Serious injuries to the bladder can have life-changing consequences. Claims for compensation may arise following an accident or through medical negligence. I have had experience of representing clients in both areas.

Medical negligence

My client suffered an unintended injury to his bladder during surgery as a result of a failure to mobilise his bladder away from the area being treated. The surgeon not only cuts my client’s bladder causing a through and through injury, but the bladder was then stapled to his abdominal wall creating a fistula which had to be treated at a later date.

As a consequence of this trauma, my client now suffers from urological symptoms including increased urinary frequency (in the daytime and night) and reduced bladder sensation resulting in poorer bladder control and the need to strain void. His condition is stable and unfortunately permanent without treatment.

My client will require lifelong urological treatment by way of medication and regular consultations with a urologist. It is hoped the medication recommended will result in resolution of symptoms. If not, he may have to consider Botox injections to achieve a positive outcome.

Accident

Another one of my clients suffered a serious “open book” pelvic fracture following a motorcycling accident. Initially, his genitourinary system was said to be unaffected, though my client now reports poor flow, incomplete emptying of his bladder and erectile dysfunction.

Sexual and urinary dysfunction can be a consequence of damage to the nerves and blood supply following a pelvic fracture. Where there has been a recovery but some ongoing interference with natural function, the court guidelines leave it open to a judge to make a more substantial award than would otherwise apply.

My client is currently undergoing treatment and ultrasound investigation before attending upon a consultant urologist who will report on the longer term prognosis for consideration as part of his claim.

If you have suffered an injury to your bladder following surgery or your urinary function has been affected following an accident, and you wish to claim compensation, it is important that you instruct a specialist solicitor for advice on the matter. Anthony Gold has specialist solicitors in this and all areas of injury and medical claims who may be able to help.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The recent case of Gladwin v Bogescu highlights the growing trend of the court to refuse to grant relief from sanctions where the legal representative has caused the default in question.

Unsurprisingly the court chose to reaffirm its position that it will not tolerate  a failure to comply with directions, rules and orders issued by the court.

Since the Jackson reforms a more proactive and robust approach to case and cost management has been adopted with a less lenient attitude to unfounded delays and breaches to civil litigation.

The case of Reese is a clear example of this less lenient attitude. This was a relatively simple road traffic accident case which involved a driver colliding with and injuring a motorcyclist. However, the issue at hand was not over liability or the amount of damages but rather an unfortunate mistake by the claimant’s legal representative by not serving witness statements in accordance with an order issued by the court.

The claimant’s solicitor had asked for an extension of time to serve the witness statements, which was agreed and then subsequently missed. This was due to the case being transferred to another solicitor within the firm and a failure to pass on the relevant information regarding the extension of time granted. This unfortunately resulted in a severely delayed application for relief from sanctions and permission for the claimant to give oral evidence.

The court at first instance, relying on the leading judgement of Denton v TH White and the application of CPR 3.9 came to the conclusion that the breach was significant and that there was no good reason for the delay. However, the judge took the view that if the claimant’s application for relief from sanctions was refused, then it would unjustly penalise the defendant as they would not be able to exercise the right to cross examine the claimant. The claimant’s application for relief from sanctions was therefore allowed and the trial adjourned.

On appeal it was held that the judge at first instance had erred in his assumption that he could not act more robustly to stop the claimant from relying on his witness statement and had further fallen into error by failing to have proper regard to his powers to strike out the claim altogether in response to the claimant’s breaches. It was further determined that the judge had too readily followed the path of adjournment and should not have adjourned the case even if it would have been fatal to the viability of the claim as a whole to do so.

Consequently, the appeal judge decided that the learned judge should not have indulged the claimant by adjourning the trial and granting relief from sanctions, but instead should have struck out the claim entirely.

As claimant-focused legal representatives, this case is incredibly pertinent to us as it is a clear reminder of the need to take heed of court directions and orders and furthermore to diarise efficiently where time limits need to be met.

We are in an age where the court is becoming more and more intolerant of a lax approach and are more than prepared to fully strike out claims where breaches are serious and unfounded. This is even more important when taking into account the reliance and trust our clients place in us to handle their cases.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

I was recently sent the updated leaflet from the NHS Resolution (the legal section of the NHS) entitled “Saying Sorry”. This is the leaflet provided to staff to advise them of the need to apologise when things have gone wrong in terms of patient care or safety.

It reminds staff that it is just not a moral and right thing to do but also a statutory, regulatory and professional requirement. The leaflet is clear that the apology should be made as soon as possible after the clinician becomes aware that something has gone wrong.

Further it confirms that under the Compensation Act 2006 an apology, an offer of treatment or other redress shall not of itself amount to an admission of negligence or breach of statutory duty. In other words there are no legal consequences which may make the apology difficult.  An apology can  and should be  arranged as soon as possible.

Indeed the leaflet confirms that delayed or poor communication makes it more likely that the patient will seek information in a different way such as complaining or taking legal action.

This is a straight forward leaflet which accurately represents the legal position and the position taken by most senior managers at the NHS for some years. Sadly what it does not appear to do is always reflect the practice that we, as patients’ lawyers, see on a day to day basis.

It should be remembered that patients’ lawyers see those who are extremely dissatisfied, often quite a while after the event has occurred. Many patients still pursue the complaints procedure with the assistance of the local advice centres and agencies. This is a lengthy process and by the time they come down to the lawyers it is often 12 or 18 months since an event occurred. The vast majority of my clients who present even shortly before expiry of the three year time limit have not received any apology despite pursuing the complaints procedure. Often even when I notify the trust of the request for medical records and provide brief details of the case, they still do not take it upon themselves to apologise despite the obvious discontent.

A classic example would be a case of mine where the client has a complex and disabling condition. It means that he has particular periods where his pain can be significant. Pain relief is therefore of enormous importance to him. In 2015 he underwent a procedure due to his condition and was not afforded appropriate pain relief. Further, there was a mix up with the injection that was given to him and in the way that it was given.
He left the hospital as a result of these difficulties and refused to return. He is now treated at an alternative hospital where he says he receives appropriate, proactive and good care. The consultants were aware of this. The hospital was aware of this.  Despite many months of corresponding, he received an apology only a couple of weeks ago. Understandably  he says this is meaningless.

Despite the good intentions of the leaflet, despite the good intentions of NHS Resolution there are and there remain significant pockets of NHS involvement where protocol and practice do not meet.

Recent investigations and comments by the Chief Inspector of the CQC (the Care Quality Commission) indicate that issues of safety and patient-centred care still remain a problem in some trusts.

Health professionals have had a duty of candour (that is a duty to provide a full and honest explanation) for many years. Patients are still not getting this and clients are still arriving at our doors having pursued a complaints process without an appropriate acknowledgement of the pain and suffering they have been through.

It is a fact (as has been said by patients’ lawyers for decades) that some of the people who present at our offices do so because they have not received an appropriate apology and response from the NHS. Or simply they have become tired of the difficulties that they have faced and the lack of proper response. It has to be welcomed that NHS Resolution is trying to address this issue but it should be made clear that a good proportion of my clients still arrive without a proper explanation or an apology. The proportion may be slightly lower anecdotally but not so significantly so that it would make a difference.

The complaints process itself needs to be reworked to be faster, more effective and more responsive, but if the apology is appropriate then regardless of any investigation into a complaint, somebody should take the time to sit down properly with these patients as soon as possible and go through the issues. The longer this is delayed, the more the problem festers and the more likely it is that the patient will present at a lawyer’s office.  While the NHS raises the issues of costs of litigation it should note that it could reduce this by effective and proper care post-incident.

Most patients’ lawyers are highly supportive of the NHS and all of us have family members or people we know who have benefited significantly from the work done by the NHS. Many patients’ lawyers are former NHS employees, myself included. Patients’ lawyers are not opposed to the NHS. They do however want their clients to be provided with a proper explanation and a proper apology where appropriate and where there have been significant failings in care. These are fine words from the NHS but a lot more would need to be done in order for them to be implemented on a consistent basis.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

I relatively recently settled a clinical negligence case that raised an interesting issue relating to the standard of care to be applied to an A&E SHO and, coincidentally, a not dissimilar issue was before the Court of Appeal in March this year, with judgment being given in May.

In the court of appeal case of FB[1], the claimant was appealing against the decision of Mr Justice Jay who had concluded that the history taken and examination performed by an A&E SHO had not been negligent. In short, whilst at home early in the morning, FB, aged just over 1 year old, became unwell with a high temperature, erratic behaviour and eye rolling. FB’s parents called the ambulance service who took her to A&E where she was seen by an SHO. The SHO diagnosed an upper respiratory tract infection (URTI) and discharged FB home. Sadly, FB deteriorated and was re-admitted 12 hours later with pneumococcal meningitis and multiple brain infarcts causing permanent brain damage.

With respect to the examination, FB’s parents’ evidence was that she was lethargic and, although confirmed by the ambulance records, the SHO refuted this. The judge found that the experts concluded that with such a high level of bacteraemia FB would likely have shown “abnormal state variation” (ASV) when the SHO examined her and would have appeared more unwell than if she had just had an URTI. Nevertheless, the judge also found that the clinical signs of ASV which FB had were subtle and would need an experienced eye to detect them, concluding that it would not be unacceptable for an SHO to fail to do so. Regarding the history, the SHO had failed to record that FB had had eye rolling, which is what the judge found was the factor that precipitated the A&E attendance. FB’s parents would have provided the information about eye rolling if they had been asked. The judge found that an A&E consultant or a paediatrician would have embarked upon a line of enquiry that would likely have elicited the eye rolling history, but again concluded the SHO was not negligent for failing to do so.

The appeal concerned the standard of competence of a District General Hospital A&E SHO taking a history and performing an examination. The leading judgment was given by Lady Justice Thirlwall. Unlike the examination point, on which the expert evidence was that the ability to pick up subtle signs came with experience which would only be apparent to a consultant, with respect to the history the expert evidence supported that an A&E SHO should have asked FB’s parents what had prompted the A&E attendance and it was not good enough to expect parents to volunteer information such as eye rolling: it was for an A&E SHO to elicit the reason a child is being brought to A&E. Accordingly, the Court of Appeal considered that this failure was a breach of duty and the trial judge had erred as there was no evidence that there was a lower standard of care for an SHO than for a consultant with respect to history taking in A&E.

Lord Justice Jackson added some interesting comments. He noted that the general rule is that the court disregards the experience and personal attributes of the defendant in determining whether they have been negligent. He noted the case of Wilsher[2], in which it was considered by the Court of Appeal that a hospital doctor was to be judged by the standard of skill appropriate to the post they were fulfilling at the material time and their particular experience and length of service were to be left out of account; further, a health authority was liable if the doctor it put in a particular position did not possess the requisite skills. In the FB case, the A&E SHO was to be judged against the standard of a reasonably competent A&E SHO: that she was “relatively inexperienced” did not diminish the required standard; nor did the fact that she had some paediatric experience elevate it.

My case was very different factually but raised a similar issue.

Briefly, the case concerned a very unpleasant finger injury caused by a fall down some stairs, with my client attending A&E and being reviewed by an A&E SHO. The SHO took a history, examined the swollen finger, arranged for an x-ray, which was normal, diagnosed a “soft tissue injury” and discharged my client to the care of the GP. There was a factual dispute as to what exactly was said to my client about follow-up but, nevertheless, he did not attend for follow-up until a severe contracture had formed resulting in permanent deformity even after significant subsequent attempted reparative surgery (although there was an issue with the performance of some of that surgery). The claim against the hospital revolved around the management by the A&E SHO and, essentially, that an incorrect working diagnosis of “soft tissue injury” had been made and proper conservative treatment for what in fact was a serious finger “pulley” injury had negligently not been implemented; and, had it been, there would have been a very good recovery with no long term complications (e.g. a “swan-neck” deformity).

At the point of exchange of factual witness statements, it became clear from the A&E SHO’s CV that he was, in fact, a very experienced orthopaedic surgeon who was working full-time as a “Specialty Grade Orthopaedic Surgeon” at the defendant hospital trust but who was working as a locum A&E SHO when he treated my client.

This raised the question as to what was the standard against which this doctor should be judged?

In their expert discussions, the A&E experts agreed that: it would be expected that a reasonable doctor would use their knowledge and experience in the management of their patients; an A&E SHO would not be expected to consider a finger pulley injury in this particular case; it would have been reasonable for an A&E SHO to have relied upon advice from the orthopaedic Specialty Grade Surgeon if the latter had been available in A&E to give that advice; accordingly, the standard of care of the orthopaedic Specialty Grade Surgeon acting as a locum A&E SHO was to be judged by that of an orthopaedic Specialty Grade Surgeon and not an A&E SHO, and they would defer to the orthopaedic experts on the point.

The orthopaedic experts agreed that: it was mandatory for a doctor to use his knowledge and experience in the management of his patient even if in an A&E rather than an orthopaedic setting; the orthopaedic surgeon’s own knowledge and experience should make a difference to the standard of care against which he was to be measured; and, accordingly, the treating doctor should have conducted a more thorough examination of the hand than an A&E SHO would be expected to have done, should have had a greater appreciation of the potential seriousness of the finger injury and should have arranged appropriate specialist hand clinic follow-up.

These agreed views were highly relevant, as in essence they meant that the experts agreed that an A&E SHO would not be expected to have considered the diagnosis of a finger pulley injury but an orthopaedic Specialty Grade “acting down” as an A&E SHO would have been expected to do so, with the appropriate follow-up then being arranged.

The issue was not tested in court because the case settled for just shy of a six-figure sum a couple of weeks before trial. Nevertheless, the view taken by the experts in my case should perhaps be compared and contrasted to the comments made by Jackson LJ in the FB case, in particular his comment (at paragraph 63 of the judgment[3]) that: “… the fact that [the A&E SHO] had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard”. Jackson LJ’s view does rather seem to contrast with the views of both sides’ A&E and orthopaedic experts in my case.

I must confess that, despite FB, I am with the experts in my case on the point: I still consider there would have been an inherent illogicality if such an experienced orthopaedic doctor (who had been practising for nearly 25 years since obtaining his FRCS and, in reality, was not far from consultant grade) was to be judged against a lower A&E SHO standard when considering a patient presenting with an injury squarely within the realm of his significant specialist orthopaedic knowledge and experience, in effect enabling him to ignore that knowledge and experience just because he was “acting down” in a more junior, and slightly different, role.

If the doctor in FB had been a consultant paediatrician acting down as a locum A&E SHO, would the allegation about the subtle findings being detected on examination still have been decided in favour of the defendant; or is it a matter of degree?

[1] FB (suing by her Mother and Litigation Friend, WAC) v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334 http://www.bailii.org/ew/cases/EWCA/Civ/2017/334.html

[2] Wilsher v Essex AHA [1987] 1 QB 730

[3] http://www.bailii.org/ew/cases/EWCA/Civ/2017/334.html

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

In the recent case of Stanton v Hunter (2017) CC (Liverpool) (Recorder SA Hatfield QC) 31/03/2017  AC0154723CC(Liverpool), the Court was asked by the defendant to apply section 57 of the Criminal Justice and Courts Act 2015 to dismiss the claimant’s claim on the basis of fundamental dishonesty.   The consequences of such a finding are very serious for the claimant, as is demonstrated in this case.

The facts are as follows.  Mr Peter Stanton sustained multiple injuries on 27 June 2012 when he fell through the roof of an outhouse building whilst carrying out some work on the defendant’s farm in Lancashire.  Mr Stanton was taken to hospital by air ambulance where he was found to have sustained multiple lefts sided rib fractures; a fracture of the thoracic spine at T2; a comminuted and displaced fracture of the left wrist; subluxation of the left shoulder and damage to the spleen.  He underwent surgical reduction and fixation of the left wrist and was then found to have a traumatic haemo-pneumothorax.  He was treated with two chest drains but developed pneumonia which necessitated a short stay in intensive care.  He was discharged home after a month in the hospital and subsequently underwent shoulder reconstruction surgery in July 2013.  At the time of the trial, he maintained that he was still suffering from ongoing symptoms including psychological symptoms.

The defendant admitted primary liability for the accident but alleged contributory negligence.  More interestingly, the defendant also applied under section 57 of the Criminal Justice and Courts Act 2015 for the whole of the claimant’s claim to be dismissed on the basis of fundamental dishonesty.

How does section 57 operate in personal injury proceedings?

Section 57 of the Act came into force in April 2015 and states:

57           Personal injury claims: cases of fundamental dishonesty

1.  This section applies where in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—
   (a) the court finds that the claimant is entitled to damages in respect of the claim, bu
   (b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
2. The court must dismiss the primary claim unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
3.  The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
4. The court’s order dismissing the claim must record a number of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.
5. When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.

Mr Stanton was a taxi driver at the time of the accident and initially put forward a loss of earnings claim on the basis that he had not been able to return to work after the accident.  He also told both his own medical experts and the defendant’s medical experts that he had been unable to return to work.  The insurers obtained surveillance evidence which showed that he had been working at least to some degree.  Other records then obtained from his taxi company showed that he had worked on at least 133 occasions from 3 months after the accident over a 3 year period.

Before the trial, Mr Stanton served a final Schedule which conceded that he was doing some work and giving credit for earnings which he had received.

It is relevant that Mr Stanton had been represented by solicitors and Counsel but they had come off the record quite sometime before and he had then been assisted by his daughter for almost a year as his McKenzie friend.  He was represented by new solicitors and Counsel at trial.

On questioning about the loss of earnings claim, Mr Stanton – who was noted to be in distress during the trial – said both that he had thought returning to work meant making a profit and also that he had not had sufficient time to look at the Schedule and his previous solicitors were the ones who had put forward the claim.  He said that because he wasn’t making a profit, he didn’t think this meant that he had returned to work.  Mr Stanton also said that he had problems with literacy and with documents and that his ongoing psychological symptoms had contributed to what he had told the experts about his work position.

The defendant’s Counsel then applied for disclosure of papers held by either Mr Stanton or his current solicitors in respect of how the loss of earnings claim had been put together and what advice he had received.  The judge duly ordered disclosure and the documents disclosed showed that he had been warned by both his previous solicitor and previous Counsel about putting forward a false claim for loss of earnings and in fact, judgment had been entered against him in the sum of £53,000 in respect of his previous solicitors’ fees, their retainer having been terminated because of his conduct.

On the basis of all of the above, the judge did not accept that Mr Stanton did not understand the meaning of returning to work.  She found that Mr Stanton had put forward repeated untruths about his loss of earnings.  Even with his problems with literacy and documentation, the judge found that Mr Stanton knew that was providing false instructions and only admitted the position when the taxi company records were disclosed.  The judge said that the repeated untruths had to amount to fundamental dishonesty and she, therefore, dismissed the claim in its entirety.  She concluded that there was nothing to support Mr Stanton suffering ‘substantial injustice’ (section 57(2)) as a result, beyond that which was of his own making.

Section 57 also required the judge to consider how much the claimant would have been awarded but for the fundamental dishonesty.  She, therefore, had to consider the allegation of contributory negligence but found that there was no evidence of this.  She then assessed damages which would have been awarded at £51,625 which included £8,517.41 for loss of earnings.

It was not disputed that Mr Stanton suffered a serious and genuine injury as a result of the defendant’s negligence but he will now be completely uncompensated as a result of not telling the truth about his return to work.  Whilst his dishonesty cannot be condoned and claimants must, of course, be honest in the claims that they put forward, it seems very harsh that false statements about one part of a claim can result in a claimant not being compensated at all for serious injuries suffered because of the negligence of others.

Insurers and their solicitors are clearly aware of the power of section 57 and this case, therefore, serves as a timely reminder that injury claims lawyers must be careful to advise their clients of the very real risk of a finding of fundamental dishonesty in such circumstances and that any claim put forward, particularly in respect of financial loss, must have a proper basis.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Unfortunately, food poisoning is a fairly common occurrence. In most cases, the food is contaminated by bacteria, such as Escherichia coli (E. coli), salmonella or a virus, such as the norovirus. Symptoms typically begin within one or two days although they can start within a matter of hours after eating contaminated food or as late as a week afterwards. The range of severity of symptoms is wide, with some serious cases having permanent effects while more minor cases can include symptoms of nausea, abdominal pain, vomiting, diarrhoea, loss of appetite, fever, aching muscles and weakness.

Food can become contaminated at any stage during production, processing or cooking. Foods that are particularly susceptible to contamination if not handled, cooked or stored properly include; ready-to-eat foods (such as pate, soft cheeses and pre-packed sandwiches), raw meat, raw poultry or raw shellfish.

If a person has suffered from food poisoning whilst eating out, for example in restaurants, cafes, hotels or whilst on holiday abroad or on a cruise ship, they may be entitled to bring a claim for compensation against the insurers of the food retailer or tour operator.

In such cases the food retailer and supplier are strictly required to provide products which are free from the bacteria which may cause food poisoning. This means that if you are able to establish the source of the infection, then you do not have to prove there was any negligence involved.  It is only necessary to prove that the food was not safe; that you have been made ill and that the cause of the symptoms you are suffering was the infected food.

I am currently representing a large group  (including the groom) that suffered food poisoning after eating contaminated food at a wedding.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

As a clinical negligence lawyer, I always advise clients about the importance of medical records.  The records rarely agree with the accounts provided by clients. This is not a criticism of those who are compiling the records or the clients. Inevitably they are coming from different perspectives.

Medical records are in fact supposedly hearsay evidence. That is –  just evidence of what was written about the events, rather than direct evidence of the events themselves. There is no doubt however that the courts tend to place great weight on such evidence.  This is firstly because records are usually contemporaneous and therefore whether we like it or not there is a certain assistance that can be provided by that. Secondly, they are generally prepared not with the idea of litigation in mind. Thirdly the evidence in medical records comes from a variety of sources and individuals, so together perhaps has more weight.

Nevertheless, regardless of whether it is deemed to be hearsay or not, your average judge places a huge amount of weight on the medical records as they are and medical records which are not complete or do not provide the same picture of the claimant can often essentially torpedo a case.

The increasing reliance on medical records is somewhat of a concern. When medical records were written by hand or in detail, then they perhaps some validity. However increasingly medical records are pro forma tick box protocols which do not encourage staff to think around issues and problems. Checklists are excellent reminders of what needs to be done but can also encourage staff not to think about what is happening.

In a recent case I dealt with, the proforma nursing records indicated all was well.  Indeed you would have thought it was a hotel.  Which came as a surprise to the client who (along with family and friends)  experienced serious infections,  delayed medication, poor nursing care and a dirty ward.  The trust records which were sent to their experts presented just one picture,  which was a rosy little number where the only problems appeared to be a recognised complication of the surgery.

That is the problem with medical records. They present only one view and the more they become standardised boxes, the less information they actually provide.

The denial from the trust was strong and based on evidence of the medical records.

It was only when the witness evidence was sent through that the hospital’s experts had a chance to see the reality of the understaffed and badly managed ward. The denial of the liability began to change at that stage but that was some six months after it had become necessary for me to issue court proceedings.

Had my client perhaps been not supported by family and friends, or if she had been someone who preferred to deal with their illness in privacy, then the sheer weight of witness evidence would not have been available and would not have had the effect of presenting a completely different picture to that of the records. It was that important additional evidence which was fortunately available to my client that helped to bring the case to a successful conclusion.

Increasingly it seems courts turn to non-witness based evidence.  Judges like what they think is a certainty.  Medical records are however not a certainty because many of them rely on accurate completion by individual medical and nursing staff.  These are records which can be challenged, but where there is a significant difference between the patient’s experience and the contents of the records, then other evidence is required.  No one goes into hospital expecting negligence but increasingly with the courts reliant on the medical records, the more other evidence that can be made available the better.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Court of Appeal’s decision in the recent case of Cameron –v- Hussain & Liverpool Victoria [2017] EWCA CIV 366 is a welcome triumph for claimants and their solicitors.

The case centred on three main issues: –

1. whether it was possible for judgment for damages to be made against an unidentified driver described only as “ an unnamed defendant” in a hit and run accident where the vehicle was insured and an effective insurance policy was in place.
2. whether an insurer under section 151 of the Road Traffic Act 1988 was liable to meet any unsatisfied judgment against an “unnamed defendant”
3. whether the judges had been right to refuse to allow the claimant permission to amend her claim form and particulars of claim so as to substitute for the named first defendant, a defendant identified only by the following description:

“The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26 May 2013.”

The claim arose when Bianca Cameron on 26 May 2013, was involved in a collision with another motorist, driving a Nissan Micra in Leeds. The driver did not stop, but the vehicle registration was obtained by a third party. Miss Cameron suffered modest personal injuries and the value of her case including property damage and hire charges was estimated to be between £10,000 – £15,000.

Miss Cameron issued proceedings against the registered owner of the Nissan Micra, Mr Hussain, believing him to have been the driver involved in the collision and later amended proceedings to include Liverpool Victoria to meet any unsatisfied judgment against Mr Hussain pursuant to section 151 of the Road Traffic Act 1988. As matters progressed, the insurers denied liability on the grounds Mr Hussain was not covered to drive the Nissan under the policy and that Miss Cameron was unable to provide the identity of the driver.

Miss Cameron sought permission to amend her claim form and particulars of claim so as to substitute for Mr Hussain, an unnamed defendant only identified as described above.  She was refused permission to amend her claim form and she, therefore, brought her case to the Court of Appeal.

The appellant, Miss Cameron relied upon 3 grounds of appeal: –

1. English civil procedure permitted proceedings to be issued and orders(including judgments) to be made against unnamed parties where it was necessary and efficacious to obtain justice.
2. It was both necessary and efficacious to allow her to proceed against an unnamed defendant in the particular circumstances of this case.
3. Permitting her appellant to proceed was consistent with the policy of section 151 of the 1988 Act.

In response, the insurers argued that it was only in exceptional circumstances that proceedings could be issued against unnamed parties, such where an injunction was sought and no other remedy was available. The insurers submitted that the MIB Untraced Driver’s Agreement (UTDA) was a perfectly adequate alternative remedy available to Miss Cameron.  It was submitted that Section 151 and the UTDA were a unified scheme to provide compensation to victims of road traffic accidents and had to be looked at in conjunction.

The insurers argued that it would be an injustice to them if Miss Cameron succeeded and they also presented a “floodgates” argument that if she was correct that a claim could be brought against an unnamed defendant, whenever it was just to do so, the implications would exceed far beyond section 151, and could be applied whenever there was an insurer behind an unknown wrongdoer.

The Court of Appeal identified there were some assumed facts relevant to the case.  These included that there was no dispute that if Miss Cameron obtained a judgment for damages against the unnamed defendant, such a judgment would relate to a liability that would have been covered by the terms of the policy.  It was also agreed that the insurers would have been entitled under Section 152 (a) to have avoided the policy on the grounds of fraudulent misrepresentation as to the existence of the purported insured, but they had not done so within the relevant time limit and were therefore bound by the terms of the policy. It was also assumed that the registered keeper, Mr Hussain, had not been the driver of the vehicle at the time of the collision.

In considering whether a judgment for damages could be obtained against an unidentified party, the authority of Bloomsbury Publishing Group –v- News Group Newspapers [2003] 1 WLR 1633 was considered compelling and it was adopted.  The judge, in that case, determined that there was no reason in principle why, in appropriate cases, it should not be permissible under the Civil Procedure Rules for a claimant to bring proceedings against an unnamed defendant, suitably identified by an appropriate description. Likewise, there was no reason in principle, or as a matter of interpretation of the rules, why the ability to do so should be limited to a claim for an injunctions or similar. There were also Canadian authorities which demonstrated it was well-established in that jurisdiction that damages claims may be issued against unnamed defendants.

To determine whether the court should exercise its discretion to permit a claimant to amend their case in order to substitute an unnamed defendant, the court considered the overriding objective and whether it would be furthered by such a course.

It was recognised that insurers under section 151 routinely have to satisfy judgments against wrongdoers who, although their identities are known, can no longer be traced.  In the present case, the Court of Appeal held that there was no distinction between the former and bringing a claim and obtaining judgment for damages against an unnamed defendant and as such under section 151 the insurer would be under a duty to satisfy the judgment. It was also significant that the unknown driver had unlawfully sought to place himself beyond the reach of legal proceedings. Furthermore, in this case, the justification for permitting such a claim for damages against an unknown person would be efficacious because the insurers would be liable to satisfy the claim by virtue of section 151. In these circumstances, Miss Cameron should be permitted to bring the claim.

The Court held that it was entirely consistent with the policy of the 1988 Act that an identified insurer’s liability under section 151 in relation to a policy of insurance written in respect of a specific vehicle and a specific named insured, should not depend on whether, at the date of issue of court proceedings, or thereafter, the claimant can identify the driver by name.

The Court of Appeal reached the decision that this was a case where a court can and should, in accordance with principle, exercise its procedural powers to permit an amendment to the claim form and particulars to allow Miss Cameron to substitute an unnamed defendant driver and the relevant description, and consequently to enable a judgment to be obtained against such a defendant, which an identified insurer is required to satisfy pursuant to section 151 of the 1988 Act.

The decision reached in this case affords claimants a more advantageous remedy in bringing proceedings against an unnamed defendant rather than previously being compelled to make a claim under the UTDA, which has numerous disadvantages including strict time limits for submitting a claim for property damage and reporting the accident to the police. In addition, this decision means claimants will not be prevented from seeking subrogated claims or be subject to recovering very limited legal costs if court proceedings can be pursued.

This case highlights for claimants they have substantive rights to a judgment for damages and an entitlement under section 151, which should not be interfered with without good reason. The court emphasised that the existence of an alternative remedy did not itself require a court to exercise its discretion against permitting a court claim to be pursued against the wrongdoer.

Whilst the Court of Appeal recognised that the principles established in this case may lead to an increase in claims made to insurers rather than the MIB, it should be duly noted that the scope of the case is specifically limited to the circumstances where the vehicle is insured and the insured and registered owner are identifiable. In addition, to proceed against an unnamed party can only be permitted where to do so would be efficacious and consistent with the overriding objective.

So, whether this is truly a small or big triumph for claimants or whether there will be many similar future cases like this one, or an appeal made by the insurers, no one yet knows as only time will tell.

It is hoped however that this will be a significant remedy for claimants whose particular cases fall into the specified circumstances, which will enable their solicitors to proceed with their cases with certainty with the knowledge that submitting a claim to the MIB is not their only recourse.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

There have been a few recent cases in which the lower courts have had to explore the extent to which a medical duty of care should be extended, be it the issue of who exactly owes a duty or to whom the duty is owed.

In April 2017 I wrote a piece about the Court of Appeal’s review of the decision in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, in which the Court of Appeal upheld the High Court judge’s finding that a hospital’s A&E receptionist did not owe a duty of care to a patient and the Court was, therefore, unwilling to extend the duty of care.

Prior to that, in May 2016 I had written about the case of (1) Connor Smith (2) Nicola Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB), in which the basic principle that a doctor or hospital does not owe a duty of care in negligence to a third party who is not their patient was considered and determined against the claimant. In that article, I referred to the High Court judgment in Darnley and also the High Court decision in ABC v St George’s Healthcare NHS Trust [2015] EWHC 1394 (QB), a case concerning the issue of whether a duty was owed by a hospital to a patient’s daughter to warn her of her father’s genetic disease: the court decided no duty was owed and struck the claim out. It is this latter case, ABC, upon which the Court of Appeal has now given judgment regarding the strike out, and it makes for interesting reading.

In ABC, the claimant’s father, who had the genetic condition Huntington’s disease, in which there is a 50% chance of passing it on to his children, refused to give the hospital permission to pass this information on to his daughter, the claimant, who subsequently brought a claim for psychiatric harm to herself and a potential claim for wrongful birth, when she had found out by chance she had the condition, as she would have terminated her pregnancy if she had known of the condition because of the 50% risk of passing it on to her child. The claim was struck out by Nicol J. as being a “novel” duty of care which was a “giant step” to be “contrasted with the proper development of the common law of negligence by incremental steps” (as per Lord Toulson in Michael v Chief Constable of the South Wales Police [2015] UKSC 2).

At that point, the cases of Smith and ABC made it pretty clear that no duty was owed to any family member who was not a patient of the doctor or Trust; accordingly, doctors and Trusts could provide unacceptable care resulting in harm to a wider family member but, because their patient did not suffer any harm, they would not be found liable in negligence. The appeal court’s finding in ABC has, however, potentially offered a degree of hope for claimants.

The judgment set out the claimant’s case:

“‘It is said that the defendants knew at all relevant times the claimant was a daughter of her father, knew of the 50 per cent risk to her, and knew that such a diagnosis would have “a direct effect on the health, welfare and life of the claimant”. The facts gave rise to a special relationship between the defendants and the claimant. Alternatively, there was an assumption of responsibility by the defendants to the claimant. In either case there arose a duty of care. The defendants had an obligation to care for the claimant’s “welfare and psychological and/or physical well-being”. There was a duty to “take reasonable steps to prevent the claimant from suffering injury” whilst undergoing the family therapy. The therapy had a “therapeutic objective” to address the facts of her mother’s death, “the role that her father played in it, and her future relationship with her father”.

As a consequence of the duty of care it is said, in summary, that the defendants should have provided the information as to the father’s diagnosis “in a timely manner when it was known, or ought to have been known, that the claimant was pregnant” and that following the provision of information, the claimant should have been given the opportunity for “urgent diagnosis and testing” of her own condition, with further advice, support and termination of the pregnancy, if desired.”

The reference to “family therapy” was a point specifically identified in the judgment: “Part of the claimant’s case turns on the fact that during 2009 she and one of her sisters took part in family therapy, organised and facilitated by the defendants. In the course of the hearing before this Court draft re-amended particulars of claim were submitted on behalf of the claimant. As part of that pleading, the claimant avers that her attendance at the clinic for family therapy was in the capacity of “a patient of the defendants” and thus there existed a direct relationship giving rise to a duty of care.”

The claimant further submitted that professional guidance (from the Royal College of Physicians, the Royal College of Pathologists and the British Society of Human Genetics entitled “Consent and Confidentiality in Genetic Practice, Guidance on Genetic Testing and Sharing Genetic Information” with the relevant edition being published in April 2006) made it clear that there were professional obligations towards those who, although not in existing doctor/patient relationships with a clinician, had a vital interest in genetic information which the clinician had obtained, and that this was a good foundation for an extension of the legal duty of care, notwithstanding this was disclosure of confidential information of the patient beyond the doctor-patient relationship.

It was accepted between the parties that the claimant would be able to establish at trial that injury to her was reasonably foreseeable from a failure to inform her that her father had Huntington’s disease and that there was sufficient proximity between the claimant and the defendants for a duty of care to arise. The argument to be determined by the appeal court was whether it was ‘fair, just and reasonable’ to impose on the defendants a duty of care towards the claimant on the facts alleged.

The defendants asserted nine grounds as reasons based on policy as to why the claim should not be remitted for trial, although the appeal court considered that some of them overlapped.  Irwin LJ., with whom the other two judges agreed, gave the judgment of the Court and commented on each of the defendants’ arguments:

(i) The public interest of preserving the doctor/patient relationship. The judge stated that he had reached no firm conclusion on this argument, but that the claimant’s case was arguable and should not have been struck out.

(ii) The law of confidence allowed a doctor to disclose confidential information in certain circumstances and the imposition of a duty might encourage doctors to breach confidence where it might not otherwise have been justified. This tied in with (iii).

(iii) Doctors would be subject to conflicting duties, liable to be sued by their patient if they disclose information which should have remained confidential, and liable to be sued by a third party, such as the claimant, if they fail to disclose information which they should have revealed. The judge considered that the claimant’s assertion that this was a proper balancing exercise for the clinician was a properly arguable position.

(iv) There was a risk of undermining the trust and confidence which is so important to the doctor/patient relationship. The judge again did not reach a decided conclusion but recognised the claimant’s position as being clearly arguable.

(v) Doctors might put pressure on patients to agree to disclosure to avoid the risk of being sued by third parties and practice “defensively”. Again, the point was arguable.

(vi)Some third parties may not wish to receive information, yet a doctor may not be able to explore whether this is the case without effectively imparting the information itself. This tied in with (vii).

(vii) It is possible that the third party may suffer psychiatric harm if he or she is told the information in question, which might place the doctor in a dilemma. The judge did not seem convinced that these two arguments did not already apply to clinicians and could not quite see how the proposed duty extension would worsen the position, subject to medical expert evidence.

(viii) It would be burdensome to place on doctors who receive considerable confidential information a duty to consider whether any of it needs to be disclosed to third parties. The judge was not convinced by this argument, certainly when applied to geneticists who had to deal with it already, but did recognise the concern about the “floodgates” argument, although it was not unarguable such as to warrant a strikeout of the claimant’s claim.

(ix) The extension of the duty proposed was contrary to the incremental way the law of negligence ought to progress. The judge reviewed both English and foreign authorities, commenting on two from the U.S, and firmly rejected the defendant’s assertion that the imposition of the duty claimed should be for Parliament and not the Courts.

The judge also raised question marks over the claimant’s alternative bases for her claim: first, that there was an assumption of a duty of care as a consequence of her participation in the family therapy organised and provided by the defendants, an argument which the judge said would not have persuaded him to remit the case for trial had this been the only argument; and, secondly, under Article 8 of the European Convention, although he was unconvinced that the Convention added anything to the common law position but stated that he would not preclude the claimant from arguing this case.

Accordingly, the Court considered that the claimant’s case was properly arguable and the appeal was allowed, the order striking out the claim was quashed and the case remitted for trial.

Whilst no substantive decision has yet been reached regarding the claim asserted by the claimant in ABC for the extension to the duty of care, the appeal court at least considered that the claim had sufficient bases for it to be properly arguable at trial. So, at least the claimant will have an opportunity to argue her case in full at trial. However, we will have to wait to see what conclusion is ultimately reached at trial and, of course, whatever decision is reached, whether the case then goes on appeal – again!

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

It is fairly common to amend claim forms and other statements of the case when the need arises. This is often the case where instructions are received late on in the day and the claim form is issued just before limitation, when all the information may not be available or in cases where details of other/correct defendants come to light at a later date. A party may need to be added or to be substituted with another.

The general rules governing such amendments are set out in part 17 of the Civil Procedure Rules.  Where a claim form requires amending before service, this can generally be done without the permission of the court. In cases where it becomes necessary to amend after service, this can be done with the written consent of all the parties involved or with the court’s permission. R.17.4 applies in circumstances where the amendments are sought after the end of the relevant limitation period.

The procedure for adding or substituting a party is set out in rule 4 of part 19. Special provisions exist in rule 5 and section 35 of the Limitation Act 1980 (“the Limitation Act”), for making such an addition or substitution after the end of the relevant limitation period.

Whilst these rules and provisions exist to enable mistakes to be corrected (e.g. changing the defendant’s name to the correct company), these do not allow an entirely new party or parties to be added after the expiry of limitation deadline

In the recent case of Godfrey Morgan Solicitors v Armes, the Court of Appeal held It was not permissible to join a party to a claim form after the expiry of limitation. This was a professional negligence claim that arose after the injury claim brought by the respondent (claimant), was inadvertently compromised by his solicitors during the settlement of an employment claim.  This was done by a partnership called Godfrey Morgan Solicitors (“the Firm”). However, protective proceedings were issued against a company, Godfrey Morgan Solicitors Ltd (“the Company”) just before limitation and were amended before service without the court’s permission, to include the Firm, an entirely separate entity (though the correct defendant) as the second defendant, “jointly or in the alternative” to meet the claim.

It later transpired there was no contractual agreement between the claimant and the Company and all work done on his behalf (including the mistake) was undertaken by the Firm.

Unsurprisingly, the Firm made an application for the amendment to be disallowed, but rather surprisingly, their application was dismissed as was their first appeal. They were given permission to bring a second appeal at which, the judge identified the question to be determined as “If one amends to add a claim against D2 in the alternative is one adding a defendant, or substituting one?”

By reference to section 35 of the Limitation Act and rule 19.5, the Court of Appeal held it was the addition of a new defendant and the amendment and claim against the Firm could not be allowed because it was tantamount to the bringing a new claim against a new party after limitation.

Therefore, unfortunately, for the claimant, he had been a victim of solicitors’ negligence for a second time, which happily is not a common occurrence. Whilst issuing at the 11^th hour is not uncommon for litigators, most often for reasons beyond their control, it can be disastrous when proceedings are issued against the wrong defendant.  This case serves a lesson to us all.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*