Memory and the documentary record in cases involving disputes of fact

In this post James Beeton of 12 KBW discusses the decision of HHJ Gore QC (sitting as a Deputy High Court Judge) in  CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB), a clinical negligence claim involving a disputed documentary record.

The case is of particular interest because of the judge’s concerns about what has become the conventional approach to human memory in cases involving disputes of fact developed in the judgment of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15] to [23]. The judge’s comments about that approach have recently received support in the Court of Appeal’s unanimous judgment in Kogan v Martin and Ors [2019] EWCA Civ 1645. This article will argue that the judge’s concerns were overstated and that the result in CXB was consistent with a correct application of the Gestmin principles.

Continue reading “Memory and the documentary record in cases involving disputes of fact”

Fact-finding in consent cases and confirmation, no free-standing claim for damages arising from a failure to warn: Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585

This blog is by Helen Waller and John-Paul Swoboda of 12 KBW

The Court of Appeal held that there was no free-standing claim for damages arising from a failure to warn of risks associated with a procedure that, on the facts, the Claimant would have undergone in any event.

The facts giving rise to this appeal were that the Claimant had had an abdominal hernia repaired using surgical mesh, which was then liable to affect future pregnancies. She was not advised of the possible alternative of a suture repair.

At first instance HHJ Freedman, sitting as a High Court Judge, held that the Claimant was entitled to damages in respect of a two-month delay in identifying and treating her hernia. The Judge also concluded that the operating surgeon had not provided appropriate information for the purpose of informed consent, but that there was no causation such as to give rise to an action for damages. This was so since, on the facts as held, had the Claimant been so informed then she would have chosen to proceed with the same mesh repair which in fact took place. The evidence before the Court was that the operating surgeon’s view was that a suture repair would be liable to fail, with a very high recurrence risk of the hernia and that the vast majority of surgeons would elect to repair the Claimant’s hernia with a mesh.

There are two points of particular interest. Firstly, the Court of Appeal’s approval of the trial judge’s approach to factual causation, which involved a consideration of the rationality of the decision about treatment. Secondly, the reiteration that the line of case law stemming from Montgomery v Lanarkshire Health Board [2015] 2 WLR 162 and Chester v Afshar [2005] 1 AC 134 does not give rise to a free-standing claim for damages arising from a failure to obtain fully informed consent without more.

The trial judge, in considering what the Claimant would have chosen to do had she been properly informed, considered the rationality of each possible decision: opting for the mesh repair or a suture repair. He found that to opt for the suture repair would have been irrational and that the Claimant herself was not a person who would act irrationally ([2017] EWHC 1495 (QB) at [49]). This was so even though at trial the Claimant gave evidence that she would have chosen the suture repair. In the Judge’s view, this evidence was coloured by her being (possibly erroneously) told in the interim period by another medical professional that it would be inadvisable for her to become pregnant because of the mesh (at [46]). Lady Justice Davies, giving the judgment on appeal, held at [22] that,

The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient’s position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of “rationality” without more to the issue of causation. No valid criticism of the judge’s approach, still less his assessment of the factual evidence can be made.

The Appellant abandoned her challenge to the Judge’s finding that there is no free-standing right to claim for damages to compensate her for an invasion of her right to personal autonomy or choice but did contend a right to damages on the basis that her shock distress and consequent depression was “intimately connected” to the failure to obtain informed consent. The Court of Appeal set out the relevant case law reiterating that the “but for” test still applies to causation in consent cases (at [15]) but also reiterated that this is not usually sufficient as it is also normally necessary to show that the breach was an effective cause (which is to say a cause whereby the claimant would have altered the risk s/he exposed themselves to): cf Duce v Wostershire Acute Hospital NHS Trust [2018] EWCA Civ 1307. In this case the appellant did not cross the first hurdle in showing that but for the breach the injury would not have occurred as she would nevertheless have undergone the surgery. Further if the appellant wanted to fit themselves into the exception in Chester v Afshar [2005] 1 AC 134 they would have needed to show a) that the breach was a ‘but for’ cause (on a probabilistic analysis) and b) that the operation would have been deferred had there been full disclosure of risk. In this case there was no evidence the appellant would have deferred the operation on full disclosure of risk but rather that the Claimant would have proceeded with the operation. The appellant’s argument that it was sufficient to show that injury was intimately connected with failure to fully disclose the risks was dismissed as being ‘without merit’.

This is, therefore, a helpful decision confirming the ability of first instance judges to take a logical and pragmatic approach to questions of fact, even when that goes against what a party is subjectively telling the court at trial and in providing clarity around the contours of causation in cases where there has been a failure to provide full disclosure of risk and/or alternative treatments.

Recoverability of the costs of surrogacy: XX v Whittington Hospital

This blog is by Charley Turton of 12 King’s Bench Walk

The factual background

The Defendant trust admitted negligence in failing to detect in Ms X signs of cancer from smear tests carried out in 2008 and 2012 and from biopsies performed in 2012 and 2013. Ms X developed cervical cancer for which she required chemo-radiotherapy treatment which in turn led to infertility and severe radiation damage to her bladder, bowel and vagina. Continue reading “Recoverability of the costs of surrogacy: XX v Whittington Hospital”

Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151; Court of Appeal divided over whether an A&E receptionist owes a duty of care

In this blog Vanessa Cashman of 12KBW considers Darnley v Croydon Health Services NHS Trust where the Court of Appeal considered what, if any duty, is owed by a receptionist of an A&E department to a patient in respect of the provision of information. By a majority it was held that no duty is owed to provide correct information about waiting times.

The facts

On 17 May 2010 the claimant was the victim of an assault, in the course of which he received a violent blow to the head. He was taken to A&E by a friend and they arrived at 8.26pm. On speaking to the receptionist on his arrival, she told him that he might not be seen for up to 4 or 5 hours. The claimant was in significant pain and after 19 minutes of waiting, he decided to go home and take paracetamol. He left at 8.45pm, without notifying the receptionist. Continue reading “Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151; Court of Appeal divided over whether an A&E receptionist owes a duty of care”

Merrix v. Heart of England NHS Foundation Trust [2017] EWHC 346 (QB); Costs budgeting

This is a post by Andrew Roy and Alex Carrington of 12 King’s Bench Walk

An important decision in the changing world of cost budgeting.

Facts :

The Appellant bought a claim against the Respondent for damages for clinical negligence. Proceedings were commenced and the Appellant’s budget was approved at a CCMC. Following the exchange of lay and witness evidence, but before the parties had prepare for the trial, the parties compromised the claim. The Appellant produced a costs bill that was less than the total approved budget (unsurprising given the matter had settled before trial). Continue reading “Merrix v. Heart of England NHS Foundation Trust [2017] EWHC 346 (QB); Costs budgeting”

The Discount Rate Decision: Right or Wrong, Gilt Edged or Double Edged?

In this post Henry Charles of 12 King’s Bench Walk considers the implications of the recent change to the discount rate.

Minus 0.75%.

The initial reaction: claimant nirvana …and if so for how long?

The Lord Chancellor’s statement heralded the new rate with the assertion that minus 0.75% was the only answer on a gilts based assessment: Continue reading “The Discount Rate Decision: Right or Wrong, Gilt Edged or Double Edged?”