Charles Feeny published in the European Journal of Risk Regulation

Charles Feeny has published the article, ‘Epidemiological association, evidence of legal causation?- a view from the front line‘ in the forthcoming issue of EJRR.

In his article, Charles discusses the development of epidemiological evidence and its value as a means of proving causation. In addressing this, the article comments of the so-called ‘doubles the risk test’ and whether it has any place in English law.

For further details please contact editors@pro-vide-law.co.uk.

Complete Counsel: shedding the unnecessary…

From 5 January 2015, I will continue my practice as a Barrister, with support from Complete Counsel.

Complete Counsel is an innovative project which will operate as a sister company to Document Direct.  It is anticipated that instructions through Complete Counsel will be electronic via a portal.  The management of my practice will use the software package “Briefed”, which will provide electronic management in relation to document production, deadlines, basic diary management, billing and fee collection.  So as to ensure efficiency, the use of Briefed will be supplemented by 24/7 PA support, with constant alerts as to any unfinished tasks or lack of response.  At a high level, the operation of Briefed and the PA support will be overseen by a Practice and Business Development Manager, who will supervise the day to day functioning and undertake a troubleshooting role.  The Practice and Business Development Manager will also take responsibility for client care and contact and be receptive to the reporting of any problems or suggestion as to how the service can be improved.

The clear objective of this approach is to provide a form of practice management which could be considered more efficient and appropriate in a rapidly changing market for legal services.  Whilst the traditional Chambers model will no doubt continue to satisfy many Barristers, as Lord Judge commented recently in Counsel magazine, it is vital that the Bar is prepared to consider and embrace new ways of working if the Bar is to maintain its traditional virtues of independence and quality.  There is no necessary correlation between the traditional structures and the traditional virtues; in fact the converse could be more easily argued.  The word “Chambers” refers only to a building and from that the traditional model reflects a building with the support, and staff structures, that go within a building.  The great opportunity for individuals in the digital age is that they do not need to encumber themselves with the expense necessary to maintain the traditional models.  The digital model with its much lower base costs creates opportunities for more expenditure in areas which really bring quality and allows much greater scope for independence.

Since I gave notice of my intention to work in this way, I have become aware of many rumours circulating of my likely approach to practise.  Whilst the repetition of such rumours rapidly becoming factual statements is one of the traditions of the Bar, I feel I have to disabuse any of you who have chosen to believe the following: First, that I am easing off, downsizing, semi-retiring etc.  Whilst I have to admit to having attained a reasonable age, Mr Osborne has it in mind that I should work for many years to come.  I am very happy to go along with him on this issue at least.  I am enjoying my work more than ever.  I cannot imagine anything better than being a Barrister.  I believe that you can only properly practise the Bar if you do so with energy and passion.  If I ever felt I was losing that energy and passion, I would not ease off or anything like, but out of respect to myself and others, stop completely.  I therefore intend to practise for the foreseeable future, to at least the same level and with the same standards I have tried to display throughout my career.  If you were in any doubt about this, you should know that Claire Labio has agreed to work as the Practice and Business Development Manager of Complete Counsel and I am sure I will be made rapidly aware of a slipping in my standards or approach.

Second, that I am practising from my garden shed.  There are a number of reasons why this is not the case, not least because there is no heat, light or electricity in the garden shed.  It is true that I, like many Barristers, probably a clear majority, now work increasingly remotely, in particular from my study at home.  However, in practical terms given the use of IT, there is no difference between working in a room in Chambers or in a study at home.  The Complete Counsel model, I think, best suits the working life of a specialist civil counsel such as myself, where a significant amount of work relates to document production, where I am capable of working largely remotely, and where my conference and court work is peripatetic.

Thirdly, that this is a cost-cutting exercise.  It is true that the basic support service at Complete Counsel operates at a fraction of the cost of being a member of a traditional chambers.  However, it is not my intention that my overall level of expenditure shall reduce.  Rather I intend to deploy more resource into areas which will transmit better value to my clients.  I will continue to employ a paralegal, for support, in particular, in relation to research.  The services of a paralegal are not charged directly to clients, but are subsumed within my own fees.  I will continue to provide education and training, in particular by participating in the web-based project Pro-VIDE Law.  I intend to develop and extend my activities in these respects.

It is also planned that Complete Counsel will involve a parallel project, Complete Mediation, whereby mediation services will be offered, in particular in relation to clinical negligence.  The move towards mediation is inevitable and we intend to offer access to skilled mediators with vast experience of litigation.

This is therefore a new approach, but clearly necessary in this challenging and fast developing market for legal services.  The project will have to be considered experimental in its first few months and I would encourage all those who instruct through Complete Counsel to offer such help and advice as they feel appropriate.  There is nothing that we do not want to hear.  The service will initially be most suited to civil barristers in the North West of England.  If you are interested, or would like to know more, please email on charles.feeny@completecounsel.co.uk.

Charles Feeny

Ana Samuel appointed Deputy Coroner

Ana Samuel has been appointed Deputy Coroner for the city of Birmingham.

Wendy J Owen gives lecture at APIL

Wendy J Owen gave the lecture- ‘Fatal accidents- maximising the claim’- at the APIL annual conference earlier this month.

For more details please email editors@pro-vide-law.co.uk.

Charles Feeny gives lecture on shortcuts to proof in cases of delayed treatment

Charles Feeny gave the lecture “Material contribution or inference? Shortcuts to proof in delay of treatment” at Bevan Brittan’s London office on the 31st March.

The lecture address the legal issues that arise in cases of delayed treatment in the areas of cauda equina syndrome and the influence of material contribution generally. As part of this, Charles discussed the importance of the cases Hussain v Bradford Hospital NHS Trust [2011] EWHC 2914 (QB); Bailey v MoD [2008] EWCA Civ 883? Leigh v London Ambulance [2014] EWHC 286 (QB); Shawe-Lincoln v Neelakandan [2012] EWHC 1150 (QB); and Keefe v Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683.

If you would like further information please contact editors@pro-vide-law.co.uk.

Claire McIvor joins Pro-VIDE as contributing editor

Pro-VIDE-Law are pleased to announce that Dr Claire McIvor, Senior Lecturer at the University of Birmingham, has joined our panel of contributing editors.

Dr McIvor is a tort law specialist. Her main areas of research are liability for the acts of others; public authority negligence; probabilistic causation; and the use of epidemiological evidence in personal injury litigation. Dr McIvor is also the co-founder of International Association for Law and Epidemiology.

EL claims after the Enterprise and Regulatory Reform Act; the recrudescence of Middle English law?

On Saturday 30th November, Charles Feeny delivered the above lecture at the Personal Injury Bar Association Northern Conference.

As a follow up, Charles has provided some additional thoughts on the lecture and how the changes are influencing the law. A copy of the lecture powerpoint is available at the bottom of the page.

My starting point in this talk was that Sections 69 of the Enterprise and Regulatory Reform Act is essentially legislation from the golf club bar reflecting the sustained antipathy in the form of anti-EU sentiment amongst the middle English.  However, the reality is as Lord Denning identified and predicted in 1974 that European law would become a part of English law and its influence would flow up our estuaries and rivers.  Further, and significantly in this context, it is not just that the law has become integrated but that the climate of industrial safety has been radically improved by a systematic and rigorous approach, in particular reflected in guidance given by the HSE.

This is not to say that Section 69 will have no effect.  The provision operates to reverse the previous presumption of civil liability under legislation and regulation made under the Health and Safety at Work Act 1974.  It must follow that if a Claimant can only prove a breach of a statutory duty of strict application, the Claimant will now fail, whereas previously the Claimant would have succeeded (albeit likely to be subject to a very significant discount for contributory negligence).

Such claims, however, will likely be rare as they were prior to Section 69.  Stark v the Post Office was apparently perceived as being representative of European over-regulation by the application of strict duty.  Clearly, if this case was re-litigated on the same facts and findings, the Claimant would fail rather than succeed as a result of the provision in Section 69.  Consideration of the facts of the case would indicate it is unlikely that in a similar case now the Claimant could not deploy arguments to succeed without having to rely upon breach of a statutory duty of a strict nature.  The facts in Stark are briefly set out in the Court of Appeal judgment, and only to the extent necessary to explore the discrete point of law.  The Judge at first instance made a finding that the defect which caused the accident could not have been discovered on rigorous examination and therefore there was no negligence.  The defect was said to be the result of either metal fatigue or manufacturing defect.  It is not clear to what extent arguments based on negligence were pursued with any vigour at first instance given the case on breach of statutory duty and the Claimant’s correct perception that the Defendants’ position was indefensible on breach of statutory duty.

It would appear that the area where those advising Claimants are considering most difficult is in relation to equipment and machinery claims.  Such claims have, in reality, substantially proceeded on the basis of strict liability within the working lifetime of all currently practising lawyers.  In fact, rather ironically, some of the old fashioned Anglo Saxon provisions which predated European regulation, such as Section 14 of the Factories Act 1961, provided for a much stricter duty than has been imposed in any context from Brussels.

To this extent, having to prove fault beyond breach of strict statutory duty represents a cultural change for Claimants’ lawyers but it should not, in the vast majority of cases, present an insurmountable challenge.

The Courts have taken an approach where, in simple terms, something has gone wrong, that there is at least an evidential onus on the Defendant to explain and justify this position.  This was exemplified in the slipping case of Ward v Tesco Stores Limited.  It is not clear how this approach can be squared with the confines of res ipsa loquitur, the Courts in this context, as in certain clinical negligence cases, disavowing the application of the maxim but in fact applying a lower threshold of proof for practical purposes.  Be that as it may, the starting point of any defective equipment or machinery must be that it is a situation which requires some justification.

Many Defendants will struggle to present the type of evidence necessary to form the background of the justification of a defect or fault, for example comprehensive and up to date maintenance and inspection records.  Whilst the absence of such documentation would not in itself prove a causative breach of duty, it would nonetheless put the Defendant very substantially on the back foot.

Further, the Employers Liability (Defective Equipment) Act 1969 has not been repealed.  It had become largely obsolete because of the Stark case but it can now be relied upon as it was characteristically prior to 1993.  It is to be noted that the definition of fault within the Act is very broad including “other act or omission which gives rise to liability in tort in England or Wales”.  It therefore seems reasonably arguable that a defect can be assessed by reference to the Consumer Protection Act 1987 which is stricter in its application than a simple allegation of negligence in manufacture.  The definition of defect relates to “the safety of the product is not such as persons generally are entitled to expect”.  If a defect in this sense is proved then a defence according to the statute must be demonstrated, and these are rigorous including a requirement that the producer or supplier must demonstrate that they could not reasonably have known of the defect in the light of scientific and technical knowledge.

Reconsidering the facts of Stark against this background, it is clear that if the ultimate finding was that there was a defect in manufacture, Mr Stark would have succeeded even without strict liability.  The alternative of metal fatigue is difficult to interpret, giving the very limited reference to it.  However, it could be reasonably argued that the metal fatigue was either foreseeable or unforeseeable.  In other words, it occurred after a certain period in use or it could occur at any time during the course of the use of the bicycle.

In the former scenario, it would be reasonable to argue that the Defendants should have had a system whereby bikes were not permitted to remain in use when they were subject to failure through metal fatigue.  In fact, there was evidence in Stark that the Post Office routinely withdrew bikes from use after 10 years, whereas the bicycle Mr Stark was using was 14 years old.  This is not explained from the Court of Appeal judgment but clearly an argument could be developed on these lines.

If, on the other hand, the defect was unforeseeable and could occur at any time, then the bicycle would be defective within the meaning of the Consumer Protection Act 1987.

The clear impression therefore is that a Claimant in the Stark type of case could succeed but might have to deploy considerably more forensic energy in the process rather than having the easy option of relying upon a strict statutory duty.

The other area in which the apparently restrictive effect of Section 69 will be substantially mitigated is in the application of breach of regulation and guidance, as evidence of negligence.  Lord Faulks in the House of Lords referred to a breach of regulation as “strong prima facie evidence in negligence” (Hansard 22 April 2013 Column 1328).

In this context, it is important to appreciate that because of the way much of the Regulation is framed, in particular in terms of reasonable practicability, that the crucial assessment is not necessarily made by reference to the Regulation but rather by reference to guidance issued by the Health and Safety Executive.  This was illustrated by the case of Mr Simpson, for whom I acted earlier this year.  Mr Simpson fell down from a ladder on a building site suffering very serious- near fatal- injuries.  His case was that the ladder was incorrectly lashed, but the Judge rejected this at trial.  However, the Judge accepted an alternative case based on the Working at Height Regulations 2005, in particular that Mr Simpson had been climbing a ladder which was constituted by a single run of 25 feet.  The Claimant’s case was that this was inappropriate and inconsistent with the guidance provided by the Health and Safety Executive in relation to the Working at Height Regulations in that single runs of ladders, as opposed to scaffolds with intermediate platforms, should only be used for occasional and short term access.  The Defendants attempted to argue by way of reference to risk assessments that they had correctly assessed the work as being occasional and short term, and the use of a ladder was justified.  The Judge’s finding was that although the use was occasional and short term in the sense that Mr Simpson was not working from the ladder but rather going up and down it a few times a day to access the roof, this could not be considered to justify the use of a ladder within the Health and Safety Executive Guidance.  Although each use was short term and arguably occasional, the ladder was being used over a prolonged period and the Judge found that a scaffold should have been erected.

The critical point here is that the finding was ultimately not based upon the terms of the statutory duty but rather upon the guidance given in relation to the statutory duty.  The Judge would, post Section 69, make an identical finding in negligence unless he considered that the employers should not have followed the guidance.  It was suggested in discussion that the effect of the guidance would be diluted by Section 69, since the guidance was based upon a statutory regime which substantially presupposed civil liability for breach.  However, I do not think this is likely.  There is clear authority in the Courts, for example in relation to British Standards, in Ward v Ritz Hotel (London) Limited, and other cases, that a Defendant must justify not following what might be described as authoritative, if not necessarily statutory guidance.

The Regulations remain in force and indeed create criminal liability.  It would not usually be anticipated that the level of conduct which would attract a criminal sanction would be significantly lower than that, which would amount to a breach of civil duty.

In the current climate, it would be a very bold Judge who, in the context of a serious or even fatal accident, would follow his or her own assessment of what should or should not have been done, as opposed to guidance given by the Health and Safety Executive.  Whilst readers of the Daily Express and the Daily Mail might take different views, a Judge would no doubt be mindful that these are not the only publications in which such a decision might be discussed.

It was also suggested that the absence of a legal burden in civil litigation for a Defendant to show reasonable practicability could have some significant effect.  Again, I would doubt this. The legal burden probably only matters when it has been overlooked at first instance, as in Larner v British Steel.  In practical terms, if a breach of regulation is pleaded as evidence of negligence, then a Defendant will have to engage in the issue and there would be likely, as discussed above, an evidential burden.  In this context, in the final analysis a Court would have to consider whether the Defendant had demonstrated taking all reasonably practical measures, and this would be determined on the balance of probabilities.  Cases where the legal burden might prove decisive, against this background, are likely to be few and far between.

Some members of the audience felt that I was being over sanguine.  However, I did wonder whether this was another manifestation of the middle English penchant for determined and sustained gloom, as evidenced by the resolution of the plot in Brief Encounter.  However, I would remain of the view that law based on spin, as opposed to proper consideration of the law, is unlikely to have any effect, citing the example of Section 1 of the Compensation Act 2006.  Most importantly, Lord Denning predicted correctly, and there has been as a result of European regulation, a massive and welcome cultural change in relation to industrial safety, and it cannot be imagined that it would either be desirable or possible to move backwards from this position, in particular by reference to such a simplistic provision as Section 69.

Charles Feeny*

*I would like to thank Charles Austin for his help in preparing this lecture and additional note.

Causation in asbestos- a great success!

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

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

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

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

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

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

 

The photograph shows, in no particular order,

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

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

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

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

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

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

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

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

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

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

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

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

Charles Feeny.

Charles Feeny and Per Laleng participate in International Legal Epidemiology Association

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

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