Update: personal injury and clinical negligence

Primary victims in PTSD claims

In Stephen Monk v PC Harrington UK Ltd [2008] EWHC 1879 (QB) the claimant (M) was held not entitled to damages for psychiatric injury he developed after helping two construction workers who were seriously injured at the new Wembley Stadium when a temporary platform fell from 60 feet onto them. M claimed he was entitled to damages because he was as a 'primary victim'.

In particular, he argued that he satisfied the criteria to claim as a rescuer or failing this, an 'unwilling participant' because he believed he caused the accident (as he was responsible for supervision of the fallen temporary platform).

The court disagreed. While accepting the help M provided was neither 'trivial nor peripheral' therefore entitling him to be described as a rescuer, he was not a 'primary victim' when acting as such because the court found on his evidence that he was unlikely to have believed he was putting his own safety at risk when assisting the injured. If he did believe he was in danger, then such belief was unreasonable in the circumstances.

The court then considered whether M was a primary victim by virtue of being an 'unwilling participant'. While accepting M thought he might have caused the accident, the court found he had no reasonable basis for such belief.

It was noted that although Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 HL did not specify that such belief had to be reasonable, this court held that it should because, (1) the law requires claimants to have a reasonable fear for their safety in the other types of primary victim cases and so it would be unfair not to have this requirement in the 'unwilling participant' cases, and (2) an unreasonable belief of personal responsibility would not be reasonably foreseeable by the defendant.

M was further unable to recover as 'secondary victim' as he did not have a 'close tie of love and affection' with either injured.

This decision therefore extends the requirement of a reasonable belief to all types of primary victims. It also serves as a reminder of the court's strict approach in such cases.

Summary judgment in a mesothelioma fast track case

In Stephen Carter v Freeman Group Plc [2008] EWHC 1572 (QB) the defendant company (F) successfully appealed Master Whitaker's decision to enter summary judgment for the claimant (C). The claimant's father (D) died after developing mesothelioma. D was exposed to asbestos during his employment with a partnership, which was later acquired by a predecessor company of F.

F denied that it had assumed the partnership's liabilities and further submitted it never employed D and did not owe him a duty of care.

The claim was issued in the mesothelioma fast track system. Master Whitaker noted there was no document in all the material he had indicating whether the partnership's liabilities were transferred to F. This led C to rely on the 'evidential inference' that F did assume the liabilities. Therefore, because Master Whitaker considered he had the same information a trial judge would have and was himself satisfied, on a balance of probabilities, that F did assume the partnership's liabilities, he considered F's defence had no real prospect of success. As such, summary judgment was entered for C.

On appeal, F firstly contended that summary determination of this case was inappropriate because C had made no application under CPR Part 24 and had failed to discharge its own burden in proving F had no real prospect of success. MacDuff J stated this effectively amounted to a criticism of the whole summary judgment procedure in which the defendant is required to 'show cause' why judgment on liability should not be entered. F further argued that Master Whitaker appeared to be 'trying the issue' as opposed to determining whether there was a triable issue. MacDuff J considered however that he was merely assessing the strength of the evidence, which he was entitled to do, and was not making any findings on the facts.

Master Whitaker determined that in reality a finding at trial could only go one way (because the evidence, albeit by inference, was so strong), which meant there was no real prospect of F defending the claim.

Secondly, F contended there was no evidence to indicate a transfer of liabilities had occurred and the absence of any documentation in fact evinced the opposite conclusion. MacDuff J disagreed. The evidence supported the 'evidential inference' that there was a transfer and he agreed a trial judge would have made the same finding. He could not see any reason why the partners would retain personal liability for the partnership.

Lastly, F submitted that an important point of law was not raised before the Master. Even if there was a transfer agreement, D was not a party to it meaning he was not an employee of the predecessor company. This meant D did not have a cause of action against F. He could only sue the partners and it was the partners who were entitled to seek recovery from F.

It was noted that this point was not argued before Master Whitaker and the appeal court was invited by C to consider it on appeal. However, MacDuff J considered this case could not be determined summarily as it involved a difficult legal point which required time for consideration only possible at Trial. In addition, if this were determined on appeal it would effectively deprive the losing party of a right of appeal.

Appeal allowed.

This case re-affirms the principle that the burden of proof rests with the claimant to show the criteria for CPR 24.2 are met. MacDuff stated he would be surprised if the new Mesothelioma Practice Direction included a hearing in which the defendant was required to 'show cause' why judgment should not be entered. In fact the new Practice Direction does provide for this. If the claimant adopts the 'show cause' procedure, the defendant is now still required to establish that he has a real prospect of defending the claim. However, there appears to be no room for complacency amongst claimant solicitors who must still be prepared to prove their case on a balance of probabilities.

Clinical negligence

In Stephen Loraine (a child by his mother and litigation friend Pauline Loraine) v Wirral University Teaching Hospitals NHS Foundation Trust [2008] EWHC 1565 (QB) the court (Plender J) concluded that there had been a negligent system failure by the defendant trust, which resulted in the claimant's cerebral palsy due to fetal asphyxia following a placental abruption shortly before the claimant's birth in August 2000.

The liability issue considered was whether the treating obstetricians should have been supplied with the claimant's mother's previous records, which recorded a history of fibroids and a previous footling breech delivery. The trust's practice was only to retrieve files on booking if it appeared that they would contain material information based on the patient raising issues from a previous pregnancy. The defendant stated that this was standard practice in hospitals in England and 'indeed the world'. The court held that this system was flawed, as a patient may be unaware of the significance of factors, or forgotten or remembered them incorrectly; that the obstetricians should have had information about the claimant's mother's previous pregnancies available; and that their failure to do so exposed the claimant's mother to avoidable risk. The court was assisted by Robertson v Nottingham Health Authority [1997] 8 Med LR 1. If the files had been available, the doctors would have been alerted to the possibility of an obstructed delivery, the claimant's mother would have been admitted to hospital and a caesarian section performed in case of emergency.

The defendant trust also contended that the claimant's injuries were not foreseeable, in that they were not within the scope of matters which ought to have been within the reasonable contemplation of the defendant's staff, and that the manner of injury was not foreseeable. The court concluded that fetal asphyxia was foreseeable because it could be caused by cord prolapse, which was foreseeable, even if the placental abruption, the actual cause of the asphyxia, was not foreseeable; and the damage did not differ in kind from that which was foreseeable. The damage was cerebral palsy caused by fetal asphyxia.

This case is interesting as an example of a negligent 'system failure', as well as affirming standard principles of foreseeability, in that the exact route of injury does not have to be foreseeable if the kind of injury is.

In Janet Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB) the court (Cranston J) considered the issue of consent and the duty to inform a patient of the significant risks of a medical procedure where there was another procedure available with fewer or no risks.

The claimant had a third cranial nerve palsy. The consultant neurologist recommended an MRI scan to exclude a posterior communicating artery aneurysm but there were no MRI appointments available. The defendant trust's neurosurgeons therefore decided to perform a catheter angiography, which is an invasive procedure. The risks were explained to the claimant and she was consented. She suffered a stroke as a result of the procedure.

The court concluded that, while the decision to perform the angiography rather than MRI was not negligent per se based on established legal principles, the defendant was negligent because it did not properly obtain the claimant's consent to the angiogram: the duty to inform a patient of significant risks of a procedure would not be discharged unless the patient was made aware of the comparative fewer or no risks of an alternative and available procedure. In the instant case, the hospital should have discussed the differing imaging methods with the claimant, in which case she would have opted for the non-invasive MRI if she had been appropriately advised of the comparative risks.

This case imposes a 'duty to inform about comparative risks' of procedures before a patient can give fully informed consent, though it was acknowledged in the judgment that it is difficult to state as a matter of general law when such a duty arises and that the case had its own unusual 'special circumstances'. It is likely that such a principle will, therefore, only be applicable to certain factual situations.

In Grannia Geraldine Bailey (by her father and litigation friend Maurice Bailey) v Ministry Of Defence [2008] EWCA Civ 883, an appeal on causation by the defendant against the decision of the High Court, the Court of Appeal (Waller LJ (VP), Sedley LJ, Smith LJ) dismissed the appeal on the basis that the judge's reasoning had been correct. The court summarised the position in relation to cumulative cause cases as follows: 'If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.'

In the instant case there were cumulative causes of the claimant's weakness, the 'but for' test had to be modified, and on balance the defendant's lack of care had made a material contribution such that the judge had applied the correct test and was entitled to reach the conclusion he did.

The appeal court was of the view that, in cumulative cause cases, to succeed it is sufficient for a claimant to establish that the negligence 'materially contributed' to the injury, even if there are other contributory causes.