Why LITIGATE when you can MEDIATE?

Could mediation be a solution for councils and other public bodies to resolve disputes?

Mediation is a form of alternative dispute resolution that has been around for a long time; in fact it dates back to Roman times. A mediator is neither a judge nor an arbitrator, nor even a chairperson. A mediator acts as an independent facilitator of discussions between parties, with a view to resolution.

Paul v The Royal Wolverhampton NHS Trust: a new hope for secondary victim claims?

Secondary victim claims have long been considered controversial. Lord Dyson MR described the law as ‘arbitrary and unsatisfactory’ in the decision of Taylor v A Novo [2013] EWCA Civ 194. Despite strict judicial control of this area (especially at appellate level) there is a continuing sense that the law does not reflect society’s change in attitude to psychiatric illnesses generally. Arguments in this area almost exclusively focus on interpretation of case law; comparatively little time is spent considering whether the claimant’s condition justifies recovery. 

It is against this backdrop that the decision in Paul was handed down. There is no doubt that claimants will perceive the case as a major step forward. Of interest is whether the decision of Chamberlain J does herald a new hope or whether the decision is merely a more accurate restatement of the law. 

The facts of Paul

The Claimants’ father suffered a sudden cardiac arrest whilst out with his two young children (aged 12 and 9). It was alleged that the Defendant provided negligent treatment to the father 14 months prior to his death by failing to provide a coronary angiography. There was nobody immediately around to provide help to the two Claimants. Eventually another lady appeared and called an ambulance. The Claimants were moved away from their father into a church. The Claimants’ mother arrived at the scene and they heard her screaming their father’s name. The paramedics were unable to resuscitate the claimants’ father and they saw the final moments of his life. 

The Claimants brought an action for psychiatric injury. The Defendant applied to strike out that aspect of the claim. The matter was heard at first instance by Master Cook who agreed with the Defendant and struck out the matter. The Master held that the case could not be distinguished from Taylor v Somerset Health Authority [1993] PIQR 262, approved by the Court of Appeal in Taylor v A Novo, which considered the heart attack could not amount to a relevant event for the proximity test. Master Cook added that it was wrong to focus on the death of the Claimants’ father as being the first point at which the consequences of the negligence became apparent. By focusing on the death, it overlooked the need for a ‘proximate connection between the initial negligence and shocking event’.

On appeal, Chamberlain J overturned the decision of Master Cook and held that the matter should proceed to trial. As part of his reasoning, Chamberlain J provided a comprehensive analysis of the authorities and what is to be considered ‘an event’. 

A shocking event

The underlying principles dictating when an individual can recover damages as a secondary victim are contained in the House of Lords decision of Mcloughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. In short, it is necessary to show a close tie of love and affection, proximity to the incident, and a sudden and traumatic event. 

The key question for Chamberlain J was whether the heart attack could be considered ‘an event’. If it did satisfy that criterion then a duty of care was owed. The question posed was whether the collapse from a heart attack 14 months after the alleged negligence could constitute an event?

The court identified three possible reasons why the heart attack did not constitute an event. First, the event had to be synchronous, or approximately synchronous, with the negligence. Second, that liability depends upon a negligent act and not an omission. Third, that the Claimants were absent from the scene of the tort. Chamberlain J rejected all three concerns. 

The Defendant focused its submissions on the third objection. This is a common argument in clinical negligence cases where the consequences (damage) of negligence can occur many months later.  One of the leading authorities on this question is North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. The case concerned a 36 hour period between the Claimant’s child fitting and dying. Ward LJ concluded that there was a ‘seamless tale’ which played out over 36 hours. In contrast, the Court of Appeal held in Taylor v A Novo that an instance where the individual collapsed and died three weeks after the negligence did not satisfy the test of event. Lord Dyson distinguished Walters by reference to the seamless tale and concluding it was not present. Lord Dyson considered the death of the Claimant’s mother to be a subsequent event albeit inter-related. 

Addressing this point, Chamberlain J explained:

‘In “accident” cases, like McLoughlin , Alcock and Taylor v A. Novo , where the breach of the duty and the damage caused are coincident in time and place, the “scene of the tort” is also the scene of the negligence. When the negligence and the damage are separated, and assuming that there is no requirement for the negligence and the damage to be synchronous, the “scene of the tort” can only mean “the scene where damage first occurred”. In the context of the tort of negligence, this is the point when the tort becomes actionable or complete.’

The fact of Paul gave rise to an argument over whether the Defendant’s negligence caused actionable damage prior to the collapse. This was a question of fact that had to be resolved with expert evidence. If the Claimants’ submission that the cause of action accrued upon the collapse (and not before) was correct then they were present at the scene. It is therefore capable of being an event.

Chamberlain J sought to reconcile the outcome with the Court of Appeal decision in Taylor v A Novo by contrasting between primary and secondary victims. If a primary victim suffers an event which is witnessed by a secondary victim that will suffice. Chamberlain J concluded that that was the ratio in Taylor which in turn allowed him to bridge the gap between the negligence and damage. Chamberlain J has sought to restate the law and how it should be interpreted. He has not sought to implement radical change. 

On the facts of Paul, this interpretation allowed Chamberlain J to find that there had in fact been only one event: the heart attack. That event was clearly shocking to those who witnessed it and that it happened 14 months after the negligent omission did not prelude liability. Chamberlain J was clear that the decision in Taylor v A Novo allowed the Claimants’ claim. In doing this, Chamberlain J has merely sought to provide greater clarity. 

Concluding thoughts

Secondary victim claims in clinical negligence cases will continue to test the boundaries of existing case law. The decision in Paul v The Royal Wolverhampton NHS Trust will serve as encouragement to claimants. It does not herald a new hope akin to Obi Wan Kenobi finding Luke Skywalker and teaching him the ways of the force. The decision is an example of the appellate judiciary using common sense to bridge the gap between alleged negligence and subsequent damage within a fairly ridged set of guidelines. 

The decision will have benefits for both claimants and defendants. Claimants will use it to advance cases where there is a perceived lack of proximity between negligence and damage. Defendants will be reassured that in cases of delay between negligence and damage, the negligence must result in an event that is capable of giving rise to injury in a primary victim. In turn, a secondary victim can only claim where injury is caused by witnessing that sudden and traumatic event as opposed to a subsequent, discrete, event. Where the dividing line falls is a question that will keep the courts busy for the foreseeable future.

Whittington Hospitals NHS Trust v XX (2020 ) UKSC 1

The triumph of identity over collectivism?

On 1 April 2020, the Supreme Court handed down judgment in the case of Whittington Hospital NHS Trust v. XX [2020] UKSC 14.  This inevitably controversial judgment received scant media attention at the time, given the commencement of the Lockdown.  It is likely that the decision will be the subject of considerable discussion once the Lockdown eases.

The Supreme Court, by majority of three (Hale, Kerr and Wilson) to two (Carnwath and Reed) dismissed the Defendant’s Appeal against the Court of Appeal’s award of damages to a Claimant, including damages to cover the costs of a commercial surrogacy arrangement in California.  The Claimant was a young woman who had been rendered infertile by the Defendant’s admitted breach of duty in failing to investigate and treat her cervical cancer.  She wished to have four children and wished to do so by commissioning through surrogacy in California.

In  the leading speech, Lady Hale explicitly declined to follow her own earlier judgment as Lady Justice Hale in the case of Briody v. St Helens & Knowsley Area Health Authority[2001] EWCA Civ 1010. In that case, the Court of Appeal had unanimously decided that it would not be appropriate to award damages for a commercial surrogacy in California because the award of damages would include the payment of sums for activities which were unlawful under statute in the United Kingdom.  In paragraph 53 of her speech, having reviewed a number of issues where, on her analysis, the position in XX was markedly different to that at the time of Briody, Lady Hale considered that it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.

Lord Carnwath, with whom Lord Reed agreed, dissented.  At paragraph 63, Lord Carnwath concluded that the issue was essentially one of “legal policy” and that the most relevant factor was what had been described in earlier authorities as “the coherence of the law”.  A legal system which criminalised conduct but at the same time awarded damages to carry out the same activity could not be regarded as coherent.  Insofar as there was debate as to whether commercial surrogacy should be unlawful, Lord Carnwath indicated:

“It is difficult to think of a better guide to where to draw the line in a highly sensitive area such as this, than that indicated by Parliament.”

It is interesting to contrast Lady Hale’s approach in XX with her statement in Briodyin paragraph 15, where precisely the same argument arose as to funding an arrangement in California which would have been unlawful in the United Kingdom:

“It would appear (although I do not know whether there was any evidence on this before the Judge) that in California commercial agencies are permitted and surrogacy agreements may be binding.  If so, I have no difficulty in agreeing with the Judge that the proposals put to her were contrary to the public policy of this country clearly established in legislation and that it would be quite unreasonable to expect a Defendant to fund it.”

Lord Justice Judge expressed a similar view at paragraph 39:

“Second, irrespective of dire medical prospects, the entire surrogacy agreement was unlawful in the United Kingdom.  The Judge was being asked to award damages for the express purpose of enabling Ms Briody to be provided with the wherewithal to pay for an unlawful contractual arrangement.  That is not a principal basis upon which to make a compensatory award.”

Considering the reasons Lady Hale gave for adopting a different position, they do not appear to address this fundamental problem square-on.

In paragraph 49 of her speech, Lady Hale acknowledged that the usual position is that UK Courts will not enforce a foreign contract which would be contrary to the public policy of the United Kingdom.  She then asked, reasonably:

“Why then should the UK Courts facilitate the payment of fees under such contracts by making an award of damages to reflect them?”

In paragraph 50 she indicated that not every aspect of the payments to be made in California would be unlawful in the United Kingdom.  However, given that the whole arrangement would have been unlawful and unenforceable in the United Kingdom, it is not clear what relevance is the fact that certain specific items of expenditure viewed in isolation of the overall purpose of the expenditure would be considered lawful.  There are many aspects of unlawful expenditure which, viewed in this way, could not in themselves be regarded as being contrary to the law. For example, a claimant might suggest that he or she wanted to travel to Columbia to use drugs which are illegal in this country, for pain relief. Would this claim succeed on the basis that neither the flight to Columbia nor the accommodation costs would in themselves be unlawful? Or a similar argument in relation to paying a solicitor to convey property in the context of a mortgage fraud? The reality is that the court would look at the proposal as a whole and would regard the lawfulness of individual components as irrelevant.

In paragraph 51 of her speech, Lady Hale referred to the continuing practice of the courts to grant parental orders to parents who had commissioned children through surrogacy. However, this practice had been established before Briodywas considered. It was concluded by the Court of Appeal that these orders were made retrospectively with the best interests of the child being paramount. They did not support authorising expenditure on commercial surrogacy.

Then in paragraph 52 of her speech, Lady Hale made reference to the great changes in societal attitudes to family and parenthood since the time of Briody.  Whilst this was undoubtedly correct and relevant to other aspects of the decision in relation to surrogacy, in particular in relation to the use of donor eggs, the position in relation to commercial surrogacy was conspicuous as to those which had not occurred. In particular, the statutory provisions prohibiting commercial surrogacy remain in place. The Law Commission, in a wide-ranging consultation paper published in 2019, did not suggest that there should be any change in the law in this respect, nor indeed suggest that this issue needed to be included in the consultation.

Therefore, Lady Hale’s speech did not confront the essential question of how a legal system which criminalises conduct but at the same time awards damages to facilitate that conduct could in any way be considered coherent.

Lord Sumption in his 2019 Reith lectures, “Trials of the State: Law and the Decline of Politics”, argued that there had been a growing tendency for what might be described as issues of social policy to be determined by the Courts rather than by Parliament.  Parliament, he felt, was becoming less powerful and this was unfortunate because Parliament was the appropriate forum for resolving differences of opinion over social issues.  He stated:

“A nation cannot hope to accommodate divisions amongst its people unless its citizens participate in the process of finding political solutions to common problems.  Law has its own competing claim to legitimacy, but it is no substitute for politics.”

Lady Hale offered a reply to this in her Patterson Memorial Lecture on 8 October 2019.  Whilst any reputation that Lord Sumption has had for popular wisdom has probably been dispelled by his suggestion that we should view Coronavirus in the same apparently sanguine way that medieval peasants felt about the Black Death, nonetheless Lady Hale’s speech in XX is not a reply to his argument, but appears to be making it good.  Once it is acknowledged that she has failed to deal with the issue in relation to coherence of the law, her speech can only be read in terms of its conclusion as to commercial surrogacy as expressing a personal view, thereby translated into public policy.

I think the real reason for Lady Hale’s different view lies at the very commencement of her judgment in paragraph 1:

“For some women, the ability to bear and to rear children is a vital part of their identity.  What then should be the measure of damages for a woman who has been wrongfully deprived of the ability to bear children herself?”

The concept of identity did not figure in the arguments in Briody, nor generally in society at that time. The importance of identity has grown since that time and is now a paramount, indeed possibly all-prevailing concept.  It is interesting to contrast the basis of legal policy in the speech of Lord Carnwath.

The discussion of legal policy starts with the case of McFarlane v. Tayside Health Board[2000] 2 AC 59.  In McFarlane, the House of Lords identified that through a process of what was described as legal policy it would not be appropriate to award damages for the costs of bringing up a healthy child even though the child was the result of negligent failed sterilisation.  The House of Lords considered that whilst the parents had not wished the child, she would nonetheless be a loved child who would bring great pleasure to her parents.  Given the other demands on the resources of the NHS, it was not fair, just or reasonable that they should pay damages for the upbringing of this child.  This was essentially a collectivist approach which took into account the interests of all in determining the policy question.

When giving evidence in Briody, the Defendant’ expert, Professor Lord Winston, was asked by Claimant’s Counsel what the Claimant could do if she was not able to have a child through surrogacy, to which Lord Winston replied that she could reconcile herself to childlessness.  Some 20 years later this would be considered as an extremely controversial reply.  However, it did reflect a certainly 20th century attitude that there were things that had to be accepted, albeit still acknowledged in the level of awards of general damages for infertility.

The Claimant’s case for damages so that she could have a family in XX was, at every human level, extremely compelling.  Very clear reasons would have to be identified as to why it should not succeed.  Coherence in the law is, however, more compelling.  Coherence is not just a desirable quality from the law.  It is an essential quality.  Without coherence, law is not law, but becomes a selection of seemingly arbitrary rules.  How would you explain to a person who was subject to a criminal prosecution in the United Kingdom for running a commercial surrogacy agency that the Courts in this country awarded substantial sums to fund payments to such agencies?

I have a further problem with the claim for paramount nature of identity.  I have to admit to being an unreformed (and never to be reformed) mid 20th century collectivist who is quietly enjoying queuing outside of shops at present.  I readily admit that such collectivism had its unattractive qualities, including automatic male supremacy, the involvement of a class system, and intolerance (even mockery) of minorities.  The developing emphasis on identity can be seen as a reaction to these negative and out-moded features of collectivism.  However, I agree with Professor Mark Lilla who coined the term ‘identity liberalism’, that excessive concentration on individual identities will detract from core liberal values. Commenting after the election of President Trump, Mark Lilla stated:

“American liberalism has slipped into a kind of moral panic about racial, gender and sexual identity that has distorted liberalism’s message and prevented it from becoming a unifying force capable of governing.”

Lilla is denounced variously as a misogynist, homophobic, and even worse, when on analysis all he is saying is that identity liberalism has gone too far.  His jibe that identity liberalism is “Reaganism for lefties” is instructive.  We are, to our very obvious detriment, living in uniquely consumerist times.  Emphasis on identity could be seen as a form of psychological consumerism encouraging an individual to focus on him or herself and their specific attributes.  In the same way that material consumerism is obviously destroying our environment, it is possible that psychological consumerism could damage our social fabric.

It has been suggested that when we emerge from the lockdown it will be to a world which will be at least materially different.  It will be interesting to see how the decision of the Supreme Court in XX is viewed, either as a step in the right direction or a step too far?

Breach of duty and corona virus: not so abstract after all

Since the start of the corona virus there has, understandably, been increased speculation about the knock-on effect to clinical negligence cases. A particular concern is whether the extra pressure placed upon NHS services and the allocation of resources will lead to a surge in claims.

The typical scenario would be a patient that attends hospital for a non-corona virus illness. There is a delay in him receiving the appropriate medical treatment which results in injury. From the Claimant’s perspective, he should have been seen, diagnosed and treated in a timely manner. The Defendant’s position is that resources were stretched and therefore it was not possible to assess him earlier.

Within this scenario the standard principles of tortious liability will continue to apply. The Claimant must demonstrate a breach of duty on the Bolamtest. It is worth revisiting what McNair J said in Bolamas regards breach of duty so as to understand its application within a specified situation:

where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards.’

McNair’s J reference to ‘at the time’ is important. It is not just a reference to the state of medical knowledge but a reference to the temporal context. A duty of care does not exist in a vacuum and breach of the same is assessed according to context. The significance of context was recognised by Green J in Mulholland v Medway NHS Foundation Trust[2015] EWHC 268 (QB) [90]:

In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.’

The recognition of context was again made clear by Turner J in Morrison v Liverpool Women’s NHS Trust 2020 EWHC 91 (QB) [94]:

Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority. This is reflected in the defendant’s Emergency Caesarean Section Guideline which recognises that the degree of promptness with which an emergency caesarean ought to be carried out on any given patient must take into account circumstances in which other pregnancies might be thereby be exposed to undue risk.’

It is fair to say that in cases where there are time and resource pressures the wider context will be of crucial importance. However, these cases are distinct to those where the treatment received fell below the standard expected. Once a patient is seen by a clinician there is an expectation that the treatment will be in line with a reasonably competent medical practitioner. Perhaps the most controversial area will be cases where a hospital seeks to defend falling below an otherwise acceptable standard; for example, a failure to monitor a patient due to pressures from corona virus patients.

It is impossible at this stage to determine whether there will be an increase in the number of claims. It is fair to assume that cases alleging negligence brought about by limited resources due to corona virus pressures will be robustly defended. The duty of care owed in these situations is not abstract and is rooted within context.

Charles Austin



Costs interim payments: to pay or not to pay?

It is clear that many law firms are feeling the pinch with the slow-down in work brought about by the current corona virus pandemic. Despite efforts to increase the number of cases being heard online the number moving through the system clearly remains low. This will inevitably impact upon firms’ cash-flow. One area where Claimant solicitors will increasingly look for relief is interim payment of costs. This note will summarise the legal position in light of the High Court decision in EXK v Hampshire Hospitals NHS Foundation Trust[2019] EWHC 2751 (QB).

Applications for an interim payment on account of costs are common in high value clinical negligence and personal injury cases. The starting point is to consider the discretion afforded to the court under Civil Procedure Rule 44.2:

(1)  The court has discretion as to—

(a)  whether costs are payable by one party to another;

(b)  the amount of those costs; and

(c)  when they are to be paid.

(2)  If the court decides to make an order about costs—

(a)  the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)  the court may make a different order.

(4)  In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including—

(a)  the conduct of all the parties;

(b)  whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)  any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5)  The conduct of the parties includes—

(a)  conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)  the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d)  whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

The discretion contained in CPR 44.2 is clearly wide. This was explicitly recognised by Master Cook in RXK. The case of RXKconcerned an application for an interim payment on account of costs in a high value clinical negligence case. Prior to the decision, the leading case appeared to be the County Court decision of X v Hull & East Yorkshire Hospitals NHS Trustwhere an interim payment on account of costs was allowed and permission to appeal refused by Irwin LJ. Master Cook grasped the opportunity to provide some much needed guidance in this uncertain area. Master Cook’s guidance can be summarised as:

  1. The discretion conferred by Section 51 of the Senior Courts Act 1981 and CPR 44.2 is an extremely wide one.
  2. The meaning of ‘successful party’ or ‘unsuccessful party’ cannot be confined to a binary outcome of the whole case.
  3. Pursuant to CPR 44.2(8), an interim payment can be made only where it has made a costs order that could be subject to detailed assessment. This is sometimes referred to as a ‘prospective’ or ‘anticipatory’ costs order.
  4. The application should be made down to a specific date and an interim payment on account of those costs.
  5. The court will consider the factors listed in 44.2(4) and (5) and will expect to see sufficient information to carry out that exercise. The court will not consider a test of exceptionality. The court will consider the need to preserve security for the Defendant and ensure that costs are not repaid, although an overpayment can be set-off against damages.
  6. Relevant matters include (but are not limited to):
    • the type of funding agreement and details of any payments made under that agreement.
    • Whether any Part 36 or other admissible offer has been made, and if so, full details of the offer.
    • Details of any payments on account of damages made to date.
    • A realistic valuation of the likely damages to be awarded at trial.
    • A realistic estimate of the quantum costs incurred to the date of the application.
    • Any other factor relevant to the final incidence of costs, such as the possibility of an issue-based costs order, arguments over rates or relevant conduct.
    • The likely date of trial or trial window.

Ultimately, in RXKthe matter was adjourned to afford the Claimant the opportunity to serve further evidence. Master Cook characterised the application as a cri de coeurfor more money by the Claimant solicitor. Practically, Claimants and Defendants should consider:

  1. Has there has been a liability admission?
  2. Has judgment has been entered on liability?
  • Is the claim able to be quantified or is further evidence necessary?
  1. Has the Defendant has made a realistic offer to settle the matter? In cases where significant offers have been made the court is less likely to accept a request for an interim payment.
  2. Parties should attempt to negotiate any interim to avoid the cost of an application.

It is clear that the court will not make an award for an interim payment on account of costs simply because a claimant asks it. Any application must be thought out and address the factors listed above. Whilst the law does allow for an award before the conclusion of litigation, pleading cash flow problems at the outset of the application is unlikely to find favour. That being said, in liability admitted cases where the security of the Defendant can be better protected such applications may increasingly find favour with judges receptive to the present difficulties. Whilst not a dilemma of Shakespearean proportions, Defendants should ready themselves for an increase in the number of applications and give careful thought to whether they can legitimately be resisted.

Charles Austin

23rdApril 2020



Statistics: just another brick in the wall

The complex question as to when and how statistical evidence should be used in clinical negligence cases was again considered by the Court of Appeal in Schembri v Marshall[2020] EWCA Civ 358. The decision provides a helpful summary of how such evidence is to be approached and its application to individual claimants. Whilst the conclusion of the court could be read as assisting claimants through the softening of traditional rules on causation such an interpretation would be misplaced. The position remains that each case must be considered individually and that statistics amount to nothing more than one piece of evidence before the court.

The case of Schembriwas described by McCombe LJ as being ‘highly complex, and rather puzzling’. The Claimant was the husband of the deceased who suffered a cardiac arrest and died as a result of a pulmonary embolism. The deceased had attended upon her GP (the Defendant) on the 25thApril 2014 where she was examined and informed the most probable cause of her symptoms was muscular strain affecting her hiatus hernia. The deceased died the following day at home.

It was admitted by that the deceased should have been referred to hospital immediately. Causation was disputed by the Defendant who argued that the deceased would have died anyway even had she been referred and attended hospital immediately.

It was common ground between the Claimant and Defendant that had the deceased been referred she would have been diagnosed as having a pulmonary embolism. Potential treatment would have been a) anticoagulation (herapin) and/or b) thrombolysis (alteplase). It was also common ground that thrombolysis would not be undertaken automatically and would only be used where the potential benefits outweighed the risks.

Mr Justice Stewart found at first instance that had the deceased attended hospital she would have received heparin by 9pm and that this would have taken effect to prevent further clotting by midnight.

The parties disagreed about whether the use of anticoagulation and thrombolysis would have prevented the deceased’s death. It was the Claimant’s case that if anticoagulation by itself did not resolve the pulmonary embolism thrombolysis was available and therefore on the balance of probabilities the deceased would not have died. The Defendant argued that the blood clot which embolised was present on the 25thApril and would not have dispersed with anticoagulation.

At first instance Stewart J posed the following questions [41]:

Therefore, the central questions for the court to determine now are:

  • i)  Has the Claimant proven on the balance of probabilities that there were progressive pulmonary emboli during the night of 25/26 April 2014? [An indicator for prescribing thrombolysis]
  • ii)  If so:
    • a)  would progressive pulmonary emboli have been picked up on monitoring had she been in hospital?
    • b)  if so, would thrombolysis have been prescribed and with what effect?
  • iii)  If, the answer to (i) and/or (ii) is negative, had the deceased been in hospital, would thrombolysis have saved her? In other words, had there not been progressive pulmonary emboli, can the Claimant prove that thrombolysis would have saved her had she gone into cardiogenic shock or arrested in hospital?
  • iv)  If the answer to (i)-(iii) are negative in that the Claimant cannot prove a specific train of events or mechanism which would absent the Defendant’s negligence, have saved her. Looking at the evidence as a whole, is it nevertheless more likely than not that the Claimant would have survived had she been referred to Southend Hospital?”

Question 1 was answered in the negative therefore question 2 did not arise. The key was the answer to question 3 and this is where the court had to consider a large amount of statistical evidence. Responding, broadly, to the statistical evidence the judge reached the following conclusion [104- 105]:

a number of points can be made about [the] statistics. Nevertheless, broadly speaking, had alteplase been prescribed, say, 3 hours earlier than 8.30 a.m., Mrs Marshall would probably have survived.

That said, I have already found that it cannot be shown, the balance of probabilities, that Mrs Marshall would have reached the threshold for prescription of alteplase at any stage prior to her going into cardiogenic shock.

Addressing the evidence on cardiogenic shock the judge concluded [115 – 116]:

Looking at the evidence on cardiogenic shock in isolation, I find that:

  • i)  The Claimant cannot prove on the balance of probabilities that the deceased would have been in the 64-75% who would have survived; she may or may not have been.
  • ii)  Nevertheless, her chances of survival would have been significantly increased had she been in hospital overnight and at the time she became haemodynamically unstable.

As to the position with cardiac arrest, the Claimant submits that, because of the fact that she was relatively young and had no comorbidity, she probably would have survived with high quality CPR in hospital, and therefore have been in the group of 35% (Sekhri) – 37% (Casazza) who do not die. In my judgment, whilst this is a possibility, it is less likely than her chances of surviving cardiogenic shock – itself not a probability.

Notwithstanding the statistical evidence Stewart J found for the Claimant. The judge concluded:

The court, in looking at the evidence as a whole, must take a common sense and pragmatic approach to that evidence, in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature which has a number of variables. Had the statistical evidence, in conjunction with the expert evidence, have led to the conclusion that Mrs Marshall’s chances of dying would have been assessed on presentation as only slightly better than 50-50, I would have found for the Defendant. However, the above evidence of Professor Empey and Doctor Gomez [the Claimant’s experts], in conjunction with the medical literature, drives me to the conclusion that on the clear balance of probabilities she would have survived.

On appeal, the Defendant argued that the judge fell into error by finding for the Claimant. The Defendant submitted that the judge was wrong to find for the Claimant as it was not proven that the deceased would have survived had she been admitted to hospital. The Court of Appeal dismissed the Defendant’s appeal and concluded the trial judge was entitled to reach the decision he did. Giving the lead judgment, McCombe LJ stated:

I do not consider that the judge was in error in posing the fourth question. The Appellant’s approach would require him to have stopped at the end of question (iii), assuming that he had answered those three questions in the negative. He was entitled, in my view, to assess what he described as the “close calls” in the light of the Deceased’s overall circumstances (age, medical history, haemodynamic stability etc.) and in the light of the medical learning in cases such as this. He was right to take the “common sense and pragmatic view” of “the evidence as a whole”, as he said at paragraph 146.

In reaching this decision McCombe LJ considered in detail the appropriate use of statistics and the guidance given by Lord Nicholls in Gregg v Scott[2005] 2 AC 176 [27 – 28]:

In cases of medical negligence assessment of a patient’s loss may be hampered, to greater or lesser extent, by one crucial fact being unknown and unknowable: how the particular patient would have responded to proper treatment at the right time. The patient’s previous or subsequent history may assist. No doubt other indications may be available. But at times, perhaps often, statistical evidence will be the main evidential aid.

Statistical evidence, however, is not strictly a guide to what would have happened in one particular case. Statistics record retrospectively what happened to other patients in more or less comparable situations. They reveal trends of outcome. They are general in nature. The different way other patients responded in a similar position says nothing about how the claimant would have responded. Statistics do not show whether the claimant patient would have conformed to the trend or been an exception from it. They are an imperfect means of assessing outcomes even of groups of patients undergoing treatment, let alone a means of providing an accurate assessment of the position of one individual patient.

The Court of Appeal was also mindful of the comments of Toulson LJ in Drake v Harbour[2008] EWCA Civ 25 that a court is entitled to find that the loss ensued was probably caused by the negligence if it is of such a kind that was likely to have resulted from the negligent act.

In the absence of any positive evidence of breach of duty, merely to show that a claimant’s loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the proven negligence.

Rather than providing a sweeping change, the Court of Appeal have quietly reaffirmed the use of statistics as a means of evidence. Nothing more and nothing less. It is an approach which is consistent with the court’s overall approach to the use of statistics and epidemiology which is succinctly summed by the editors of Clerk & Lindell on Torts (22nd Edition (2018), at para. 2-30

The assessment of causation would turn upon the detailed medical evidence, both as to the overall statistical chances of survival and the particular condition and circumstances of the patient.

The decision of Stewart J, as upheld by the Court of Appeal, is an example of a blend between statistical and clinical evidence. The ultimate decision took account of the statistics but recognised the oral clinical evidence which was that it was ‘very unusual’ for a patient to die in hospital of a pulmonary embolism. Following the decision in Drakethis was sufficient to satisfy causation. Statistics therefore are just one brick in the wall of evidence before the court.

Charles Austin


Understanding limitation moratoriums/standstill agreements

Limitation should always be at the forefront of lawyers’ minds, but this is especially so given the difficulties being faced due to COVID-19. An understanding of the tools at your disposal should help to limit the difficulties faced and one key tool is a limitation moratorium or standstill agreement.

The first point to consider is when a claim is brought for the purpose of the Limitation Act 1980. Practice Direction 17A paragraphs 5.1 and 5.2 answers this question in clear terms:

5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Given the current pressures on the court staff to arrange remote hearings it is not inconceivable that a claim form is not stamped the day it is actually received by the court. Claimant solicitors would be well advised to exercise caution and to keep records as to when a claim form was posted and therefore received. The burden of showing when the claim form was sent is on the Claimant (see Page v Hewetts Solicitors[2013] EWHC 2845 which concerns evidence of service).

It is not possible for the court to extend the limitation period in advance. In addition, outside the areas of personal injury and defamation there is no discretion to extend limitation. Accordingly, in cases where limitation is approaching but the Claimant is not ready to issue proceedings it will be necessary to consider entering into a moratorium or standstill agreement.

Two possible types of agreement are available to parties: the first that the relevant period is suspended; the second that the relevant period is extended. Guidance on the difference between ‘suspended’ and ‘extended’ was provided by Coulson J in Russell v Stone[2017] 1555 (TCC). The court held that where the agreement is framed as a suspension then limitation will resume at the date upon which the agreement ends (in effect it freezes limitation). In contrast, where limitation is extended the period will end at the expiry of the extension.

As a standstill agreement is a contract, which often runs to several pages, it is important to remember the principles of contractual interpretation – namely that an objective approach should be adopted and the document is to be interpreted as a whole (see Arnold v Brittan[2015] AC 1619). It is therefore important to consider whether the overall meaning is clear to the objective bystander. The use of clear language and precise dates is imperative.

What are the practical benefit of a standstill agreement? Asides from the obvious that it stops limitation running or extends limitation it will enable parties to comply with any relevant pre-action protocol. For example, the Industrial Disease pre-action protocol stipulates (at paragraph 11):

a claimant who commences proceedings without complying with all, or any part, of this protocol may apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this protocol.

In addition, the Clinical Negligence pre-action protocol stipulates (at paragraph 1.6.1):

if proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Protocol, the parties should apply to the court for a stay of the proceedings while they so comply.

Adherence to the protocol will likely save costs in the long run and ensure that any case is properly investigated before incurring the cost of issuing proceedings.

A final point to note is that a properly drafted agreement will have the effect of estopping a defendant from raising limitation in a defence. For a claimant to assert that the defendant is estopped it will be necessary to show a clear, unequivocal and unambiguous promise (see Fortisbank SA v Trenwick InternationalLtd [2005] EWHC 399 (Comm)).

Going forward, the following guidance points can be gleaned:

  1. Proceed with caution when sending the claim form to the court. Ensure that there is evidence of when it was sent and by what method.
  2. The burden of showing that the claim form was sent and received rests with the claimant.
  3. A standstill agreement can either suspend the limitation clock or it can extend the limitation period.
  4. Any agreement should be in writing with clear terms. Be precise.
  5. The agreement is a contract and so it will be interpreted objectively.
  6. A defendant will only be estopped from raising limitation as a defence if clear, unequivocal and unambiguous.

Charles Austin

Litigation: when is it time to get up close and personal?

The recent surge in digital communication is obviously a reaction to the lockdown. The interesting question is whether this will be a temporary phenomenon, or rather what might be seen as an overdue sea change in the use of technology in the law.

The technology which can be used to conduct meetings and indeed court hearings through video link has been widely available since the 1990’s. However, bizarrely, at the commencement of the lockdown one chambers claimed that they had conducted what they believed to be the first joint settlement meeting by video link. In my experience, negotiation through a joint settlement meeting or mediation by way of video link has been ongoing for at least the last 20 years, albeit still a very small minority of the total number of such negotiations.

This lack of use, and indeed appreciation of the use of such technology is no doubt substantially explained by inertia and conservatism in the law. The advantages of digital communication are obvious, both in terms of commercial benefit and also perhaps more importantly at this time, environmental impact. One possible positive outcome of the Coronavirus crisis, following swiftly on bushfires and floods, is that it might make more people appreciate that we cannot continue to abuse the planet in the way we do.

If digital communication is to become the norm, is it realistic to anticipate that this will extend to all aspects of litigation, to include contested hearings and trials?

Last month, Mr Justice Mostyn conducted what was said to be the first full hearing in the Court of Protection by way of video link. The Judge and the lawyers involved all considered the hearing to have been an unqualified success. Interestingly, a different view was taken by Professor Celia Kitzinger of the Transparency Project website. As reported in Legal Futures, Professor Kitzinger had spent the hearing in the company of the principal witness, the daughter of the patient who was subject to the Court of Protection hearing. The patient’s daughter, Sarah, had flown in to the United Kingdom because she expecting a face-to-face hearing. She gave evidence in a small room with her solicitor and barrister observing the social distancing rules. She was clearly dissatisfied, indeed apparently upset, about the way the hearing was conducted. She was quoted as saying:

"In a courtroom people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through. But I was in a little 1-inch box on a screen and being honest, I bet half of them weren't even engaged in looking at it – as the Judge couldn't monitor them to make sure they were paying attention."

We have the options of communicating by telephone, video link or in person, in relation to many aspects of our lives . How do we decide which is the most appropriate?

First, it is reasonable to think that an important factor is how well we know the individual in person. With those we know very well, we are quite relaxed and confident in communicating by telephone. This is because we are familiar with the person and can sense from just the tone of their voice whether there is anything beyond the mere words being used, that is being communicated. We are less able to do this with people we have not met before. Here, we need much more of an impression of the person, to include the visual clues to which the witness Sarah made reference. The screen on a video link is still not good enough to give a full impression of the facial and body language of a person speaking. I have had many conferences with experts on the telephone. I think how well I know the expert is an important component to how effective this is. I still insist on having face-to-face conferences with experts at what might be described as crucial stages in litigation. This would, in particular, be the case when the action was running towards trial. I do not just want to hear what the expert has to say, but I want to form an assessment of how he or she would come over to a Judge in cross-examination. I would not be confident of doing this on the phone.

Secondly, the sensitivity of the information to be communicated is an important factor in deciding how to do it. There is an expectation that bad news, for example a poor diagnosis or prognosis from a doctor or the loss of employment, will be communicated in person. There was outrage when certain employers decided to tell their employees that they were being made redundant by text. This represents an expectation that sensitive information with an emotional impact should be communicated in person.

These factors probably underlie the different perceptions in relation to the Court of Protection hearing. For the Judge and the lawyers it was, in effect, just another day at the office. In saying this, I am not in any way suggesting that they were being insensitive to the situation, but those of us who are habituated to the courtroom are able to feel more relaxed and confident in that environment. For the witness Sarah, however, it was an important and emotional day of her life and she did not feel that this was significantly acknowledged in the process by video link.

Therefore, whilst the increased use of digital communication is undoubtedly to be welcomed and here to stay, there will remain, in my view, limits. Certainly in the short to medium term it is unlikely that trials by video link will be deemed satisfactory to most litigants. In the long term this may change, since eventually communication by video link will be more common than communication in person, and therefore represent the norm of human contact. That day is, however, I think, a long way off. We are all missing the daily personal contact with our friends and colleagues.

Coronial Law in the wake of Covid 19

The chief coroner has issued three sets of guidance:

  • No 34 guidance for coroners on Covid 19
  • No 35 hearings during the pandemic
  • No 36 Summary of the Coronavirus Act 2020, provisions relevant to Coroners

Perhaps the most crucial aspect of the guidance to organisations including Care Homes, Prisons, GPs, medical practitioners and NHS Trusts is:

  • a) Covid 19 is an acceptable direct or underlying cause of death for the purpose of the MCCD (Medical  Certificate of Cause of Death);
  • b) Covid 19 as a cause of death is not a reason on its own to refer a death to a Coroner under the CJA 2009, given that the same is a naturally occurring disease and is capable of being a natural cause of death.
  • c) Whilst a notifiable disease, this, however, does not mean that referral to a Coroner is required.
  • d) The Coronavirus Act expands the MCCD window from 14 to 28 days and allows a doctor who was not the attending doctor to sign the MCCD.

What reasons would require referral to a Coroner:

  • a) Medical professional unable to certify on the balance of probabilities that Covid 19 was the cause of death due to unclear cause of death or individual not seen within requisite timescales;
  • b) Concerns about delays in care or provision of care prior to death;
  • c) Failure to provide PPE or otherwise protect employees;
  • d) Deaths that automatically require an inquest to be held e.g. death in state detention;
  • e) Any other reason under the Notification of Death Regulations 2019.

It is anticipated that a) delays in the provision of care b) an inability to provide care c) incorrect diagnosis d) lack of PPE are likely to result in the largest number of referrals to Coroners, which in turn are likely to result in inquest (albeit delayed until Covid 19 is under control).

Examples that have already featured in the press, which may result in inquest are:

  • Misdiagnosis of Covid 19 by GP due to a-typical symptoms;
  • Refusal to accept patients medically fit for discharge back into care home without Covid 19 testing (in the event that death arises from either Covid 19 or another cause for example hospital acquired pneumonia);
  • Protection of care home residents during a Covid 19 breakout;
  • Other potential scenarios could include:
  • Failure to provide front line staff with appropriate or defective PPE;
  • Delay in providing treatment due to the need to adhere to safety guidance e.g. ensuring appropriate PPE in situ prior to commencing treatment;
  • Prioritisation of medical resources e.g. ambulance dispatch, assignment of ventilators;
  • Deployment of those who fall within ‘vulnerable’ categories to front line work e.g. recalling retired NHS workers to work in departments where there is a higher risk of contracting Covid 19;
  • Experimental Covid 19 treatment.

The Court will be alert to the national difficulties encountered and competing interests/advice. Nevertheless, cogent rationale and/or evidence in support of efforts made to reduce risk will be required. As such, if not already in place, Covid 19 risk assessments should be undertaken, Covid 19 policies put in place and, arguably most importantly contemporaneous and detailed records should be made in support of decisions or actions taken. Provided that the stance adopted is a reasonable one and can be supported evidentially, the risk of a finding of neglect should be minimal.

Association versus causation: epidemiology versus the law? Part II

Pro-Vide Law will be hosting a follow up event to the Seminar at Wadham College Oxford on 11th July.

The seminar in July was well received by those who attended. 

A quite excellent seminar today at Wadham College, Oxford, on Epidemiology and causation with some seriously impressive speakers. Thank you. 

The speakers were all hugely impressive and the organisation was perfect.  The topic was stimulating and I have no doubt that there will be significant developments in the case law in this area in the near future.

For photographs of the event please click here. 

The next event is on 6th February 2020 and will be hosted by DWF at its London Office at 20 Fenchurch Street. We are grateful to DWF for hosting the event. There will no charge for attendance. 

The success of the Oxford Seminar was largely the result of a combination of authoritative speakers and a well-informed audience. Discussion was not just limited to the lecture theatre. Expertly chaired by Jeremy Stuart-Smith, the programme enabled the questions to be addressed from several perspectives including what gets into the medical literature and why, the complex nature of epidemiological evidence, what questions it is addressing and what answers it is providing, and most important of all, how relevant are those answers in the context of proof of causation in the law or tort? 

The discussions provided confirmation, if needed, that the supposed “doubles the risk” had no support as a simplistic test of causation. As pointed out by Baroness Hale in Sienkiewicz, assessing risk prospectively in this way informs a decision as to whether to embark upon a certain cause of action.  Even on this background there is no reliance on a “doubles the risk” test.  As Roy Jenkins famously said, if there is a 10% chance of rain, you would probably still go on a picnic, but if there was a 10% chance of there being a bomb on a plane, you would not get on the plane.  

More relevantly once a risk has eventuated, a prospective assessment of that risk is at best a background consideration.  The risk is now 100% and knowing that it was at a much lower level assessed prospectively does not immediately appear to have any great relevance.  Clearly, if it is shown that the specific risk factor under consideration more than doubled the risk of the event occurring, this is a persuasive starting point for the proposition that the event occurred because of this risk.  However, it is not conclusive.  There may be in fact other more significant risks including biophysiological reasons to think that the relevant risk was not in fact the cause. 

Further, arguably showing that the relative risk was less than 2 should not of itself be considered fatal to the claim of an individual claimant. The claimant may be able to demonstrate that the tortious elevated risk was the only one known to be present.  In these circumstances, it may be instructive to consider the extent to which other risks have been excluded in the case of a claimant, which would not have been done with the same rigour in relation to the control group in the relevant study.  In the forensic context, great time and care is taken to investigate other risk factors, whereas in any epidemiological study this may only have been by way of a questionnaire. Further, the claimant may be able to demonstrate strong biophysiological plausibility associated with the relevant risk factor, even though the epidemiological evidence would suggest that viewed prospectively the RR was less than 2. 

These issues clearly require further discussion. Whilst it will clearly not be possible to achieve an approach with the beguiling simplicity of the “doubles the risk” test, some degree of consensus as to how epidemiological evidence should be applied is clearly necessary. 

The follow-up event intends to look in more detail at the practical application of epidemiological evidence. We are pleased that Professor Maurice Zeegers of the University of Maastricht will be speaking. Maurice is one of the first Professor of Forensic Epidemiology and will explain this specialty. It is intended to look at specific case studies to identify the issues and a practical approach to them. Suggestions will be gratefully received.

To register an interest in attending this event please email editors@pro-vide-law.co.uk.