ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Mackay
Case No. HQ08X02369
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
DAME JANET SMITH
| CLARICE LOUISE WRIGHT
(A child by Demelza Wright her Litigation Friend
|- and -
|CAMBRIDGE MEDICAL GROUP
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Mr D Nolan QC (instructed byHill Dickinson) for the Respondents
Hearing dates: 4th and 5th April 2011
Crown Copyright ©
Lord Neuberger MR :
The factual background
The course of these proceedings
The arguments raised on this appeal
i) Given that the defendants' failure to refer the claimant to the Hospital on 15 April was negligent and caused her some physical damage, she is entitled to claim for the whole of the damage she suffered, irrespective of what would have happened if she had been referred to the Hospital on that day.
ii) The Judge should not have concluded that the Hospital would have negligently failed to treat the claimant if she had been referred and admitted on 15 April, as
(a) It was impermissible as a matter of law for the Judge to have dismissed the claim on this ground;
(b) In any event, on the facts, the evidence did not justify the conclusion.
iii) If arguments (i) and (ii) are both rejected, the claimant should have been awarded some damages as she lost the opportunity to be treated properly by the Hospital.
The Hospital's treatment of the claimant on 9-12 and 17-21 April 1998
i) Failure on admission (a) to consider the concerns of Dr Robertson in his letter, (b) to obtain a proper medical history, and (c) to undertake a proper examination; and, thereafter,
ii) Failure to consider or investigate the possibility of bacterial super-infection following chickenpox, which was requisite, in the light of the claimant's symptoms;
iii) Failure to ensure a review by a senior doctor until 20 April: such a review should have occurred at once;
iv) Failure to administer appropriate antibiotics, and the inappropriate use of ciprofloxacin on 18 April, and especially after the blood culture report on 19 April;
v) Failure to examine the claimant, or to notice her inability to move her hip on 19/20 April, when it was evident to her mother and aunt, who reported it;
vi) Delay of six hours before the ultrasound scan on 21 April, despite the obvious urgency.
The defendants' contention that the Hospital caused the damage and they did not
The claimant's argument that some damage is enough
"Where an injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant, it is immaterial that there are others whose acts have also been the cause of the injury . . [T]he plaintiff can obtain judgment for total compensation from anyone whose act has been a cause of the injury."
The contention that the Hospital would have been negligent: introductory
The contention that the Hospital would have been negligent: the law
The contention that the Hospital would have been negligent: the facts
i) The Judge's unjustified rejection of the possibility of treatment by different doctors from those who treated the claimant from 17 April;
ii) The fact that the "systemic inadequacy" based on her admission on a Friday evening does not fairly justify the Judge's view of what would have happened on a Wednesday evening; and
iii) The Judge's failure to take into account the importance on the likely outcome for the claimant of the two extra days (which does not appear to have been argued); supported by:
iv) The Judge's misdirection to himself as to who bore the burden of proof;
v) The fact that the Hospital got near the right diagnosis on 18 April; and
vi) The fact that it may well have been easier to make the right diagnosis on 15/16 April than on 17/18 April;
I consider that the presumption that the claimant would have been properly treated if she had been admitted on 15 April was not rebutted by the defendants on the facts.
The contention that the claimant should be compensated for loss of a chance
i) I reject the defendants' case that the Hospital's negligence on and after 17 April should be regarded as the sole cause of the claimant's injury, and that the defendants' negligence on 15 April was not therefore causative of that injury;
ii) I reject the claimant's case that the damage which, on any view, she suffered as a result of the defendants' negligence is indivisible from the damage she suffered after her admission to the Hospital;
iii) I accept the claimant's case that it was not open to the Judge as a matter of law or on the facts to conclude that her claim failed because the Hospital would not have treated her properly if she had been admitted on 15 April;
iv) If I had been against the claimant on the argument just mentioned, I would probably have rejected her case based on loss of a chance.
Lord Justice Elias :
Is the doctor liable in law?
Dame Janet Smith:
"69. How, then, does one identify a plaintiff's "true loss" in cases of tort? . I take as my starting point the commonly accepted approach that the extent of a defendant's liability for the plaintiff's loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple "but for" test, is predominantly a factual inquiry. .
70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable"). Written large, the second inquiry concerns the extent to which the defendant ought fairly or reasonably or justly to be held liable (the epithets are interchangeable). To adapt the language of Jane Stapleton in her article "Unpacking Causation" in Relating to Responsibility ed Cane and Gardner (2001) p 168, the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause. The defendant's responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.
71. In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting, from the sequence of events leading to the plaintiff's loss, the happening which should be regarded as the cause of the loss for the purpose of allocating responsibility. In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant's obligation in the particular circumstances. What was the ambit of the defendant's duty? In respect of what risks or damage does the law seek to afford protection by means of the particular tort? "