Hailsham Chambers Clinical
Negligence Seminar
22 April 2010
Clinical Negligence Update
By Lucy MacKinnon
3. Roach v The Home Office [2010] 2
WLR 746
• Issue – can costs incurred at an inquest
be claimed as part of the costs bill in
subsequent litigation?
• Facts – Two prisoners who committed
suicide by hanging themselves in their
prison cells.
• Prisons criticised during inquests.
Statutory basis
S.51 of the Supreme Court Act 1981:
(1) Subject to the provisions of this or any other
enactment and to rules of court, the costs of and
incidental to all proceedings in:
a) the civil division of the Court of Appeal;
b) the High Court; and
c) any county court,
shall be within the discretion of the court.
Decision
• Costs incurred during an inquest can
constitute “costs of and incidental to
proceedings”.
• Any costs claimed can still be challenged
on the basis of reasonableness and
proportionality.
2. Conan Ingram (A protected party)
v Williams [2010] EWHC 758 (QB)
• Facts – Alleged failure by GP to conclude that
membranes might have ruptured.
• Four possible causes of C’s disability:
1. Prematurity;
2. Presence of a urinary tract infection (the cystitis
diagnosed by Dr Gareth);
3. Episodes of infection in the neonatal period;
4. Possible infection of the amniotic fluid following
premature rupture of the membranes.
Bailey v Ministry of Defence [2009] 1 WLR
1052:
“I would summarise the position in relation to cumulative cause
cases as follows. If the evidence demonstrates on a balance of
probabilities that the injury would have occurred as a result of the
non−tortious cause or causes in any event, the claimant will have
failed to establish that the tortious cause contributed. … If the
evidence demonstrates that ‘but for' the contribution of the tortious
cause the injury would probably not have occurred, the claimant will
(obviously) have discharged the burden. In a case where medical
science cannot establish the probability that ‘but for' an act of
negligence the injury would not have happened but can establish
that the contribution of the negligent cause was more than
negligible, the ‘but for‘ test is modified, and the claimant will
succeed.”
Causation arguments of the Defendant
• D argued that he should only be liable to the
extent of his material contribution to the injuries.
HELD – This was likely to be inconsistent with
Bailey.
• C’s damage was not indivisible and, therefore,
the “but for” test should apply.
HELD – This was a possibility but court could not
divide up the damage in C’s case.
1. Farraj v King’s Healthcare NHS Trust &
Cytogenic DNA Services [2010] Med LR 1
• Facts – C wished for foetal sample to be
tested for inherited blood disorder.
• Poor quality sample taken.
• Sample sent by D1 to D2 for cleaning and
culturing.
• Returned sample tested leading to
erroneous advice that no blood disorder.
Decision of the Court of Appeal
• D1 owed a duty in tort to provide C with reliable
information as to whether the foetus had the
blood disease.
• D1 entitled to conclude that, if there was doubt
about the identity of the sample and whether it
came from the mother or the foetus, D2 would
either not culture the sample at all or inform D1
of the doubt.
• D1 was entitled to assume that the sample was
satisfactory unless D2 told them otherwise.
Non-delegable duty of care
Per Dyson LJ:
“…a hospital generally owes a non-delegable duty to its
patients to ensure that they are treated with skill and
care regardless of the employment status of the person
who is treating them…the rationale for this is that the
hospital undertakes the care, supervision and control of
its patients who are in special need for care. Patients are
a vulnerable class of persons who place themselves in
the care and under the control of a hospital and, as a
result, the hospital assumes a particular responsibility for
their well-being and safety.”
However, C was not a patient!
THE END!
Who wins the prize?
Roberts v Johnstone Awards
Henry Bankes-Jones
The Problem
• The cost of the necessary alternative
accommodation occasioned by the
Claimant’s injuries
• Versus the Capital Asset acquired in the
new accommodation as a corollary of the
need for suitable alternative
accommodation
HISTORICAL DIFFICULTIES
& CONFLICTING APPROACHES
• George v Pinnock [1973] 1 W.L.R. 118
- Approach of Orr LJ
• Wright v British Railways Board [1983]
A.C. 773
- Reasoning adopted by Lord Diplock
The Solution
• Roberts v Johnstone [1989] Q.B. 878
• A combination of the two earlier approaches
(I)
“The plaintiff is entitled to be compensated to the extent that
this loss of income or notional outlay by way of mortgage
interest exceeds what the cost of her accommodation would
have been but for the accident”
(II) “appropriate to consider the annual cost in terms of lost
income and investment, since the sum yielded would not be
available to produce income. A Tax free yield of 2% in risk
free investment would not be a wholly inappropriate one”
Formula to be applied
Extra cost of the new property, taking into account
the sum realised in the sale of the former property,
if appropriate, say £100,000 less £60,000 from the
sale of the former property = £40,000
X 2.5% (the applicable discount rate, as now set)
X agreed life multiplier of, (for example), 10
= £10,000
Clearly, must still have Medical Evidence
showing the need for the Property
• Cunningham v Harrison [1973] Q.B. 942,
CA
• Burton v Kingsbury [2007] 2091 (QB)
(Flaux J)
• Cassel v Riverside Health Authority [1992]
P.I.Q.R. Q168, CA (Civ Div)
Additional Expenses
also Included
• Cost of Adaption
• Costs of Moving House
• Potential Additional Costs Associated with
the New Accommodation
Solutions to problems within the scope
of Roberts v Johnstone
• Analysis in Iqbal v Whipps Cross University
Hospital NHS Trust [2006] EWHC 3111 (QB)
• Lewis v Royal Shrewsbury Hospital NHS Trust
QBD (Birmingham) (Alasitair Macduff )29/01/07
• Noble v Owens [2008] EWHC 359
• Willett v North Bedfordshire HA [1993] P.I.Q.R. Q
166
More Recent Developments
• Proposals for a Claimant to be given a
charge over the Property redeemable on the
Claimant’s death
• Ryan St George v The Home Office [2008]
EWCA Civ 1068
McKay J agreed that the Claimant should
rent a suitable property to be paid for by way
of periodical payments linked to the RPI
HOWEVER..........
• “In all other respects, Roberts & Johnstone
formula is unchanged and remains good
law” per HHJ Macduff, in Lewis
• Possible future solutions?
Psychiatric Injury
James Gilberthorpe
Primary & Secondary
Victims
• Different rules apply concerning recovery
of damages.
• Artificial control mechanisms applied by
the judiciary to make recovery more
difficult for secondary victims.
Primary victims
• Lord Oliver in Alcock v Chief Constable of South Yorks Police 1992
1 AC 310:
“Cases in which damages are claimed for directly inflicted
injuries of this nature may present greater difficulties of proof
but they are not, in their essential elements, any different from
cases where the damages claimed arise from direct physical
injury and they present no very difficult problems of analysis
where the plaintiff has himself been directly involved in
the accident from which the injury is said to arise. In such a
case he can be properly said to be the primary victim of the
defendant's negligence and the fact that the injury which he
sustains is inflicted through the medium of an assault on the
nerves or senses does not serve to differentiate the case,
except possibly in the degree of evidentiary difficulty, from a
case of direct physical injury.”
Control mechanisms for secondary victims
• McLoughlin v O’Brian [1983] 1 AC
410 – Secondary victims must satisfy
the following “control mechanisms”:
(1)Close ties of love and affection;
(2)Proximity to the accident or its immediate
aftermath;
(3)Direct perception by sight or hearing
Approval of the
“control mechanisms” for secondary victims
• Alcock v Chief Constable of South
Yorkshire Police [1992] 1 A.C. 310 – Two
classes of victim:
(a)Primary victim – those directly involved in the
accident; need only show physical injury was
reasonably foreseeable.
(b) Secondary victim – those not personally
threatened or directly involved; claims subject to
control mechanisms.
Secondary victims
• Simple test of foreseeability
unanimously rejected in favour of the
control mechanisms.
(1)Close ties of love and affection:
• Not limited to family relationships but other
relationships would be subject to scrutiny.
• Evidence of “love and affection required”.
Secondary victims
(2) Proximity to the accident / the
immediate aftermath:
• “the sudden appreciation by sight or sound of a
horrifying event which violently agitated the mind. It has
yet to include the psychiatric illness caused by the
accumulation over a period of time of more gradual
assaults on the nervous system”.
• ‘Immediate aftermath’ - 8 hours too long, 2 hours “on the
margin”.
• Psychiatric illness caused by the shock of witnessing the
accident or the immediate aftermath.
Secondary victims
(3) Direct perception by sight or hearing
• Television broadcasts not, in this case, “sight or
hearing”.
• Lord Ackner: “Although the television pictures gave rise
to feelings of the deepest anxiety and distress, in the
circumstances of this case the simultaneous television
broadcasts of what occurred cannot be equated with
“sight or hearing of the event or its immediate aftermath.”
Accordingly, shocks sustained by reason of these
broadcasts cannot found a claim.”
Egg shell personality
• Page v Smith [1996] 1 A.C. 155:
• Primary victims - includes those with an “egg shell
personality” and only need establish that physical injury
was reasonably foreseeable. Psychiatric injury does not
need to be reasonably foreseeable.
• Secondary victims – recovery only if defendant could
have foreseen psychological injury to a person of
ordinary fortitude. (Forth control).
Summary
• PRIMARY VICTIM:
•
SECONDARY VICTIM
• Directly involved in accident /
event.
• Includes rescuers who put
themselves in danger or
reasonably perceive
themselves to be in danger.
• Sufficient that physical injury
was reasonably foreseeable,
even if psychiatric injury was
not.
•
Not personally threatened or
directly involved.
Close ties of love and
affection;
Proximity to accident /
immediate aftermath;
Direct perception by sight or
hearing.
Foreseeable that a person of
reasonable fortitude could
suffer from a psychiatric
illness.
(1)
(2)
(3)
(4)
Walters v North Glamorgan NHS Trust
[2002] EWCA CIV 1792
• Defendant accepted it had been negligent in its failure to diagnose
acute hepatitis.
• Mother asleep next to 10 month old son, Elliot, in hospital room.
• Awoke to sound of Elliot choking and covered with dried blood.
Mother takes Elliot to nurse.
• Elliot had had an epileptic fit and parents initially told incorrectly that
brain damage was very unlikely.
• Elliot transferred to another hospital by ambulance with parents
following behind in car.
• Upon arrival parents informed that Elliot had suffered severe brain
damage.
• Elliot placed on a life support machine that was turned off with Elliot
dying in mother’s arms.
• Whole “event” lasting 36 hours.
Ward v Leeds Teaching Hospitals NHS
Trust
• Claimant mother of 22 year old daughter
still living at home.
• Daughter in hospital to have her wisdom
teeth removed.
• Liability admitted for daughter’s death.
• Daughter never woke up after the wisdom
teeth had been removed under general
anesthetic.
Ward v Leeds Teaching Hospitals NHS
Trust
• Mum asked to telephone hospital at 4pm, did as told,
Katherine not out of recovery.
• Mum goes to hospital and told Katherine still not out of
recovery.
• Doctor tells mum that Katherine does not appear to be
able to come round.
• Mum sees Katherine who was breathing by herself and
“looked as though she was asleep.”
• Mum remains with Katherine all night and next morning
is informed by Dr to prepare for worse.
• Organ donation declined and mum declines to be
present when ventilator switched off.
• Mum visits Katherine in mortuary.
Froggatt, Froggatt, Dale Gale v Chesterfield
NHS Trust 2002
• Mrs Froggatt negligently diagnosed as having
breast cancer.
• Underwent mastectomy and extensive
reconstructive surgery resulting in significant
cosmetic deformity and psychological injury.
• Husband upon first seeing his wife undressed
after mastectomy said “…It did my head in. She
looked just like a man.”
• Dale overheard his mother on the phone and he
immediately came to her crying and asking her if
she was going to die.
Farrell v Avon Health Authority
• Claimant father receives call from mother telling
him he is a father, no mention of any problems.
• Excitedly Claimant rushes to hospital to see his
son and is taken to a side room.
• Nurse tells Claimant that his son died an hour
ago.
• Claimant given a dead baby to hold, which turns
out not to be his son.
• Only later does he see his own son and the
mother for 5 minutes before running out to be
sick.
Compare/Contrast
• Tredget & Tredget v Bexley Health
Authority
• [1994] 5 Med LR 178
• Tan v East London Health Authority
• [1999] Lloyd’s Rep. Med 389
Final Pointers
•
•
•
•
Each case is fact and expert evidence specific.
Know your case law.
Know what you need your expert to say.
What is the other side’s expert report not
saying?
• Make sure your witness statement is “shocking.”
• Bear in mind Judges may be becoming more
liberal with the “control mechanisms.”
Psychiatric Injury
Presented by
James Gilberthorpe