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Rights Without Recourse? - Richard Paige, Park Square Barristers

08/08/17. In the case of Shaw v Kovac & others [2017] EWCA Civ 1028 the Court of Appeal considered the question of whether a claimant could recover damages for “infringement of the [claimant’s] right of autonomy” as a free-standing head of loss, when they had been treated in the absence of informed consent.

Facts

The Claimant was the executor of the estate of Mr Ewan. Mr Ewan died at the age of 86 immediately following an operation for a trans-aortic valve implant. Mr Ewan did not regain consciousness between the operation and his death. The surgeon and Trust both admitted that Mr Ewan had not been properly informed of the risks of what was an experimental procedure and that had he been properly informed he would not have undergone the operation. The Claimant alleged that Mr Ewan would have survived for a further 5 years without the operation.

First instance

Before HHJ Platts at first instance the Claimant was awarded damages including interest of £15,591.83, of which £5,500 was made up of general damages for pain, suffering and loss of amenity. The general damages award was a reflection of (a) preparatory investigations (including an angiogram); (b) preparations for and the operation itself and its aftermath; and (c) the anxiety caused by the impending operation, none of which Mr Ewan would have suffered had he not consented to the operation.

The Claimant’s Schedule of Loss included a claim for “damages for loss of life of William Ewan without having given informed consent”. This head of loss was disallowed as being a claim for loss of expectation of life, and thus fell foul of s.1 of the Administration of Justice Act 1982. However, in closing submissions before the trial judge it was argued that the failure to obtain informed consent created a right to damages independent of any other loss being claimed or proved, i.e. was a freestanding claim, which was neither a claim for personal injury nor for loss of expectation of life. The judge refused to make such an award and on appeal it was argued that the judge “should have acceded to the claimant’s arguments and should have made an additional award of damages to reflect the wrongful invasion of Mr Ewan’s personal autonomy”.

Appeal

The appeal was rejected. The leading judgment was given by...

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