CLINICAL NEGLIGENCE: An Introduction to Northern (Bar)

Given the financial and human pressures on the NHS, which are daily reported in the media, it might be appropriate to ask some basic questions about the principles of clinical negligence litigation.

Two such questions can be seen in recent Judgments of Mr Justice Ritchie.

First, why should damages not be apportioned in what might be described as difficult causation cases?

Secondly, why do courts consider the claimant’s conduct, even criminality, in causing injury to be irrelevant in clinical negligence claims?

Apportioning Damages 

The first question was one of many which had to be considered by Mr Justice Ritchie in CNZ v Royal Bath Hospitals NHS Foundation Trust. Part of the claimant’s case involved delay in delivery whilst the claimant was suffering from damaging hypoxia. The judge accepted that had the claimant been delivered sooner, there would have been no neurological damage. However, he went on to consider what was described as the claimant’s secondary case: that even if there had been hypoxic damage during non-negligent delay, the claimant was still entitled to full compensation as negligent delay had materially contributed to the damage.

In the context of this secondary case, the judge had to consider an approach elaborated by Dr Lewis Rosenbloom, described as “an impressive and experienced expert”. Drawing upon his considerable experience of forensic issues, Dr Rosenbloom advanced what was described as an aliquot approach, apportioning damage by reference to specific periods of delay; “five-minute chunks”, as described by the judge.

Mr Justice Ritchie rejected the aliquot theory essentially as lacking scientific rigour; therefore it did not address an assessment of the claimant’s functional outcome with sufficient accuracy to assess damages. Had the secondary case been live at this stage, the judge would have awarded the claimant full damages on the basis of the defendant’s material contribution to the damage as any meaningful apportionment was scientifically impossible.

Whilst the judge was correct to consider that the defendant’s approach lacked scientific rigour, so did the claimant’s as it resulted in liability for damage not caused by breach. The essential justification for such an approach is that any uncertainty should rebound against the defendant wrongdoer rather than the innocent claimant.

The Fairchild Exception 

Characterising the issue in this way brings into focus the essence of the debate, which is one of legal policy rather than scientific analysis. The Fairchild exception to simple proof of causation in indivisible injuries has the same justification. In Barker v Courus the House of Lords considered that, as Fairchild had created an exception to usual principles of causation, it would be appropriate to have an exception to the usual approach to apportionment. On this basis, damages were apportioned in accordance with the defendant’s contribution to the risk of the condition developing and not by reference to its functional outcome. Whilst the specific effect of Barker in mesothelioma claims was reversed by Section 4 of the Compensation Act 2006, the decision still represents good law. In Heneghan v Manchester Dry Docks Limited, the Court of Appeal approved similar apportionment in a claim for lung cancer.

The reasonable objection to such an approach is that it leaves the claimant short changed providing for all care, accommodation and other losses arising from the injury. However, such situations are common in practice, in particular by reference to agreed apportionments in what might be described as difficult cases. Awards on this basis can materially improve a claimant’s quality of life without necessarily providing for each aspect of the claim as set out in a Schedule. Further, the causation problem in the claimant’s secondary case in CNZ is regularly encountered. Making the NHS liable for all the consequences of injury in these circumstances will have a global effect of substantially exaggerating the NHS’s liability to its patients.

Claimant Conduct in Clinical Negligence Claims 

The second question of the consequences of the claimant’s own fault or criminality arose in the decision of Mr Justice Richie on appeal in Cojani v Essex Partnership University NHS Trust. The appeal was from a judgment of a recorder dismissing a claim because of fundamental dishonesty under Section 57 of the Criminal Justice and Courts Act 2015. This provision allows a judge to dismiss a claim for damages even though the entitlement is otherwise established. The fundamental dishonesty related to how the claimant was injured, which was attempting to murder his wife. The recorder accepted that the claimant had suffered further injury as a result of the trust’s breach of duty but also found the claimant had lied about how he had come about the injury.

On appeal, Mr Justice Richie allowed the appeal, holding that the dishonesty as to how the injury arose was “irrelevant” in a claim for clinical negligence. Similarly, the defendant’s cross-appeal that the claim should have been dismissed on public policy grounds failed.

The concept that causation of initial injury is irrelevant in clinical negligence claims is entirely conventional, even a mantra. Historically, the cause of action was viewed as a claim resulting from an injury which had already occurred. Clinical negligence broke the chain of causation from an injury caused by a third party as novus actus interveniens. However, in relation to third parties, this approach was changed by the landmark decision of Webb v Barclays Bank in 2001. The Court of Appeal held that, unless gross, clinical negligence would not break the chain of causation. The original wrongdoing of a third party still held causative potency after the occurrence of clinical negligence. Therefore, Barclays Bank, liable for an essentially trivial accident, had to pay 25% of the consequences of a subsequent leg amputation, performed in breach of duty.

Since Webb v Barclays Bank, there appears to be no reported case where a clinician has been held to be so grossly negligent as to break the chain of causation. Further, in considering apportionment, the judiciary have regarded causing an accident as being more blameworthy than mistakes made by clinicians. In the case of ZZZ v Yeovil District Hospitals NHS Foundation Trust, Mr Justice Garnham, whilst rejecting a claim for contribution on the facts, observed that the blameworthiness of a motorist driving into the path of oncoming traffic on a busy road “greatly exceeds” that of “busy nursing staff”. The question reasonably arises as to whether a radically different result is appropriate if the negligent driver is the claimant himself. Even more so if the claimant has presented for medical treatment as a result of criminal activity. Whilst the submission based on public policy in Cojani would be considered to be extreme, the circumstances of the claim would, at face value, come within the statutory provision under the Common Law (Contributory Negligence) Act 1945.

A subsidiary issue is whether findings of contributory negligence should depend on concurrent fault by a patient; for example, where a claimant has failed to attend appointments or follow advice. Such allegations are occasionally made but have received very little judicial approval. If, as is being suggested, patients who miss NHS appointments should be fined, it would be hard to square this with a lenient approach to contributory negligence in claims.

I am emphasising these are questions which can be reasonably asked. No doubt different views could be expressed, some of them forcefully. Ultimately, the question is one of legal approach; that is whether such claims should be seen through the prism of an individual claimant as victim or whether the collectivist nature of the NHS should be taken into account.

By Charles Feeny