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Jean-Yves Gilg

Editor, Solicitors Journal

Jean-Yves Gilg

Editor, Solicitors Journal

Jean-Yves Gilg

Editor, Solicitors Journal

Update: personal injury and clinical negligence

Update: personal injury and clinical negligence

By , and

Vijay Ganapathy discusses recent rulings on limitation and dependancy duties, while Jock MacKenzie reviews cases involving expert witnesses

Personal injury

Landmark ruling on limitation

In A v Hoare [2008] UKHL 6 the Lords considered limitation in six appeals involving allegations of sexual abuse which were ruled statute-barred following Stubbings v Webb [1993] AC 498.

Stubbings held the expression, 'negligence, nuisance or breach of duty' in s 11 of the Limitation Act 1980 did not extend to cases involving intentional assault which meant such claims had to be brought within the six-year period under s2 of the same Act. As s 11 did not apply, claimants were unable to invoke s 14 (date of knowledge provision) and s 33 (the court's equitable discretion) if their claims were outside six years, and subsequently sought to frame their claims as some other breach of duty which led to unsatisfactory decisions.

In overruling Stubbings, it was noted the above expression was also used in the Law Reform (Limitation of Actions, etc.) Act 1954 and s1 Limitation Act 1975. When these Acts were passed, this expression was interpreted widely by the courts to include intentional injuries. Therefore, when parliament re-enacted s 1 of the 1975 Act, it must have intended the words to have the same meaning. Consequently, Stubbings was wrongly decided and moreover was noted to create anomalies; an example of which included S v W (Child Abuse: Damages) [1995] 1 FLR 862 CA (Civ Div) where a victim's claim against her father, alleged to have abused her, was struck out following Stubbings but the claim against her mother in negligence for failing to prevent the abuse was allowed.

The House of Lords went on to discuss what constituted 'significant injury' in s 14(2). It concluded this section set an impersonal standard and the correct approach in applying it was to take account of what the claimant knew about his injury, add to this any 'objective' knowledge that could be imputed to him under s 14(3), and then consider whether a reasonable person with this knowledge would have considered their injury sufficiently serious to justify commencing proceedings. Time ran from when certain facts were known (s 14(2) merely defined one of these facts) not when the claimant was expected to take steps.

As the above test was impersonal, it did not involve consideration of the claimant's own intelligence or whether his injuries affected his capacity to take steps in proceedings. However, the latter was relevant under s 33. The approach to the exercise of s 33 discretion should remain as in Horton v Sadler [2006] UKHL 27 which held this section conferred a wide discretion on the Court not restricted to particular types of cases. Appeals allowed.

Assessing dependency

In Welsh Ambulance Services NHS Trust & Anor v Jennifer Mary Williams [2008] EWCA Civ 81 the defendant (A) appealed a decision which held there was loss of dependency for the claimant (W) and her adult children.

W's husband (H) was killed when an ambulance struck his car. He ran a wealthy business in which W and her two older children (D and S) were equal partners. Their other child (R) became a partner after H's death. She had previously not done so due to ill health.

H was noted to be the driving force of the business whose sole efforts amassed considerable wealth. While H was alive, W, D and S's share of the profits far exceeded the value of their individual contributions. However, following his death, D and S's greater efforts enabled the business to continue to thrive.

W sought damages for loss of dependency for herself and all her children. A argued there was no dependency because the business continued to make a profit at a similar if not higher level. The judge found for W but A appealed arguing the judge had merely assumed dependency without proper consideration.

The Court of Appeal disagreed. The trial judge had considered Wood v Bentall Simplex Ltd [1992] PIQR P332 CA (Civ Div) and Cape Distribution Ltd v O'Loughlin [2001] EWCA Civ 178 and concluded that the issue was not whether the dependants had lost income but that they had lost the deceased's contribution whose individual efforts would, had he lived, continued to have generated wealth. This loss remained irrespective of the dependants' actions after death which could be quantified by reference to the cost of replacing those skills with another similarly skilled person.

It was evident that W, D and S were dependant on H because they benefited from profits far in excess of the value of their individual contributions. R was expected to become a partner at a later date and hence had lost the expectation of benefiting in the same way as the other dependants. This dependency remained irrespective of any financial benefit which D and S generated after death. Appeal dismissed.

Success fees in discounted fee CFAs

In Gloucester County Council v Evans & Ors [2008] EWCA Civ 21 the court considered whether a success fee in a collective conditional fee agreement (CCFA) exceeded the maximum permitted by s 58(4)(c) of the Courts and Legal Services Act 1990 so as to render it unenforceable.

Gloucester Council (G) instructed its solicitors under a CCFA which provided for a success fee of 100 per cent on 'basic' costs at £145 per hour and a 'discounted' rate of costs at £95 per hour if G lost. G won but the appellants (E) contended the CCFA was unenforceable.

The court disagreed and E appealed claiming the court should adopt a 'purposive approach' to the interpretation of s 58(2)(b) and s 58(4)(b) which would mean the success fee would be applied to the 'costs at risk' instead of the 'basic' rate. E argued the CCFA enabled solicitors to receive £95 per hour whether they won or lost. If they won, they received an additional £50 meaning the solicitors were only at risk for this sum. If the success fee of £145 per hour was applied to these 'costs at risk' (that is £50 per hour) then G's solicitors were effectively receiving a 290 per cent success fee which contravened s 58(c).

The Appeal Court disregarded the 'purposive' approach. The concept of 'costs at risk' was not expressed in s 58(2) and did not form part of the definition of a CFA which provides for a success fee. On a correct interpretation of

s 58(2)(b) it was the basic charges of £145 per hour that was to be increased in the event of successful outcome. Under s 58(4)(b) (which requires the CFA to state the percentage increase on fees payable if there were no CFA), it was clear that basic charges of £145 per hour were payable if there was no CFA which was consistent with the Court's interpretation of s 58(2)(b). Also, the wording of s 58(4)(b) could not be construed as applying to 'costs at risk'. Accordingly, there was no breach of s 58(c). Appeal dismissed.

Loss attributable to death by suicide

In Eileen Corr (administratrix of the estate of Thomas Corr) v IBC Vehicles Ltd [2008] UKHL 13 the Court of Appeal's decision to allow a widow compensation for financial loss attributable to suicide was upheld.

The deceased (D) sustained head injury while working for the defendant (V) for which he needed reconstructive surgery. He remained disfigured and suffered from PTSD. His depression worsened and he committed suicide six years after the accident.

The Lords held V owed a duty to prevent both psychological and physical injury and its breach resulted in both. Were there no breach, D would not have committed suicide, meaning the suicide fell within V's duty of care. D's depression was foreseeable and it was not necessary to show that the suicide itself was foreseeable; Hughes v Lord Advocate [1963] AC 837 HL applied. Suicide was not uncommon following depressive illness so was reasonably foreseeable.

The House considered it possible for suicide to constitute a novus actus interveniens if it resulted from a 'conscious' decision in the absence of mental illness. However, D's decision was not made voluntarily by someone of sound mind but resulted from severe depressive illness that impaired his ability to make proper judgment about his future. Accordingly, damages for suicide were not too remote. Furthermore, as D did not consent to his suicide, the principle of Volenti Non Fit Injuria did not apply. Appeal dismissed.

Clinical negligence

In Steve Lewis v Weston Area Health NHS Trust [2007] EWHC 436 (QB), the claimant had been injured in a road traffic accident and had suffered significant injuries. He was admitted to the defendant hospital and transferred to ITU. He was intubated and given an epidural. He developed a swollen and painful right ankle two days after admission and an X-ray was performed, which was normal. An orthopaedic registrar reviewed the claimant in the evening and his consultant reviewed him the next morning. Anterior compartment pressures in his leg were measured a further eight hours later and found to be very high. A fasciotomy was performed, though the claimant required a number of subsequent procedures, including debridement and skin grafting. The claimant alleged that there had been a delay in diagnosis of compartment syndrome and performance of a fasciotomy of 24 hours.

The High Court judge, in finding for the claimant, concluded that the case was one where the compartment syndrome took longer than usual to develop. He concluded that, had the orthopaedic registrar carried out a sufficiently thorough examination in the evening on day two, he would have identified features that would have resulted in him performing compartment pressures, which would have been high, and which would have resulted in urgent decompression by no later than about midnight. While the judge acknowledged that there would have been some injury in any event, he concluded that, with earlier decompression, the claimant would not on balance have lost a substantial part of the musculature passing through the anterior compartment, such that he would not have had a dropped foot. The judge also assessed quantum and awarded the claimant £25,842.58.

In Sutcliffe v Aintree Hospitals NHS Trust [2008] EWCA Civ 179, the Court of Appeal dismissed an appeal by the defendant Trust against the decision of the High Court judge in favour of the claimant that her post-natal chronic adhesive arachnoiditis had been caused by contamination of the spinal anaesthetic with chlorhexidine, a cleansing agent, at some stage during the anaesthetic procedure. The judge had concluded that this could only have happened with liquid to liquid contact between the anaesthetic and the cleansing agent when in the syringe and needle prepared for the anaesthetic, and that this could only have occurred with a breach of duty by the two clinicians, who the judge recognised normally operated to a very high standard.

The Trust appealed on the basis that the claimant's expert had been of the view that the only mechanisms that could support the outcome, namely substantial spillage or dropping the syringe and needle into the cleansing agent, could not be squared with the judge's assessment of the two clinicians involved.

The Court of Appeal concluded that the judge had been entitled to prefer the evidence of the claimant's expert, key evidence coming from the expert during the judge's questioning of the expert during the trial, and the appeal court had no reason to disturb any findings of fact that supported the judge's conclusions.

In Marianna Loretta Telles v South West Strategic Health Authority [2008] EWHC 292 (QB), the High Court considered a claim by the claimant for brain damage that she alleged had been caused by her negligent treatment at Bristol Children's Hospital soon after her birth in 1985. She had been diagnosed shortly after birth with

pulmonary valve atresia with intact intraventricular septum, with the result that insufficient oxygen was passing into the blood.

The claimant, however, did not require urgent surgery because of the presence of a patent ductus arteriosus, which was kept open by an infusion of prostaglandin. An operation to connect the left subclavian vein to the left pulmonary artery was then carried out by a senior registrar (Mr Dhasmana), though he did not perform a pulmonary valvotomy at the same time, as planned.

However, the claimant developed poor oxygen saturations, such that a prostaglandin infusion was restarted and a further shunt procedure was performed three days later by a consultant, Mr Wisheart. This revealed that the first shunt was kinked. A third operation was carried out when the claimant was 10 months old.

The parties agreed that the claimant suffered from periventricular leukomalacia caused by hypoxia to the brain occurring at some point between the claimant's birth and the second shunt procedure. The claimant alleged negligence in relation to the operation conducted by Mr Dhasmana; her care between the first operation and the second operation; and the third operation carried out by Mr. Wisheart. The court found for the claimant on the basis that Mr Dhasmana used a shunt that was too long and was liable to kink.

He should have checked before closing and rectified the matter when he had realised the error. On the evidence, the claimant had suffered cerebral hypoxia from after the first operation until the second operation (except when she was on a prostaglandin infusion). It was not possible to identify which proportion of damage had been caused due to hypoxia after the first operation as opposed to before, so accordingly the claimant could recover for all her damage, Dingle v Associated Newspapers [1961] 2 QB 169 applied.

In the 'indexation' cases (Thompstone, Corbett, RH and De Haas), the Court of Appeal considered the correct approach to the making of Periodical Payment Orders and the application of s 2 of the Damages Act 1996 to cases of severely injured claimants who were seeking damages for future losses, particularly costs of care, following appeals by the defendant NHS Trusts. In all the cases, liability had been admitted.

The Appeal Court dismissed all four appeals and, importantly, in doing so, ratified the use of the ASHE 6115 index and stated that future arguments against its use would require significantly different and more persuasive evidence than the current evidence.