injustice to the Claimant.  To that extent, some of the remarks of my noble friend, Lord Marks, were entirely apposite.  The clause gives the Court some flexibility to ensure that the provision is applied fairly and proportionately.” 

The authorities to date have not identified a touchstone for fundamental. In Denzil v. Mohammed in 2023, Mr Justice Freedman suggested four principles had emerged .

First: “There is a danger about elaboration and metaphor.  Otherwise, the Courts will be applying the elaboration and metaphors of previous Judgments, such that the words of the statute will fade into history and will not be applied.” 

Secondly:  “The statutory word ‘fundamental’ should be given its plain meaning.”  

Mr Justice Freeman considered that expressions used in previous cases, such as “going to heart” or “substantially affecting the presentation of the case” might assist. 

Thirdly:  “The question of whether the dishonesty was sufficiently fundamental “should be a straightforward jury question.” 

Fourthly , the Judge should conduct an exercise in considering the extent to which the dishonesty resulted in an inflated claim. 

Overall, the impression is that for fundamental dishonesty there has to be a lot of dishonesty which has a big effect on the value of the claim.  The only explicit exclusion of dishonesty so far in judicial guidance has related to collateral or incidental dishonesty.  There is  substantial judicial clear blue water between collateral and incidental and the type of extreme case seen in Williams-Henry and Shaw, where there was systematic and sustained dishonesty. 

Defining substantial injustice has proved even more problematical.  In one of the first cases considering, that is LOCOPG v. Sinfield in 2018, Julian Knowles J stated: 

“Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice.  However, it seems to me plain that substantial injustice must mean more than the mere fact that the Claimant will lose his damages for heads of claim that are not tainted with dishonesty.” 

Mr Justice Julian Knowles indicated that this was plainly the policy of the Act.  Judges considering substantial injustice have accepted this approach.  If the loss as occurred in Shaw v. Wilde of £1.2m in damages to a Claimant seriously injured by a Defendant’s breach of duty does not amount to a substantial injustice, it is difficult to envisage what might actually amount to the same.  In Williams Henry, Mr Justice Ritchie suggested seven factors which could be taken into account in assessing substantial injustice.  A number of these factors, however, would already be factored into a finding of fundamental dishonesty, such as the disparity between the amount claimed and the amount awarded or the scope and effect of the dishonesty.  Others are of questionable relevance, such as the nature and culpability of the Defendant’s tort.  Given that the focus of the Section is on the Claimant’s dishonesty, it is difficult to see why the level of breach of duty by the Defendant is relevant to substantial injustice.  Mr Justice Ritchie considered, as did His Honour Judge Sephton KC, that the effect of the Claimant on the dismissal of the action could be relevant.  In Williams v. Henry there was some evidence that the Claimant would become suicidal as a result of the dismissal of her action, but Mr Justice Ritchie considered that this situation would flow from own dishonesty.  At present, it is difficult to envisage a situation in which a Judge having made a finding of fundamental dishonesty would consider that there was substantial injustice in dismissing the claim. 

That experienced Judges have been unable to bring coherence to this area of the law reflects the origin of the Section in spin rather than legal principle.  It is plausible to argue that more should be done about dishonesty in civil litigation, but nonetheless Courts should retain a discretion to let some dishonest Claimants off the Draconian sanction of striking out.  However, this cannot be translated into coherent law. 

Why does this matter?  In Shaw v. Wilde, His Honour Judge Sephton KC concluded by stating that the Claimant only had himself to blame.  The problem is in relation to advising Claimants who might not obviously satisfy the test of fundamental dishonesty or who might reasonably contest allegations of dishonesty notwithstanding there being some discrepancy in their presentation.  The defence does not always succeed.  In Cullen v. Henniker-Major, a Claimant, after being cross-examined for three and a half days, persuaded a Judge that she had not been dishonest.  This Claimant had undergone a laryngectomy as a result of the Defendant’s failure to diagnose laryngeal cancer.  Those advising Claimants have to tell them that where fundamental dishonesty is raised there is a prospect that they will have to give evidence over a prolonged period and that the Judge may ultimately dismiss the claim in its entirety.  In these circumstances, many Claimants are held in terrorem.  There is the added difficulty of maintaining funding in a market where funders require a significant degree of confidence to continue to support a Claimant. 

The enactment of Section 57 will be 10 years old in April 2025.  During that 10 year period, except for a brief respite during the pandemic, motor premiums have consistently risen. 

MATERIAL CONTRIBUTION: LIGHT AT THE END OF THE TUNNEL?

/in /by

MATERIAL CONTRIBUTION: LIGHT AT THE END OF THE TUNNEL?

The decision of the Court of Appeal in Zgonec-Rozej and Others v Pereira can be seen as a further step in providing clarity in the difficult area of how causation in tort is proved by material contribution to damage without invoking the Fairchild exception.  

The relevant facts of this tragic case can be briefly stated.  The Deceased, a leading barrister, had a long history of psychiatric illness.  He had been treated by the Defendant, a consultant psychiatrist, in the community but was then admitted as a voluntary patient to a psychiatric hospital.  Shortly after his admission, the Defendant handed over care of the Deceased to another consultant as the Defendant was going on leave.  The Judge at First Instance found that the handover, insofar as there was one, was inadequate.  The Claimant’s case was that the handover should have included a detailed plan of management emphasising the need for psychotherapy.  The Deceased’s care was then managed by the second psychiatrist for a period of weeks.  The Defendant returned to work but had not seen the Deceased before he committed suicide whilst on leave from the hospital.  

Whilst the Judge accepted there had been a breach of duty in relation to the handover, he rejected the claim in causation.  He found that, as there was no evidence before him that the second consultant had been negligent in her management, it could not be found that the handover as contended for by the Claimant would have made any difference to management.  The second consultant would be able to assess the Deceased and could have specified psychotherapy herself.  That the Defendant did not indicate the need for psychotherapy in a proper handover could not be considered causative in these circumstances.  

The Judge also rejected the Claimant’s secondary case, which was to rely upon causation by material contribution.  

The Claimant appealed, contending that the Judge should have found but-for causation was established or, if he could not, that causation was established by material contribution.  The Court of Appeal rejected both grounds of appeal.  They held that the Judge was entitled to conclude on the evidence before him, in particular the lack of any evidence or criticism of the second consultant, that causation was not established on the balance of probabilities.  The Claimant was not entitled to rely upon material contribution to damage if, on the facts, she could have succeeded on a but-for basis but simply failed to do so.  In paragraph 78 of the Judgment of the Court of Appeal, Lady Justice Nicola Davies stated that material contribution does not arise where factual causation can be determined on a but-for basis.  

The important consideration here are the words ‘can be’.  That a Claimant fails on particular facts is not equivalent to impossibility of proof.  The Claimant’s argument on material contribution was similar to many seen in cases since Bailey v The MOD; that is to suggest that there is some ill-defined concept of material contribution which can apply where there is at least some evidence suggesting causality but not sufficient to form the basis of a finding of proof of causation on a conventional test.  The approach of the Court of Appeal in this case is similar to that in the case of Holmes v Poeton [2023].  

These authorities make it clear that a threshold to proof by material contribution to damage has to be established in terms of proving that there is, on the balance of probabilities, some factual connection between the Defendant’s breach of duty and the occurrence of injury.  So in Bailey v The MOD,  at First Instance, Mr Justice Foskett found that the Defendant’s breach of duty had materially contributed to a state of weakness and that the Claimant’s injury followed from this state of weakness.  He indicated that he could not find whether the Defendant’s breach of duty, as opposed to the Claimant’s underlying condition, was the predominant cause of the weakness.  It should be noted that this finding in itself does not preclude a finding of causation on the balance of probabilities.  The breach of duty causing weakness could have tipped the balance on the facts of the case whereby the Claimant aspirated her vomit even if the predominant cause of the weakness was her underlying condition.

Be that as it may, the Court of Appeal were somewhat creative in their interpretation of the Judge’s findings.  In particular, stating that the Judge had found that it was impossible for the Claimant to prove causation on a but-for basis.  It does not appear from the first instance Judgment that this argument was advanced or considered.  In any event, the Court of Appeal considered that the finding of material contribution was sufficient on the assumption that the Judge was deciding that the Claimant could not prove  that the Defendant’s breach of duty made a crucial difference to outcome.  

On this analysis, the outcome in a Bailey-type case would be achieved if the evidence showed that there was a material contribution to the causal event but that the evidence was finely balanced as to whether this made a crucial difference.  This calls into question the difficult point of what ‘material’ means.  This continues to be interpreted in a somewhat impressionistic way, in particular by ‘material’ not being de minimis.  Considering the term ‘material’ in context, it is reasonable to suggest that it would mean that the Defendant’s breach of duty could at least reasonably have made a difference to outcome even if it cannot be shown on the balance of probabilities that it did so.  So to vary the facts of Bailey slightly, if there was expert evidence which indicated that 80% of the weakness came from the underlying condition with a 20% contribution from the breach of duty , that the 80% weakness created a sufficient level to cause the injury in question but that it could not be said that on the balance of probabilities the injury would not have occurred in the absence of the 20% contribution then the proof by material contribution would follow.

Approaching material contribution in this way does give some clarity and focus to the concept, as opposed to being what I have previously described as a ‘forensic get out of jail free card’.  

On this basis the principle is kept within discernible confines . Reversing the onus of proof within this enclave has at least a sense of fairness. 

The traditional and inevitably male maxim was ‘he who asserts must prove’.  In the context of a material contribution claim, it could be said that the Claimant has proved that the Defendant did in fact contribute to the cause of injury.  It is for the Defendant to prove that the injury would have occurred without contribution from the Defendant.

Material contribution to damage applies to indivisible injuries, but how? 

/in /by

Holmes v. Poeton Holdings Ltd [2023] EWCA Civ 1377.

The forensic debate as to the correct application of a concept of material contribution to damage has run in the Courts for almost as long as The Mousetrap has run on the West End stage.  In Holmes v. Poeton Holdings Ltd, the Court of Appeal has attempted to reach a definitive conclusion to this debate.  However, in the judgment of Lord Justice Stuart-Smith disapproval is expressed of obiter statements in both the Supreme Court and the Privy Council.  It therefore remains to be seen whether in respect of the forensic debate, this will be the last night of the show. 

The essential facts of the case can be briefly stated.  The Claimant, whilst employed by the Defendants, was exposed to a harmful substance, Trichloroethylene (“TCE”), in breach of duty.  The Claimant subsequently contracted Parkinson’s disease, which is agreed to be an indivisible condition in the context of the claim.  At trial, the Claimant accepted that the scientific evidence was insufficient to prove that the Claimant would not have contracted Parkinson’s disease in the absence of TCE exposure, that is “but for “causation. The Claimant contended he was entitled to succeed on the basis of material contribution to damage.  The Judge found for the Claimant on causation . 

The first ground of appeal was that the Judge was wrong to hold that the Claimant could succeed on material contribution to damage in the context of an indivisible injury without proving ‘but for’ causation.  The Court of Appeal rejected this argument.  In a detailed review of the authorities, Lord Justice Stuart-Smith acknowledged that there were conflicting judicial statements and academic criticism of the reasoning in Bailey v. The MoD. Nonetheless, he concluded that the decision of the Court of Appeal in Bailey v. The MoD was correct on its facts.  Lord Justice Stuart-Smith, with whom the two other Judges agreed, therefore did not accept that the only exception to ‘but for’ causation in tort was the Fairchild exception, which it was accepted did not apply on the facts of the case.  Similarly, Lord Justice Stuart-Smith did not accept, as had been apparently stated in Williams v. Bermuda in the Privy Council, that material contribution to damage was merely a context-specific way of applying ‘but for’ causation. Whilst the reasoning of the Privy Council had been brief it was generally understood as indicating that material contribution applied where although the Defendant’s agency was one of a number of causes it was a sufficient factor as to be considered a but for cause.

The Defendants’ Appeal, however, was successful.  Lord Justice Stuart-Smith held that the Judge had been wrong to consider that generic causation of Parkinson’s disease by TCE was established on the scientific evidence before the Court.  He further indicated that the Claimant could not succeed in relation to individual causation because the Judge’s findings had not identified any specific factors which would have led to proof of causation in the absence of a finding of generic causation.  This was particularly the case because the Judge had only made vague and general findings as to the extent of TCE exposure.  This part of the judgment, and indeed the Defendants’ apparent concession that TCE was a risk factor for Parkinson’s disease, appear incongruous.  If proof of generic causation failed, then the Court was indicating that there was no satisfactory evidence that TCE could cause Parkinson’s disease.  In these circumstances, individual causation would not arise nor would TCE be a risk factor.  However, in the circumstances, a failure to prove generic causation was in itself sufficient to result in the claim being dismissed. 

If “material contribution to damage” is established as an exception to ‘but for’ causation, then given its exceptional nature, the scope and application of the concept need to be clearly defined.  The experience of practitioners is that this has not been the case, in particular since the decision in Bailey v. The MoD.  Rather, the concept is relied upon as what might be described as a forensic ‘Get out of jail free’ card in cases where the Claimant has the beginnings of a case on causation, but realistically acknowledges that ‘but for’ causation cannot be proved.  This lax analytical approach is well evidenced in the findings of the Judge at first instance.  The Judge discussed a number of aspects of the evidence, including the Claimant’s excessive exposure to TCE and the scientific evidence which indicated at least the possibility of risk from such exposures.  He concluded at paragraph 83 of the judgment: 

“… If I stand back and ask myself whether the propositions set out above persuade me that in this particular case, on the balance of probabilities, was the Claimant’s Parkinson’s disease materially contributed to in fact by his exposure to TCE at the Defendant’s works, then the answer is yes.  In my view, to conclude otherwise would be to suspend the reality of the situation and ignore that which on any analysis seems to me to be the likely reality.  Ultimately this decision is a matter for the Court, guided of course by the expert evidence.  It is not a matter of formal epidemiological analysis.” 

It is impossible from this passage and the judgment generally to consider what the Judge actually understood by the concept of material contribution in fact. 

Given the Court of Appeal’s finding that the evidence did not support generic causation, there was no further basis for discussing whether there was sufficient evidence to consider how material contribution to damage might be evaluated.  On the Court of Appeal’s finding, the Claimant did not get to first base. 

In referring to material contribution in fact, the Judge was at least recognising that material contribution to damage as a legal concept requires proof that the Defendant’s agency contributed in factual terms to the causation of the injury, as opposed to creating a risk of the injury occurring.  In the latter situation, absent the application of the Fairchild exception, then the approach in Wilsher would result in the claim failing.  In CNZ v. Royal Bath Hospitals NHS Foundation Trust, on a secondary ruling as to causation, Mr Justice Ritchie considered that a Claimant was entitled to 100% damages in terms of functional outcome, even though the Claimant would have been brain damaged in any event on the premises of the secondary ruling.  However, critical to this approach was his finding that a negligent delay in delivery had caused most of the Claimant’s brain injury on a ‘but for’ test.  His approach therefore was consistent with the subsequent decision of the Court of Appeal in Holmes but was premised on  a “ but for “ finding of actual causation of significant damage. 

It is then necessary to consider what is meant by “material” in this context.  Here the Courts have maintained a stubborn insistence on reflecting a historic test that “material” means not de minimis.  “De minimis” is an arcane and impressionistic concept used by the courts in the 16th century to determine a dispute about tin mining.  It is not appropriate where there is detailed and sophisticated scientific evidence capable of establishing what material effect a breach of duty could have.  The difficulties created by continuing to use the de minimis threshold were put into sharp focus by the Court of Appeal in the case of Carder v. The Ministry of Defence. The Court reached a conclusion that a contribution to an injury by a Defendant at a very slight level was insufficient to cause any difference in functioning, but nonetheless was not de minimis.  This analysis was inconsistent with the approach to material injury establish by the Supreme Court in Rothwell & Others, that is being appreciably worse off in terms of functioning.  It is reasonable to accept that material in this context should have the same meaning as in other legal concepts such as material misrepresentation or material non-disclosure and indeed material injury that is at least capable of making a difference to the outcome. 

Considering the likely outcome if a finding of generic causation was reasonably made and no other risk factors was identified, then it could be argued that the Claimant would have succeeded without having to resort to any exception to ‘but for’ causation.  In these circumstances, the Claimant would have demonstrated a significant increase of developing the condition from the Defendant’s breach of duty, with no other likely causal factor being implicated.  Per Laleng and I discussed this situation in a paper published in the University of Western Australia Law Review, “Law in epidemiological evidence: Double, Toil and Trouble”.  The suggested approach to causation was set out in an algorithm: 

Although there are suggestions in the judgment of first instance and the Court of Appeal decision in Holmes that doubling of risk may be critical in this context, we argued in the article that material increase would be sufficient in the absence of any identifiable other causal factor. 

If, on the other hand, other potential causal agencies were identified then it would have to be considered whether these could have operated cumulatively so as to cause the disease, or whether the different potential agencies were independently of each other likely to cause the disease.  In the latter situation, again, the circumstances would fall within Wilsher and the Claimant could not rely on the Fairchild exception. 

If, however, the causal agencies were cumulative in effect, then the application of a concept of material contribution to damage would result in the Claimant succeeding, even though the Claimant could not overcome the ‘but for’ threshold on basis of the decision in Holmes.  It would of course be possible for the Defendant to argue that the injury would have occurred in any event, but if a reasonable approach is taken to the assessment of materiality, it is difficult to envisage a case where the Defendant would succeed in these circumstances. 

Therefore, material contribution to damage is probably going to continue to run, as with The Mousetrap.  There will be hopefully a difference in the plot with the focus being on the meaning and assessment of materiality.

Charles Feeny

Law & Epidemiological Evidence: Double, Toil & Trouble University of Western Australia Law Review, Vol 49 Issue 1

/in /by

In late February 2019, I had lunch at Wadham College, Oxford, with Professors Carl Heneghan and Sandy Steel to discuss a
seminar on epidemiological evidence and the law. Almost exactly three years later, the results of this seminar at Wadham in July 2019 and a subsequent seminar at DWF London in February 2020 have been encapsulated in an article written by Per Laleng and myself, published in the University of Western Australia Law Review. Given its protracted genesis, the title of “Double, toil and trouble” can have more than one interpretation, however the pandemic at least provides some mitigation in this regard.

We were pleased and honoured to be published in the Special Causation edition of the University of Western Australia Law Review. This is an open-access publication.

As you read through the 15 articles over 475 pages, you will notice the wide range of the authors, to include leading academics, very senior judges and even some practitioners. Incidentally, if you do not have the time to read all 15 articles when you have finished ours, I would recommend Richard Wright’s contribution, which offers remarkable clarity in a very difficult area.

Prior to being invited to submit this article to the editors in Western Australia, we had sent it to two leading academic journals in this country. Both of them considered that the article had too much of a practical focus to be suitable for publication. One of the editors considered that there was insufficient “technical law”. I am not quite sure what “technical law” means, but this does not stop me being instinctively opposed to it.

Traditionally, it was considered a positive feature of the common law that its awareness of the reality of experience made it accessible to a broad range of public opinion, and at least to a significant extent acceptable. The man on the Clapham omnibus was never conclusively identified, but we can be reasonably sure he was not a technical lawyer. Technical law appears to have developed through the intellectual parochialism of academia in the United Kingdom. Admittedly this excessive and often unfocused complexity in the law does have the attraction of inducing a degree of intellectual terror amongst certain sections of the judiciary. However it represents a damaging movement away from the traditional strengths of the common law. Reading many judgments now, it is quite apparent that their content and methodology has no resonance at all with the vast majority of the population who do not immerse themselves in technical law. Further, judgments inevitably become more extensive reflecting the breadth of argument before the Courts. Such litigation is now often conducted at eye-watering cost, affordable by major corporations and until recently oligarchs , but with the result that resort to the courts is prohibitively expensive for vast sectors of the population.

It is striking that admiring remarks are often made in leading appellate judgments in the Court of Appeal and the Supreme Court about Australian decisions which often appear to be much more concise and focused. It could be reasonably observed that the Australian Courts have remained much closer to the true ethos of the common law. The Editors of the Western Australian Law Journal do not appear to draw any distinction between law in practice and technical law. It is also conspicuous that notwithstanding the considerable time and effort put into producing this Special Edition, it is open-access.

Charles Feeny

Welcome back to Pro-Vide Law

/in /by

Pro-Vide law commenced in 2013. The aim was to provide a focus for education and training involving practising lawyers, expert witnesses, clinicians, and legal academics. The projects’ emphasis was achieving communication and debate.
Like so many other activities, Pro-Vide Law became moribund in the lockdown. In 2021 the website was taken down with the intention of re-launch. Again as with so many other activities, re-launch has taken longer to achieve than initially anticipated.
As we re-launch now in 2023 it is appropriate to reflect on the changes in the last decade. In relation to personal injury and clinical negligence litigation the most conspicuous differences can be seen in funding and cost recovery. The bonanza in such litigation which followed the abolition of legal aid and the identification of much more lucrative ways of offering ended with the Jackson and subsequent reforms. Whilst law firms have attempted to achieve similar levels of profitability since 2013, this has met with at best mixed success. In fact ,it is hard to find any real winners in the changes over the last decade. The most conspicuous losers are individual claimants who would struggle to find a lawyer unless the claimant had a very strong case and was prepared to forego a substantial proportion of their damages under a DBA.
What about the law itself? My perception is that it has become increasingly subject to internal and retrospective focus. Skeleton arguments and judgments are constantly growing in size with citation of authority and intricate argument.
I read the Tate Modern judgment in the Supreme Court with interest. The issue could be simply formulated albeit the answer was always going to be controversial since as evidenced in the judgments in the case different views could reasonably be taken. Accepting that residing in an urban area inevitably involves being overlooked by others should this acceptance extend to the creation of a facility where crowds of people can look directly into your home being lawful? The question could be seen as a broad one reflecting social and personal expectations in the early 21st century. The speeches in the Supreme Court involved a minute analysis of the development of the law. Over 80 cases were cited either in argument or in the speeches with the earliest authority being from 1752.
Similar comments can be made about any number of appellate judgments over the last decade with the law being treated as some form of historic given as opposed to a living entity. Whilst this approach could be described as being good for business, both for practising lawyers and academics, the unnecessary and increasing complexity of the law creates a level of costs which makes litigation prohibitively expensive for most individuals within the community.
We are re-launching Pro-Vide Law with two webinars filmed at Wadham College, Oxford in April. The first webinar on material contribution was live streamed. It was refreshing to be joined by Professor Sandy Steel and John de Bono KC for an open and stimulating exchange of views. With Sandy’s assistance we were able to identify in each context why the law is the way that it presents. However , the debate should not stop there. The next question is whether the law should be so? In relation to material contribution the reasonable question arises that if the standard of proof is going to be attenuated, why there should not be an apportionment of damages even though the same would have no scientific basis? In relation to patient fault and contributory negligence, the question is reasonably asked why a person who through serious misconduct causes themselves significant injury should not have that fact reflected in the assessment of damages for subsequent clinical negligence?
These, and other issues are those which we hope to consider and debate through Pro-Vide Law.
Charles Feeny

McCulloch v. Forth Valley, Bilal v. St George’s: Was Montgomery really necessary?

/in /by

On November 10th, Pro-VIDE-Law are holding a seminar in Liverpool to reflect on Montgomery. The seminar is entitled “Where does medicine end and law begin?

We are approaching the 10th birthday of Montgomery. It is reasonable to think of Montgomery as having a 10th birthday, as it is undoubtedly a favoured child of the judiciary, meriting attention at all times. The scope of the Montgomery duty was discussed in two recent appellate decisions in the Court of Appeal in Bilal v. St George’s Hospital and in the Supreme Court in McCulloch v. Forth Valley.

It is not necessary to discuss the facts of these cases in any great detail, since the Appeals, as relevant to Montgomery, proceeded on a narrow point, discussed in more detail below. However, it is apparent that in each case the Claimants had failed on factual bases which were not susceptible to challenge on appeal. Any issue on Montgomery was largely tangential to the Claimant’s action failing. Nonetheless, in each appeal the Courts addressed the Montgomery issue. Indeed, reading the speeches in the Supreme Court, it is scarcely noticeable that the Claimant in any event had formidable causation difficulties.

The issue on Montgomery identified in both appeals was whether the assessment of reasonable alternative treatments to that given should be assessed by reference to what was described as the professional practice test, that is Bolam/Bolitho, or whether an approach based on Montgomery should be taken. In both cases it was decided that a Bolam/Bolitho approach should be taken. Accordingly, if a clinician did not advise a patient of alternative treatment because the clinician did not believe it to be reasonable, and that view was supported by a body of relevant opinion, the clinician would not be in breach of duty. This would apply even if there was to the clinician’s knowledge an alternative view held by a reasonable body, and even if the Court accepted that the Claimant would, after proper discussion, have preferred the alternative treatment.

There appears to be a tension here, or at least some unresolved issues, in particular, relating to the definition of “reasonable” in this context.

Dr McLellan, the Consultant advising Nadine Montgomery, presumably considered that a caesarean section was not a reasonable alternative when she advised the Claimant without making reference to this possibility. It is possible to envisage a number of scenarios in which the question of how “reasonableness” of alternative treatment is assessed will come into clearer focus. This could occur if a surgeon does not advise of a new or experimental surgical technique because the surgeon reasonably believes that it is not sufficiently established in clinical practice. However, there are reputable consultants who take a different view. The evidence in the case is that the surgery would have been successful and the Claimant would have consented, being anxious for something to be done to alleviate the condition in question.

It would also be interesting to see how the Court would approach a situation in which a clinician did not advise a certain form of treatment as a possibility because the clinician believed that the Claimant would not be able to comply with a rigorous rehabilitation regime, which was essential to a successful outcome of the treatment in question. The patient, however, might take a different view, and also might reasonably believe that it was an issue that should be discussed.

It is difficult to square a simple statement that the assessment of whether alternative treatment is reasonable as being subject to the professional practice test with the scope and implications of the Montgomery decision.

Considering the facts in McCulloch, it could be suggested that the crucial difference with Montgomery was one of context. The clinician in question was not discussing treatment with the patient with a view to obtaining consent, but rather offering advice in relation to a patient who was under the care of another consultant. The clinician reasonably would have understood that it would not have been her function to facilitate some discussion whereby all possible treatments were brought to the Claimant’s attention. The impracticability of such a duty was clearly material in the Supreme Court’s approach. Importing into these circumstances a legal duty of care going beyond professional practice duty requirements would place an impossible burden on busy clinicians in routine management.

However, the decision in Montgomery specifically requires a clinician in the context of obtaining consent to discuss reasonable alternative treatments. This cannot be dismissed simply as a duty to discuss risks of treatment, but would envisage that a patient would be made aware of alternatives. It is clear that if a clinician believes on reasonable evidence that treatment would not be effective, then no duty could arise to discuss it with a patient. Adopting terms such as “clinically appropriate” or “clinically suitable” as discussed in McCulloch does not resolve the question of the assessment of the degree of suitably or appropriateness necessary to make alternative treatment a reasonable option, at least for discussion.

Ultimately, it could be suggested that the Courts could do no better than reverting to a professional practice test in relation to reasonable alternative treatment in all respects.

The decision in Montgomery was reasonably described as being evolutionary rather than revolutionary; that is representing a move away from traditional medical paternalism. It would have been open to the courts in Montgomery to indicate that on the evidence as to proper professional practice, Dr McLellan was not acting in accordance with her duty to Nadine Montgomery in deciding, without reference to her, that a caesarean section was not a reasonable alternative treatment.

On 10th November we are joined by two experienced medico-legal experts, Jonathan Hobson (ENT surgeon) and Dr Simon Minkoff (General Practitioner) and Dr Craig Purshouse, (Senior Lecturer of Law). The intention is to discuss the impact of the Montgomery decision, the practical issues it presents for clinicians and where the law should go from here.

Charles Feeny