Isaac Hogarth of 12 King’s Bench Walk, instructed by Jasicca Nava of Irwin Mitchell successfully represented the claimant (‘C’) in her claim against Dr King (‘D’). The settlement, reached at a JSM, was approved by HHJ Dunne, sitting as a judge of the High Court on 13 October 2023.
The facts
In 2013, when ALB was 33 years old when he saw D, a GP, due to rectal bleeding and painful stools. He was prescribed proctosedyl suppositories, but was not referred on, or safety netted.
ALB continued to experience progressive symptoms, including rectal bleeding, weight loss, abdominal pain and changes in bowel habit.
In June 2016, he underwent colonoscopy at which biopsies were taken. He was subsequently diagnosed with moderately differentiated adenocarcinoma of the sigmoid colon. Staging investigations suggested a locally aggressive sigmoid carcinoma with indeterminate liver lesions.
ALB underwent a laparoscopic high anterior resection in Juny 2016. Staging on histology was pT3N2V1.
ALB was found to have developed a number of distant metastases. He underwent several courses of chemotherapy and several procedures to remove hepatic metastases. He also underwent several courses of radiotherapy.
He sadly passed away in August 2018, leaving behind a wife and young children.
Liability
It was admitted within the Letter of Response that D was negligent in failing to carry out an abdominal and rectal examination and to either refer ALB to a colorectal surgeon, or to provide adequate safety netting.
Quantum arguments
ALB worked as a web development manager for a national retailer, and was the sole breadwinner, although C intended to return to part time work in the future. C’s case was that but for his death, ALB was on track to receive several promotions which would have significantly increased his earnings. This claim was supported by a witness statement from ALB’s line manager. This was not accepted by D, who argued it was not likely that ALB would achieve either the promotions or the level or earnings claimed.
There were significant disputes between the parties on all items claimed under the Fatal Accidents Act 1976 save for bereavement damages and past dependency on income. The biggest battlegrounds were future dependency on income, and past and future dependency on services.
In addition to a financial dependency claim advanced on a conventional percentage basis, claims were made for loss of financial dependency in the form of contributions that would have been made to the children’s weddings. D challenged this as speculative, and pointed to national averages. C’s position was that the children were being raised in a tight-knit family by married parents. The prospects of the children marrying in the future was significantly higher than national average.
In respect of services, C’s case was that in addition to working full time, ALB was a loving and devoted father who provided a significant amount of childcare to his young children, and also had a significant role in the running of the household, which he shared with C.
D disputed that the level of services claimed was realistic or reasonable particularly in light of C’s case in respect of ALB’s working life, and intended career progression.
Settlement
Settlement was ultimately reached at a JSM for £1.75 million, subject to approval, which represented a very high proportion of the total claimed within the Schedule of Loss.
This was subsequently approved by His Honour Judge Dunne, sitting as a High Court Judge, on 13th October 2023.
Isaac Hogarth
Clinical Negligence Law 