When Your Spine Can Hold You Back: Spinal Infections - Bruno Gil & Raquel Siganporia, Bolt Burden Kemp

27/09/15. Over the last few years there have been several successful and highly-valued claims where patients have sued their doctors for failing to diagnose infections of the spine or failing to act promptly.

The spine, like any other part of the body, can suffer from infection. Such an infection can be very serious and have hugely significant effects on the patient.

The infection may establish in the softer disc, or it may infect the harder vertebral bones. Once established in the back, the infection can spread up or down the spine in a cascade-effect.

How did I contract the spinal infection in the first place?

Most commonly, the infection arrives in the blood, having spread from other areas of the body.

The veins in the lower spine drain the pelvic area, bladder and prostate. As these areas are naturally susceptible to infection, it is quite common for infections of the spine to follow on.
Similarly, medical procedures can introduce infection to these areas which can then spread to the spine e.g. a cystoscopy that introduces bacteria to the bladder may result in an infection of the spine.

Risk factors

As infection of the spine tends to be a secondary infection, anything that reduces the immune system will increase the risk of this occurring. Risk factors include:

• Malnutrition

• Diabetes

• Immunodeficiency

• Recent infections
  
  

How do I know whether I have an infection of the spine?

The infection will often present as back pain. It normally sets in steadily over a long period of time.

As the infection progresses, there are some clear warning signs, sometimes referred to as ‘red flags’, to watch out for:

• Fevers and/or chills

• Headaches

• Weight loss

• Stiffness of the neck

• Weakness, numbness or tingling in the arms and/or legs.

• Worsening pain at night

What to be aware of

First and foremost, your doctors should take every precaution to ensure that they do not introduce an infection when carrying out any procedures. They must use sterile equipment and the appropriate aseptic technique.

Secondly, your doctors should be alert to...

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Sherlock Holmes in the Court of Appeal - Roderick Abbott, 1 Chancery Lane

23/09/15. "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”  The Sign of Four begins with a bored Holmes mired in cocaine addiction, much to the disquiet of Dr Watson. A young woman appears. She has a mystery that needs solving. Holmes solves it. He is cured from his addiction and, by the end of the book, the young woman is set to become Mrs Watson.

Amidst all the action comes the pronouncement quoted at the start of this post. It has become one of Holmes’ most enduring dicta on the science of deduction; so enduring, in fact, that his deer-stalkered head was reared in the Court of Appeal last month. The case was Graves v Brouwer [2015] EWCA Civ 595. It concerned a house fire, but the principles are of general application to many cases where a court is obliged to wrestle with competing theories as to causation.

Mr Brouwer and Ms Graves were next-door neighbours. Mr Brouwer was an odd man: he described himself as controlling to the point of being “anal”, a description the judge was happy to adopt. One day he decided to dispose of a small quantity of papers by burning them in the passage by the side of his house. He set them alight and then doused the ashes with a hose. Shortly thereafter, Ms Graves’ house caught fire. In due course she brought a claim against Mr Brouwer, alleging that the fire he started had somehow spread to her house...

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Philip Cavell v Transport for London [2015] EWHC 2283 (QB) - Diarmuid Laffan, One Crown Office Row

23/09/15. This recent interim judgment gives some interesting guidance as to the quality of explanation, and supportive evidence, that a Defendant will be expected to put forward when looking to resile from a pre-action admission of liability.

Background

On 10th October 2011, the Claimant was cycling along the Defendant’s cycle lane in Hounslow when he fell from his bike and suffered a serious back injury, at a place where the cycle lane merged with a bus corridor. He told the ambulance services that he had fallen due to uneven ground. No picture of the defect was taken before the Claimant was brought to hospital.

After a period of intensive medical treatment, the Claimant notified the Defendant of his claim in September 2012, and sent photographs taken at around that time of the ridge-link defect to which he attributed responsibility for his fall. He then entered protracted correspondence with the Defendant’s claims handlers. In August 2013, they communicated an initial denial of liability on the basis that the Defendant operated a reasonable inspection and repair system that had not recorded any such defect (even at the time when the photographs were taken). It emerged two days prior to the hearing of the application that in November 2013 the Defendant had repaired a defect at the site of the accident.

Following further correspondence with the Claimant, one of the claims handlers’ senior loss adjusters reviewed the file in contact with the Defendant. In March 2014, the Defendant admitted liability subject to proof of loss. Thereafter the investigation of quantum progressed and a small interim payment was made. In October 2014, proceedings were issued and served protectively, as limitation was imminent.

The Claimant granted solicitors newly instructed by the Defendant several extensions of time before a defence was finally served in February 2015. This indicated that liability would be in issue.

Judgment

Under CPR r 14.1A, a Defendant may withdraw a pre-action admission with the consent of the other parties to the action or, in the normal course, with the court’s permission.

The factors which the court must take into account when approaching such applications are laid out in Practice Direction 14, paragraph 7.2 and include the grounds upon which the Defendant applies and any supportive evidence which has come to light, the parties’ conduct, the respective prejudice in granting or denying the application, the stage of proceedings, the Defendant’s prospects if permission is granted, and the administration of justice.

The Defendant’s application raised two arguments. Firstly, it claimed that the admission had been made mistakenly and that it would be unjust to deny it of a viable defence based on its inspection system, the harmlessness of the defect revealed by the Claimant’s pictures, and certain alleged inconsistencies in the Claimant’s account of his accident. Secondly, it was argued that it would be unjust to maintain the admission as the Defendant could not it to claim contribution from the sub-contractor that had apparently failed to spot the defect.

At the outset, Davis J cited the Court of Appeal’s guidance in the leading case of Woodland v Stopford [2011] EWCA Civ 266, where the discretion under rule 14.1A was characterised as a broad one, structured by the overriding objective and the factors laid out in PD 14, paragraph 7.2. According to Ward LJ, none of the PD14 factors play a pre-eminent role in the exercise of the discretion while the court must in each case take account of all of the circumstances of the case in deciding which ‘important considerations’ serve as the application’s centre of gravity, and are ultimately dispositive (at [26]).

Davis J held that the Defendant’s grounds for withdrawal lacked substance and that the application was thus doomed to fail. The Defendant’s arguments regarding the integrity of its inspection system and the innocuousness of the defect were undermined by the fact that it was still present in November 2013 and deemed (by one of the Defendant’s employees) a ‘pothole’ worthy of repair. The argument that the Claimant had not consistently reported the pothole as the cause of his accident was largely met by the fact that he had initially told the responding medics that the road was to blame.

Davis J held that there was some prejudice in obliging the Defendant to prove the presence of the defect in any claim against its contractor under the Civil Liability (Contribution) Act 1978, noting that the Claimant had undertaken to assist the Defendant in any such claim. However, he did not, without giving further reason, find this prejudice dispositive. In light the Judge’s subsequent findings, it can be surmised that one of the reasons may well have been a conviction that tactical considerations regarding a potential claim against the contractors would, or at least, should have been factored into the decision of the Defendant and its claims handlers at the time of the admission.

While the Davis J could have stopped there, he went on to point to a further, fundamental flaw in the Defendant’s argument, and it is his comments on this point which are of most interest.

The Defendant had argued that the admission had been made in error. However it failed to explain in detail the thought process behind the admission and how this had been wrong. The Defendant’s “hugely experienced” claims handlers had, by all appearances, made the admission on the basis of a reasonable appraisal of the available evidence following a lengthy investigation undertaken in collaboration with the Defendant.

According to the judge, in these circumstances it would not be in the interests of justice to allow the Defendant to resile:

“It cannot be in those interests to permit the withdrawal of an admission made after mature reflection on a claim by highly competent professional advisors when there is not a scintilla of evidence to suggest that the admission was not properly made. Were it to be otherwise civil litigation on any sensible basis would be impossible.”

Conclusion

On summary assessment of the evidence, Davis J did not rate the Defendant’s putative case on liability. However, it is probably fair to say that the forensic points put forward by the Defendant regarding the Claimant’s somewhat varied account of his accident amounted at least to an arguable defence.

In light of this, the judgment sends a clear signal to defendants that they will face a heavy explanatory burden in seeking to withdraw admissions made in possession of the relevant facts, and with the help of capable legal advisers. In particular, they are likely to be expected to explain, with reference to the surrounding documentation, how the decision-making process which led to the admission was flawed. A court is unlikely to consider that the balance of justice weighs in favour of the withdrawal simply because on sober reflection, and on the advice of more bullish legal advisers, the Defendant wishes to run a potentially viable defence that had it previously spurned.

Diarmuid Laffan
One Crown Office Row

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