PIBULJ
A Look at the New Fatal Accident Inquiries Legislation in Scotland - Jonathan Cornwell, Brodies
14/01/16. Fatal Accident Inquiries (FAIs) featured prominently in the Scottish mainstream media during 2015. Following the tragic events of 22nd December 2014 (when a bin lorry collided with pedestrians in Glasgow city centre killing 6 people and injuring 15 others), the decision of the Crown Office and Procurator Fiscal Service not to prosecute the driver and the subsequent Fatal Accident Inquiry meant that the subject was rarely far from the headlines.
An FAI is the fact-finding process, utilised in Scotland, through which the circumstances of certain deaths are investigated and determined. It is broadly equivalent to an English Coroner’s Inquest. An FAI takes place before a sheriff, who is required to produce a determination setting out the time, place and cause of death, and anything which could have prevented the death. An FAI is mandatory for deaths resulting from an accident in the course of employment or in legal custody. It is discretionary where the Lord Advocate deems it to be in the public interest that an inquiry should be held into the circumstances of a death on the ground that it was sudden, suspicious or unexplained; or if it has occurred in circumstances that give rise to serious public concern. Even where a death falls into the mandatory category above, the Lord Advocate can decide there will be no FAI if there have been criminal proceedings and he is satisfied that the circumstances of the death have been sufficiently established in the course of those proceedings.
The existing legislation – the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 – has long been considered inadequate. As far back as 2008, Parliament debated these inadequacies Seven years later, in 2015 two bills were introduced to the Scottish Parliament intended to overhaul the current system of FAIs and to address its perceived shortcomings. The Scottish Government published the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. This contained practical measures intended to ensure a system which is “effective, efficient and fair”. A second bill was introduced by Patricia Ferguson MSP the contents of which went significantly beyond what was proposed in the Government’s Bill which she described as, “tinkering at the edges of this legislation”. In her view there needed to be “a fundamental overhaul of the system”.
One common criticism of the process was that the families of the deceased were not central to it, nor did they take a role in shaping the scope of the inquiry. The lack of transparency and failure to involve the family of the deceased was something that both bills sought to address. Critics also made reference to the delays encountered. The inquiry process was often significantly delayed by a pending criminal investigation and prosecution (although that was notably not the case in the accident mentioned above).
Both Bills were before the Scottish Parliament until September 2015 when, “in the spirit of collaboration”, Patricia Ferguson agreed to withdraw her bill and to work with the Government on amendments to its bill. That Bill was passed on the 11th December 2015 and contains some, but not all of the reforms, sought in the private member’s bill.
It is widely agreed that investigations should go beyond establishing the cause of the death, to learning lessons from the death in order to prevent further occurrences. In around one third of the FAIs held in Scotland each year the Sheriff makes recommendations intended to prevent similar accidents or deaths occurring in the future. Under the Bill individuals and organisations will now have a legal duty to respond to the FAI setting out whether they have followed these recommendations or why they have chosen not to.
The criticism of the lack of involvement of the deceased’s family has been addressed by the introduction of a “Family Liaison Charter”. This is intended to ensure that bereaved families are kept informed of the progress of investigations and whether there will be a criminal prosecution or an FAI.
The Bill extends the category of mandatory FAIs to include those arrested or detained by the police at the time of death (regardless of the location) and to the deaths of children in secure care. It also permits discretionary FAIs to take place into the deaths of Scots abroad (even where the body is not repatriated to Scotland) provided that the Lord Advocate considers that any investigations already carried out have not sufficiently established cause of death and there is a real prospect that the full circumstances would be established at the FAI.
The Scottish Government also announced that it had reached an 'agreement in principle' with the UK Government to extend mandatory FAIs to deaths of service personnel in Scotland. This new measure is not included in the Bill as it relates to defence, which is reserved to the UK Government. Instead it will be enacted by a UK Order under section 104 of the Scotland Act 1998.
The other most notable provision of the Bill is that it allows an FAI to be re-opened if new evidence arises and for a fresh FAI to be held if that new evidence is substantial enough.
The fact that the Bill was passed unanimously demonstrates the consensus of opinion that change to the existing system was long overdue. However, there was still criticism in some quarters that the Bill does not go far enough and particular criticism that there is no automatic right to legal aid for the families of the deceased. It is widely agreed that the Bill goes some way to modernising the system and that it should make for a more efficient process. The other consequences of the Bill’s proposals (intended or otherwise) remain to be seen.
Jonathan Cornwell is a Partner with the personal injury, pursuer team, at Brodies LLP
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Practice, Procedure and Fair Proceedings in the Coroner’s Court: Wilson -v- HM Senior Coroner for Birmingham and Solihull - Gordon Exall, Barrister, Zenith Chambers & Hardwicke
01/12/15. In Wilson -v- HM Senior Coroner for Birmingham and Solihull [2015] ewhc 2561 (Admin) l the Divisional Court rejected an application for judicial review of a Coroner’s narrative verdict. “Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability.”
THE CASE
The claimant was a consultant cardiothoracic surgeon. In the narrative verdict following the deaths of three patients the coroner stated:-
“An historic failure to accurately record post-operative data for all patients resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in [the deceased’s] operation being dealt with by a different surgeon.”
THE APPLICATION FOR JUDICIAL REVIEW
II. That part of the coroner’s conclusion flowed from evidence which had been admitted at the inquest in the teeth of opposition from the claimant. Mr Garnham QC, who appears before the court in these proceedings, but did not appear before the coroner, advanced three grounds in support of the contention that the sentence should be removed by quashing it from each of the narrative conclusions.
i) It was unfair to rely upon the evidence and reach the conclusion because the claimant was not given a meaningful opportunity to challenge it, in particular by exploring the underlying data which were said to support it;
ii) The coroner failed properly to explore the evidence relating to the conclusion;
iii) The conclusion of the coroner in this regard was irrational.
THE COURT’S CONCLUSION
Submissions
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Mr Garnham submits that the essential unfairness to Mr Wilson was that he was not given a proper opportunity to deal with the evidence of Dr Rosser which has resulted in a serious adverse finding against him. That finding has two components namely (a) a conclusion that data were mis-recorded; and (b) that had they been accurately recorded the consequence may have been that Mr Wilson would not have performed the operations on the three deceased. Mr Garnham submits that although not named in the sentence, the reference to a different surgeon is a clear contrast with him. He also submits that the use of the passive “an historic failure to record data” carries the implication that it was Mr Wilson himself who entered inaccurate data, rather than others. He relies upon dicta in Vogon International Limited v the Serious Fraud Office [2004] EWCA Civ 104and MRH Solicitors Ltd. v The County Court Sitting at Manchester [2015] EWHC 1795 (Admin) concerning findings of dishonesty made by judges against a party (Vogon) and solicitors for a party (MRH) when it had not been suggested, pleaded or put. Mr Garnham also submits that in the absence of a proper exploration at the inquest of the underlying data supporting the conclusions advanced by Dr Rosser in his evidence the coroner failed in her duty of investigation and, furthermore, could not rationally conclude as she did.
Discussion and Conclusions
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An inquest is the culmination of an investigation which must determine how, when and where the deceased came by his death: section 5 of the 2009 Act. As Sir Thomas Bingham noted in R v North Humberside Coroner, ex parte Jamieson [1995] QB 1,it is for the coroner fully, fairly and fearlessly to investigate deaths and it is for the coroner to set the bounds of the inquiry:see general conclusion 14. An inquest is an inquisitorial process and not comparable to a criminal trial or civil proceedings. Lord Lane CJ memorably stated in R v South London Coroner, ex parte Thompson (1982) 126 SJ 625, DC:
“Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should not be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.”
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Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability.
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Vogon is authority for the proposition that in civil proceedings a judge should not find that a claimant had pursued a dishonest claim when such a suggestion had not be made in the course of those proceedings or put to any witness. At paragraph 29 May LJ said:
“It is elementary common fairness that neither parties to litigation, their counsel, nor judges, should make serious imputations or findings in any litigation when the persons against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves.”
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MRH concerned allegations of dishonesty made against the claimant’s solicitors and others involved following a road traffic accident which the judge concluded was “staged”. The defendant, whilst pleading that the accident was staged and the claims were fraudulent, had pleaded expressly that it was not his case that the solicitors, or claims management or hire companies, were participants in the fraud. The judge encouraged the defendant’s counsel in the course of the hearing to allege dishonesty against the solicitors and others. That invitation was declined. Dishonesty was thus never suggested in the course of evidence or argument. The judge nonetheless made findings of dishonesty against the solicitors and companies, which this court decided were impermissible.
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Both these cases are far removed from the circumstances surrounding the evidence foreshadowed in paragraphs 33 and 34 of Dr Rosser’s statement. I shall endeavour to explain why.
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The starting point is that Mr Wilson was aware of the suggestion by the Trust that his data relating to angina and pulmonary hypertension had been inaccurately recorded, although we are told that he received evidential material relating to it only very shortly before the inquests began. The evidence relating to it had been provided to the GMC by Dr Rosser and served upon Mr Wilson, with detail of the underlying analysis albeit without the medical records of the 80 or more patients whose records had been examined.Overshadowing all of the consideration of the issue at the inquest was the fact that the GMC was seized of a complaint relating to that very issue. Indeed, it is clear that the aim of Mr Wilson and his advisers, as the written submissions from which I have quoted make plain, was to keep this issue out of the inquest and reserve it to the GMC. Mr Wilson was not entirely taken by surprise when the matter emerged in Dr Rosser’s statement for the inquest.
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I readily accept that material provided to Mr Wilson in the GMC proceedings could not be used for a different purpose without authority. The status of Dr Sims’ report, which the transcript suggests had also come to Mr Wilson through the GMC, did not prevent its use in the inquests. As I have already indicated, there were mechanisms that would have enabled the additional material attached to Dr Rosser’s statement to the GMC to be deployed by Mr Wilson had he wished to do so. He did not wish to do that for reasons which are entirely understandable, but he cannot complain about any consequential disadvantage that flowed in the inquest proceedings. In the exchange quoted at paragraph 18 above, the coroner sought to understand whether Mr Wilson disputed the evidence relating to angina and pulmonary hypertension. Beyond being told Mr Wilson had a view about it, which was not explained, the opportunity to engage with the evidence was not taken up. The observation made by counsel that someone should have put Dr Rosser’s paragraphs 33 and 34 to Mr Wilson whilst he gave evidence about the individual patients suggests an approach akin to civil or criminal proceedings which was not in keeping with the inquisitorial nature of the inquests and the status of interested persons (not parties). I read the coroner’s intervention at this point as amounting to an invitation to Mr Wilson to explain his position regarding this evidence.
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The written submissions suggested that counsel might explain Mr Wilson’s reservations about the analysis which underpinned paragraphs 33 and 34 of Dr Rosser’s statement, but that did not happen. The same written submissions canvassed the possibility of questioning Dr Rosser further on the topic but that too was not pursued. That Mr Wilson might give evidence on the topic, being recalled for the purpose, was mentioned but effectively discounted on his behalf.
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The expanded answer given by Dr Rosser on the substance of the analyses suggested that only one in twenty patients noted as receiving drugs for unstable angina was confirmed by the prescription records. 78 patients were labelled as having pulmonary hypertension when the records suggested the true number was 16. Furthermore, there was the improbable fact that a large number of those so labelled had the same score, namely 65. In respect of both measures, the inaccurate data were far removed from the average expected. There is every reason to suppose that Mr Wilson could have explained, if it be the case, that the figure of only one in twenty confirmed by the computerised prescription records was wrong. So too the apparent substantial over-reporting of pulmonary hypertension and the coincidence of so many recordings at 65. For the purpose of dealing with these stark inconsistencies, the medical details of the patients were unnecessary. It was explicitly stated in the written submissions that Mr Wilson had serious reservations about the figures. The submissions indicated that an explanation would be provided but that did not happen.
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In these circumstances I am unable to accept the submission made on behalf of Mr Wilson that he did not have adequate notice of the point or have an opportunity to deal with it before the coroner came to her narrative verdict. In reaching that conclusion I also reject the submission that the only way which the matter could be dealt with fairly, alternatively adequately (which I use as shorthand for the second way in which Mr Garnham advances the point), was to explore the individual medical records of the 81 or more patients and the prescription records. The coroner took the view that the purpose of exploring this aspect of the evidence was to determine whether an alert would have been triggered and that it was unnecessary to delve into the detail of the individual records (even had they been available). As Jamieson confirmed, it is for the coroner to determine the scope of the inquest. This decision was taken by the coroner in a context, it should not be forgotten, where Mr Wilson was aware of the issue and could have engaged with it. In my judgment there was no public law error in her approach.
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Furthermore, whilst I accept that the impugned sentence clearly pointed to Mr Wilson as the surgeon who may not have operated on the three deceased patients had the “flag gone up”, the coroner was careful not to identify him as the person who recorded the inaccurate data. That was consistent with the original oral evidence of Dr Rosser, who also did not identify Mr Wilson as the source of the inaccurate data, albeit that his expanded explanation did so.
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On the evidence before her, the coroner was entitled to come to the conclusion she did. It cannot be described as irrational.
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Informing each of the three grounds advanced on behalf of Mr Wilson are two complaints about Dr Rosser. First, it is said that he was not independent because he reported the concerns about inaccurate data to the GMC and was involved in the process that led to Mr Wilson’s dismissal. Secondly, he was not expert in the matters which were the subject of analyses in question. Both propositions are correct but do not lead to the suggested conclusion that his evidence of this issue should have been discounted by the coroner. The first might go to the question whether to accept the evidence, were their any suggestion that it was unreliable because of some animus, conscious or unconscious against Mr Wilson. The transcript does not support such a suggestion. The second raises the point that this part of Dr Rosser’s evidence was hearsay. That might lead to some caution in accepting it but, as I have already indicated, no basis for questioning the underlying analyses of the raw data was ever given by or on behalf of Mr Wilson.
Gordon Exall
Barrister
Zenith Chambers,Leeds & Hardwicke Chambers, London
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Duty of Care: Hospital Not Liable for Non-Clinical Staff Giving Incorrect A&E Waiting Time - Tracy Sell-Peters & Andrew Cousins, DWF
Darnley v Croydon Health Services NHS Trust 
High Court
31.7.15
Andrew Cousins reviews this interesting decision limiting the expansion of duties placed on hospitals. In Darnley v Croydon Health Services NHS Trust, the High Court held that the Trust did not have a duty of care to provide accurate waiting times to patients attending A&E.
The Claimant was the victim of an assault and sustained an injury to the head. He was taken to hospital but the judge found he left some 19 minutes after arriving without being seen by a clinician. Having returned home his condition deteriorated and an ambulance took him back to hospital later the same evening. He was found to have suffered an extra-dural haematoma, requiring neurosurgery and he suffered a neurological injury.
The Claimant claimed that during his time at hospital there were breaches of duty by both clinical and non-clinical staff. It was alleged that the reception staff gave inaccurate information about the length of time which he would have to wait, that he was not assessed as a priority triage and that the clinical staff failed to assess him during his time at the hospital.
The Claimant alleged that he was told by the receptionist (incorrectly) that he would have to wait 4 to 5 hours to be seen and that if he had been told that he would actually be assessed by a triage nurse within 30 minutes he would have stayed at the hospital. It was further alleged that the Defendant had failed to comply with the National Institute for Health & Care Excellence (NICE) clinical guidelines which provided that head injury patients should be assessed by a clinician within 15 minutes of arrival at hospital.
HHJ Robinson dismissing the Claimant’s claim:
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The Court was only concerned with the issue of liability and the claim was dismissed. As a finding of fact the Court concluded that the Claimant had stayed at the hospital for a maximum of 19 minutes after being told that he would be seen within 4 to 5 hours. However, on the evidence, the Claimant’s condition was not such as to have alerted the non-clinical receptionist to the presence of a serious condition requiring priority attention by a triage nurse.
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In relation to the NICE clinical guidelines, the Court did not accept that failing to meet a 15 minute target by 4 minutes constituted a breach of clinical duty. The consensus amongst the experts was that the longest allowable target was 30 minutes. The Claimant not being seen within 19 minutes therefore did not amount to a breach and in any event did not cause a loss.
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When considering whether the non-clinical staff had a duty to inform the Claimant if he would be seen within 30 minutes, the Court considered the three stage test from Caparo Industries Plc v Dickman [1990]. It was reasonably foreseeable that not treating patients could lead to harm and that a person who was informed that the waiting time would be 4 to 5 hours, rather than 30 minutes, may leave before he could be seen. However A&E receptionists were not under a duty to guard patients against the harm that may result from their decision to leave the hospital even if that harm could be prevented by giving more accurate information about waiting times.
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The Court concluded that it would not be fair, just and reasonable to impose a liability on a defendant hospital for the receptionist not giving full and accurate information about waiting times. The receptionist’s task was to complete registration forms and the provision of waiting times was a courtesy. To impose liability in damages for failure to provide the information or for providing inaccurate information would be a step too far and would not be fair, just and reasonable.
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The court also found that, had the claimant been told he would be seen within 30 minutes, he would not have left A&E, his brain haemorrhage would have occurred whilst in hospital, he would have received urgent treatment and would not have suffered neurological injury. Ultimately however, the Claimant had chosen to leave the hospital and the Defendant was not liable to compensate him.
The case limits the expansion of duties that are placed on hospitals. Had the Claimant succeeded then the duty of care owed by a hospital would have been expanded to non-clinical staff which would have significantly expanded the remit of a hospital’s liability.
Whilst a receptionist has to ensure that they complete the registration task competently because clinical judgments may be made on the information they take, the waiting time for a patient is a matter of clinical judgement and not simply imposed by strict adherence to a queueing system. Had the Court found in favour of the Claimant and allowed the claim, the Judge considered that reception staff would become unhelpful towards patients and not inform them of waiting times and that they would only complete registration forms. This would be undesirable and was a situation that should not be allowed to arise.
The Court found that ultimately the Claimant’s actions in leaving the hospital had broken the connection between any alleged deficiency of the information which had been provided to him and the harm he suffered. He knew that he had been hit over the head, that he was in pain but would ultimately be seen if he stayed in hospital. He chose to leave and had to accept the consequences of that decision rather than try to blame the Defendant.
The decision therefore is an indicator as to how far the Court is willing to impose liability on a hospital. The test set out in Caparo is still the leading consideration for the Courts in determining whether a duty of care should be imposed upon a defendant.
There is often no perfect answer to whether it is “fair, just and reasonable” to impose a duty upon a defendant and decisions can, and do, vary. With this decision, the Court has drawn a “line in the sand” about how far it is willing to impose a duty upon a defendant under conditions where clinical guidelines were only narrowly missed, and the Claimant chose to leave the hospital of his own accord which is, of course, far from exceptional, given how overstretched A&E departments are.
Tracy Sell-Peters & Andrew Cousins
DWF
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The Enterprise Bill: Payment of Insurance Claims - James Gibbons, Browne Jacobsen LLP
28/10/15. The Enterprise Bill (“the Bill”) was published in September 2015 and contains provisions which, if enacted, would imply terms into all insurance contracts that require an insurer to pay sums due to insureds within a reasonable time. The changes are likely to have the most significant impact on first party loss policies. However, any crystallised loss indemnified under a liability policy will also be affected meaning all insurers and their advisers will have to consider the impact of the Bill.
Background
English law has been reluctant to follow the lead of other common law jurisdictions and has generally been reluctant to allow the recovery of consequential damages for late payment of insurance claims. The English courts have long considered contracts of insurance to form a promise by an insurer to hold an insured harmless against loss, meaning that the payment of a claim under a policy is deemed to be a payment of damages in itself.
To rectify what is objectively a legal oddity, and with the reforms brought about by the Insurance Act in mind, the concept of requiring prompt payment of insurance claims has risen up the political agenda. Provisions catering for such a change were included in the original drafts of the Insurance Act 2015 but were removed on the Act’s journey through parliament to ensure that the Insurance Bill (as it then was) maintained its “uncontroversial” status, so as to benefit from the parliamentary fast-track procedure.
It is therefore significant that the Government has decided to reintroduce these provisions under separate legislation. Given that a provision so clearly in the interests of insureds is unlikely to face opposition in Parliament, there is a good chance that these changes will come into force with the Insurance Act in August 2016.
The proposals
If enacted, the Bill would insert a new section into the Insurance Act which would imply a term into every contract of insurance that requires an insurer to pay sums due in respect of a claim by an insured, within a “reasonable time”. What constitutes a “reasonable time” will depend on various factors including the type of insurance, the size and complexity of the claim and matters outside of an insurer’s control. Insurers will also be allowed time to investigate claims and, if appropriate, dispute them (so long as the insurer acts reasonably in doing so).
Significantly, a breach of the implied term would give an insured a right to damages, in accordance with normal contractual principles. This means that in the event of a delayed payment, an insured may not only seek to enforce the relevant policy terms and claim for interest, but it may also bring a claim against an insurer for foreseeable loss arising from the delay.
While an insurer may contract out of the changes, to do so it must make its intention clear and unambiguous, as well as bring the relevant policy terms to the insured’s attention, prior to policy inception. Whether or not this will be commercially acceptable remains to be seen.
The impact of the Bill
It is worth noting that insurers are already under a regulatory obligation to pay claims “promptly” and that individuals acting in their private capacity have a right to bring a claim directly against a firm that breaches its regulatory obligations. Therefore, insurers should already be paying claims within a reasonable time period and there is a route for private individuals to seek damages if they do not.
However, the changes would clarify insurers’ obligations and, for the first time, allow commercial insureds to bring claims for consequential losses. The changes would also make these claims more straightforward for individuals. Therefore, if the Bill is enacted, claims for late payment may become commonplace, both in the form of complaints to the Financial Ombudsman Service and through the courts. As claims arise, the threshold for what constitutes a “reasonable time” period on any given occasion will hopefully become clearer, but until that happens there is likely to be a considerable period of uncertainty.
A cause of particular concern for insurers is likely to be the potential for unlimited exposure arising from the risk that damages payable may exceed the sums claimed under the policy or even the limit of indemnity (given that a payment of damages will not erode the level of cover). Specifically under liability policies, there is risk of recoverable losses arising from a delay in paying agreed settlement sums, or in confirming an insured’s entitlement to defence costs. Those losses may well ultimately fall to be recovered from solicitors or other suppliers, where the loss arises from those suppliers’ acts, omissions or delays.
The success of such claims will depend upon whether the losses suffered were reasonably foreseeable at the time the policy was incepted but in any event it is clear that the provisions might open up a new avenue for claims against insurers.
Practical considerations
The changes will have a significant impact upon insurers’ approach to claims investigations as the speed of settlement will be more important than ever. In the event of a dispute over coverage, but where any delay in payment could result in substantial consequential losses for the policyholder, we can certainly see the scope for insurers to make payments without prejudice to policy liability to enable an insured to remedy the effect of the insured peril, with insurers’ retaining the right for the indemnity payment to be repaid in the event of the court or Ombudsman agreeing that the policy doesn’t respond. That could be more attractive to insurers in some cases, particularly where the coverage dispute is a marginal one.
In summary if the proposed changes are enacted, the likely consequences are that we will see:
- more decisive approaches being taken to claims screening and settlement;
- the updating of procedures and processes to ensure that coverage investigations can be undertaken as efficiently as possible; and
- a review of contractual arrangements between insurers and suppliers in order to remove barriers to timely settlement. This may in turn result in more delegated authorities being used.
James Gibbons is a solicitor in Browne Jacobson LLP’s Financial and Professional Risk team who specialises in insurance and financial services law
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LM (A Child and Protected Party by his Father and Litigation Friend SM) v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB) - Richard Baker, 7BR
In the Queen’s Bench Division before Mrs Justice Cox.
The Claimant, a man now aged almost 19-years, alleged that he suffered severe brain damage because of breach of duty at the time of his delivery and birth. Liability issues were compromised in 2013 and judgment entered on the 24th June 2013 for damages to be assessed at 50% of the full value of the claim.
The Claimant suffered a challenging combination of disabilities with bilateral tetraparetic cerebral palsy co-existing with severe cognitive, social and communication impairments and profound autism. The Claimant’s parent’s separated when he was a young boy and he was cared for by his father for a number of years before he went to live with his mother and her new partner. He lived with his mother and step-father at the time of trial, who were assisted by carers and a case manager
Although a number of issues were agreed before trial There remained significant disputes between the parties, particularly concerning the Claimant’s future care and case management as well as his future needs in relation to occupational therapy, equipment, transport and accommodation. The nature and extent of the claimant’s difficulties and manageability, both current and future, was at the core of these disputes.
Addressing the issues as they appeared within the judgment:
Vehicles:
The Defendant raised significant issue with the decision of the Claimant’s parents to purchase a Land Rover Discovery, a decision made with the agreement of the Deputy and on the advice of an Occupational Therapist. The vehicle was not an approved vehicle under the Motability Scheme, however it was accepted that the Defendant could not insist that a vehicle was purchased through that Scheme. However, the Defendant argued that the Land Rover was unsuitable and inappropriate for the Claimant’s needs and constituted an unnecessary extravagance, thereby contending that the Claimant’s parents had behaved unreasonably in purchasing it. Mrs Justice Cox considered that it was implicit in the cross-examination of the Claimant’s parents that they had deliberately decided to opt for a substantially more expensive car than was needed, and that they were motivated by greed. She vehemently rejected this suggestion by the Defence, highlighting that the Claimant’s Mother felt uncomfortable owning a car she regarded as “above our station” because of her son’s disability. Her Ladyship found that the car was a reasonable purchase since it could be readily adapted to suit the Claimant’s needs, represented a good investment and was purchased in adherence to professional advice. This decision reflected evidence given at trial by the Deputy, who was cross-examined on the issue, that the retained value of the Land Rover meant that it was more economical to purchase that, than a similarly sized Ford or Volkswagen, which would experience greater depreciation over their lifetime.
Interest
The Defendant contended that the Claimant should have given credit for the interim payment from the interest payable on general damages, rather than special damages. An argument that might potentially have saved them thousands of pounds in interest. Cox J. concluded that the interim payment should be set off against interest on special damages. In reaching this decision she considered that it was significant that the Defendant had not sought an agreement to offset against interest on general damages at the time of negotiating the interim payment and she made commented that it would normally be assumed that the purpose for which an interim payment was sought would be to fund expenditure which thereafter becomes part of the special damages claim, applying Cobham v Eeles [2009] EWCA Civ 204.
Multipliers
It was agreed that the Claimant would have a reduced life-expectancy. The parties disagreed, though, as how this should be reflected within the multipliers. In particular, dispute arose as to whether Table 28 is the correct Ogden Table to use or whether Table 1 is more appropriate. It was held that Table 28 was the correct table, adopting the approach of Swift J in Whiten v St George’s Healthcare [2011] EWHC 2066 (QB) and Foskett J in Reaney v University Hospital of North Staffordshire NHS foundation Trust [2014] EWHC 3016 (QB) and reiterating their reasoning and their conclusions. It was therefore appropriate for the Claimant to apply a multiplier for a fixed term relating to the number of years life that he had remaining, rather than by undertaking the less favourable approach of adapting the Table 1 life-multipliers.
Pension
The Judgment considered the assessment of future loss of earnings and raised an important issue regarding pension loss in such cases. The Defendant made no allowance for loss of pension. It was held that the claimant was entitled to damages for loss of pension. He was entitled to his full loss of earnings, which included any additional financial contributions his employers would make towards a future pension. Her ladyship made reference to the fact that employers are obliged to make such contributions in compliance with the requirements of recent pension legislation. The Claimant therefore recovered an additional 3% on his lost-earnings, representing those contributions.
Care, OT and AT
As might be expected, the Claimant’s care, equipment and AT needs represented a major area dispute between the parties. In her assessment of each matter, Cox J. emphasised that a primary consideration was ensuring that the Claimant had a real quality of life and that therefore if the item claimed will enhance his quality of life he is entitled to such, provided the costs are reasonable. When considering whether the Claimant needed one or two carers she had particular regard to the evidence of the Claimant’s Educational Psychologist, that the Claimant’s day should be filled with activities to stimulate him, which necessarily required two people so that one could prepare an activity whilst another was occupying the Claimant with a different activity. The care provision reflected similar provision of 2:1 support at the Claimant’s school, and also took into account the risks arising spontaneously in certain environments because of the Claimant’s combination of severe learning difficulties and autism.
Likewise, the court favoured the more generous provision of equipment made by the Claimant’s OT and AT experts on the basis that these would provide the Claimant with a positive, therapeutic and educational environment in the future and thus afford his reasonable quality of life. She rejected the very basic provision by the Defendant’s OT expert as wholly inadequate.
Holidays
The Claimant claimed regular business class flights on the basis that he had relations in Jamaica and had enjoyed travelling there in the past. The Claimant argued that his behavioural difficulties and his incontinence made it difficult to manage him safely and with dignity in economy. Cox J considered that the claimant’s particular behavioural difficulties and symptoms of his severe condition, including his unpredictability regarding strangers in close proximity to him, all warranted the extra costs and supplementary space and facilities that travelling business class offers. The costs of business class travel for the claimant, one carer and one carer/parent were all permitted.
Accommodation
The Claimant’s natural parents lived separately. They therefore claimed the costs associated with the purchase and adaptation of two property the first being the principal home where he would reside with his mother, stepfather and younger siblings, and the second a property where he can stay with his natural father which would also accommodate his carers. The Defendants wholly disputed the claim for the second property, though did not advance any principled argument save that such an award would amount to a wholly unjustified extravagance and that the type of award required exceptional and compelling reasons that were absent from this case.
The Claimant’s position was that he had a right to family life and frequent contact with his natural father. In the context of this case, the Claimant’s natural father had devotedly cared for his son for the first seven years of his life, and had continued to share that care with the Claimant’s mother until September 2013.
Cox J. concluded the wishes of the natural father to resume contact with his son and restore the relationship to be entirely genuine. She accepted that the costs of purchasing and adapting a property should meet no resistance in principle. She further accepted the analogies drawn with a claim for adjustment to an existing family home or replacement holiday home. She observed force in the point that if parents who were divorced and living separately yet shared the care of a child had to then endure a severe and negligently inflicted injury to that child, necessitating adaptation to their respective properties or the purchase of properties for adaptation, it would appear to be implausible that that child would be denied a claim for those adaptations or purchases for either parent. Importantly, she concluded that the Claimant was entitled to the costs of the second property. The factors of consequence were the significant history of shared care, the natural father’s extensive involvement in his son’s life for many years, the fact the costs involved were relatively modest and above all the consideration that the restoration of the relationship was in the Claimant’s best interests.
Costs
Cox J awarded indemnity costs against the Defendant as a consequence of their failure to properly engage in negotiations with the Claimant before trial; their failure to accept a non-part 36 compliant offer made by the Claimant and which was subsequently bettered; and because of their decision to make specific attacks on the credibility of the Claimant’s parents during trial, attacks that were not supported by the evidence and that were roundly rejected by the court.
The case is subject to an application by the Defendant to the Court of Appeal for permission to appeal the award of damages and the decision to award indemnity costs.
The Claimant was represented at trial by Derek Sweeting QC and Richard Baker of 7BR
Richard Baker
7BR
London
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