Update: personal injury

1 Feb 2007Feature

Jock Mackenzie and Meera Maharaj review the most significant personal injury and clinical negligence cases from the past six months

~~Personal injury~~

Limitation

In Richardson v Watson [2006] EWCA Civ 1662, the claimant's husband had been killed in 2000 in a road traffic accident with an uninsured driver. The claimant failed to give timely notice of the claim to the Motor Insurers' Bureau (MIB). She then sought to discontinue the claim and bring a fresh claim giving timely notice to the MIB. The second claim was outside the limitation period.

The Court of Appeal upheld Horton v Sadler [2006] UKHL 27, saying that it was not objectionable or deemed an abuse of process for a claimant who had failed to comply with the MIB's notice requirement in one action to seek to escape the consequences by commencing a second action. The MIB had suffered no prejudice by not receiving timely notice of the first action and it was equitable not to apply the limitation provisions of s 12 of the Limitation Act 1980.

Costs (conditional fee agreements)

The Court of Appeal in Garrett v Halton Borough Council; Myatt v National Coal Board [2006] EWCA Civ 1017 took a critical look at the Conditional Fee Agreements Regulations 2000.

It was held in the Myatt cases that the CFAs were unenforceable due to a breach of reg 4(2)(c), which requires a solicitor to inform their client of whether the client's costs risk is insured under an existing contract of insurance '“ normally a before the event (BTE) insurance policy '“ prior to entering into a CFA. The Court of Appeal gave guidance and stated that the overall test was that there was an implied obligation on a solicitor to take reasonable steps to determine what BTE cover the client has. What is reasonable will depend on all the circumstances of the case. The court held that it did not matter if there was no BTE insurance available. The breach would be in not asking about the existence of such insurance, therefore rendering the CFA unenforceable.

In Garrett, at detailed assessment, the entirety of the solicitor's costs had been disallowed on the grounds that the solicitors had acted in breach of reg 4(2)(e)(ii), which requires any solicitor who recommends a particular policy of insurance to their client, in this case after the event (ATE) insurance, to declare any interest. Garrett renders a CFA pre-1 November 2005 unenforceable if there has been any such failure; in this case, the solicitors' failure to inform the client that they were panel members of a claims management company who had promoted the insurance the solicitors were recommending.

However, the court (para 79) expressly discourages paying parties from embarking on fishing expeditions in their enquiries into whether CFA regulations have been complied with.

Expert evidence

In Stallwood v (1) David (2) Adamson [2006] EWHC 2600 (QB), it was held by the Court of Appeal that further expert evidence would only be allowed if there was a good reason to suppose that a first expert had 'modified his opinion for reasons which cannot properly or fairly support his revised opinion', and such a procedure was 'reasonably required to resolve the proceedings' under CPR 35.1. It was found on appeal in this particular case that the judge had behaved poorly and it was, therefore, in the interests of justice to allow the appellant to adduce new expert evidence.

In Woolley v Essex County Council [2006] EWCA Civ 753, the Court of Appeal held that a judge should have found that the jointly instructed expert whose conclusion was inconsistent with the body of his report, had made an obvious mistake and reached his own view on the figures. 'Both sides [should] have asked the jointly instructed expert to explain his conclusions and the lack of clarity,' said the court.

In Chambers v Excel Logistics Ltd [2006] EWCA Civ 1031, it was held that a judge's interpretation and application of the medical evidence in relation to the accelerated effect of the injuries was open to doubt. There was a divergence in the interpretation of the medical evidence and it was unfortunate that the expert was not called upon to clarify his report. It was vital that the evidence was clarified and, accordingly, the matter would be remitted for reconsideration. The Court of Appeal set aside the judgment and ordered a retrial.

~~Clinical negligence~~

Orthopaedic surgeon's duty

The Court of Appeal held in West Bromwich Albion Football Club Ltd v Medhat El-Safty [2006] EWCA Civ 1299 that there was no contract, and there was no need to imply one, between an orthopaedic surgeon and a football club, the latter having only recommended the surgeon to their player and arranged the consultation between their player and the surgeon. The contract was between the surgeon and the player, who was the surgeon's patient. Further, the surgeon owed no duty in tort to the football club, which had not informed him that the purpose of his advice would be financial and not just medical, and it would therefore not be 'fair, just, or equitable' to impose liability on the surgeon in relation to any of the football club's foreseeable economic loss.

Pharmacist's liability

In Cathy Bosworth Horton v (1) Timothy Evans (2) Lloyds Pharmacy Ltd [2006] EWHC 2808 (QB), the claimant had already settled out of court the proceedings against the first defendant general practitioner for prescribing an inappropriately high dose of the claimant's regular steroid medication. The claimant sued the second defendant for failing to question the erroneous prescription of the first defendant. The court found that a pharmacist must consider whether a particular prescription was suitable for the individual patient. In addition, when there had been a change in dose or strength of a patient's prescription, a pharmacist must also question whether a prescription really represented what a doctor intended to prescribe or whether it might be a mistake. The court concluded that a failure of a pharmacist to question the doctor or the patient where necessary was unacceptable. The court also decided that a pharmacist should foresee that the label on the bottle might be used by other doctors to identify what the claimant's prescription had been and, therefore, the claimant's deterioration in health that occurred following a repeat, yet still erroneous, prescription by another doctor was not too remote, and the other doctor's repeat prescription was not negligent and did not break the chain of causation.

General practitioners

A general practitioner was not in breach of his duty of care because of the unusual nature of the symptoms with which the claimant presented to him (Maria Jeanette Holt v Anthony Norman Edge [2006] EWHC 1932 (QB)). The court preferred the factual evidence of the defendant that the claimant had told the defendant that she had felt sick but had not actually vomited, and, therefore, that, as the claimant's symptoms were an atypical presentation of a subarachnoid haemorrhage, he was not negligent in failing to diagnose the condition and refer the claimant to hospital, nor could he be expected to have asked the claimant as a direct question whether she had vomited. In any event, the court also held that the claimant would have suffered a stroke, regardless of any negligence by the defendant.

In Zarb v Odetoyinbo [2006] EWHC 2880 (QB), a case concerning cauda equina syndrome, the High Court held that a general practitioner was not negligent in failing immediately to refer a patient with bilateral sciatica to hospital. The court considered that a general practitioner who did not refer could not be negligent because he was simply trusting his own judgment that accorded with neurosurgical judgment that there was no need to admit the claimant, though advice to refer given to a general practitioner who did not trust his own judgment might be considered good advice. The court also held that the claimant could not show that, if an emergency referral had been made, she would have undergone an earlier operation or that she would have avoided the damage, and so would have failed on the basis of causation in any event.

Cerebral palsy

In Luke James Purver v Winchester & Eastleigh Healthcare NHS Trust [2007] LTL 18/1/2007, the High Court held that an obstetric senior registrar should be familiar with the '10-minute rule' that 'reflects conventional wisdom that it is possible for a fetus to survive without acquiring brain damage after 10 minutes of bradycardia have elapsed', as per McKinnon J in Kingsberry v Greater Manchester Strategic Health Authority [2005] EWHC (QB) 2253, and that the senior registrar's ignorance of this rule led to the defendant failing to abandon the trial of forceps and delivering the claimant by caesarian within the key 10 minutes, resulting in the claimant's dystonic athetoid cerebral palsy.

In Amelia Kate Garcia v East Lancashire Hospitals NHS Trust [2006] EWHC 2062 (QB), the High Court considered whether the claimant's injuries were due to either hypoxic-ischaemic damage due to chronic partial hypoxia caused by placental insufficiency, or a major perinatal stroke, breach having been admitted. The court concluded that the claimant had failed to establish that there was placental insufficiency and that the CTG changes and resulting damage were due to hypoxia; and the likelihood was that the cause was a major perinatal stroke that had occurred at least 26 hours before delivery.

Periodical payment indexing

In A v B Hospitals NHS Trust [2006] EWHC 2833 (Admin), the court considered the ongoing issue of the index-linking of periodical payments, following Flora v Wakom (Heathrow) Ltd [2006] EWCA Civ 1103. Liability had been admitted and the judge had previously determined quantum in the sums of £4m for future care and £2.5m for all other heads of damage. The court upheld the claimant's contention that a lump sum would be appropriate because there was a strong possibility that there would be a 'massive shortfall of provision' otherwise.

In Lee Carl Thompstone v Tameside & Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB), the court concluded that its task was to decide what form of order best suited the needs of the claimant and to determine what was appropriate, fair and reasonable to achieve 100 per cent compensation. The court rejected the defendant's arguments for 'distributive justice'. The court found there was a strong possibility that care costs would increase at a rate significantly faster than the retail price index (RPI) and that RPI-indexing could not be considered as fair, just and reasonable in attempting to meet the claimant's needs. The court recognised that, on the facts, indexing by reference to the Standard Occupational Group (SOG) 6115 from the Annual Survey of Hours and Earnings (ASHE), which is occupational earnings for care assistants and home carers, was more appropriate than RPI and that the amount of payments should vary by reference to the 75th percentile of that index, as this most closely reflected the weighted average hourly rate of carers' earnings. The case is under appeal.

Finally, in John Corbett v South Yorkshire Strategic Health Authority [2006] CA, 6 December 2006, the Court of Appeal upheld a case management decision not to adjourn the appropriate measure of periodical payment indexing pending the outcome of the Thompstone appeal, the claimant having appealed.