Vanessa Cashman considers the judgment of the Part 20 claim brought by D2 against D1 for a contribution towards the claim it settled with C.
D1 (also the Part 20 Defendant) was the surgeon. D2 was the body responsible for a private hospital. C was the widow of Mr Simon Healey who died following a right hemicolectomy at the hospital. The operation was performed by D1 and was required as treatment for cancer. There was a post-operative leak at the anastomosis and Mr Healey died of sepsis.
D1 was negligent in the provision of post-operative care, when Mr Healey’s marked deterioration was not acted on and there was a consequent delay in diagnosing and treating the leak. D2 was negligent in that the nurses, employed by the hospital, should have asked for more frequent medical reviews and should have carried out more frequent, and then continuous, observations.
The hospital settled the claim and reserved its position on a contribution claim.
D1’s solicitors came off the record before C’s claim was settled. He continued to represent himself but failed to comply with directions for the contribution claim and failed to attend the trial. The trial proceeded in his absence. The two issues for the judge were (1) apportionment and (2) costs.
D1 had submitted a witness statement but had not obtained any expert evidence.
The judge considered that D1’s failures were very serious and he was responsible for more than 50% of the fault but not 100% of it. The nursing failures were considered to be “dwarfed in comparison to the failures of the consultant surgeon” (paras 26-27).
He further found that the failure to arrange diagnostic imaging to investigate a leak was the direct cause of Mr Healey’s death. The crucial delay was predominantly attributable to D1’s failures and his breach of duty was more causative than the nursing breaches. He apportioned responsibility at 75% to D1 and 25% to D2.
C’s costs
It followed that D1 would pay 75% of C’s costs of the claim.
D2’s costs of defending the main claim
D2 sought an order that D1 should pay 75% of D2’s costs in defending the main claim, despite the fact that it too was negligent and caused/contributed to the death. The judge asked himself whether it was appropriate to exercise his discretion under s 51 of the Senior Courts Act 1981 and CPR 44.2 to order a contribution in costs in respect of the main claim.
In reviewing various factors, the judge considered again the responsibility for the death. He repeated that D1 was the surgeon in charge, that D2’s nurses were subordinate to him and that his failures were the substantial contributory cause of the death. He also considered that D2 had been “realistic enough” to compromise the claim but D1 did not. His defence was fundamentally flawed. His conduct in the litigation was unsatisfactory, unrealistic and uncooperative. It was too simplistic to say that D2 was 100% responsible for its own negligence so should bear all its own costs of defending but the 75% sought was excessive and disproportionate.
The judge ordered D1 to pay 1/3 of D2’s costs of defending the main claim.
D2’s costs of bringing the contribution claim
D2 had been successful in establishing a contribution from D1. D2 was awarded its costs of bringing the contribution claim.
Commentary
It is not clear why D1’s solicitors ceased acting but there may remain a question as to whether D1 is either appropriately insured or adequately funded such that he will be able to pay the contributions ordered. C is protected from this situation by the agreement with D2 to pay the entirety of damages and costs. D2 thus bears the risk of not achieving financial satisfaction.
The considerations on whether D1 should contribute to another negligent defendant’s costs of defending a claim which has been successful show just how wide the discretion is (and how difficult any decision would be to appeal). It is plain that D1’s litigation conduct did not do him any favours in this regard.
It is assumed that C’s original case against D1 and D2 was that both are jointly and severally liable for the entirety of the damage i.e. if C succeeded against either of them she would receive 100% of the damages. It is not known whether either D raised the question of gross negligence, or arguments about breaking the chain of causation. However, it seems probable that this was the most proportionate way of dealing with the question of liability – to settle against one and leave it to that one to seek a contribution at a later stage.
As an aside, this case is also interesting because an expert report obtained by the coroner for the inquest was admitted into evidence in the civil claim (presumably at D2’s request) and relied on by the judge. It appears that he found its large agreement with the conclusions of D2’s expert fortified his findings as to D1’s causative potency and relative blameworthiness. Whether D1 objected to the inclusion of that report at any stage is not clear.
Clinical Negligence Law 