<strong>THE FACTS</strong> The Respondent’s nephew had been born in January, 2006 and was subsequently diagnosed with haemophilia. The Respondent wished to avoid having a child with that condition and so consulted her GP in August, 2006 to ascertain whether she carried the haemophilia gene. Blood tests were arranged. The tests were to confirm whether the Respondent had the condition and not if she was a carrier of the gene. In order to determine her position , the Respondent would have had to be referred to an haematologist for genetic testing. On 25^th August, 2006, the Respondent saw the Appellant to discuss blood tests and was told that the results were normal. As a result she was left to believe that any child she had would not have had haemophilia. &nbsp; The Respondent became pregnant with &nbsp;FGN in 2010 and shortly after birth he was diagnosed with haemophilia. The Respondent was referred for genetic testing which confirmed she was a carrier of the haemophilia gene. Had the Respondent been referred for genetic testing in 2006 she would have known she was a carrier of the gene before she became pregnant and she would have undergone foetal testing for haemophilia which would have revealed that the foetus was affected. In these circumstances, the Respondent would have terminated the pregnancy and FGN would not have been born. In December, 2015 FGN was diagnosed with autism. The fact that FGN had haemophilia did not cause his autism or make it more likely that he would have autism. The Appellant admitted that but for her negligence FGN would not have been born as his mother would have properly discovered during her pregnancy that he was afflicted by haemophilia and she would have undergone a termination of the pregnancy. The issue at trial before Mrs Justice Yip was whether, as a matter of law, the Appellant’s liability was limited to the additional losses associated with FGN’s haemophilia or whether she was liable for the additional losses associated with both his haemophilia and autism By an order dated 8^th February, 2017 the Appellant consented to judgment being entered on the basis of the allegations of breach of duty and causation as set out in the Particulars of Claim. Prior to trial the parties reached agreement in relation to quantum on the basis that : <ol> <li>If the court determined that the Appellant was liable for the additional losses associated with FGN’s haemophilia and rejected the Respondent’s claim that the Appellant was also liable to the additional losses associated with FGN’s autism , quantum was agreed in the sum of £1,400,000. These losses would have applied for wrongful birth due to disability having regard to Parkinson v St James’ &amp; Seacroft University Hospital NHS Trust [ 2002 ] QB 266 and Groom v Selby [ 2002 ] PIQR P18.</li> <li>If the court determined that Appellant was liable for the additional losses associated with FGN’s haemophilia and autism, quantum was agreed in the sum of £9,000,000.</li> </ol> Mrs Justice Yip found that the Respondent was entitled to damages in respect of bringing up FGN due to his haemophilia and that she was also entitled to the additional costs in relation to FGN’s autism, albeit that it was an unrelated condition. &nbsp;On a simple application of the “ but for “ test of causation the costs flowed from the negligence as FGN would not have been born. Damages therefore followed in the sum of £9,000,000 as per the agreement reached as between the parties. &nbsp; <strong>THE COURT OF APPEAL</strong> The Appellant appealed with permission granted by Mrs Justice Yip on the basis that in finding that she was liable for damages associated with both FGN’s haemophilia and autism, Mrs Justice Yip had misapplied the scope of duty test set down by Lord Hoffman in South Australia Asset Management Corpn v York Montague Ltd [ 1997 ] AC 191 &nbsp;( Hereinafter “ SAAMCO “ ). The reasoning behind the test is that in order to protect a defendant from liability for every foreseeable factual consequence of their negligence the courts have placed an additional test on the consequences of a breach that are considered to be within the appropriate scope of the defendant’s liability, namely the requirement that the particular loss claimed must be within the “ scope of duty “. The Appellant had not undertaken to provide any information or advice about the risks of autism, and the negligence had not contributed to the autism. The leading judgment was give by LJ Nicola Davies DBE. The Court of Appeal determined that the SAAMCO “ scope of duty “ test was relevant and determinative of the issues in the case. Given the limits of the advice sought by the Respondent and the appropriate testing ,Mr &nbsp;Maskrey QC on behalf of the Appellant , identified three questions that it was for the court to address : <ol> <li>The purpose of the procedure and/or information that was alleged to have been negligent ;</li> <li>The appropriate apportionment of risk taking into account the nature of the advice, procedure and information ; and</li> <li>The losses which would in any event have occurred had the correct information been given or the procedure performed ?</li> </ol> Davies LJ found that : <ol> <li>In the Respondent’s case the purpose behind the consultation was to allow her to make an i. informed decision in respect of any child that she may subsequently conceive and who was carrying the haemophilia gene. The specific enquiry was related to whether any future child would carry the haemophilia gene, therefore it would be inappropriate and unnecessary for any doctor to volunteer any other additional information about the risks of pregnancy, including that of autism.</li> <li>&nbsp;In terms of the apportionment of risk that would be split as between the risks of the Respondent &nbsp;giving birth to a child with haemophilia due to no foetal testing and thereby no termination of pregnancy, as against the risks to her of all other potential difficulties of the pregnancy and birth both as to herself and the child</li> <li>. The loss that would have been sustained had the correct information and testing been given and performed is that FGN would have been born with autism.</li> </ol> &nbsp;The scope of the Appellant’s &nbsp;duty did not extend to all the risks of pregnancy and the continuation with pregnancy. The Appellant &nbsp;had no duty to prevent FGN’s birth. This was a decision that could only be made by the Respondent taking into account a multiplicity of factors, such as her ethical views, her willingness to accept the risks associated with pregnancy and was outside the limits of any advice/treatment sought from the Appellant.&nbsp; It had not been part of the Respondent’s case that the Appellant had a duty to advise more generally in relation to the risks of any future pregnancy. The risk of autism was not increased by the Appellant’s &nbsp;advice, “ the purpose and scope of her duty was to&nbsp; advise and investigate in relation to haemophilia in order to allow the Respondent &nbsp;the opportunity to avoid the risk of a child being born with haemophilia “. In reaching the conclusion that she did namely that the Appellant should be liable for a type of loss that did not fall within the scope of the Appellant’s duty to protect the Respondent against , Mrs Justice Yip was said to have reverted &nbsp;the “ but for “ causation test and not the appropriate SAAMCO “ scope of duty test “. The SAAMCO test required there to be an adequate link between the actual breach of duty and the loss claimed. In this context&nbsp; Davies LJ stated that &nbsp;“ It is insufficient for the court to find that there is a link between the breach and the stage in the chain in causation, in this case the pregnancy itself , and thereafter to conclude that the Appellant is liable for all the reasonably foreseeable consequences of the pregnancy “. &nbsp;In finding that the Respondent &nbsp;was deprived of the opportunity to terminate the pregnancy , reference was had to one of the chains of causation , whereas SAAMCO required that the link had to be between the scope of duty and the damage sustained. &nbsp;“ In the context of this case the development of autism was a coincidental injury and not one within the scope of the Appellant’s duty “ . The most appropriate analogy of the co-incidental injury and not one within the scope of the Appellant’s duty is that identified by Lord Walker in Chester v Afshar [ 2005 ] 1 AC 134 where he stated : “ If a taxi driver drives too fast and the cab is hit by a falling tree , injuring the passenger, it is a sheer coincidence. The driver might equally well have avoided the tree by driving too fast, and the passenger might have been injured if the driver was observing the speed limit ….. “. <strong>COMMENT</strong> Mrs Justice Yip had reverted to &nbsp;the “ but for “ test of causation when in fact she ought more properly to have applied the “ scope of duty “ test applied in SAAMCO. The scope of the duty was narrow . &nbsp;It was limited to whether the Respondent was a carrier of the haemophilia gene and did not extend beyond that .The distinction as between this case and <em>Parkinson </em>and <em>Groom</em> was that there was no duty to prevent the pregnancy. The case has important ramifications as to the scope of duty to be applied in wrongful birth cases. <a href="https://www.parklaneplowden.co.uk/barristers/jonathan--godfrey">Jonathan Godfrey - Barrister, Parklane Plowden Chambers</a>

Those practitioners familiar with RTA claims will be aware of the of the European Communities (Rights Against Insurers) Regulations 2002 (“the Regulations”). Essentially the Regulations provide a direct cause of action against the insurer, thus avoiding the need to sue the tortfeasor at all. There are however limitations. The Regulations only apply to a claimant who is a resident of an EU member state or of Iceland, Norway or Liechtenstein. They relate to accidents which occur on a road or other public place in the UK 'caused by, or arising out of, the use of any insured vehicle'. 'Insured' for this purpose means that a policy is in force which satisfies section 145 of the Road Traffic Act 1988. 'Vehicle' is defined to mean a motor vehicle or trailer which is registered, or normally based, in the UK and which does not run on rails. What the Regulations certainly do not cover is the scenario where a negligently driven Polish lorry causes injury to a UK national in Yorkshire. Any such claim brought on those facts is liable to strike out under CPR 3.4(2)(a). Such were the facts and application facing the claimant in a case I was instructed on recently. One might think that the matter is easily remedied by applying to substitute the insurer for the tortfeasor under CPR 19.5. However, where limitation has passed, that is likely to prove impossible. The original claim will have been pleaded as a claim for an indemnity under the Regulations rather than in negligence. The Court would therefore have no power to allow the substitution because the ‘claim’ for the purposes of CPR 19.5 would be wholly different in character. See in particular <em>Nemeti v Sabre Insurance Company</em> [2013] EWCA Civ 1555 for an object lesson in how things can and do go badly wrong if appropriate care is not taken in pleadings. However, CPR 17.4 allows a party to substitute a cause of action (as opposed to a party) ‘out of time’ where the claim arises out of the same facts or substantially the same facts as the original ‘in time’ claim. In these circumstances European law can, potentially, assist. The Rome II Regulations 864/2007 took direct effect in the UK on the 11th January 2009 without the need for domestic implementing legislation. Article 18 provides:- <em>&nbsp;“The person having suffered damage may bring his or her claim directly against the insurer of the person liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides”.</em> In the common scenario of a claimant facing strike out the law applicable to the non-contractual obligation will be of no assistance whatsoever (because the UK Regulations do not <em>so provide</em>). However, the law applicable to the insurance contract may come to the rescue. In this case it did. Article 822(4) of the Polish Civil Code states:- <em>‘A person entitled to compensation for a contingency covered by a civil-liability insurance policy may bring a claim directly against the insurer.’ </em> So for a claimant facing a <em>Nemeti</em> type strike out, this can be (and was) a neat workaround. Strike out avoided. Amendment under CPR 17.4 permitted. The direct claim against the insurer lives on.&nbsp;&nbsp; Cross-border claims should nearly always include the tortfeasor as a defendant as a matter of course. Nevertheless, the law is complicated and scattered across Europe. One therefore still sees many claims being wrongly pleaded. Solicitors acting for foreign insurers are certainly alive to the technicalities. I have come across a number of cases where claimants have been positively and very courteously <em>invited</em> to solely sue the insurer (presumably in the hope of setting a trap for the unwary litigator). So whilst the lesson is to plead the case properly in the first place, it is worth remembering that the claim may still be salvageable, even if it wasn’t. &nbsp; <a href="https://www.parklaneplowden.co.uk/barristers/bryan-patterson-whitaker">Bryan Patterson-Whitaker</a>

<strong>FACTS </strong> This appellate decision stems from substantial group litigation on behalf of 126 Claimant who seek damages from the Defendant bank in respect of alleged sexual assaults by the now deceased Dr Gordon Bates.&nbsp; The bank had sent applicants and employees for medical examinations that it had requested Dr Bates to carry out between 1968 to 1984.&nbsp; Sexual assault was alleged to have occurred during the course of the medical examinations that would took place at Dr Bates’ home.&nbsp; Mrs Justice Nicola Davies DBE had ordered that whether the Defendant was vicariously liable for any assaults proved against Dr Bates was to be decided as a preliminary issue. &nbsp; <strong>FIRST INSTANCE DECISION</strong> In <em>Various Claimants v</em> <em>Barclays Bank Plc [2017] EWHC 1929 (QB) </em>Nicola Davies J conducted an extensive review of the relevant authorities and held that vicarious liability requires a synthesis of two stages (1) the relevant relationship and whether it was one of employment or akin to employment and (2) if so, whether or not the tort was sufficiently closely connected with that employment or quasi employment.&nbsp; The first part of that test itself involves applying the 5 criteria set out by Lord Phillips in <em>Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 </em>and Lord Reed in <em>Cox v Ministry of Justice [2016] UKSC 10, </em>(i) the employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer, (iii) the employee’s activity is likely to be part of the business activity of the employer, (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee, and (v) the employee will, to a greater or lesser degree, have been under the control of the employer.&nbsp; The Judge went through these criteria to find Stage 1 met.&nbsp; &nbsp; On Stage 2 the Judge found the tort was closely connected with the quasi employment of Dr Bates by the bank.&nbsp; She adopted the words of Lord Phillips in <em>Catholic Child Welfare Society</em> that “<em>the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them …”.</em> &nbsp; Finally, the judge considered whether the conclusions that she had reached were “<em>just and fair</em>” in a “<em>balancing exercise between two innocent parties</em>”.&nbsp; She concluded it was just and fair to uphold vicarious liability, in part because action against the Bank was the only possible legal recourse now available to the Claimants. &nbsp; <strong>APPEAL DECISION </strong> In a unanimous decision upholding the decision of Nicola Davies J, Irwin LJ confirmed that the law of vicarious liability has developed and been “<em>on the move</em>” in recent times.&nbsp; He described this as most notable in 5 critical decisions: <em>E v English Province of Our Lady of Charity</em>; <em>the Catholic Child Welfare Society</em>; <em>Cox v Ministry of Justice</em>; <em>Mohamud v WM Morrison Supermarkets</em>; and <em>Armes v Nottinghamshire County Council</em>.&nbsp; Irwin LJ agreed with the appellant’s argument that none of these cases involved an alleged tortfeasor who was an obvious “independent contractor”.&nbsp; However, it was held what was required now was not an answer to the question: was the alleged tortfeasor an independent contractor?&nbsp; The tests set out from the relevant authorities were the relevant test, what Irwin LJ calls, the <em>Cox/ Mohamud </em>questions. &nbsp; Irwin LJ noted that in <em>Cox </em>Lord Reed had focussed on the first question as the relationship necessary between the alleged tortfeasor and defendant to found vicarious liability.&nbsp; Lord Toulson in <em>Mohamud </em>had explored the second question: in what manner must the conduct of the alleged tortfeasor “have to be related to the relationship” to found vicarious liability. &nbsp; The approaches from <em>Cox</em> and <em>Mohamud</em> were explicitly approved and followed by the majority of the Supreme Court in <em>Armes.</em> &nbsp; Irwin LJ observed as to the appropriateness of the test, ‘the <em>Cox/ Mohamud </em>questions’, and modern working practices at §45, “<em>…adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector…”</em> &nbsp; Irwin LJ supported the findings and reasons given by Nicola Davies J under the Stage 1 test on the particular facts.&nbsp; As to the Stage 2 test he stated it, “<em>obviously correct that these medical examinations were sufficiently closely connected with the relationship between Dr Bates and the Appellants. They were the whole purpose of that relationship. Without them, the relationship would never have existed</em>.”&nbsp; He also had no difficulty as to the conclusions being “<em>just and fair</em>” in the circumstances. <strong>&nbsp;</strong> <strong>COMMENT</strong> &nbsp; Patently, a separate ‘independent contractor’ test has been firmly rejected.&nbsp; &nbsp; In practice it is the ‘the <em>Cox/Mohamud</em> questions’ carefully distilled and applied at first instance and by the Court of Appeal in <em>Various Claimant</em> that must be studied and utilised.&nbsp; &nbsp; Perhaps having been “on the move” the law of vicarious liability has now reached its destination. &nbsp; <a href="https://www.parklaneplowden.co.uk/barristers/stuart--jamieson">Stuart Jamieson</a> - Barrister &nbsp;

<strong>Facts</strong> The Claimant was a type-2 diabetic who developed critical ischaemia in his right foot. There were 3 treatment options: angioplasty, sympathectomy, or as a last resort, amputation. After performing a Doppler scan but not an angiogram, an MDT recommended sympathectomy. This was performed non-negligently but ultimately did not solve the problem. Therefore, following an angiogram, in an attempt to avoid amputation, an angioplasty was performed, notwithstanding that the radiologist did not consider it would be successful. Against expectations, the angioplasty was successful but the Claimant suffered numerous complications from the sympathectomy.&nbsp; &nbsp; <strong>First instance</strong> The Claimant (supported by expert evidence) argued that it was negligent to perform a sympathectomy without first doing an angiogram – had an angiogram been performed, angioplasty instead of sympathectomy would have been attempted first and the complications avoided. The Defendant’s expert disagreed. The Judge dismissed the claim on the basis that the MDT had reasonably selected sympathectomy as the best option. He did not rely on the Claimant’s expert because he had taken an extreme position that sympathectomy was hopeless.&nbsp; &nbsp; <strong>Issue for the appeal</strong> The Claimant accepted that the decision to perform sympathectomy satisfied the <strong><em>Bolam</em> </strong>test i.e. that it met the standard of a responsible body of medical opinion. The sole issue was whether it satisfied the <strong><em>Bolitho</em></strong> test i.e. whether there was a logical basis of that responsible body of opinion. <strong>&nbsp;</strong> <strong>Decision</strong> The appeal was dismissed: <ul> <li>The Judge had clearly considered whether the MDT had been objectively reasonable as per <strong><em>Bolitho</em></strong>. He had justifiably decided in the affirmative in accordance with the evidence, which was that there was no clear ‘best option’. His discussion of “acting reasonably” had the same connotations as “logical basis”.</li> <li>The burden of proving that a decision supported by a responsible body of medical opinion was unreasonable is a heavy one which needs to be supported by expert evidence to undermine that body. Here, there was no such evidence.</li> </ul> <strong>&nbsp;</strong> <strong>Comment</strong> The decision is a useful reminder of 3 principles set out in <strong><em>Bolitho </em></strong>itself: <ul> <li>The <strong><em>Bolam</em></strong> test has an inbuilt requirement for logic: “The use of these adjectives - responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.”</li> <li>However, a finding that the genuinely held views of a body of medical opinion are unreasonable is rare.</li> <li>Most significantly for practitioners, the assessment of medical risks and benefits is a matter for clinical judgment – Judge cannot usually conclude that the same is illogical without cogent and supportive expert evidence. It is therefore critical to assess whether this exists before running a <strong><em>Bolitho</em></strong> argument.</li> </ul> &nbsp; <strong>SOPHIE FIRTH</strong> &nbsp;

The impressive amount was raised during the raffle at the recent Leeds &amp; District Medico-Legal Ball in March. The Yorkshire Air Ambulance is a charity, which relies on the generosity of individuals and organisations to help save lives across Yorkshire. The charity was first set up in 2000, with the addition of a second Air Ambulance in 2007. The swift medical interventions provided by the Air Ambulance crews have a major impact on a patient’s chance of survival and subsequent quality of life. <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes/">Leila Benyounes</a>, <a href="https://www.parklaneplowden.co.uk/barristers/anna-datta/">Anna Datta</a> (Lectures and Events Secretary) and John Pearn (Honorary Treasurer) were given a tour of Nostell Air Support Unit by members of the air ambulance crew. Kerry Garner, West &amp; South Yorkshire Regional Fundraising Manager said “We are extremely grateful to be chosen as the charity at this year’s Medico-Legal Ball. It was a fantastic evening, everyone was really generous. The money will go towards the day to day running costs of the Yorkshire Air Ambulance, £3,000 is the cost of one mission so thank you again.” <a href="https://www.yorkshireeveningpost.co.uk/news/leeds-firm-raises-3-000-for-yorkshire-air-ambulance-1-9162895">Yorkshire Evening Post News Item</a>

Whiplash cash fraudsters have been fined over £20k after lying about who was in the car at the time of the crash with an Insure the Box policyholder. Parklane Plowden barrister, Steven Turner represented Insure the Box at Trial. <em>Mey and Marcelo v Paige Smith</em> In this case, Nsaten Mey claimed he had been driving the car with his son and daughter-in-law. He alleged to have braked to allow the vehicle in front of him to turn left when the Insure the Box policyholder crashed into him. Mey, Pedro Marcelo and Iboto Mey all sought damages for whiplash. At the time of the crash, the defendant’s mother arrived at the scene and witnessed three males in their twenties in the car. Insure the Box and the counter-fraud team at DAC Beachcroft took the innovative approach of arranging an identity parade. This was able to demonstrate that Pedro Marcelo had been driving at the time of the crash, and neither May had been in the car. Catherine Burt, head of counter fraud at DAC Beachcroft explained, “We suspected that one of the alleged passengers had been the driver, so arranging an identity parade was crucial to prove the driver’s identity.” Burt continued, “It was a highly novel approach, but gave us the certainty we needed. Induced accidents and occupancy issues tend to go hand in hand and identity documentation is often poor quality and difficult to review.” At trial, Mey’s wife and another daughter corroborated the story. The judge ruled they had been fundamentally dishonest and ordered them to pay over £20,000. Insure The Box group head of financial crime Simon Rewell added: “These fraudsters deliberately set out to target a young female driver in an attempt to defraud Insure The Box of thousands of pounds in damages.&nbsp; The identity parade, which DAC Beachcroft’s Counter Fraud team arranged, was an inspired solution for solving the identity issue and gave us the necessary proof to reject the claims and then successfully defend them at trial.” <strong>Steven Turner acted for Insure The Box at Trial and was instructed by DAC Beachcroft.</strong>

<p style="margin: 0px 0px 11px;text-align: justify"><span style="color: #000000;font-family: Calibri;font-size: medium">Parklane Plowden’s door tenant, Jo Delahunty QC delivered a lecture to an audience at Gresham College last week on ‘Women Lawyers: Equals at the Bar?’. Her talk attracted widespread attention from both the legal and national press, as well as across social media.</span></p> <p style="margin: 0px 0px 11px;text-align: justify"><span style="color: #000000;font-family: Calibri;font-size: medium">In her lecture, Jo Delahunty QC – who was appointed Gresham Professor of Law in 2016 - examined why there are so few female Silks (white/BAME), and why the senior judiciary is predominantly white and male. What emerged from her research was the huge loss of talent when women disappear from the Bar at 10+ years Call and the impact that this exodus has on Silk and Judicial diversity. It has long been recognised that women leave the Bar at this pinch-point through reasons of child-care responsibilities, choice and/or loss of income from legal aid.</span></p> <p style="margin: 0px 0px 11px;text-align: justify"><span style="color: #000000;font-family: Calibri;font-size: medium">Jo identified that the split of male and females on first being Called to the Bar is 50:50; however it was nowhere near that proportion with BAME barristers. The significant issue now in relation to access to the Bar is that of social mobility and BAME, rather than gender inequality alone.</span></p> <p style="margin: 0px 0px 11px;text-align: justify"><span style="color: #000000;font-family: Calibri;font-size: medium">The lecture attracted a full hall, consisting of the type of audience Gresham has been seeking to attract (young and BAME) all with a genuine interest in the law. Jo stated that the Bar must ensure it has a more diverse representation from all gender and minority groups if it is to remain credible and respected by the society it serves. </span></p> <p style="margin: 0px 0px 11px;text-align: justify"><span style="font-family: Calibri"><span style="font-size: medium"><span style="color: #000000">The lecture has been covered by Legal Cheek and the full transcript can be found </span><a href="https://www.legalcheek.com/2017/10/top-qc-reveals-how-she-overcame-insane-1980s-sexual-harassment/">here.</a></span></span></p> <p style="margin: 0px 0px 11px;text-align: justify"><span style="color: #000000;font-family: Calibri;font-size: medium">As a result of the response that her lecture has received, it’s understood that Baroness Deech has forwarded the transcript to Baroness Hale and Baroness Kennedy. The lecture is also going to be covered by The Guardian, TLS, The Barrister and Jordans.</span></p>