“Successful” claimant’s costs recovery restricted to 6.7% of budget

See link here for discussion of facts and judgment on liability by Charles Feeny

PD -v- RLBUH NHS T

Key points

  • Successful claimant’s costs recovery restricted after fully contested trial to a fixed sum reflecting just
    6.7% of the budgeted base fees and disbursements; and
  • Claimant ordered to pay all of the defendant’s costs following a Calderbank.

The claim and result at trial

The claimant (C) underwent surgery on 11 November 2010. During that surgery C’s spleen was torn or incised but this was not recognised until 36 hours later when C underwent an emergency laparotomy and splenectomy. As a result of the surgery, C was left with an incisional hernia plus other significant sequelae. Damages were agreed eventually, subject to liability at £150,000.

Four months after surgery, C entered into a conditional fee agreement(CFA) and on 1 October 2012 sent a letter of claim (LOC) which alleged that the initial laparoscopic surgery should have been converted to open surgery which would have obviated the need for splenectomy.

The letter of response (LOR) contained a full denial and NHSLA’s file was closed.

The particulars of claim (POC) (March 2014), which predominantly advanced a case alleging negligent failure to avoid the need for splenectomy also alleged, for the first time, delay in identifying the need for laparotomy. The defence (served July 2014) admitted some delay, albeit five hours less than C had alleged.

In September 2015, D served its expert evidence, which conceded the full period of delay alleged by C. The defence was amended in June 2016 to reflect this concession. All other allegations remained in issue.

In October 2015, D made a Calderbank offer of £5,000 plus £20,000 costs. C rejected that offer and in March 2016 made a £167,000 part 36 offer. C then offered alternative dispute resolution (ADR), which D refused at the time as being inappropriate (agreed by the Judge) and in July 2016 D offered £5,000 under part 36. C counter-offered eight days later at £110,000.

After a four-day trial in September 2016, C was awarded £2,500 for the pain and suffering and avoidable blood transfusions during the agreed period of delay but the rest of C’s case was rejected.

Arguments on costs

C contended that he was entitled to costs as the successful party. He referred to guidance in the White Book and to recent judgments of Jackson LJ suggesting that if D wanted to protect its position it ought to do so by way of part 36. C said that D had been slow to make a part 36 offer and had initially made only a partial admission on delay. He argued that the case had been reasonably pursued with expert evidence in support.

C said that the £20,000 costs in the Calderbank offer was not attractive, hence being reasonably rejected. C’s budgeted ‘incurred’ base costs and disbursements alone were already around £50,000 by Feb 2015. C also argued that D had been unreasonable in failing to consider ADR.

At the eleventh hour, in oral submissions, C accepted that any failure on part of its case should result in a reduction of C’s own costs of not more than 5%.

Judgment on costs

HHJ Parker found that C was the successful party but agreed with D that the extent of C’s success was very small and limited indeed as he ran issues of greater substance and importance to trial, on which he was unsuccessful. He accepted D’s argument that, even if C had succeeded, under CPR 44.2, the proper exercise of discretion ought to lead to C recovering significantly reduced costs and D recovering a substantial proportion of its costs.

HHJ Parker therefore found it was logical to consider and award costs as appropriate over the following three periods:

  1. Letter of claim to Calderbank – Defendant do pay the claimant’s costs in the fixed sum of £10,000.
  2. Expiry of Calderbank to part 36 – Claimant do pay the defendant’s costs to be assessed.
  3. Part 36 to Trial – Claimant do pay the defendant’s costs to be assessed.

HHJ Parker accepted D’s arguments that, in reality, the great majority of the costs incurred by both parties were in relation to C’s main case (the splenectomy) and that C had lost every contested issue at trial. He accepted D’s argument that the delay in amending the defence was irrelevant to costs since C knew from service of the expert evidence that D’s expert would concede that point. The judge accepted D’s argument that the failure to allege delay in the LOC was relevant conduct under CPR 44.2 because D had been given no opportunity to avoid litigation. Had delay been alleged pre-issue, it would have been admitted. C would however have incurred some costs in any event in valuing the delay.

The judge was persuaded by D’s submission that, having regard to the new formulation of the proportionality rule, (i.e.in a case that straddled 1 April 2013, the Court should have regard to the fact that the Lownds test would apply only to pre-April costs and that the new rule applied thereafter) when considering the effectiveness of the Calderbank (i.e. whether C would have done better to accept it), the Court should consider not just the costs that C had in fact incurred but also the costs which, on assessment, would be proportionate to the sum of damages awarded. £20,000 was clearly more than reasonable and disproportionate in respect of a claim for £2,500.

Moreover, he agreed it was reasonable to use a Calderbank offer because a part 36 would have exposed D to all of C’s reasonable costs, which may have been disproportionate to the sum recovered (the claimant’s ‘approved’ budgeted costs to trial were in the sum of £150,628.55 plus additional liabilities). The judge agreed with D that C ought to have accepted the Calderbank and that C’s failure to accept was not related to the costs offered. If it were, C would have accepted D’s subsequent part 36 offer rather than counter-offer £167,000. Moreover, if costs really were the issue C could and should have counter-offered in respect of costs.

ADR

HHJ Parker rejected the C’s argument that D’s costs should be reduced for a failure to engage in ADR. He accepted there was no reasonable/realistic prospect that ADR would have achieved settlement or any real narrowing of the issues. Had D agreed to ADR, HHJ Parker recognised this would have only increased costs substantially and the cost of ADR would have been more than what the claimant was actually awarded.

Claimant’s limited costs award

HHJ Parker considered the potential injustice that might arise if he found C should have accepted the Calderbank but C subsequently recovered more than the £20,000 on assessment. In making his order HHJ Parker followed the submission of counsel for D that only judgment for a fixed sum equal to or less than the costs on offer in the Calderbank could prevent the risk that C might recover more on assessment.

C was awarded a fixed sum of £10,000 to reflect the costs C would have incurred in any event had the delay issue been investigated and settled pre-issue but C was ordered to pay all of D’s costs from the last day for accepting the Calderbank. The fixed sum included additional liabilities and VAT.

Practice points

Use Calderbank offers where appropriate.

DOWNLOAD THE CASE NOTES PDF HERE

Contact information

Suzanne Maher, Associate, Hill Dickinson LLP
Counsel – Michelle Fanneran and Charles Feeny, Complete Counsel

PD v RLBUH NHS T (2016) – Reasonable Reconstruction or Speculation in Surgical Negligence?

Facts:

On 11thNovember 2010 the claimant, Mr PD, underwent a laparoscopic subtotal colectomy and end ileostomy, which involved removal of the colon and diversion of the small bowel to an opening in the stomach.

Following the procedure it emerged that the claimant had suffered an intraperitoneal haemorrhage to the bowel during the first surgery, and that further surgery was required. Following the second surgery, the claimant developed a wound infection, pneumonia and an incisional hernia.

It was undisputed that the claimant had suffered greatly as a result of two rare surgical complications, injury to the spleen and damage to the bowel, and undoubtedly attracted the sympathy of the courtroom. But, as the judgement made explicit, mere sympathy does not equate to a legal finding of negligence.

Claim:

The claimant alleged negligence in the following ways. First, that after 3 hours of failing to remove the colon laparoscopically, the surgeons should have converted to an open surgery.

Second, that they damaged the colon by removing it through an incision that was too small. Third, that the surgeons tore the hilum of the spleen, failing to notice that this had happened and consequently not remedying the tear during the operation.

Finally, that there was a delay in detecting the complications following the first surgery and as a result, the second surgery was delayed. 

The experts and their evidence:

The evidence before the judge was as technical as it was specific. This section aims to provide an overview of the salient information in order to highlight how the case turned on events that took place in the heat of the moment.

In doing so it is hoped that the paramount importance of the evidence given by the doctors in court and the information they committed to their notes during surgery is apparent. Where there is no allegation that a doctor is being dishonest, and any possible negligence is far from clear-cut, a judge should exercise great caution before going behind a doctor’s account of a highly technical operation.

Professor Keighley:

The expert put forward by the claimant was Professor Keighley, who was not involved in the claimant’s operation. He had retired from the NHS in 2004. He had never been personally involved in laparoscopic colorectal procedures, but had been involved in major publications on the subject.

Professor Keighley stated that, on the basis of the pathology report of the spleen after its removal, he felt that the tear in the spleen would have been visible during the procedure and that the tear should have been detected. When asked why the surgeons would not have seen it, he stated:

“…if having removed the colon…we do not know if they turned the camera and looked at the spleen…they would have seen a tear”.

He preferred the histopathologist’s evidence on the location of the tear (that indicated it was in a visible place) to that of the surgeon’s note in the second operation (which indicated that it was not in a visible place), because the surgeon was a junior member of staff working under pressure and late at night, whereas the pathologist had the benefit of daylight and time.

He stated that he was concerned about the size of the incision, but admitted that the appropriate size was a matter of clinical judgement, and that his own clinical judgement was not always right.

When asked about whether the laparoscopic procedure should have been converted to an open one, he stated:

“This is difficult. We are dealing with complex calls in the heat of an operation…there is a huge range of how people do things when they decide to make a change in the decision…conversion is a judgement call…I cannot find a specific reason for conversion.”

In relation to the delay in the second surgery, Professor Keighley stated that he was “straying outside my expertise…I am struggling to inform the court…I am not sure where we are up to.”

Dr A:

Dr A was the lead surgeon in the claimant’s case. He had carried out laparoscopic procedures approximately 280 times.

He confirmed that the operation note contained no reference to bleeding of the spleen, and stated that any visible bleeding would have impaired the operation by saturating the lens of the camera they were using, so would have caused them to abort the procedure.

At the point that the spleen was removed, Dr A explained that he had not made a note of any bleeding, and did not remember the specific operation. Any bleeding that occurred must have therefore taken place either after the operation or in a place that was not visible during the operation. Otherwise, Dr A explained, he would have seen the bleeding and recorded it.

As for converting to an open procedure, Dr A stated that there were no known complications justifying such a conversion, which carried with it other risks.

In relation to size of the incision used to remove the colon, Dr A explained that the surgeons never reached a stage where the exterioration of the colon was not progressing. In other words, there was never any perceived need to use a bigger hole.

Dr B:

Dr B was the other surgeon performing the laparoscopic procedure. He asserted that the surgery took longer than usual due, amongst other things, to the fact that he was a slow surgeon and the high degree of difficulty of the surgery.

In relation to the lack of detail in the operation notes, Dr B explained that generally only important things are noted during surgery, and such notes are prepared for the surgeons’ own eyes, without any litigation in mind.

Mr Scott: 

Mr Scott appeared as an expert on behalf of the Defendant. He had been performing the colorectal laparoscopic surgery since 2007. He stated that he did not see any damage to the spleen due to any lack of care, and that despite the best care, damage can occur.

In relation to the length of the operation, Mr Scott told the court that he had seen some operations go on for eight hours. He also preferred the operation note to the pathology report in deciding where the splenic bleeding had occurred, and that even if it a defect to the spleen had been detected, it would not justify a conversion to open surgery.

Finally, he confirmed that the size of the surgical incision looked adequate to him, and that there was no good reason to lengthen it.

The decision:

HHJ Parker made it clear that Professor Keighley was at a disadvantage in giving evidence, stating that:

“written experience can never be a substitute for actual hands-on experience…of a difficult and complicated surgery…this does effect the weight that I feel able to attach.”

The judge commented on the manner in which Professor Keighley gave evidence:

his willingness to put forward theories and express views outside of his expertise left me feeling less than confident in what he was saying.” 

In relation to the conversion point and the length of the surgery, HHJ Parker accepted that if the surgery was longer than usual, this was justifiably due to its complexity and because Dr B was a slow and careful surgeon.

As for the size of the incision, HHJ Parker acknowledged that it was a matter of clinical judgement, and that here had been no positive indication that widening the incision would have been justified.

Addressing the visibility of the tear to the spleen, HHJ Parker preferred the surgical note to the pathology report. This was a further nod to the competence, expertise and firsthand view of the doctor who was dealing directly with the patient. Furthermore, the judge accepted the straightforward point that if there had been visible bleeding, than the surgeons would have seen it and noted it down.

However, it was accepted that the delay in commencing the second surgery had caused a significant degree of suffering to the claimant and the need for an additional blood transfusion. An award was made for £2,500 for pain, suffering and loss of amenity.

Comment:

The difficulty of proving breach of duty in the context of an operative complication which occurred unwittingly with the Claimant obviously unconscious often presents a dilemma for a Judge. On the one hand, as here, the Court is confronted by a straightforward Claimant who has suffered significant and indeed life changing injury and disability. On the other hand, again as here, the surgeons were apparently competent and the relevant events are known to occur, despite reasonable care.

The Court of Appeal in Ratcliffe v. Plymouth & Torbay Health Authority (1998) PIQR P170 made it clear that the principle of res ipsa loquitur is unlikely to apply in such cases, except in very obvious circumstances such as a retained swab or operating on the wrong part of the body. In most cases of alleged surgical negligence, it will be known that a given complication can occur despite reasonable care; although equally it can be caused by negligence. Claims of negligent performance of surgery are generally advanced on the basis of expert evidence, which is essentially of a reconstructive nature, indicating how in the opinion of the expert an avoidable mistake occurred.

The legal analysis is complicated by the Court of Appeal in Ratcliffe and subsequent cases, whilst disavowing the application of res ipsa loquitur, nonetheless indicating that the absence of reasonable explanation by the surgeon is a factor which can be weighed in the balance. In practical terms, this approach can sway the Court towards a speculative reconstruction by an expert, resulting in an outcome which does not appear to be markedly different to the application of res ipsa loquitur as occurred in the case of O’Connor v. Pennine Acute Hospitals (2015) EWCA Civ 1244.

Unsurprisingly against this background, the results in individual cases show no clear pattern and each appears ultimately to be fact or even Judge sensitive.

In the present case the resolution was ultimately not problematical. The Judge was confronted by an expert on behalf of the Claimant, a retired Professor of Surgery who admitted to limited experience of laparoscopic surgery and who also admitted, or indeed volunteered, that much of his evidence was speculative. As against this, the operating surgeons and a suitably experienced expert, Mr Scott, were able to provide clear explanations in relation to the Claimant’s allegations, and in particular as to how the damage to the spleen could occur without negligence and without being noticed.

From a Defendant’s perspective, in terms of deciding whether to contest a case, it is likely that the decision will ultimately turn on the degree of confidence in being able to provide a plausible explanation consistent with reasonable care having been displayed.

McGeer v McIntosh: Paving a safer way for cyclists? (Number 2)

The Court of Appeal have dismissed the Defendant’s appeal against the judgement of His Honour Judge Raynor QC awarding the Claimant 70% of damages on a full liability basis.

We previously discussed the implications of the first instance judgment in McGeer v McIntosh: Paving a safer way for cyclists?

The appeal sought to challenge the Judge’s findings on liability and apportionment. Given that this necessitated arguing that the Judge’s findings on fact and approach to apportionment were outwith a reasonable judicial range, the dismissal of the appeal is unsurprising.

Whilst Lord Justice Treacy indicated that there was no important point of law or principle involved in the case, the decision is instructive and useful for those seeking to act for cyclists in accidents involving HGVs or other large vehicles; regrettably an increasingly common type of accident with often disastrous consequences.

The decision shows the value of expert reconstruction evidence in appropriate cases. Although courts are sometimes reluctant to permit such evidence, in particular following the comments of the Court of Appeal in Liddell v Middleton [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1996] PIQRP 36, there are some cases, this being one, where it is essential. The Claimant who was grievously injured in the accident had no recollection of it. No eyewitness had a complete view of the circumstances leading up to the accident and of the accident itself; in particular no-one observed the Claimant as the Defendant commenced his manoeuvre. Her position at this time was therefore inevitably the subject of reconstruction.

In reality, the Defendant’s case was based on reconstruction, but this reconstruction was grounded in estimations of witnesses at the scene. On the other hand, the Claimant through the evidence of Mr Ric Ward, was able to produce a reconstruction substantially based on CCTV evidence, which did not rely upon what Lord Justice Treacy described as “guesstimates”. The Court of Appeal considered that His Honour Judge Raynor QC was entitled to treat the scientific reconstruction as being more accurate than that based upon eyewitness estimation.

The Court of Appeal also upheld the Judge’s finding that the Defendant was not only negligent in failing to see the Claimant before he set off from the traffic lights, but that he had a continuing duty to maintain some form of observation, in particular before he turned left, at which stage he would no longer have a view down his nearside (paragraph 14, Court of Appeal judgement). Lord Justice Treacy, consistent with the finding at first instance, did not consider that the Defendant should maintain a constant view in his nearside mirrors from moving off to turning left, but that he should have made an additional check prior to turning left.

Given the known risk of undertaking in these circumstances, the Defendant’s position in the road which would create a perception that he would be turning right, and the fact that the Defendant’s indicators were masked by a vehicle immediately behind him, Lord Justice Treacy accepted that the Judge was entitled to find reasonable care would necessitate a further check immediately prior to turning left. This finding is consistent with guidance in the Highway Code in Rule 72,

  • “Just before you turn, check for undertaking cyclists and motorcyclists”And in Rule 211
  • “Be especially careful when turning and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”

The decision of the Court of Appeal therefore confirms a high duty on drivers of HGV vehicles and other heavy vehicles when turning at junctions, in particular in circumstances in which movement to the right is necessary before a left turn.

Download final judgment[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

De minimis or material? – The survival of the false dichotomy in industrial disease cases – Carder v Secretary of State for Health [2016] EWCA Civ 790

Introduction

sep16We recently voiced questioned the use of the maxim ‘de minimis’ when proving causation in multi-exposure industrial disease claims (see here)[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1]. It was suggested that in these types of claims the function of the maxim has been subverted.

Historically, de minimis was used as a blunt tool to exclude trifling matters from litigation. However, recent cases in the industrial disease arena have given it a broader role. This has been done by equating the finding that a defendant’s contributory factor is not de minimis, to meaning that factor is ‘material’ and so causative; that is to say to find that it “materially contributed” to a claimant’s damage. Materiali contribution has therefore been treated as the converse of de minimis, with no space for manoeuvre between the two.

In creating this false dichotomy, the term ‘de minimis’, which is by its very nature an impressionistic idea, undercuts the objective and scientific inquiry that should accompany any investigation into whether something is material or not. Further, it undermines the test of ‘materiality’ as set out by the House of Lords in Rothwell.[2] That is, whether or not the contributing factor makes the claimant “worse off”. The fact a contributing factor is not deemed to be ‘de minimis’, does not necessitate the conclusion that the contributing factor made the Claimant worse off.

By determining causation in relation to whether something is de minimis or it is not, the legal approach displays insufficiently clear reasoning and a lack of scientifically rigorous analysis in an area of law deeply rooted in medical and epidemiological research.

Carder in the High Court

The essential issue was illustrated in the first instance decision in Carder v Secretary of State for Health [2015] EWHC 2399 (QB). The relevant facts are that the Claimant developed asbestosis, and the Defendant contributed only 2.3% of the Claimant’s asbestos exposure.

The Claimant’s expert, Dr Rudd, suggested a figure of a 1% contribution to total asbestos exposure as the threshold below which any exposure could be viewed as de minimis in light of the overall exposure. He indicated that this was from a “common sense” point of view. This evidence supports the view that de minimis is an impressionistic term. The court then applied the false dichotomy to conclude that because the Defendant’s contribution was not de minimis, it was positively ‘material’ and so causative of the Claimant’s injury. To put it another way, causation was proven on the basis of an expert’s “common sense” view.

This was despite Dr Rudd’s assertion that the Claimant’s actual function and symptomology would not have been “measurably or demonstrably different’ if the Defendant’s contribution had not taken place. It is hard to reconcile the court’s approach with the test of materiality in Rothwell. It is not clear how on Dr Rudd’s evidence the Claimant in Carder had been made worse off.

It was on this basis that the case was brought before the Court of Appeal, providing a valuable opportunity to put to bed the false dichotomy of ‘de minimis or material’ and to provide further guidance on how to approach the concept of ‘materiality’. Unfortunately the court did neither.

Carder in the Court of Appeal

Lord Dyson MR delivered the decision of the court. Unfortunately ,the judgement accepts and reinforces the impressionistic use of de minimise as a test of causation .

Dr Rudd was asked four questions by counsel for the Defendant, in an effort to argue that the Claimant had not been made “worse off”, meaning the Defendant’s contribution was not material.

In answering, Dr Rudd explained that if the Defendant’s exposure had not taken place, the appearance of the Claimant’s lungs and his response to lung function testing would be no different. Nor would the subjective perception of the Claimant’s symptomology change and finally, the Claimant’s ability to cope with daily tasks would have been the same.

The Defendant’s case was therefore that the 2.3% exposure made no difference to the Claimant’s symptoms, disability or prognosis, and it followed that there was no actionable damage. Or to put it another way, the Claimant had not been made materially worse off by the Defendant’s exposure. It was not enough to merely contribute to the disease process, where that contribution made no other measureable difference to the Claimant.

This argument applies the test of materiality in Rothwell to a contribution to injury as to sole causation .

However, the decision was reached pursuant to a less principled line of reasoning. The Court of Appeal quoted Lord Reid in Bonnington[3]:

a contribution which comes within the exception de minimis…is not material, but I think that any contribution which does not fall within that exception must be material.

This passage explicitly sets out the false dichotomy. This, combined with what appears to be a paradoxical concession by the Defendant, was decisive of the case. At paragraph 28 the court stated Mr Kent [the Defendant] conceded that the…exposure, although very small, was material”.

It is not clear on what basis this concession was made given Defendants central argument.

it could have been conceded that the exposure was not de minimise in the traditional impressionistic sense ; but such a

concession should have been irrelevant. Whether or not the contribution was de minimis in this sense should not in and of itself be decisive of whether a Claimant was worse off as a result of that contribution. That conclusion should be reached pursuant to the medical evidence which was unequivocal on this point .

However, as a direct result of the false dichotomy, the concession was decisive. Lord Dyson stated at paragraph 39 that “there is a fundamental contradiction in the appellant’s [defendant’s] case”, because on the one hand the Defendant argued the contribution has made no difference to the Claimant’s symptoms, disability or prognosis, but on the other hand conceded that the 2.3% was material.

Lord Dyson continued at paragraph 40:

it is conceded that the increase was material i.e. not de minimis’. In my view, this concession is critical. In these circumstances, the judge was right to hold that Mr Carder was slightly worse off…this conclusion naturally followed from the appellant’s acceptance of the fact it was responsible for the 2.3% and that this was material.”

This is the starkest example yet of how the false dichotomy between materiality and de minimis is clouding proper legal and scientific analysis. The court did not consider in normative terms how Claimant could be “worse off” despite there being no measureable difference resulting from the Defendant’s contribution. Instead, the court relied almost entirely on the Defendant’s concession that the contribution was not de minimis (or as Mr Kent put it, that it was material) to conclude that the contribution was material and causative. This borders on circularity.

Conclusion

The Court of Appeal decision in Carder confirms that the time has come to dispose entirely of the use of the term ‘de minimis’ when proving causation in multiple exposure industrial disease claims.

A concession that something is not de minimis should not have necessitated the conclusion that the Claimant had been made worse off by the Defendant’s contribution. At most, it should have been taken as an acknowledgement that the contribution was not so trifling as to be ignored. This should not have impacted on a normative analysis of why the Claimant had or had not been made ‘worse off’, which is the test for materiality.

Even if there is some utility in using the term de minimis in order to emphasise a particular contribution is worthy of the court’s consideration, the confusion it is adding to the test of causation, the decisiveness afforded to the false dichotomy and the obfuscation of sound reasoning resulting from this means that it is best to dispense with the maxim altogether.

[1] ‘Is it time to disregard de minimis?’ Charles Feeny and Sammy Nanneh

[2] Rothwell v Chemical and Insulating Company Limited and others [2007] UKHL 39

[3] Bonnington Castings v Wardlaw [1956] AC 613

This article was co-authored by Charles Feeny and Sammy Nanneh[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Williams v Bermuda Hospitals Board: The search goes on?

Case Background

Charles Feeny & Sammy Nanneh

In our article in the PI Update Law Journal, “Material contribution: the search for the elusive third way“, we argued that the decision in Bailey v. The MOD appeared to accept an exception to ‘but for’ causation in tort. However, the precise basis and ambit of this approach was neither clear nor justifiable. The term “material contribution to damage” had two clear and conventional meanings. First, it could represent proof of an identified proportion of a divisible injury. Secondly, it could connote that the Defendant’s conduct had not been the sole cause of an indivisible injury, but nonetheless a sufficient cause. Beyond this, it was difficult to see how material contribution to damage could operate in particular as an exception to ‘but for’ causation.

The Privy Council decision in Williams has been much anticipated. It was thought that the case would enable the highest court, albeit sitting in a different capacity, to consider the decision in Bailey. The NHSLA were given permission to intervene in the hearing of Williams, which was an appeal from the Court of Appeal in Bermuda. The facts of Williams were significantly similar to those of Bailey. Both involved a developing state, ‘weakness’ in Bailey and ‘sepsis’ in Williams, which resulted in an event causing further indivisible damage.

In Williams, the Judge at first instance had dismissed the claim on the basis of failure to prove causation, but the Court of Appeal of Bermuda had reversed the decision. In simple terms, they considered that on the Judge’s findings there was sufficient contribution to the Claimant’s sepsis to justify a finding of causation on the basis of material contribution to damage. This was an application of the Bailey ‘exception’. They did not consider that ‘but for’ causation needed to be established.

In the Privy Council, the Hospital Board accepted that Bonnington Castings was binding, but sought to distinguish it. This was done on the basis that the ratio of Bonnington only applied where the respective causal factors exhibited the same physical and simultaneous effect. It was argued that the ratio would not apply where the different causal factors were successive in their effect. This argument was rejected by the Privy Council.

            “The sequence of events may be highly relevant in considering as a matter of fact whether a later event has made a material contribution to the outcome (as Hotson illustrates), or conversely whether an earlier event has been so overtaken by later events as to not have made a material contribution to the outcome. But those are evidential considerations. As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome.”

The Board then dismissed the Hospital Board’s appeal on the basis that there had been a material contribution from the breach of duty i.e. through the continuation of a septic process over an appreciable period. From this it was reasonable to infer a material contribution to the injury to the Claimant’s heart and lungs.

However, the Privy Council then went on to consider, albeit obiter, that the Court of Appeal had been wrong in Bailey to consider that the finding for the Claimant had not involved a finding on a ‘but for’ basis. The Privy Council gave consideration to Mr Justice Foskett’s findings of fact in Bailey. They considered that the degree of contribution to the injury found by him on the evidence was sufficient to infer ‘but for’ causation. It was the same reasoning process by which they considered the findings in Williams made a similar inference acceptable.

To this extent, it could be considered that Bailey, in terms of the Court of Appeal’s decision, has been marginalised. The position remains essentially conventional in terms of material contribution as a cause but not a sole cause . However, there is still a degree of ambiguity in the Privy Council’s decision as reflected in paragraph 47,

            “The Judge concluded that the totality of the Claimant’s weakened condition caused the harm. If so, “but-for” causation was established.”

This is a reasonable statement in the context of the Privy Council’s view of the findings in both Bailey and Williams, that there was a substantial contribution to the global condition. But the question is still begged, what degree of contribution is necessary to establish ‘but for’ causation? That a Defendant’s conduct can be shown to have contributed to a global condition does not, of itself, establish ‘but for’ causation. The contribution may in fact be so marginal that it would be reasonable to argue that the subsequent injury would have occurred in any event in the absence of the Defendant’s contribution to the damaging process. The Courts would still have to consider at some stage where the bar is to be set in relation to material contribution to damage, but the indications from Williams and its reinterpretation of Bailey is that the contribution will have to be shown to have been substantial, so as to infer ‘but for’ causation

Contributor Comments

For the full version of the article on PI Update Law Journal in it’s January 2016 issue, see below.

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McGEER v MACINTOSH: PAVING A SAFER WAY FOR CYCLISTS?

Case Background

This case involved a cyclist who undertook a stationary car at traffic lights and then cycled to the nearside of an HGV which was indicating to turn left. In earlier years, this would have been regarded as a very difficult case for a claimant.

In a detailed and careful judgment, the Judge, His Honour Judge Raynor QC, found as a fact that the Defendant should have seen the Claimant on her bicycle in his mirrors and had regard to her presence as he commenced this left hand turn. The Judge considered that the potentially misleading nature of the manoeuvre being carried out created a clear duty on the HGV driver to ensure that the cyclist was not going to proceed to his nearside. The HGV had been positioned straddling two lanes but as it moved forward it might have created the impression that it was in fact turning right rather than left.

In assessing contributory negligence at 30%, the Judge took into account the fact that the Claimant would not have seen the indication as she undertook the stationary vehicle. The apportionment also reflected the Claimant’s vulnerability as a cyclist confronting an HGV following a similar approach in the case of Sinclair v Joyner (2015) RTR29. 

This decision comes against a background of increasing debate as to the responsibility as between cyclists and HGV drivers in particular in London with increasing numbers of cyclists but also much busier roads.

In 2013, HGVs were involved in 9 out of 14 incidents in London leading to cyclist fatalities. The Mayor and Transport for London are aiming to reduce the number of people killed or seriously injured on London’s roads by 40% by 2020. A Transport of London “Cycle Safety Action Plan” has been produced. This includes “Cross Rail Lorry Training” where numbers of lorry drivers working on a specific project have to undertake special cycle awareness training.

From 1 September 2015, London Safer Lorry Scheme requires all HGVs entering the capital to fit potentially lifesaving mirrors and safeguards which are not necessarily provided in older vehicles. Operators caught without these features when driving on London’s roads will face a fine of up to £1,000.

Safety trainers such as Bike Right provide courses for HGV drivers which include requiring such drivers as part of the training to cycle in busy urban areas.

Similarly, the Metropolitan Police now organise events called “Exchanging Places” which allow cyclists to sit in the driver’s seat of an HGV or bus to get a better understanding of what the driver can and cannot see, particularly in relation to cyclists on the nearside or directly in front of the vehicle. These issues are well demonstrated in a short film produced by the Metropolitan Police.

Debate continues as to whether cyclists are often the author of their own misfortune through aggressive or inappropriate cycling. In an article on the Spencer Solicitors website “The Global Problem of Cycling Safety: Whose Fault is it?” an HGV driver who wished to remain anonymous (perhaps unsurprisingly) said,

“For drivers, especially truck drivers, there are tests, training programmes and strict guidelines that we have to follow. Now they’re bringing in more, which is fine but what about cyclists? Cyclists don’t have to pass tests to be able to be ride on roads, they’re not made to wear protective gear like helmets or reflected clothing and so on. Even though it is all strongly advised, there are still so many that just don’t.”

“There are also cyclists who cycle when listening to music. I guess just one headphone is fine but I see some with big beats headphones over their ears, I admit I look at cyclists today and obviously think you’ll only learn if you get hit.”

There are undoubtedly cyclists who jump lights, who weave in and out of traffic and cycle in obviously dangerous positions. However in the present case, the Claimant could not have been considered to have cycled in a way that was knowingly inappropriate or careless for her safety. In practical terms, both the Claimant and the Defendant failed to be sufficiently aware of each other and their manoeuvres. In these circumstances, the law now appears to be clear that analogous with an accident involving a pedestrian and a vehicle the Court will apportion liability against the person who has control of the more dangerous vehicle. Whilst debate continues, this reflects the overall public perception of such a situation. Drivers of HGVs who consider that it is a large enough object to be seen are likely to face the majority of blame unless it can be shown that there was some reckless conduct on behalf of the cyclist.

Contributor Comments

See below for the judgment on McGeer v Macintosh.

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Proving the Difference?

Case Background

The Court of Appeal today handed down Judgment in the case of Christine Reaney v University Hospital of North Staffordshire NHS Trust and Another allowing the Defendant’s appeal against the Order of Mr Justice Foskett. The Court of Appeal have remitted the case to Mr Justice Foskett for further determination in the light of their directions as to law.

Mrs Reaney is a T7 paraplegic caused by transverse myelitis whose condition was substantially aggravated by bed sores for which the Defendants admitted liability. Mr Justice Foskett in effect awarded the Claimant damages in respect of all the consequences of her paraplegia for which the Defendants were not responsible rejecting the Defendant’s case at Trial that they should only be responsible to the extent that the bed sores had created additional loss. Mr Justice Foskett justified this approach by reference to the requirement for full compensation and by comparing her but for situation in factual terms with her current reasonable needs.

The Court of Appeal considered that Mr Justice Foskett’s approach was wrong in law and that he should only have awarded damages in respect of the additional injury. The Claimant in fact conceded that during the course of argument that an approach based upon taking into account the Claimant’s financial circumstances in assessing causation of loss as opposed to quantification of loss was wrong in law. Accordingly the comparison has to be between the Claimant’s reasonable needs in each scenario without reference to whether the Claimant could afford to finance her reasonable needs in the but for situation. (Paragraph 19 of Judgment).

The Respondent’s case on appeal was essentially based on the authority of Sklair and the Claimant sought to argue that her new needs were qualitatively different to her old needs which would result in the old needs being disregarded in the assessment of damages. The Court of Appeal considered that Mr Justice Foskett had not made a finding to this effect nor that there was evidence to support the same. The Court of Appeal remitted the case for rehearing.

In terms of rehearing and future cases, consideration will have to be given as to the nature and extent of the difference between pre-existing needs and current needs which would justify the pre-existing needs being disregarded. On a reasonable understanding of the law, this situation would only arise where the pre-existing needs were collateral and bore no comparison with the existing needs. Insofar as there were greater needs in terms of hours of care or even quality of care , this could be subject to quantification by comparing the different care regimes. It is only in the Sklair situation where there is no real comparison between the two situations,resulting in the pre-existing care no longer being necessary, that the but for position can be disregarded.

Consideration will also have to be given as to the process by which the damages for additional injury are assessed and specifically to what extent the Court can have regard in this context to the Claimant’s inability to finance her pre-existing reasonable requirements.

Contributor Comments

Please see below for the Court of Appeal Judgment

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Zurich Insurance v IEG [2015] UKSC 33

Case Background

IEG is a solvent Guernsey company, a supplier of gas to the Channel Islands and a subsidiary of a global utilities, transport, energy and timber company quoted on the New York Stock Exchange. IEG is the successor in title of Guernsey Gas Light Co Ltd (“GGLCL”), which for a period of over 27 years from 13 November 1961 to 31 December 1988 employed Mr Carré and during such employment exposed him to asbestos dust.

In 2008 Mr Carré brought proceedings against IEG claiming that he had sustained mesothelioma consequent on his exposure to asbestos dust throughout his 27-year period of employment with GGLCL. IEG settled his claim on 19 December 2008 by a compensation payment consisting of £250,000 in damages and interest plus £15,300 towards Mr Carré’s costs. IEG also incurred defence costs of £13,151.60.

Thereafter IEG looked to GGLCL’s liability insurers under policies in force during the period of exposure. Two have been identified, first the Excess Insurance Co Ltd, which provided employers’ liability insurance for two years from 31 December 1978 to 30 December 1980, and, second the Midland Assurance Ltd, to whose insurance liabilities Zurich has succeeded, which provided such insurance for six years from 31 December 1982 to 31 December 1988. The present appeal thus proceeds on the basis that GGLCL had insurance for eight of the 27 years throughout which it exposed Mr Carré to asbestos dust. Guernsey did not have legislation making employers’ liability insurance compulsory until 1993, when the Employers’ Liability (Compulsory Insurance) (Guernsey) Law 1993 came into effect.

IEG notified a claim for its total loss to Zurich, which offered to meet 72/326ths of the damages and interest paid to Mr Carré and of the defence costs incurred. The proportion reflected the relationship between the six years of the Midland insurance and the 27-year period of Mr Carré’s exposure by GGLCL. It was arrived at on the basis that IEG’s liability to Mr Carré was incurred and increased from day to day throughout the 27 years, while only six years of such liability fell within the period of the Midland insurance.

At first instance Cooke J accepted Zurich’s case regarding the compensation, but not the defence costs, paid in respect of Mr Carré. He held it liable to pay £71,729.84 in full discharge of its policy liabilities, being its relevant proportion of such compensation plus 100% of the defence costs. The Court of Appeal allowed IEG’s appeal, rejected Zurich’s cross-appeal relating to defence costs, and ordered Zurich to pay £278,451.60, representing 100% of both the compensation paid and defence costs incurred by IEG.

On appeal to the Supreme Court two questions required answering: first, is Barker still good law in Guernsey; second, is an insurer who provided only part of the cover liable for the entire liability and, if so, are they entitled to recover a proportionate amount from other insurers. In addressing the first question the Supreme Court held that Barker is still good law in Guernsey. On the second the court held that Zurich was liable for the full amount but that it could claim contribution for the period not covered by their policy.

 Contributor Comments

The result of the case is easy enough to understand even if the reasoning of the court is not: Barker remains good common law (Guernsey not having an equivalent to the Compensation Act 2006) meaning liability is proportionate; had the matter been governed by English law then IEG would have been liable for the full amount but with the right to claim contribution from other insurers.

This result leads to two interesting questions and/or points: first, would the modification of the double insurance principle, as first suggested in the case of Phillips v Syndicate 992 Gunner [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2003] EWHC 1084 (Comm), be a simpler solution; and second, on the basis that Barker remains good common law are the defendant’s arguments in Heneghan v Manchester Dry Docks [2014] EWHC 4190 (QB) sound?

The first of these questions has been considered in detail by Charles Feeny in the note, ‘IEG v Zurich: Insurance Law for the Digital Age?’. By way of a brief overview, it was argued in Phillips that if indemnity was working in a way not anticipated at the time that the policies were underwritten, it would be reasonable if the concept of double insurance was modified so as to reflect this situation. Although rejected by the English courts, this approach does appear to have found favour in Australian cases, see for example AMP Workers Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267, (2001) 53 NSWLR 35, Zurich Australian Insurance Ltd v GIO General Ltd [2011] NSWCA 47.

The desire for a simpler approach is compounded by he divide between the majority and minority in IEG. The root of the difference appears to be a disagreement over the so-called Fairchild enclave. Speaking on behalf of the majority, Lord Mance reasoned (at paragraph 51):

The court is faced with an unprecedented situation, arising from its own decisions affecting both tort and insurance law. A principled solution must be found, even if it involves striking new ground. The courts cannot simply step back from an issue which is of their own making, by which I do not mean to suggest that it was in any way wrong for the courts, from Fairchild onwards, to have been solicitous of the needs of both victims and insureds. But by introducing into tort and liability insurance law an entirely novel form of causation in Trigger, the courts have made it incumbent on themselves to reach a solution representing a fair balance of the interests of victims, insureds and insurers.’

In contrast Lord Sumption makes an impassioned defence of traditional principles (at paragraph 113):

No insurer can be liable in respect of other periods when he was not on risk or there was no insurance in place at all. That appears to me to be the correct answer to the problem which has arisen on this appeal. The suggestion that an insurer who was on risk for only part of the period of exposure, however brief, can be liable as if he had been on risk for the entire period, is contrary to the express terms of the contract and to the nature of annual insurance. The suggestion that some doctrine of law can be devised which imposes on an insurer in one year the risk that insurers of other years may become insolvent or that in other years the employer may fail to insure at all, is both unprincipled and unjust. The suggestion that equity can partially adjust the result of this injustice by requiring the insured to repay to the insurer part of the insurance moneys which the latter was contractually obliged to pay him, is contrary to basic principles of law.’

Whilst intellectually fascinating, the ultimate discussion can scarcely be described as readily accessible.

In relation to Heneghan, the Defendant’s arguments on apportionment appear secure, with the confirmation of the binding nature of Barker.  However, the more difficult issue on the appeal is likely to be whether the Defendant’s acceptance of the application of the Fairchild exception to cases of carcinoma of the lung was correct.  At first sight, it appears surprising, and high risk, that a Defendant would concede a Fairchild approach to carcinoma of the lung in the hope of achieving a Barker apportionment. Insurers and Defendants have been fearing for many years the extension of the Fairchild exception to cases of carcinoma of the lung and it was not to be anticipated that the point would go by way of concession.

There is real difficulty in applying the Fairchild exception, certainly without modification of any kind to the causation of carcinoma of the lung. Whilst these two conditions have the similarity of being carcinomas caused by asbestos, there are important distinctions in relation to their causation. The Fairchild exception is justified in relation to mesothelioma because of the stochastic nature of the risk created by multiple exposures to asbestos. At the centre of the rule is the perception that in these circumstances there is scientific uncertainty as to which exposure was causative and therefore the requirement of proof is diluted to one of risk rather than but for causation. However, carcinoma of the lung is a threshold condition and it can be said in an appropriate case that a Defendant’s exposure was sufficient to have actually caused the condition, that is that it would not have been on the balance of probabilities suffered in the absence of this exposure. There may be many cases where the nature of the exposure is marginal and indeed it is questionable whether there is sufficient evidence of medical causation by asbestos at all.  However, this type of difficulty of proof is not to be equated with the conundrum created by the confounding effects of successive exposures in a mesothelioma claim. If apportionment is to be applied in a lung cancer case, would it follow that where a victim had clearly excessive exposure and the Defendants had contributed, say, 80% of that exposure, they should nonetheless be subject to a 20% discount? The evidence in that case would indicate on clear probability that the Defendant’s exposure had caused the carcinoma on a conventional basis.

There will be many cases where the Claimant simply cannot prove that there was sufficient contribution to the risk of carcinoma from a relevant exposure as to make it likely causative. However, a principle of but for causation assessed on a balance of probabilities as acknowledged in Gregg v Scott [2005] UKHL 2 and indeed countless other cases, creates the prospect that a Claimant may prove a substantial contribution to risk but not sufficient to prove causation. On the other hand, a Defendant is not usually entitled to a deduction to reflect the possibility, albeit less than probability, that the condition could have arisen without reference to the Defendant. If Heneghan is followed, then it would appear that it would result in the common law doing what it has previously always refused to do, that is penalising those who can prove causation on a conventional basis to compensate those who cannot.

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The Labyrinth of information: the decision in Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB)

Case Background

The Claimant, Mr Spencer, sought damages for personal injury caused by the alleged negligent actions of the Defendant hospital in the lead up to an operation and in the aftermath. The Claimant underwent an operation to correct a hernia in his right groin. The operation was initially undertaken with use of a laparoscope but during the course of the procedure it was necessary to change to an open procedure as visibility deteriorated. The possibility of this change was discussed with the Claimant in the build up to the operation and there was no question of negligence during the course of the operation. Unfortunately, in the aftermath of the surgery the Claimant developed a deep vein thrombosis and was admitted to hospital as suffering from bilateral pulmonary emboli.

It was alleged by the Claimant that the Defendant had failed to provide any written or verbal information as to the signs and symptoms of deep vein thrombosis and pulmonary embolism. During the course of the trial there was a dispute between the parties as to the precise warnings that had been given to the Claimant on discharge.  In addition, the Defendant argued that the risk of developing a DVT was so remote that it was unnecessary to warn in all cases as this could influence the patient’s decision over the operation without basis. The judge HHJ Collender QC concluded that the Claimant had not been given adequate information on the likelihood of a DVT or the warning signs associated with such a condition and, as such, the Defendant had their duty.

Contributor Comments

The facts of the decision in Spencer are not complex but the underlying question before the court is one that has caused immeasurable difficulty: namely, the amount of information a doctor is required to disclose to a patient. The decision in Spencer was the first opportunity the lower courts had to apply the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2015] UKSC 11 and its application is as many would have expected. While the application of Montgomery in Spencer may not have been controversial the principle behind Montgomery requires closer examination.

The law surrounding disclosure has come a long way from the original principle set down in Decorum XVI of the Hippocratic Corpus that physicians are advised to reveal nothing to the patient of their present or future condition, ‘for many patients through this cause have taken a turn for the worse’. Around two millennia later Lord Templeman echoes the founding scripture when he said, ‘the provision of too much information may prejudice the attainment of the objective of restoring the patient’s health’ (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 at page 904). The law as it stands, according to the Supreme Court in Montgomery, is neatly summarised by Lords Kerr and Reid (who gave the combined opinion of the the court) at paragraph 87:

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

The decision in Montgomery had the effect of overruling the House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. The decision of the court in Sidaway is not necessarily complex but their Lordships did take differing opinions about the duty to provide information. Lord Diplock followed the Bolam approach but tempered it in situations which involved ‘highly educated’ patients who would require additional information about the risks. The Diplock approach is at odds with the opinion of Lord Scarman who took the starting point of the patient’s basic human right to make his own decision and reasoned (at page 884-885):

If, therefore, the failure to warn a patient of the risks inherent in the operation which is recommended does constitute a failure to respect the patient’s right to make his own decision, I can see no reason in principle why, if the risk materialises and injury or damage is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages.

The middle way is offered by Lord Bridge when he states (at page 900):

I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the 10% risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes 114 DLR (3d) 1 . In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient’s right of decision, could hardly fail to appreciate the necessity for an appropriate warning.’

The approach of Lord Bridge was followed by the Court of Appeal in the decision of Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53. Lord Woolf MR, giving the leading judgment with which the other members of the court agreed, stated the law as being (at paragraph 21):

In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.’

Much criticism had been made of the approach in Sidaway, especially the emphasis on the patient to ask questions as opposed to the doctor providing information; Sedley LJ in Wyatt v Curtis [2003] EWCA Civ 1779 commented (at paragraph 19) that ‘there is arguably something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about’. In addition, Lord Woolf MR criticised the approach in his 2001 Jacobovitz lecture, ‘The judiciary, medicine and ethics’.

What then caused the change in approach in Montgomery? On the one hand, as mentioned above, the perceived burden on the patient as opposed to duty on the doctor was unsustainable in the face of such persistent criticism. Another key reason, as identified by Lords Kerr and Reid (at paragraphs 75-76) is the changing nature of the doctor-patient relationship:

Since Sidaway’s case, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession…Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by laws premised on the ability of the citizen to comprehend the information provided.’

While it is clear that there is a difference in relationship between doctor and patient, the following comment of the court is open to question (at paragraph 81):

The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based on medical paternalism. They also point away from a model based on a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.

With respect to the court this appears to be wishful thinking. The doctor-patient relationship has been continuously evolving, as evidenced by the professional guidelines on consent which emphasises a full dialogue, yet litigation levels are on the increase. It is dangerous to make the assumption that information alone will prevent litigation in the event of harm; to do so will lead to difficult situations akin to Chester v Afshar [2004] UKHL 41 in that doctors will be second guessing what could have happened.

What then are the consequences of this change in approach? Is it now the case that the fabled words ‘trust me I’m a doctor’ no longer apply? Is a doctor now more akin to a Google search within their respective specialty, reeling off information that in no way applies to the medical case as presented? Of course not. While the end result is to be welcomed (if only because it provides clarity which means doctors should err on the side of caution) the second leg of the court’s reasoning should be disregarded. Yes, there is more readily available information but this has not changed the fundamental nature of the doctor-patient relationship which is to provide specialist advice based upon the case at hand. The law recognises this and is not as daunting as it may first appear to medical practitioners. The Bolam principle still plays a central role but it is qualified in a manner not dissimilar from Bolitho v City and Hackney HA [1998] AC 232. The law is now firm in its position that where doubt is present providing information is the best course of action. However, doctors are still the adjudicators of what information is reasonable to provide and that is how it should be. A patient seeking too much, unrelated, information is like Icarus flying closer and closer to the sun: it is good at first but will ultimately act against their best interest.

Spencer v Hillingdon: Clinical comment

Graeme Poston

Professor of Surgery, University of Liverpool

Consultant Surgeon, Aintree University Hospital, Liverpool

The background to this claim goes back to 2005 when the Parliamentary Health Select Committee produced a report on the poor use of deep venous thrombosis (DVT)/pulmonary embolism (PE) prophylaxis and prevention in English hospitals. DVT is the development of blood clot, usually in the deep veins of the calf, due to protracted periods of inactivity, as the muscles of the calf are necessary to pump venous blood against gravity back to the heart.  Patients suffering protracted periods of confinement to bed, and those under general anaesthetic are at particular risk, in addition to those undergoing certain operative procedures (e.g. orthopaedic hip surgery) and suffering specific conditions (e.g. cancer). PE is the frequently fatal complication of DVT, when the clot dislodges from the point where it originated in the calf and travels to the heart where it blocks the pulmonary artery that takes the blood from the right side of the heart to the lungs.

At that time, over 25,000 people were still dying each year from DVT/PE following admission to hospital and the Select Committee’s report ended by instructing the National Institute of Health and Care Excellence (NICE) to produce national guidance for England which would both identify those at risk of developing DVT/PE and the steps necessary to reduce/prevent the development of DVT/PE. NICE produced this guidance (CG46) in 2007 identifying those at increased risk of DVT/PE, the steps to be taken to identify this cohort, and the measures to be taken to reduce (and hopefully abolish) this risk. However, no major reduction in the incidence of DVT/PE ensued, and so NICE reconvened the guideline development group who then issued revised guidance (CG92) in January 2010. This guidance now defined both a ‘higher risk’ group (those defined at higher risk in CG46) and an ‘at risk’ cohort which now now encompassed anyone admitted to a hospital bed, either as an inpatient or as a day case. The ‘higher’ risk group should be offered prophylaxis against DVT/PE in the form of compression stockings or injectable heparin anticoagulant, but all of the ’at risk’ (including the ‘higher risk’) patients should be given advice before hospital discharge (ideally written, but alternatively verbally) on the possible symptoms of DVT/PE (which included a painful or swollen calf), which if they occurred in the postoperative period should alert the patient to seek immediate hospital attention. Effectively, but not specifically stated, this ‘at risk’ group included anyone having a general anaesthetic, but the words ‘general anaesthetic’ did not appear in the guidance. Furthermore, despite an extensive pre-publication editorial process, there was lack of clarity in the guidance, with the definition of the ‘at risk’ numerator (from within the total hospital inpatient and outpatient denominator) appearing within the guideline after the guidance on prevention.

Mr Spencer attended Hillingdon Hospital in late 2009 with a symptomatic inguinal (groin) hernia and a possible early hernia on the other side. He had no pre-existing history of DVT/PE or any of the medical conditions that predisposed him to increased risk of DVT. He was listed for a laparoscopic (keyhole) repair of both hernias under general anaesthetic. His body mass index (BMI) was 29.8, and such a procedure would normally take 60-90 minutes. CG92 stated that those at higher risk of DVT/PE included BMI >30, those having a general anaesthetic exceeding 90 minutes duration, and those undergoing open abdominal surgery (which is a recognised risk of any laparoscopic surgery because of the risk of damaging internal organs) should be considered at ‘higher risk’ for DVT/PE and as such offered DVT/PE prophylaxis before and during the procedure. Mr Spencer was admitted for his surgery in February 2010, 1 month after the publication of CG92. Although Mr Spencer was on the cusp of the higher risk group on three counts, the hospital failed to perform a preoperative DVT/PE risk assessment prior to admission, but on the day of surgery decided to place compression boots on Mr Spencer’s calves during the general anaesthetic. During the early stages of the laparoscopic procedure, the surgeon encountered bleeding difficulties, so reverted to a traditional open repair of the symptomatic hernia. The anaesthetic lasted 60 minutes, and Mr Spencer went home that evening with a generic non-specific patient information leaflet giving a contact phone number for the day unit, which was open 7 am to 7 pm weekdays, or alternatively to call the hospital switchboard. Mr Spencer did indeed contact the day unit on two occasions in the immediate postoperative period, firstly because of mild post-anaesthetic confusion on the first postoperative day, and again on the third day when he was concerned about wound discomfort. On both occasions he was reassured. However, when he developed a painful swollen calf of the leg on the opposite side to the hernia repair on the 5th postoperative day, not aware of what this could possibly mean, he ascribed it to cramps from being bed bound and thought nothing of it. This symptom appeared to slowly resolve over the subsequent 3 weeks and Mr Spencer returned to work. Mr Spencer collapsed while at work some four weeks after his surgery from a near fatal PE, which although immediately recognised and treated with full therapeutic anticoagulation, suffered a further PE 2 weeks later, and he is now receiving warfarin anticoagulation for life.

Mr Spencer argued that although the risk of developing a DVT in his circumstances was very small (<1%), the material risk to him was such that he would have had the operation, but had he been given the specific advice on the symptoms of DVT/PE, when he suffered the swollen painful calf 5 days after his surgery under general anaesthetic, he would have sought immediate medical attention, which on balance would have led to the correct diagnosis for which he would then have received a 3-6 month course of anticoagulation (initially using intravenous heparin, but subsequently converting to oral warfarin). As a consequence, on balance, he would have avoided the near fatal PE, and more significantly the second PE which now condemned him to lifelong warfarin anticoagulation, with all the lifestyle restrictions thereby ensuing (restricted foreign travel, need for weekly blood clotting measurements, more protracted interventions around all future surgical procedures including dentistry etc.).

The Defendant argued that regardless of the NICE guidance contained in CG92, the material risk of Mr Spencer suffering DVT/PE outside of the ‘higher risk’ group was so small (the Defence argued 1:50,000) that there was no material risk, and therefore no obligation to offer the advice in line with the NICE Guidance, which was supported by the Defendant’s expert opinion, and therefore satisfied the Bolam Test.

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Alkaline metal and the heart: Davies v Countess of Chester Hospital [2014] EWHC 4294 (QB)

Case Background

The Claimant in this action sought damages from the Defendant for the wrongful death of her husband, Mr John Davies, for the events which occurred during his time in hospital in early January 2010. Mr Davies attended hospital in the early morning of the 4th January 2010 having felt unwell on the drive to work. Upon admission to Accident & Emergency he complained of chest pain and was sweating. An ECG was performed which showed Mr Davies was in ventricular tachycarida with a heart rate of 235bpm.

Mr Davies was 57 years old when he died and had a number of risk factors for cardiac illness. His father had died of a myocardial infarction; he had been morbidly obese since at least 1998; he weighed over 20 stone at the time of death; his body mass index was 48.2kg/㎡; he was a persistent smoker; he had previously had an acute myocardial infarction; and in 2001 he developed atrial fibrillation.

Upon admission Mr Davies was reviewed by Dr Khan (a specialist registrar in A&E). Dr Khan noted the ventricular tachycardia and at this time Mr Davies was alert and awake to the extent that he was able to give a full history and accurate description of his symptoms. In light of the chest pain and abnormal cardiac rhythm, Dr Khan made the decision to treat by way of synchronised cardioversion. Dr Khan sought assistance from an anaesthetist, Dr Fanning, who considered Mr Davies to be a high risk  of anaesthesia because of his body mass index, large neck (which rendered intubation difficult), large face and goatee beard (which impedes a mask to the face).

During the treatment in A&E Dr Fanning was called away to a different patient with an impending upper airway obstruction (considered to be an anaesthetic emergency). At this time Dr Khan informed Dr Fanning that in view of Mr Davies’ condition he would carry out cardioversion under sedation. The first cardioversion of 50 joules was delivered but was not effective; a second cardioversion of 100 joules was administered but was also in effective. At this stage, Dr Khan sought the assistance of Dr McClement (the on call medical registrar) who arrived approximately as the third cardioversion at 100 joules was being delivered. Dr McClement sought advice from Dr Reid (the on call consultant cardiologist) who advised that magnesium should be administered. As a result of an error 8mg of magnesium was administered which was four times the appropriate dose. Mr Davies immediately complained of a burning sensation and went into cardiac arrest. Subsequent efforts were made to resuscitate Mr Davies, including the use of two defibrillators simultaneously, but none were successful. Mr Davies death was confirmed at 10.36 am.

The judge, Mr Justice Kenneth Parker, was asked to determine whether Mr Davies’ condition was rapidly deteriorating to an extent which necessitated the decision to carryout cardioversion. The judge rejected the Claimant’s assertion that the condition upon arrival in A&E did not necessitate cardioversion. In rejecting this, Kenneth Parker J went further and concluded that the cardioversion, as carried out by the Defendant, did not fall below the level expected of a reasonable practitioner. In reaching this conclusion the judge accepted the Defendants’ argument that the serious deterioration in Mr Davies’ condition was the result of the ventricular tachycardia and that notwithstanding the magnesium dose Mr Davies would not have been successfully resuscitated.

Contributor Comments

This case provides an interesting twist on a fairly common scenario which was, unfortunately, for the purpose of academic understanding, not pursued by the Claimant: namely, acceleration of death.

The facts of the case are not complex in that Mr Davies had a number of risk factors for cardiac arrest and the Defendants followed established guidelines for cardioversion. The difference of opinion between the expert cardiologists- Dr Cooke for the Claimant and Prof. Channer for the Defendant- while noteworthy is not unexpected and provides little guidance for future cases. Ultimately, the court was persuaded by Prof. Channer’s opinion that Mr Davies’ history, combined with his physical state when admitted to A&E, meant that cardioversion was unlikely to have been successful and his cardiac arrest, and subsequent death, could not be prevented. While the reader’s eye may be drawn to the admitted negligent overdose of magnesium this does not, in the sense of pure causation, play any significant role as the factual matrix already had all the component parts before the dose was administered.

What is interesting for future cases is the question of acceleration under the Fatal Accidents Act 1978. It is uncontroversial that under section 1(1) of the FAA a death must have been caused by the breach and that, in normal circumstances, acceleration is does not satisfy causation. However, comments to the contrary in Brown v Hamid [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2013] EWHC 4067 (QB) appear to question this principle. In Brown the Claimant argued that the Defendant was negligent in failing to prescribe Warfarin. The Claimant ultimately died due to the effects of his pulmonary hypertension and the Defendant argued that the failure to prescribe Warfarin only had the effect of accelerating the Claimant’s death. Jeremy Baker J found for the Claimant stating that, on the evidence, the failure had accelerated the onset of more severe symptoms. While this may be true on one level, at the fundamental level the symptoms are only a manifestation of the underlying condition which ultimately caused the death. It is a fact of life, and litigation, that death is only ever accelerated which leads to the question: ‘to what extent must acceleration take place for causation to be satisfied?’ This question will be answered by the author in the up-coming article: “She should have died hereafter? When is death caused by breach of duty?

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