The Latest from Cloisters
Clinical Negligence and Personal Injury Round-up: January 2015
By Daniel Dyal
With the festive period now a distant memory, it’s time to catch up on some important recent developments. In this blog we round-up recent case law, a few of the key cases members of chambers are involved in and the Ministry of Justice’s response to the court fees consultation.
Ms Border was admitted to A&E with a broken right arm. There was good clinical reason to insert a cannula for the purpose of intravenous access. The only viable site was her left arm. She warned the doctor, who was a Senior House Officer, that she had recently had a left mammectomy and axillary node clearance and that he must not insert the cannula into her left arm because there was a risk of oedema. There was indeed such a risk and it was a risk well known to A&E doctors. The doctor swiftly weighed up the risk of inserting the cannula and the risk of not doing so. He concluded that clinically the better course was to insert the cannula and he did so. The trial judge held that there was no breach of duty in so doing; while an experienced consultant might well have analysed the situation differently, and delayed the insertion of a cannula until there was an immediate need to administer IV fluids, the standard to be applied was that of a reasonable doctor of the level and in the position of the SHO. The practice which the SHO followed was accepted by a responsible body of medical opinion. The context was also important: this all happened in an emergency room with little time for reflection a need for swift decision making. Unfortunately Ms Border went on to suffer oedema in the left arm causing some permanent disability.
At trial, little emphasis was put on the issue of consent. However, the matter was raised, and the judge found that Ms Border did not consent to the insertion of the cannula. That finding, however, was not taken to its logical conclusion, namely, as the Court of Appeal held, that there had been a breach of duty. One issue is whether the doctor’s call to insert the cannula was in principle sound. It was. However, another is the fundamental principle of medicine and law: patient consent. If a patient is unable to give consent, then a doctor is entitled to proceed without consent, provided that he or she acts in the patient’s best interests (see St George's Healthcare NHS Trust v S  Fam 26 at 45B). However, if as in this case the patient is able to give or withhold consent, the doctor is not permitted to proceed without the patient’s consent even if acting in the patient’s best interests. The case was remitted to the trial judge to consider causation.
Does the fixed success fee regime in (pre- 1 April 2013) CPR Part 45 Section IV (employer’s liability claims) apply to claims brought by members of the armed forces in respect of injuries suffered at work? ‘No’ held Mr Justice Supperstone. Essentially, those provisions of the CPR applied to claimants who were employed under a contract of service. Since members of the armed forces are not employed under a contract of service the fixed uplift regime does not apply.
Is the age of the claimant relevant in the assessment of damages for PSLA? Yes, but in a complex way. HHJ Curran QC accepted that age, and in particular old age, is relevant in the assessment of damages. However, he rejected any notion that a discount should be applied as a matter of course or on any sort of tariff basis on account of the claimant being past the ‘prime of life’ at the time of injury. Instead what is required is a careful assessment of the impact of the injury on the individual claimant; an assessment in which the claimant’s age is but one of many factors. In some cases the claimant’s old age may even justify a greater award, if for instance, a younger person would have been able to develop a coping mechanism for an injury which the older person simply cannot.
The judge’s reasoning was largely informed by the commentary in respect of this matter in Personal Injury Schedules, 3rd Edition, by William Latimer-Sayer, Andrew Buchan, Mr Justice Langstaff and others.
Judgment was handed down on 22 January 2015 by the High Court following a trial in December 2014. Cloisters barristers, William Latimer-Sayer and Catriona Stirling represented the successful claimant, a seven year old girl from south London, who suffered serious injuries during her birth at King’s College Hospital in 2007.
The award capitalises to over £10.1 million and is believed to be the highest ever court award made to an English national in a personal injury or clinical negligence case following a contested trial.
Inquest touching the death of AVJ
Linda Jacobs represented the family of AVJ in a 3-day inquest at the Swansea Coroners’ Court. The inquest focussed on the clinical care provided by two GPs, and concluded that AVJ, who had Addison’s disease, died as a result of neglect. A potential conclusion of death by natural causes was rejected by the Coroner.
James Robshaw v United Lincolnshire Hospitals NHS Trust
William Latimer-Sayer appears for the Claimant (led by Susan Rodway QC) in this clinical negligence trial. James suffered catastrophic injuries as a result of obstetric negligence. Liability is admitted. Quantum is currently being tried in the High Court before Foskett J. Mr Robshaw claims compensation of approximately £18,000,000. If the claim succeeds it will be the highest ever court award in a personal injury case.
The Ministry of Justice has published its response to the consultation on the reform of court fees. It has decided upon a colossal increase in the cost of court fees which in some cases will amount to an increase of over 600%.
Claims valued at over £10,000 will in future attract a court fee of 5% of the valuation of the claim. The will be a cap of £10,000 for the court fee. Thus a claim valued at £200,000 would attract a court fee of £10,000.
Court fees at that level are plainly going to be an enormous barrier to access to justice. They will lead to more litigants being unrepresented and they will deter a large number of people from bringing claims. The MoJ’s proposals have been widely condemned by the important stakeholders of the courts system including the senior judiciary.