Secondary Victims in Clinical Negligence (again): Shorter v Surrey

In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild).

No new ground is broken but in such a complex area, any application of the rules to a new set of facts is of great use to those considering bringing a secondary victim claim. Some helpful clarification is provided on a number of issues.

The Facts

Very briefly, the Claimant’s sister died on 13 May 2009 at St George’s Hospital, as a result of a subarachnoid haemorrhage, caused by an aneurysm, having been admitted on 12 May.

Previously on 5 May 2009, the deceased had another SAH caused by the same aneurysm, causing a severe headache. She attended at the Defendant’s hospital and underwent a CT scan but the aneurysm was not identified. Liability (for the death) was admitted.

The Claim

The Claimant brought a claim as a ‘secondary victim’, the basis of which is described as follows:

She was aware of her sister’s collapse on 5 May 2009 and of what happened thereafter.  In particular, she was present with Mrs Sharma at ESH following Mrs Sharma’s admission there on the morning of 12 May and she was also at SGH [St George’s] from shortly after Mrs Sharma’s admission there until after she was pronounced dead on 13 May.

The Particulars of Claim alleged at paragraph 25, that, as a result of the Defendant’s negligence, the Claimant suffered a number of different insults which:

“constituted a seamless single horrendous event starting with the news of the serious deterioration in Mrs Sharma’s condition on the morning of the 12th May 2009 and that she had suffered a subarachnoid haemorrhage which had gone undiagnosed and untreated and concluding with her death which resulted in the Claimant sustaining … nervous shock …”.

This is a clear reference to the ‘seamless tale’ in Walters (see previous post).

The Defendant denied the claim on the basis that the control mechanisms were not made out, specifically:

-          There was no single seamless event

-          The Claimant did not witness all of the event(s)

-          There was a gradual realisation over a prolonged period of the probable consequences for her sister.

The Defendant had argued that the relationship between the Claimant and her sister was not sufficiently proximate but had conceded this point by the time of judgment.

The Judgment

Mrs Justice Swift gave detailed consideration to all of the authorities on secondary victims, particularly those in clinical negligence cases. The Judge found as follows:

The nature of the ‘Event’

Considering Walters [210]:

The “event” was a convenient description for “the fact and consequence of the defendant’s negligence” and that it had begun “with the negligent infliction of damage”, i.e. at the time of the baby’s convulsion.  That was the time when the consequence of the negligence first became evident.  There would of course have been ongoing consequences affecting the baby’s biological processes for some time previously but it was only at the time of the convulsion that those consequences became evident and impacted on the claimant.

Applied to the present case [211], Swift J found that the negligence started on 5 May when the aneurysm was not diagnosed, and continued thereafter. It was a week later when the deceased attended SGH that “both the fact of the negligence and of the potential consequences of that negligence became known”.

Although the fact and consequence of the negligence became known to the claimant on 12 May, she was informed of developments by telephone. At that stage there was no element of physical proximity to any event [212]:

“Even when she saw her sister on a life-support machine, her perception was informed by the information she had been receiving over the previous 15 hours or so and by her own professional knowledge. ([218])”

So this was a “series of events over a period of time”, only some of which occurred when the claimant was proximate to them ([218]) (suggesting that it cannot have been a ‘seamless tale’). Accordingly the events were not sufficient to satisfy the control mechanisms.

“Horrifying”

When the Claimant subsequently arrived at SGH, the deceased was not (the judge found) in the dramatic state of pain and distress contended by the Claimant. She was not in such a condition that to see her could be described as a ‘horrifying event’ or to cause ‘violent agitation of the mind’. Even if she had been in the state described by the Claimant that would not have been sufficient to meet the ‘horrifying event’ test ([213]).

Interestingly the Claimant had argued that the events were more ‘horrifying’ for the Claimant because she had professional expertise as a nurse and therefore a more detailed understanding of what was happening. The Judge dismissed this argument, finding that “the event must be one which would be recognised as ‘horrifying’ by a person of ordinary susceptibility, in other words, by objective standards. After all certain people would find it more frightening to have no medical knowledge…”

Analysis

Though this case turns on its facts, it is a useful example of how the control mechanisms apply in practice, in particular where there is a series of events, some of which are witnessed by C and some of which are not.

Further, a number of interesting issues are raised and dealt with in this appeal. Though it is not a binding authority the reasoning appears sound on the basis of the previous authorities:

1. It is clarified that the “event” begins when the fact and consequence of the negligence become evident,

Firstly this confirms that the negligence and the consequence thereof do not need to be concurrent in time, and therefore that C need not witness the negligence.

Accordingly it seems that where there has been negligence, the first consequence of which is evident some time later (unlike in Taylor v A Novo where there were 2 consequences), and that consequence is witnessed by C, that consequence will be the ‘event’ (or the start of it) and may give rise to a secondary victim claim.

2. The ‘event’ must be ‘horrifying’ on an objective basis and special knowledge that the Claimant possesses is not relevant.

This must be right given that the basis of the mechanisms is proximity. Whether a defendant should have in mind a secondary victim claimant as potentially being injured by his negligence cannot include considerations of special knowledge C may possess.

3. It appears that a series of events was not a ‘seamless tale’ because the Claimant had not been present throughout.

This again seems entirely consistent with the authorities. The definition of the ‘event’ must always be from the point of view of the secondary victim and if only some events are witnessed, they are separated from one another (unlike in Walters where the Claimant was involved throughout).

               

Secondary Victims Following Wild v Southend: Where Are We Now?

Secondary Victims – Where are we now?

An update following Wild & Wild v Southend

This post analyses the state of the law on Secondary Victims (SV), in particular in the clinical negligence context, following the case of Wild v Southend (available here). I consider below the background and key authorities, and the effect of Wild itself. 

Where did we start?

It is not immediately clear why Primary Victim (PV) and Secondary Victims (SV) claims should be treated differently. The answer is the issue of proximity to the Defendant. Lord Keith explained the importance of proximity in Alcock at 397:

“I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580 described those to whom a duty of care is owed as being:

"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Control Mechanisms

Lord Oliver identified ‘common features’ from all the reported cases (later the ‘Control Mechanisms’). They were set out by Lord Oliver at 411 (underlined text), and further detailed in Alcock and other cases, as referenced below):

• The psychiatric injury arises from sudden and unexpected shock to C’s nervous system.
• There are close ties of love and affection between C and PV.
• C was either ‘personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards.
• The injury arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the PV.
• There is not only an element of physical proximity but a close temporal connection between the event and the plaintiff’s perception of it combined with close relationship of affection.

The significance of the mechanism is: If these are satisfied, there well be sufficient proximity between the PV and Defendant. 

North Glamorgan v Walters

Facts

The Claimant’s son had been ill and was admitted to the Defendant hospital (though it failed to diagnose his acute hepatitis). The Claimant was asleep in the hospital at her child’s side when she awoke to him having a fit at 0300 on 30 July. She was told he had suffered no brain damage but he was transferred to Kings College Hospital.

On 31 July, C was told that he had suffered brain damage from the fit and that his quality of life would be poor. The decision was taken to withdraw treatment and the life support machine was turned off; he died a short while later in C’s arms.

The trial judge found that C could recover as she had suffered the injury as a result of experiencing sudden shock. He found that the event had lasted the whole 36 hour period from the fit.

On appeal the court considered whether the events qualified as ‘a horrifying event’ and whether the injury was caused by a ‘sudden appreciation’ as opposed to a ‘gradual assault’.

Issue 1 – was the 36 hour period one horrifying event?

At 34, Ward LJ said:

the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary "event". Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: 'An item in a sports programme, or the programme as a whole".

[…]

In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.

The court found that the totality of the events were horrifying ([35]):

For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an as-sault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat?

Issue 2: Was the condition caused by sudden appreciation or a more gradual assault?

The court found at [39] that the medical evidence was clear. The injury was caused by shock. As to whether the events were sufficiently sudden, (at [40]):

Each of these three events had their impact there and then. This is not a case of the gradual dawning of realisation that her child's life had been put in danger by the defendant's negligence. A consequence of that negligence was that the child was seized with convulsion. She was there witnessing the effect of that dam-age to her child. The necessary proximity in space and time is satisfied.

Taylor v A Novo:

The Claimant’s mother was injured at work (27.2.2008) and apparently recovered. Later (19.3.2008) she died from a pulmonary embolism caused by the accident. The sole issue was whether C was entitled to claim as a “secondary victim”; specifically whether she had witnessed the ‘accident’ or ‘event’. C submitted that the ‘event’ in this case was the death.

The Court of Appeal held ([29]) that in this case there was a single accident or event with 2 consequences: (i) Injury to head / arm and (ii) her death three weeks later.

The Court distinguished Walters (at [35]) on the basis that there were 2 events, not a ‘seamless tale’ as described in Walters. “The injuries and death suffered by Mrs Taylor were certainly not part of a single event or seamless tale”.

Wild & Wild v Southend University Hospital

This is a case which seems to have caused concern among practitioners, though it should first be noted that this is a High Court case. Further, it sets out no new principle. Like Walters it merely applies arbitrary and somewhat unsuitable principles to complex situations.

Facts

C was due on 20 March 2009. Attended an appointment on 10 March 2009 with her husband, at which time the Defendant’s midwife was negligent (it is not clear how). C noticed vaginal bleeding on 20 March 2009 and attended hospital. FHR not detectable. Multiple midwives attempted to auscultate the FHR but could not. Parents were not actually told that intrauterine death had occurred. The baby was delivered still-born on 21 March 2009.

Both C’s suffered psychiatric injury arising from the still birth of their son, in particular from the realisation that their son had died when no FHR could be heard. “knowledge of the death” was the cause of the injury (Psychiatrist, see judgment at [10]-[11]).

The Issues

Mrs Wild was held to be the PV given that foetus and mother are considered to be the same person in law (see [22]). Though the court did not appear to consider it, the fact that Mrs Wild was clearly within the range of foreseeable physical injury also indicates that she was the primary victim (as per Page v Smith). That also removes the need to consider the more complex issues of law surrounding the foetus.

The main issues on the secondary victim claim were as to (iii) (iv) and (v) of the control mechanisms:

The court considered the distinction between Walters and Taylor, raising an issue as to which might apply to Wild. The issue was not resolved because the judge based his decision on the ‘horrifying’ element of the control mechanisms.   

The Ratio

The Defendant’s arguments (at [45]-[47]), which were accepted, were that:

• There was no shocking event to witness, only the shocking fact to experience the death of a loved one or the death of the soon to be born baby.
• Just as those in Alcock who were watching television did not qualify, Mr Wild’s realisation based on the actions of the staff in the hospital does not qualify.
• “As in fact the baby had already died, by definition Mr. Wild was not a witness of the injury and death suffered by Matthew. Even if the injury is characterised, as a matter of law, as having been suffered by Mrs Wild, that was an injury that had already occurred at some time between the 10th and 20th March.”

The key passages are as follows:

• Mr Wild was experiencing a growing and acute anxiety… But none of that… amounts to “actually witnessing horrific events leading to a death or serious injury” ([47])

• In my judgment this case is materially different from the facts in Walters being based on an “event” which starts with the realisation that Matthew has already died ([53])

The author’s view is that this has been somewhat misinterpreted, and its effect overstated. The court did not find that there was no horrific event – no specific finding was made but the stillbirth would most likely satisfy that test. However the claim failed for three reasons:

• The (horrific) event did not lead to injury to the PV; it flowed from injury to the PV;
• There was no ‘inexorable progression’; there were 2 separate events;
• The witnessing of the (second) event did not cause the SV’s injury, the injury stemmed from his realisation about the death;

Conclusions

In conclusion the authorities establish that the following requirements must be met in relation to the 'witnessing a horrific event' control mechanism in a secondary victim claim:

1. C must witness the event. Not hearing or realising it as a fact. (i.e. Wild)
2. The event has to be shocking and that has to cause the injury to the SV. Not realisation, (Wild) not the bereavement, but what was witnessed.
3. It must be a single event. However it need not all occur in a few seconds (Walters – can be over days). But not an event followed by another event (i.e. Taylor v A Novo / Wild)
4. The event must ‘Immediately’ cause death or injury. Immediate in the sense that it is the direct and immediate result - not a later consequence as in Taylor v A Novo. Events which flow from the death or injury will not suffice (Wild)

The importance of the question of proximity cannot be overstated: Is it reasonable for D to have the SV in contemplation? 

In the case of a father in a stillbirth case the obvious answer is yes.

However the broader answer comes from Allcock: D only has to contemplate those in the immediate area of the accident or injury who are also closely connected to the PV. Otherwise, D would have to consider (and be liable to) anyone who came upon the scene (over whom D has no control) and the limits of liability would be endless.

That produces a result in clinical negligence cases, and in particular stillbirth cases, which is arbitrary and apparently unfair. However that is unlikely to change in the near future and we are left with the Alcock control mechanisms unless and until Parliament opts to change the law.  

R (Letts) v Lord Chancellor - Legal Aid in Art.2 Inquests

By Richard Borrett

Introduction
The High Court has considered a challenge to the criteria applied by the Legal Aid Agency (LAA) in deciding whether the grant legal aid for representation at inquests which might engage Article 2 (A2) ECHR. The Judgement is available on BAILII here.

Issues
In certain deaths, A2 is engaged, the state has a duty to investigate the death and the investigation must meet certain requirements. One of those requirements is the involvement of the next-of-kin in the process. That requirement means that in certain cases the state might be required to grant legal aid.

The Lord Chancellor's Exceptional Funding Guidance, promulgated under LASPO endeavours to identify the steps that a caseworker, facing an application for legal aid to cover representation at an inquest, must take. The Guidance identifies two steps or conditions which must be passed in order to warrant legal aid. The first is that the case must fall within Article 2; the second was not in issue.

The guidance seeks to define the ambit of an A2 case, stating that the procedural obligation "only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life" (see [53]).

The essential basis of the challenge was that this guidance is an error of law or that it is misleading. The Claimant submitted:

• - (i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but 

• - (ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state. 

The Decision
Mr Justice Green therefore considered in some detail ([71] onwards) when the procedural obligation is triggered, in the context of psychiatric involuntary patients.

At [73]-[74] the Judge considered R (Smith) v Oxfordshire Deputy Assistant Coroner [2010] UKSC 29 and said:

... five categories of death where the substantive rights contained within Article 2 have been held to be potentially engaged "…with the result that the procedural obligation has been held to exist". These categories were: killings by State agents; deaths in custody; conscripts; and, mental health detainees. The fifth category is "… other situations where the State has a positive substantive obligation to take steps to safeguard life". With regard to the category of mental health patients Lord Mance cited Savage of which he stated:


"…although concerned not with any duty to investigate under Article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide – highlights the analogy between the State's duty towards persons in custody and persons in detention for mental health reasons as well as conscripts".

1. In these cases the courts have held that the mere fact of death gives rise to a "possibility" of State complicity and that this suffices to trigger the investigative duty. It is quite clear that when referring to the "possibility" of a violation the Courts are by no means saying that there is (or needs to be) any evidence of a violation. The courts in these cases are not linking the duty to investigate (and provide the derivative right of representation) with the existence of arguable evidence of breach. On the contrary it is the mere fact of death in circumstances where there is a hint of state control which creates the hypothetical "possibility" of violation and it is this "possibility" triggered by the fact of death which then activates the investigative duty. In such cases (as the examination of objects and purposes in section F. above shows) there still can exist very good and powerful policy reasons for the inquiry to be held, including so that the finger of doubt can be dispelled and the State can emerge unblemished, which of course is the very opposite of a case where the purpose of the inquest is to find the state culpable.

The Judge then considered the psychiatry cases and concluded that the procedural duty might be so triggered "irrespective of whether the state, whether arguably or otherwise, is in breach of the substantive duties in Article 2 ECHR" ([92]), but that the limits of the principle are "hard to define".

Accordingly the court found that the guidance, insofar as it it failed to identify the category of cases at (ii) above, contained an error of law ([94]).

Having considered the guidance and whether or not the court should interfere with it, the court granted declaratory relief, having said ([118]):

•               The test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things.

Further submissions are to be heard on the nature of the declaratory relief.

Analysis
The effect of this judgement should not be overstated; though it is perhaps a useful analysis of some of the cases on the procedural duty:

• It establishes only that there are 'cases' in which the procedural obligation may arise 'automatically'; no further conclusions are drawn about the scope of that principle;

• The court was not required to consider whether the refusal to grant legal aid was in this case lawful; 

• The case concerned a detained psychiatric patient: "The position in relation to different categories of case... is also fact sensitive and on the state of the present law complex.... Even in relation to mental health suicides the outer limits of the automatic duty are not crystal clear" ([99]).

Therefore the effect of this case is wholly in relation to the guidance and its failure to acknowledge that there are cases which 'automatically' trigger the investigative duty.

It remains to be seen what declaration will be given, but it seems that the guidance will have to be wider so as to incorporate the 'automatic' cases.

However, in due course some families may find it easier to obtain legal aid in cases where it is difficult to establish (evidentially) an arguable breach, in particular in deaths of detained psychiatric patients. Importantly the applicant will still need to show that representation is 'necessary'.

Conclusion
This case is an interesting development in the procedural obligation under A2 and is also a step toward increasing much-needed representation for families at inquests. A further post will analyse the effect of the declaration when the judgement is available.

Reaney V North Staffordshire NHS Trust

Reaney V North Staffordshire NHS Trust:

Does This Represent A Change In The Law?

By Killian Garvey, Kings Chambers Pupil

It is trite law that a defendant may only be liable to compensate a claimant for the damage it has caused him or to which it has materially contributed. Moreover, it is well established that a defendant must take its victim as it finds him (which may be to its advantage or disadvantage). This latter principle, known as the ‘egg-shell skull rule’, derives from Mackinnon LJ’s speech in the case of Owens v Liverpool Corp [1939] 1 KB 394, whereby he said:

One who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one

Applying these principles to a hypothetical scenario, one can see how they can potentially serve to limit a defendant’s liability. So, for example, consider the situation whereby a claimant requires 3 full-time carers. If they were a healthy, independent individual prior to the defendant’s negligent act, then they can now claim for paying these 3 carers. However, if the claimant had a pre-existing disability from a non-negligent act, whereby they already had 2 full-time carers that were provided for by their local authority, their claim would be limited to the one additional carer they now require.

This approach has been followed for decades. However, some seem to think that this is no longer the case, in light of the recent decision in the case of Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016. Some now seek to rely on Reaney in support of the view that the claimant, in the hypothetical scenario posed before, can now claim for the 3 carers, irrespective of their previous care needs. I suggest that this is wrong and based on a misunderstanding of Foskett J’s judgment in this case. 

Mrs Reaney had a very serious spinal injury that preceded the Defendant’s negligence. This injury essentially put her in the same position as a T7 paraplegic. The Defendant admitted that they were responsible for a deep (grade 4) pressure sore, which exacerbated Mrs Reaney’s pre-existing disability. Prior to the Defendant’s negligence, Mrs Reaney received gratuitous care from her husband and 7 hours of professional care a week from the local authority. After the negligence, Foskett J held that Mrs Reaney now needed 2 carers offering 24-hour care, 7 days a week.

The Defendant contended that due to Mrs Reaney’s pre-existing disability, the extent of her additional care needs should be limited. Thus, it was submitted, on behalf of the Defendant, that were they held to be liable for the full extent of Mrs Reaney’s care needs, they would be compensating her not only for the pressure sores, but also for her underlying paraplegia. Instead, their liability should be confined to only ‘topping-up’ the care she would have otherwise needed but for the negligence. The Defendant asserted, therefore, that the correct approach to the assessment of Mrs Reaney’s care needs was to assess the Claimant’s care needs globally, give credit for the care that was being provided already, take account of the care that she needed pre-negligence but was not receiving and therefore limit the additional care to that which arose from the pressure sores.

However, Foskett J preferred the position advanced by the Claimant’s representatives, which was simply to consider factually what care the Claimant was receiving pre-negligence and then to consider what she needed now. Indeed, at paragraph 68 of the judgment (subsection ii and iii), Foskett J stated:

(ii)  Although the Claimant needed two carers on a 24/7 basis, she did not receive

      such care because she could not afford it and the local authority was only able to

      provide the levels of assistance described above …

(iii) As already indicated, the Claimant’s future care requirements for the rest of her

     life fall to be assessed on the basis that she requires 24/7 care from two carers ...

So, returning to the title question: does this represent a change in the law? It is submitted that it does not. It follows from the age-old approach in tort of putting the claimant back into the position they would otherwise have been in.

Arguably, the most interesting point arising from this decision is that even if the Claimant had pre-existing care needs, if they were not being met, then they cannot be deducted from the calculation. So, returning to the hypothetical scenario posed before. If the Claimant had 2 full-time carers pre-negligence and now needs 3 carers, their claim would be limited to this additional carer. However, if the Claimant needed 2 full-time carers pre-negligence but was not receiving any care, then arguably Reaney suggests that they can still claim for the 3 carers.

The views expressed by the writer are not necessarily those of Kings Chambers.

Border v Lewisham

Border v Lewisham confirms the importance of consent and what issues can be raised at appeal

By Richard Borrett

In the recent Court of Appeal case of Border v Lewisham the Claimant had suffered an injury as a result of a cannula being inserted into her arm, despite the Claimant telling the doctor that she had recently had a left mammectomy and axillary node clearance, and that inserting a cannula into her left arm carried the risk of oedema.

The trial judge had found that the doctor had made a quick and silent decision that the left arm was the only viable site for the insertion of the cannula and did so without communicating this to the patient. The Judge had found that this was in accordance with recognised practice and was not negligent. 

The Claimant appealed on the basis that the lack of consent meant the treatment was negligent. The Defendant argued that the Claimant had 'impliedly consented'. 

The Court of appeal held ([24]):
"The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it (see, for example, Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134)."

This is certainly not a ground-breaking case, but it does reinforce the importance of consent, even where a course of treatment may be in accordance with recognised practice.

Additionally the case raised an important procedural point. The issue of consent was not seen by the Claimant's counsel as an important part of the case. It was not in his skeleton, and the Judge obtained apparent indications during the trial that consent was 'not the issue'. The CA said that "Thus the judge was right to consider that neither party was attaching importance to the issue at the trial" (22).

However the CA said ([24]):
"It seems to me to be open to the claimant to contend on the appeal that the finding that the procedure was carried out without the claimant's consent should have led the judge to find a breach of duty on the part of Dr Prenter even though that was not the way the claimant's case was being advanced at trial". 

This conclusion was based on the fact that the issue had been pleaded, where the allegations of negligence included "Failing to heed the warning given by the Claimant that she should not have any injections into her left arm …" and "Proceeding to place an intravenous cannula into the Claimant's left arm when the Claimant objected to this" ([23]).

This may be a useful decision therefore in cases where there are a wide range of allegations of negligence, and an appeal is sought on an issue which, though pleaded, was not perhaps the 'thrust' of the case at trial.

When Is A Claimant Atypical?

By Killian Garvey, Kings Chambers Pupil

For the purposes of determining life expectancy, when is a claimant atypical?

The usual order of things, when assessing quantum, is to determine a claimant’s life expectancy by reference to the Ogden Tables. Indeed, use of the those tables was endorsed by the House of Lords in Wells v Wells, where Lord Lloyd of Berwick stated that, ‘the tables should now be regarded as the starting-point, rather than a check’.

Tables 1 and 2 provide ‘Multipliers for pecuniary loss for life’ for males and females. These multipliers are based on the projected mortality rates of the United Kingdom as a whole. However, they do not account for all claimants. Indeed, as paragraph 5 of the Explanatory Notes to the Ogden Tables states, these multipliers can be modified ‘where there is clear medical evidence in an individual case to support the view that the individual is atypical, and will enjoy longer or shorter expectation of life.’

In theory this seems logical. In practice, however, this leaves lawyers in the difficult position of trying to determine when an individual is atypical. Of course they will not be alone in this; the lawyer will likely have medical evidence either supporting or refuting this proposition. But at what point should a lawyer instruct a medical expert to assess this? And what threshold is a medical expert meant to apply to this claimant?

Consider, for instance, a claimant with a body mass index of 40. Clearly this person would be classed as being clinically obese. But are they atypical? Do the Ogden Tables apply to them?

You may notice that this article has thus far posed a number of rhetorical questions, whilst not providing any answers. Unfortunately this is indicative of the law on this issue. These questions have not been properly addressed in any reported decisions at present, which leaves the lawyers faced with these questions guessing as to the answer.

So at the risk of posing yet another question: where should the threshold be set for determining when a claimant is atypical?

The writer’s view is that the courts should adopt a conservative approach to this question, by setting the threshold relatively high. The reasons for this are threefold:

-          The Ogden Tables are generated by reference to the UK’s average population. Thus, this includes, on the one hand, smokers, drinkers and obese people, all of whom might have reduced life expectancies, and on the other hand, health-obsessed yoga-practicing vegans, who may have increased life expectancies. The Ogden Tables, therefore, account for most people, meaning that they should only be deviated from in exceptional circumstances. Doing otherwise would render them obsolete.

-          If the threshold for claimants being atypical was set relatively low, then it would become commonplace for lawyers to instruct medical experts on life expectancy. Not only would this exponentially increase the cost of litigation, it would also arguably lead to unnecessary satellite litigation concerning the admissibility of life expectancy evidence.

-          Legal certainty is an underlying principle in all litigation. Adding another variable as to what multiplier should be applied would only serve to undermine this in personal injury litigation.

So, if the threshold for claimants being atypical should be set high, then how high? And how should this expressed?

It would seem that the difficulty one faces with answering these questions is that however this threshold test is expressed, it will need to remain relatively vague. The courts cannot realistically stipulate specific guidance in answer to these questions. For example, take the claimant considered above with a BMI of over 40. Is it reasonable to deviate from the Ogden Tables with this claimant simply because of their BMI? What if they were a fit rugby player with a family history of relatives who live to well over 100? Presumably not in those circumstances.

The alternative is to only allow deviation from the Ogden Tables where the medical evidence indicates that the claimant’s reduction in life exceeds a certain period (eg. 8 years). Arguably though, this would only lead to a plethora of experts being asked to state that the claimant’s life expectancy is over 8 years below (or above) average.

It is submitted, therefore, that this issue must be determined on a case-by-case basis. Beyond stating that the threshold for deviating from the Ogden Tables should be set relatively high, ultimately it is heavily reliant upon the discretion of the judge trying the action. And inevitably this judge will end up applying the test referred to by Stuart-Smith LJ in Cadogan Estates Ltd v Morris:

‘This seems to me to be an application of the well know elephant test. It is difficult to describe, but you know it when you see it’.

Hockley: The High Court on Denton, set aside, and telephone hearings

By Richard Borrett 

The case of Hockley v North Lincolnshire and Goole NHS Foundation Trust (available on Lawtel) primarily concerned an application for set aside of default judgement where the Defendant trust had filed its acknowledgement of service 13 days late.

Much of the judgement is fact sensitive, but there is some useful guidance on the application of all of the Denton stages and criteria, which is worth reading in full.

Additionally HHJ Richardson QC gave clear indications on a number of issues which are worth setting out briefly:

1. The relevance of rule 3.10 to set aside applications:

[34] – The relevant considerations to be applied in respect of both of these provisions are similar, albeit couched in different language… the difference in language is purely semantic and not of importance. The jurisprudence underpinning both rules is the same. I cannot envisage a case where relief form sanction would be permitted but there are no good reasons for setting aside the judgment. The reverse is also true: how could it be said there are good reasons for setting aside the judgment but they would not meet the criteria for relief from sanction.

HHJ Richardson QC also said, (at [42]) that the three stage approach in Denton had ‘considerable relevance’ to an application to set aside a default judgment when considering the good reason ground in CPR part 13.3(1)(b)

These findings go some way to resolving the somewhat unclear position left by the simultaneous judgements in Chartwell and Paul Dean Davies (see my previous blog on Denton here)

      2. Application of the Denton Guidance:

At [57] the Judge noted that “…the acknowledgement of service is not a trivial or unimportant step in litigation… the consequence of a failure to comply with the requirement to file it on time has the potential of a default judgement. That adverse consequence [default judgement] reveals the importance of this step in litigation. If it was of relative unimportance, the sanction for non-compliance would hardly be a default judgement.”

This is an interesting analysis and is likely to provide scope for argument (both for defaulting parties and respondents) in relief applications.

It could easily be argued the sanction in r32.10 is a serious sanction (restricting the evidence a party could call) and indicates therefore that late service is necessarily a ‘serious or significant’ breach.

3. Appropriate use of telephone hearings.

At [86] – [87] the Judge gave his views on the use of telephone hearings.

HHJ Richardson QC was in “no doubt that the determination of this difficult decision should not have been undertaken by way of telephone hearing. Such hearings are amenable to short decision making cases and matters which are truly procedural rather than requiring a fully reasoned exercise of a judgement”.

Those conducting them regularly will be aware of how accurate HHJ Richardson’s views on telephone hearings are. Though very useful, they are often not conducive to the type of consideration and argument which is required. These comments will be of use to those seeking to avoid them in cases where they are inappropriate.