News Category 3
Kids will be kids: What is the extent of the duty owed by schools to their pupils? - Lauren Seagart, Queen Square Chambers
12/10/18. How far does the duty of care owed by schools to pupils extend? We were all familiar with the shouts of ‘WALK! Don’t run’ from teachers as we careered around school corridors. But can failure to echo this stern warning amount to a breach of duty?
The High Court turned its mind to the issue in Pook v Rossall School (2018) EWHC 522 (QB). The claimant was a pupil at the defendant’s school. She was about to undertake her mandatory exercise session for the week. The enjoyable activity of that day was hockey on the Astroturf pitches. The claimant changed into her PE kit and made her way to the hockey pitch. It was her case that she was not only permitted to run, but actively encouraged to do so. In her desperate attempt to reach the pitch quickly the claimant deviated from the path and slipped on muddy patch of grass. This caused her to slip and fall backwards, striking her elbow on the kerb.
The claim was dismissed at first instance on the basis that the defendant had not been negligent in allowing pupils to run. The claimant appealed...
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The importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia - Sam Holden & Gemma Dunn, Clyde & Co
08/10/18. The Court recently considered the importance of NICE guidance in a clinical negligence claim regarding the diagnosis and management of pre-eclampsia. Clyde & Co were instructed by NHS Resolution on behalf of the Trust. The decision reinforced the position that NICE guidance (and other specialism-specific guidance) should be followed unless there is a clinically justified reason to depart from it.
Background
The claimant presented to East Kent University Hospitals Foundation Trust on 1 November 2012, late in her first pregnancy having been referred by her GP with headaches, hypertension and trace protein in urine on dipstick testing. Sequential blood pressure readings were obtained in hospital, together with laboratory protein/creatinine levels (PCR), and the claimant was booked for induction of labour on 5 November 2012.
She in fact re-attended on the morning of 4 November 2012 with early signs of labour. Her blood pressure was normal, with no protein on dipstick testing. Contractions settled and the Claimant was sent home. She re-attended that same night as she had not felt the baby move; her son was sadly delivered still-born the following day.
The Claimant alleged that the Trust should have diagnosed pre-eclampsia on 1 or 4 November 2012, on the basis of her raised uric acid levels and having regards to other alleged risk factors such as her raised BMI. It was alleged they should have admitted her and delivered the baby.
Breach was denied on the basis that the Claimant did not satisfy the diagnostic criteria of pre-eclampsia. This requires hypertension in the presence of significant proteinuria. The Claimant had, at most, mild hypertension but, crucially, the PCR testing had been normal and the definition of "significant proteinuria" was not met. It was, however, admitted that the baby would have been born alive had he been delivered by the morning of 4 November 2012...
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Deborah Tilsley v Derbyshire Community Health Services - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors
03/10/18. Incident date: 30 January 2014. Settlement date: 17 January 2018. Gross settlement: £30,000.00.
The Claim
The claim against the Defendant Trust was brought by the Executor of the Estate of the deceased following an assault upon the deceased by another patient when he was a patient in the Defendant hospital, compounded by the subsequent failure of medical staff to assess his injuries sustained in the assault, leading to a delayed diagnosis of a fracture of the neck of the femur and thereafter delay in treating the same.
Following the eventual diagnosis of the fracture, the deceased was transferred to another hospital where he underwent a hip replacement, however developed bronchopneumonia and died several weeks later.
In addition to the failures initially encountered, the deceased’s family detailed failings by staff in reporting of the details of the incident and injuries to the hospital where he was transferred.
Instructions were received when the initial Inquest into the death was adjourned by the Coroner to enable the deceased’s family to obtain legal representation, allow further enquiries to be made and for a PIR to take place.
Whilst instructions to represent the family were confirmed in October 2015 and initial enquiries were made and work undertaken, the Inquest was not relisted until February 2017 leading to delays in the claim. The third anniversary of the deceased’s death was rapidly approaching and protective proceedings were issued.
At the Inquest, the Coroner made a finding that the deceased’s cause of death was due to bronchopneumonia, contributed to by multiple co-morbidities, predominantly noted to be a fractured femur and trauma.
Liability
The Coroner was unimpressed by witness evidence given on behalf of those charged with the medical care of the deceased and found that the fracture resulted from the assault. He determined that had the assailant (a fellow patient of the deceased) not had access to the deceased’s room, or had his levels of observation been sufficient then on balance the assault would not have taken place and the resulting fracture and bronchopneumonia would not have occurred and the deceased would not have died when he did. The Coroner found as a consequence that the deceased’s death was contributed to by neglect.
Quantum
The financial value of the claim was limited by the fact of the deceased’s age and other pre-existing medical conditions. At the inquest Counsel for the Defendant Trust had attempted to establish that the bronchopneumonia suffered by the deceased was due to other factors, without success.
Following the Inquest a medical report was obtained from an Orthopaedic surgeon and court proceedings were served and then stayed to allow the Defendant to consider its position. No Defence was filed as a consequence and no admissions were made by the Defendant.
An initial Part 36 offer of £25,000.00 was received from the Defendant with a counter-offer being made in the sum of £32,000.00.
The claim was settled in January 2018 by way of acceptance of the Defendant’s increased Part 36 offer in the sum of £30,000.00.
Solicitor for the Claimant: Andrea Ribchester-Hodgson of Spencers Solicitors
Solicitor for the Defendant: Raj Ubhi of Browne Jacobson
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Pleadings and fundamental dishonesty: Howlett affirmed as film director’s compensation claim is dismissed - Jeff Turton, Weightmans LLP
26/09/18. David Pinkus v Direct Line [2018] EWHC 1671 is an example of another claim being dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant raised a preliminary issue as to whether the defendant should be prevented from arguing the claim was dishonest at all. The facts The claimant was involved in a road traffic accident on 21 August 2012 with the defendant’s insured. Liability was admitted, but the value of the claim was hotly disputed. The claimant, who claimed that he suffered from profound psychological/psychiatric symptoms which resulted in his loss of a job as an assistant film director, valued his claim at £850,000. The defendant accepted that the claimant sustained some injury but, having identified a significant number of credibility issues in respect of the claim, valued it more conservatively at £2,000-£3,000. The claimant raised a preliminary issue at trial, which was that the defendant was not entitled to argue the claim was fundamentally dishonest, on the basis that the issue was raised too late and the related pleading was defective.
The pleadings issue
In its updated counter schedule of loss, which was served less than one month before trial, the defendant contended that the claim was fundamentally dishonest. The original defence made no such allegation.The claimant objected to...
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Can an 8-year old child be contributory negligent? - Ian Peters, Anthony Gold
22.09.18. The short answer is yes, but that was not the finding of Mrs Justice Yip when she handed down her Judgement in the case Master Caine Ellis v Mr Paul Kelly and Mrs Violet Ellis on 31 July 2018.
Caine was involved in a road traffic accident on 20 September 2008, when he was 8 years old. He had been struck by Mr Kelly’s car whilst crossing a road close to his home. He suffered a traumatic brain injury and is unlikely to be able to live interpedently or undertake any kind of paid employment. That is as far as the Judgment commented on the value of the claim. Primary liability was admitted and the live issues at trial were firstly, whether Caine should be found contributory negligent for his part in the accident and secondly, whether his mother, Violet Ellis, should bear any responsibility.
The Facts
Caine comes from a close family. His mother, allowed him to him to go out to the local park without adult supervision if he was accompanied by one of his older cousins, who were 10 and 11 years old respectively. When they were out, the children were encouraged to stay together, and they had a mobile phone with them, so they could keep in contact with their parents in case of an emergency.
Caine’s mother had taught him the Green Cross Code as she walked him to school and everywhere else. She did not allow him to go out without an adult until she thought it was safe.
On the day of the accident, Caine had gone to the park with his 11-year old cousin, Cyrus. After they had been in the park for some time, Cyrus had left to attend a skate park nearby, leaving Caine with his 10-year old cousin, Chloe. A short while later, Caine wanted to go to the skate park as well and eventually left the park by himself to find Cyrus...
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
