News Category 2
Touching a Nerve: Clinical Negligence, Malcolm Atkinson v South Tees Hospitals NHS Foundation Trust [2014] EWHC 1590 (QBD) - Ruwena Khan, Zenith Chambers
16/06/14. A surgeon had divided a patient’s ulnar digital nerve during an operation and he had been negligent in failing to recognise that fact and to consider repairing it. It was not established that the patient’s palmar cutaneous nerve had been divided in a later operation. Judgment in part for the Claimant (Stewart J).
The Facts
The Claimant sought damages following alleged negligent operations performed on him by the defendant NHS trust.
The Claimant suffered from Dupuytren’s contracture. Dupurtren’s contracture is a hand deformity that develops slowly, usually over years. Knots of tissue form under the skin — eventually forming a thick cord that can pull one or more of the fingers into a bent position. The Claimant’s contracture involved the little and ring fingers of his left hand and he had undergone three operations at the Defendant’s hospital. He claimed that the hospital had...
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Trouble with the Uninsured Drivers Agreement - Paul Williams, Greenwoods Solicitors
15/06/14. In the case of Delaney v The Secretary of State for Transport [2014] EWHC 1785 (QB) the court held that clause 6(1)(e)(iii) of the Uninsured Drivers' Agreement 1999 (the Agreement), the so-called "crime exception", is incompatible with the EC Motor Insurance Directives.
The question therefore arises as to what the consequences are for insurers who reduce their status to Article 75 insurer and who are faced with a claim from a passenger within a vehicle; and where that vehicle was being used in the course or furtherance of a crime?
Where an insurer is able to show that its insured has misrepresented or withheld material information when purchasing the policy of insurance, then that insurer may be able to obtain a declaration voiding the policy of insurance ab initio(per s152(2) of the Road Traffic Act 1988).
Whilst such a declaration has the effect of avoiding the insurer’s liability under the provisions of the Road Traffic Act 1988...
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What's Trivial? - Andrew Spencer, 1 Chancery Lane
08/06/14. There are an increasing number of reported cases about breaches that can be characterised as “trivial” and thus meriting relief from sanctions without the need to show a “good reason”, providing the application was made promptly. One example is Adlington.
Hamblen J considered this issue very recently in Lakatamia Shipping Co Ltd v Nobu Su and others [2014] EWHC 275 (Comm). The Defendant was required by an Unless order to serve a disclosure list on 17th January 2014. The order did not specify the time for compliance, but the default date provided by the Commercial Court Guide was 4:30pm. The Defendant mistakenly thought it had until 5pm to serve the list. At 4:45pm – 15 minutes late – the Defendant sought to exchange lists with the Claimant. The Claimant replied that the Defendant was out of time. The Defendant proceeded to serve its list unilaterally at 5:16 – 46 minutes late.
The Defendant made a prompt application for relief from sanctions. This was opposed.
The judge noted that the delay was measured in minutes rather than hours and considered it was a “no more than insignificant failure to comply” and could be characterised as “narrowly missing a deadline” – examples of trivial breaches given by the Court of Appeal in Mitchell. The judge also addressed the consequences of the breach – these were minimal. There was no prejudice. This re-enforced the conclusion the breach was trivial.
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Example of a Fatal Award at Trial: Brown –v- Hamid Considered: Claims for Loss of Consortium - Gordon Exall, Zenith Chambers
02/06/14. Relatively few fatal cases get to trial. Even fewer involve a consideration by the court of the damages to be awarded under the Fatal Accident Act. The recent decision in Brown –v- Hamid [2013] EWHC 4067 (QB) provides an interesting example of how the courts approach the issue of dependency.
BROWN –V- HAMID – THE FACTS
Brown was a clinical negligence case where Mr Brown died as a result of a failure to prescribe Warfarin. The failure was found to have accelerated Mr Brown’s pre-existing symptoms and death. The judge found that the period of acceleration was around 12 months.
INDIVIDUAL HEADS OF DAMAGE
The case is an example of the judge considering various heads of damage.
Knowledge of reduction of life & damages for pain and suffering
The specific head of knowledge for loss of expectation of life has been abolished. However the court is entitled to take into account, when assessing damages for pain and suffering, the deceased’s knowledge that his expectation of life had been reduced. This was considered by the judge.
“38. As to the assessment of general damages for pain, suffering and loss of amenities, although during this period of about 12 months Mr Brown would in any event have been suffering from some relatively mild symptoms associated with his pre-existing condition, he would not have suffered from the more severe symptoms which he went on to develop. This contrast includes the symptoms of breathlessness which allowed him to walk long distances on the flat, as opposed to those symptoms which prevented him from walking more than 50 yards. In addition, although damages for loss of expectation of life are not recoverable in this case, in assessing damages in respect of pain and suffering, the court is entitled to take into account any suffering likely to have been caused to Mr Brown by his awareness that his expectation of life had been reduced (s.1(1)(b) of the Administration of Justice Act 1982). In this regard I am of course mindful that this action was commenced by Mr Brown when he was...
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McDonalds Coffee Case - Round Two - Simon Trigger, 1 Chancery Lane
31/05/14. Many of us will be familiar with the much ridiculed but ultimately successful 1994 McDonalds coffee claim made in America. For those who do not know the facts of that case the Claimant suffered third degree burns to her legs due to a McDonald’s coffee that they claimed was excessively hot and which was due to a failure to adequately label the coffee cup. The Claimant in that case was awarded $2.7 million in punitive damages (reduced on appeal). This case is often used by the popular press as an example of a compensation culture gone wild. Well where the USA leads the UK is sure to follow.
The Sunday Sport is reporting that Howard Russell is considering bringing a personal injury claim against Greggs. The basis for his claim is that Mr Russell managed to burn his private parts while attempting to fornicate with a chicken bake pasty. Mr Russell alleges that there was a failure to label the Pasties as being unsafe for an act of fornication. As Mr Russell told the Sunday Sport "I have been into Greggs many, many times and never have I seen a sign warning you not to put your penis into one of their products – especially after it has been reheated. That, to me, is a clear case of negligence and I intend to sue".
Mr Russell has sought legal advice to bring his claim. However as Mr Russell commented "I made a phone call to one of those solicitors who advertise on the telly but unfortunately the person on the end of the phone had some sort of coughing fit when I explained my predicament". Greggs were at the time of the press report unavailable to comment.
In this day and age of reducing amounts of personal injury work it is perhaps pleasing to note that the ways and means in which Claimants can injure themselves remains undiminished.
Simon Trigger
1 Chancery Lane
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