In This Edition:
- An message from Andy Gray, clerking Director.
- Hylton Armstrong takes a look at qualitative vs. Quantitative case & material contribution causation.
- Georgia Nolan's article of "a tightening of the straitjacket?" enlightens readers of secondary victim claims.
- Gareth Price and Abigail Telford provide us with a portal update.
- upcoming events within Parklane Plowden Chambers.
1. A message from Andy Gray, Clerking Director.
Introduction
Welcome to our winter edition of the Parklane Plowden Personal Injury & Clinical Negligence newsletter. I, as I suspect many of you do, wonder about the wisdom of asking the chambers Grinch to write the foreword for the WINTER newsletter but I have that honour and am delighted.
With Christmas and a New Year soon upon us it is perhaps time to briefly reflect on what sort of year 2015 has been for us at PLP. We have of course had the sad loss of Tim Hirst and all our thoughts are with Linde and all the family.
The former Leader of the North Eastern Circuit and Head of Chambers for many years (on more than one occasion) Stuart Brown QC announced his retirement at our Annual conference held at Rudding Park in October. Tanto atteso you may be saying but I would like to pass on my personal thanks to Stuart for an eventful but ultimately enjoyable last 26 years - meraviglioso. Chambers wishes you all the best in your retirement.
Happily we see the return of Tom Vonberg to the PICN team and Kristian Mills joins us from another North East set.
It is perhaps unsurprising to note that the theme running through previous newsletters over the years has been one of caution given the considerable changes to the legal world and how we all operate as businesses going forward. The clerks room has seen a change in personnel too which has been borne of the new structure which Michael alluded to in our spring edition. Our Executive Board and our Service Board are quite unique on this circuit and we are beginning to see the benefits of the hard work of the last 12 months. My personal thanks go to Richard Copnall for all the time and effort he has put into setting this up. What we have is a highly regarded and professional clerk’s room which is able to assist you with your enquiries and as chambers continue to grow we are confident that our relationship with you does too.
In this edition Georgina Nolan looks at the approach of the courts to claims for psychiatric injury from secondary victims in clinical negligence claims. Hylton Armstrong looks at Qualitative versus Quantitative Care & Material Contribution Causation in clinical negligence.
Gareth Price and Abigail Telford offer a brief update in respect of Portal cases and their impact.
All that is left for me to say is that on behalf of Parklane Plowden we wish you all a very merry Christmas and we look forward to a Happy 2016.
Andy Gray,
Clerking Director
2. Hylton Armstrong takes a look at Qualitative vs. Quantitative case & material.
A brief look at Reaney v (1) University Hospitals of North Staffordshire NHS Trust (2) Mid Staffordshire NHS Foundation Trusat [2015] EWCA Civ 1119
Background
In 2008 the Claimant was diagnosed as suffering from transverse myelitis and became paralysed below the mid-thoracic level. The Claimant’s required 7 hours of care per week, rising to 31.5 hours per week after the age of 75. Apart from limited assistance from family members this would have been provided by the local authority. With this level of care the Claimant could have led a mostly independent life.
During a subsequent extended period of hospitalisation the Claimant developed a number of grade 4 pressure sores with osteomyelitis, hip dislocation, serious contractures of the lower limbs, and increased lower limb spasticity. The Claimant’s seating posture was permanently damaged and she was unable to use a standard wheelchair safely. As a result the Claimant required 24/7 care.
The Issue
The dispute was about causation and quantification. More specifically, did the Defendants cause (i) all of the Claimant’s care needs resulting from the pressure sores or (ii) those needs less the needs that she would have had but for the negligence.
At Trial
Foskett J thought this case was a ‘reflection of the principle that a tortfeasor must take his victim as he finds him’ and concluded the Defendant’s negligence made the Claimant’s position ‘…materially and significantly worse than it would have been but for that negligence.’ This led to a finding that the Claimant was entitled to full compensation of all her care, physiotherapy and accommodation costs (note: future care was assessed at £2,194,883.29).
Foskett J confirmed that if he had any doubts about causation in the but-for sense, he would have been inclined to find that the Defendants had “materially contributed” to the condition that had led to the need for 24/7 care.
The Appeal
The Defendants argued the Judge should have awarded the Claimant the costs of meeting her needs but only to the extent that the needs were increased as a result of the negligence.
It was accepted to be common ground that if the Defendants’ negligence caused the Claimant to have care and other needs which were substantially of the same kind as her pre-existing needs, then the damage caused by the negligence was the additional needs. On the other hand, if the needs caused by the negligence were qualitatively different, then those needs were caused in their entirety by the negligence.
The Court of Appeal found that the fact the Claimant’s quality of life is now markedly worse than it would have been but-for the negligence says nothing about whether the care that she now needs is qualitatively or quantitatively different from what she would have needed but for the negligence. Here there was no evidence the Claimant now required specialist carers who have skills which were not possessed by the carers of the kind who would have satisfied her pre-existing needs. It followed that the Judge’s finding that all of the Claimant’s care, physiotherapy, & accommodation etc. was caused by the Defendant’s negligence could not stand.
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3.Georgina Nolan's article of "a tightening of the straitjacket" provides readers with an insight of secondary victim claims.
What is the approach of the courts to claims for psychiatric injury from secondary victims in clinical negligence claims? Georgina Nolan takes a look at some recent decisions.
Last December the High Court handed down its judgment in the case of Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), a case concerning a father’s claim for injury following the stillborn birth of his son. The Defendant trust had admitted negligence in respect of the care of his unborn child and admitted that the child’s father had suffered psychiatric illness as a consequence of witnessing events unfold at the hospital as medics came to the realisation that his son had died. Yet Mr Wild’s claim was dismissed on the basis that he failed to qualify as a secondary victim having neither witnessed the injury or endangerment of another nor having been sufficiently proximate in time and space to the negligent event which had happened in the weeks prior to the birth rather than at the time of the delivery.
In Wild the High Court considered the case of Tredget v Bexley Health Authority [1994] 5 Med LR 178. This concerned a Claimant father who did recover damages as a secondary victim having lost his new born child after he witnessed the baby being born. The court distinguished Tredget not only because in that case the child had been born alive but also because the negligence which inflicted the (ultimately fatal) injuries on the child had taken place during labour and in full sight of the father in the context of what was described by the court as ‘chaos’ and pandemonium’ in the delivery room.
Wild was the first time that the court had applied the case of Taylor v A’Novo [2013] EWCA Civ 194 in a clinical negligence context. Taylor had come before the Court of Appeal in 2013 and was a claim by a lady who had suffered severe post traumatic stress disorder having witnessed the sudden collapse and death of her mother following an injury that her mother had sustained at work three weeks previously. In Taylor the court held that there were two distinct events - the first was the accident and injury (caused by the employer’s negligence) and the second was the death. The court held that the relevant event was the accident and the Claimant did not have sufficient proximity to this so would not qualify as a secondary victim.
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4. Gareth Price and Abigail Telford provide us with a portal update.
New website address for CUEpi, is www.askcue.co.uk
Case Law
SHAUN PAYNE v WILLIAM SCOTT
CC (Birkenhead) (Deputy District Judge Smedley) 13/07/2015
- At disposal hearing, Claimant applied to remove matter from Portal;
-As to costs, held that Claimant acted unreasonably in ‘electing’ to remove the matter from the Portal;
- Claimant argued that the matter was removed by decision of district judge at disposal hearing;
- Still held to have been ‘elected’ by the Claimant;
- Claimant restricted to Portal costs.
SHAUKAT ALI MALAK v S NASIM
CC (Watford) (District Judge Wood) 02/03/2015
- An admission of liability made by insurers in the Portal related solely to the subject-matter of that claim;
- It did not bind a claimant in a personal injury claim arising out of the same accident brought after exiting the portal;
- Compare with earlier decision in Ullah v Jon
E M GRATRIX v K FISHER
CC (Altrincham) (District Judge Clegg) 24/06/2015
-Listed for contested Stage 3 hearing in respect of a child Claimant;
- Claimant argued stage 3 only appropriate for a child claimant when damages agreed and sought allocation to fast track under Part 7;
- Application successful;
- Damages subsequently agreed prior to disposal hearing;
- Defendant argued Claimant acted unreasonably in exiting portal and should be fixed to Portal costs;
- Defendant unsuccessful. Matter was disputed, caused to exit by order of the court and Claimant acted reasonably
- Compare with Payne v Scott
5. Forthcoming events
With 2016 fast approaching, it is time to take a look at our upcoming events. We are offering Personal Injury and Clinical Negligence case law updates at three venues, Sheffield, Leeds and Newcastle. A Grandstand Employment conference in Leeds. Also a seminar on radicalisation safeguarding and the family courts, which will all take place in Leeds.
For further details of the seminars or to book a place on any of our seminars please follow this link- https://www.parklaneplowden.co.uk/seminars/
We hope to see you there!
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