England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/07/2005

Mr Justice Forbes :

1. Introduction. In these proceedings, the Defendant ("Mrs McGarel-Groves") is the effective claimant by reason of her counterclaim to the actual Claimant's otherwise undisputed claim for veterinary fees totalling £4,778.91 plus interest. The Claimant ("Mr Glyn") and the second Part 20 Defendant ("Msr. Grandiere") are the effective defendants. Mr Glyn and Msr. Grandiere are both veterinary surgeons. Mrs McGarel-Groves seeks compensation from each of them in connection with the death from laminitis of her horse Annastasia ("Anna") on 29^th July 2001 (in fact, Anna was put down on that date to spare her further suffering). It is common ground that Anna's death from laminitis was caused by the cortico-steroids that were administered to her by Msr. Grandiere as part of the veterinary treatment that he carried out on Anna in the presence of Mr Glyn on 18^th May 2001.
2. At all material times, Msr. Grandiere was employed by the Clinique Veterinaire Equine de Chantilly ("the Clinique"). Msr. Grandiere has brought Part 20 proceedings seeking an indemnity from the Clinique. Those particular proceedings have been settled on terms providing Msr. Grandiere with the full indemnity sought.
3. Anna was a very successful and valuable dressage competition horse. She was a mare aged 14 at the time of her death. During the course of these proceedings, Anna's value has been agreed by the parties in the sum of £350,000.
4. The Facts. I now set out the main facts of this case as I find them to be on the evidence that I have heard, read and seen and in the light of the full and careful written and oral submissions made by Mr Patrick Lawrence QC on behalf of Mrs McGarel-Groves, Mr Andrew Edis QC on behalf of Mr Glyn and Mr Graeme McPherson on behalf of Msr. Grandiere.
5. Laminae are leaf-like structures connecting the pedal bone of a horse to its hoof. A horse has laminitis when the connective tissue (the laminae) fails or begins to fail. Failure of the laminae leads to the weight of the horse driving the pedal bone down into the hoof, shearing and crushing arteries and veins and damaging the corium (the point from which the hoof grows) and the sole (the sensitive under-surface of the hoof). Laminitis can cause a horse excruciating pain. Prognosis is uncertain. In many cases the condition can be fatal. As Mr Lawrence observed, the invoices that record Anna's treatment between 29^th May 2001 (when the disease was diagnosed) and her death on 29^th July 2001 amply justify Mr Glyn's description of the laminitis afflicting Anna as "this savage illness".
6. Mrs McGarel-Groves has owned and ridden horses for much of her life. In 1987, whilst she was living in Scotland, Mrs McGarel-Groves became very interested in dressage and thereafter she concentrated on this particular form of competition horse riding. In 1997, she became a dressage judge. I accept that horses and dressage are Mrs McGarel-Groves' principal hobby.
7. In June 1991, Mrs McGarel-Groves purchased Anna as a four-year-old from a well-known German horse dealer, Christian Heinrich. Anna was a very well bred horse. Mrs McGarel-Groves' purpose in buying Anna was so that she could compete her in dressage competitions.
8. In due course, Anna developed into such a successful dressage competition horse that her abilities outgrew Mrs McGarel-Groves' own riding skills. So it was that, in 1995, it was agreed that Anna should be competed on a regular basis by a very experienced French rider and competitor, Michel Assouline ("Msr. Assouline").
9. Msr. Assouline runs a training establishment for dressage horses in Sussex. He had been training Mrs McGarel-Groves and Anna for about two years before it was agreed that he should compete Anna (i.e. not only train her, but ride her in dressage competitions). In order to do this satisfactorily, it was also arranged in the spring of 1995 that Anna should stay at Msr. Assouline's yard on a permanent basis. It thus became necessary to identify a suitable local veterinary surgeon for Anna.
10. Every horse in Msr. Assouline's yard (known as and hereafter referred to as "High Meadows") has its own regular vet who is retained to care for the animal whenever veterinary treatment is required. I accept Msr. Assouline's evidence that, except in a medical emergency, he would never request a vet to see a horse without first contacting the owner to secure the owner's agreement to the vet's attendance. Furthermore, Msr. Assouline always secures the prior agreement of the owner before allowing the vet to carry out any specific course of treatment on the horse in question. However, in the event of an emergency, Msr. Assouline would call the vet first and then immediately contact the owner to inform him or her about what was happening and to secure the owner's instructions.
11. Msr. Assouline therefore introduced Mrs McGarel-Groves to Mr Glyn of Priors Farm Equine Veterinary Surgery, as described by Mrs McGarel-Groves in the following passage in her witness statement dated 11^th September 2003:

"17. … My vet was too far away from Michel's yard to look after Anna for me and therefore when Anna moved to Michel's yard, in Spring 1995 he recommended that I used his vet, Mr Glyn. One day when I was at the yard I was introduced to Mr Glyn. Anna was due to have her annual vaccination and I particularly wanted to tell Mr Glyn about the allergic reaction she always had to this injection, especially as he was to be responsible for her health care as her vet. …"

12. So it was that Mr Glyn became the vet responsible for Anna as and when she required veterinary care and treatment. The first time that Mr Glyn actually treated Anna was on 26^th June 1995, when he administered her routine annual vaccination at High Meadows. However, it is not necessary to go into the details of all the veterinary treatment that Anna received whilst she was at High Meadows; I shall refer only to treatment that has some bearing on the events of the 18^th May 2001.
13. On 30^th July 1997, Mr Glyn attended with regard to a back problem that it was suspected Anna might have, because she had shown some resistance and tenseness during recent months. Msr. Assouline spoke to Mrs McGarel-Groves and told her that he thought the problem might be due to Anna's saddle, which might require adjustment. Another possibility was that Anna's performance was adversely affected when she was in season.
14. Msr. Assouline also told Mrs McGarel-Groves that it was proposed to refer Anna to Dr Sue Dyson, a specialist vet and the Head of Clinical Orthopaedics at the Centre for Equine Studies at the Animal Health Trust in Newmarket, for examination and diagnosis with Mr Glyn in attendance. Mrs McGarel-Groves agreed to this being done and authorised Msr. Assouline to agree to the necessary arrangements and to sign the necessary consent form for the referral.
15. Mrs McGarel-Groves' position was that, from June 1995, Anna's vet was Mr Glyn. She regarded Mr Glyn as responsible for Anna's health and whenever Anna needed treatment it was to Mr Glyn that she (or Msr. Assouline on her behalf) turned for the necessary advice and treatment. If Anna was to be seen or treated by any other vet, Mrs McGarel-Groves always wanted Mr Glyn to be in attendance to protect her interests and to ensure that Anna came to no harm. In the six years that Mr Glyn was Anna's vet, Mrs McGarel-Groves grew to trust him completely. She never felt that it was necessary to spell out to Mr Glyn what was expected of him when attending Anna whilst another vet treated her. So far as concerns the relatively rare occasion when this occurred, from Mrs McGarel-Groves' perspective the position was perfectly straightforward. With Mr Glyn in attendance as Anna's vet, Mrs McGarel-Groves could be confident that Mr Glyn was in a position to take whatever action might be necessary to ensure that Anna was treated properly and not endangered in any way.
16. So it was that Mrs McGarel-Groves trusted Mr Glyn to go with Anna to the Animal Health Trust to discuss the matter with Dr Dyson, to establish what the problem was and to see what, if anything, should be done about it. I also accept that she did not expect Dr Dyson to carry out any invasive treatment without the matter being discussed and agreed with her first.
17. On 7^th August 1997, Dr Dyson examined Anna and the following day (8^th August) she produced a written report on her findings and treatment. Included in Dr Dyson's report were the following passages:

"Proximal limb flexion of the left hindlimb induced mild left hindlimb lameness. Proximal limb flexion of the right hindlimb induced mild right hindlimb lameness. Distal right flexion of the left forelimb did not alter the gait, but distal limb flexion of the right forelimb induced moderately severe, sustained right forelimb lameness. This was a repeatable response. …

In view of the markedly positive response to distal limb flexion of the right forelimb, the metacarpophalangeal joint was treated by the intra-articular administration of sodium hyaluronan and triamcinolone. It is advised that improvement in the balance of the foot should be obtained.

In my opinion this horse does have some degree of discomfort in the mid and caudal thoracic regions, as reflected by muscle tension. In my opinion this horse is likely to benefit from either manipulation to relieve that muscle spasm and/or local ultrasound therapy. …"

18. The metacarpophalangeal joint is the fetlock of a horse's fore leg. Triamcinolone is a cortico-steroid. It is therefore apparent from Dr Dyson's report that her treatment of Anna had included the injection of her right fetlock joint with a cortico-steroid. It is to be noted that, although she had also detected muscle tension in Anna's back, Dr Dyson did not treat that particular condition with cortico-steroid injections; instead she recommended treatment by manipulation and/or ultrasound. In the course of her evidence, Dr Dyson made it clear that she would never treat both the hocks and the back of a horse with cortico-steroid injections all at the same time, because she considers the risk of laminitis to be dose-related (see paragraph 31 below).
19. In her subsequent invoice addressed to Mr Glyn (to whom she also sent her written report), Dr Dyson made no reference to her report and recorded her treatment of Anna's right fetlock simply as "Intra-articular medication".
20. Although Mr Glyn forwarded Dr Dyson's invoice to Mrs McGarel-Groves for payment, he did not elaborate on the treatment that Anna had received and it appears that he did not forward a copy of Dr Dyson's report to either Msr. Assouline or Mrs McGarel-Groves. So it was that Mrs McGarel-Groves neither saw Dr Dyson's report nor did she have any reason to know of its existence. I therefore accept that when she came to pay Dr Dyson's invoice, Mrs McGarel-Groves did not appreciate that "Intra-articular medication" meant that one of Anna's joints had been injected, nor did she realise that the medication in question had included a cortico-steroid. I also accept that Msr. Assouline did not receive a copy of Dr Dyson's report nor did he know that Dr Dyson's treatment had included injecting Anna with a steroid.
21. With the benefit of Msr. Assouline's training and riding skills, as well as her own natural capabilities, Anna achieved considerable success in dressage competitions. By about 1998, Msr. Assouline had started competing her in international competitions. I accept his evidence that he always felt that Anna had potential, that she became even better than he had anticipated and that she was one of the best horses that Msr. Assouline had ever seen at his training establishment in this country.
22. In Msr. Assouline's view, Anna performed so well that she had "qualified" (i.e. assembled sufficient competition points) for selection to represent France in the Sydney Olympics in 2000. As Msr. Assouline put it in the course of his evidence: "Anna was one of the horses that could have gone to the 2000 Olympics as an individual French entry, but it was never made official". However, notwithstanding Msr. Assouline's firmly held view of the matter, it appears that Anna was never actually considered for that honour, either as a member of the French team (in fact France did not send a team to the 2000 Olympics) or as an individual entry – and certainly she was not selected to represent France. Mrs McGarel-Groves' evidence that Anna was invited to go to the Sydney Olympics was therefore clearly wrong, but I am quite satisfied that it was not deliberately so. No doubt Msr. Assouline's strongly held opinion that Anna had "qualified" for selection translated itself into a genuine belief in Mrs McGarel-Groves' mind that Anna had been invited to represent France and I accept her evidence that she made a considered decision not to let Anna go to Sydney, because Anna became badly stressed by long journeys. There is no question of this aspect of Mrs McGarel-Groves' evidence casting doubt on the credibility of the remainder and I have no hesitation in rejecting Mr Edis' submissions to the effect that it did. I am satisfied that Mrs McGarel-Groves was an entirely truthful witness.
23. I therefore accept Mrs McGarel-Groves' evidence with regard to Anna's competition history as set out in paragraphs 9 to 12 of her first witness statement. I also accept this account of what Anna meant to Mrs McGarel-Groves (see paragraphs 22 and 23 of her first witness statement):

"22. At this point of my statement I think it is relevant to explain, if I can, what Anna meant to me. In fact words cannot describe how special she was. As a horse lover, I am fond of all the horses that I own and have owned. My horses tend to be competition horses, rather than family pets. I get a huge amount of pleasure from looking after the horses and training them to a competition standard. If a horse that I own competes successfully, that in part reflects well on all the work that I have put in preparing that horse. For me this is very special.

23. In Anna's case she was not only the most talented horse that I have ever owned (or am ever likely to own) she was also a kind and gentle mare. …She was the horse of a lifetime."

24. There is no doubt that by 1999 Anna was doing so well in competition that she was being actively considered for inclusion in the French Dressage Team. In about March 1999, Msr. Assouline rode Anna in the Paris Show in what was, in effect, a training session at which all the horses that had the potential to compete internationally as one of the French National Team were considered. It appears that the French thought that Anna showed signs of being slightly uneven on her left hind limb and they communicated this view to Msr. Assouline. As Msr. Assouline stated in his evidence (see paragraph 6 of his first witness statement):

"6. … All the potential horses to compete for France were there to be given the green light to compete internationally. It was a very important training session. Anna was looked over by the French National Dressage Team and they took the view that she was a little uneven on her left hind. It was only very slight. The aim was to ensure that all the horses performed to their peak. These are professional people and what they noticed the International judges would note. The signs she was displaying are common when the hock becomes less lubricated. What the horse is expected to do in the Grand Prix is physically hard work. It can stress the joints."

25. On his return from Paris, Msr. Assouline told Mrs McGarel-Groves that the French vet and team leader felt that Anna was showing some stiffness in her left hock and that it was suggested that she should have injections to lubricate the joint. Msr. Assouline explained the French Dressage Team wanted their own veterinary surgeon, Msr. Lepage, to attend Anna at High Meadows in order to carry out the necessary examination and treatment. Mrs McGarel-Groves agreed to what was proposed on the basis that Mr Glyn would be in attendance. I accept Mrs McGarel-Groves' evidence about this particular matter, as follows (see paragraphs 26 and 27 of her first witness statement):

"26. … I was told Mr Glyn would be there and was given the impression that this was a routine treatment. No one mentioned any side effects. Mr Glyn was there to observe and supervise, as he was the person who had taken the x-rays prior to the treatment being given.

27. I recall that I especially asked Mr Glyn to attend this appointment as my vet to check … that Anna was treated properly and so that I could be certain that she did not come to any harm. It was important that the French team were happy that Anna was fully fit to compete for France (which was a great honour), but as she was my horse I wanted my vet there to give me the comfort that she was being given the appropriate treatment. I believed that Mr Glyn attended this examination to protect Anna and for my benefit. It certainly gave me comfort. …"

26. Msr. Lepage's concerns were communicated to Mr Glyn. As indicated by Mrs McGarel-Groves in paragraph 26 of her witness statement (see above), Mr Glyn examined Anna prior to Msr. Lepage's attendance and took x-rays of her hocks and fetlocks, as recorded in Mr Glyn's invoice, as follows:

"Review action after concern expressed by Team Veterinary Surgeon, Msr. Lepage, over hocks and fetlocks. Observe moving in hand on a hard surface before and after hock and hind fetlock flexion tests. Very slight response to left hock flexion. Possible very slight response to right hind fetlock flexion.

Obtain standard radiographic views of each hock and each hind fetlock. 16 plates exposed. X-ray results: possible very minor remodelling of right proximal inter-tarsal joint. No clear evidence of pathology in any view taken. Discuss options regarding possible injection of ultra short-acting cortisone 4 – 5 weeks before major competition.

Send radiographs to Msr. Lepage."

27. Mr Glyn forwarded the x-rays to Msr. Lepage under cover of a letter dated 29^th March 1999. According to Mr Glyn, Msr. Lepage formed the view that Anna's left hock showed evidence of "osteochondrosis dissecans in the talus of the left hock in the depth of the trochlea tali medial to the lateral trochlear ridge" (see paragraph 13 of Mr Glyn's witness statement). On 14^th April 1999, shortly after receiving the x-rays from Mr Glyn, Msr. Lepage went to Msr. Assouline's yard in order to examine and treat Anna. Mr Glyn was also in attendance. Although he did not know precisely which preparations were used by Msr. Lepage or the dosage, Mr Glyn was aware that Msr. Lepage had injected Anna's hocks and her back with cortico-steroids all on the same occasion (see paragraph 13 of Mr Glyn's witness statement and cf. Dr Dyson's approach and her reasons for not doing so: see paragraph 18 above and paragraph 31 below). It is worthy of note that, broadly speaking and putting the amount of each dose to one side, this was the same approach as that adopted two years later, when Msr. Grandiere treated Anna in May 2001.
28. In fact, the proprietary medicines used by Msr. Lepage for injecting Anna's hocks and back (Soludecadron and Voren Suspension) both contained the cortico-steroid Dexamethasone (see Msr. Lepage's invoice, which records the date of the attendance as 14^th April 1999).
29. On this occasion, Mrs McGarel-Groves was made aware that Anna's treatment had involved injecting her with cortico-steroids. However, she was not told that the use of cortico-steroids involved a very slight risk of Anna developing laminitis. I accept Mrs McGarel-Groves' evidence as to her state of knowledge on this aspect of the matter, as set out in the following paragraph of her witness statement:

"28. I cannot recall in detail the treatment being suggested for Anna in 1999 or how that examination was relayed to me, although I think that Mr Glyn or Michel would have reported it to me on the telephone that all had gone well. I am sure that I was told that Anna had been given a steroid injection to help her joints, that the injection was akin to the steroid injections that are given to humans to improve joints and that the injection was one of a possible course which Anna might be given during her competition career. I was not told that there were any possible side effects to the drug being administered, although I think I was told it was the precise way in which the injection was administered that mattered. I was comforted that Mr Glyn was there to ensure that the treatment was carried out properly."

30. There is no doubt that cortico-steroids are an efficacious form of medication in the treatment of certain equine orthopaedic problems, particularly for reducing inflammation and improving joint mobility.
31. However, it was also common ground that cortico-steroids can sometimes cause a horse to develop laminitis, although the causal mechanism is still not understood. The risk has been recognised from at least 1977 and was well known in the veterinary profession in 2001. Broadly speaking, it is generally recognised by vets (and has been for some time) that, although a horse will be at risk of developing laminitis if treated with cortico-steroids, the degree of risk is tiny – variously expressed as "very slight" or "very, very small" or "fairly remote". In the event, nothing in this case actually turns on which of these various expressions is the most appropriate assessment of the degree of risk. However, it also appears that the degree of risk is dose-related – the higher the dose, the greater the risk, until a point is reached at which the degree of risk becomes too high to be acceptable. Dr Dyson (who I found to be an impressive and credible witness) put it this way (I quote my note of her evidence):

"I would not inject both joints (hocks) and the back with cortico-steroids all at the same time, because of the level of dose involved. The evidence, which is largely word of mouth, suggests that the risk of laminitis caused by cortico-steroids is dose-related. The risk of laminitis caused by cortico-steroids is very, very small, but it is increased by the level of the dose. I therefore prefer to avoid that risk. I have been faced with situations in which multiple joint and back injections with cortico-steroids might be considered an appropriate form of treatment, but I would never administer such treatment because of the risk of laminitis. In those circumstances I would recommend other forms of treatment."

32. I accept that Mrs McGarel-Groves was never warned of the very slight risk of laminitis on any of the occasions that Anna was treated with cortico-steroids. However, I am also satisfied that had she been warned of the risk, she would not have agreed to the treatment, even at the expense of not improving Anna's performance. I am entirely satisfied that Mrs McGarel-Groves was so devoted to Anna that she would not have exposed her to any risk of developing this devastating disease, however slight that risk might have been.
33. As a general proposition, it is perfectly in order for a vet to administer a cortico-steroid to a horse in the course of treating any problem for which it is an appropriate form of medication. However, to ensure that a competition horse's ability to perform has not been enhanced by the recent administration of cortico-steroids, none must be present in the animal's system whilst it is actually competing. It is therefore very important that any treatment of a competition horse with cortico-steroids is carried out sufficiently far in advance for the drug to have cleared from the animal's system by the day of the actual competition. The amount of time required for this to happen varies and depends on the particular type of cortico-steroid that has been used. Thus triamcinolone will clear a horse's system in about 15 days and dexamethasone will take 25 days or even longer.
34. After the treatment administered by Msr. Lepage in April, Anna's performance undoubtedly improved during the summer of 1999. In addition, Msr. Assouline happened to notice that Anna's performance also improved when she competed at Stubbing Court, where the surface was softer and more "giving" than the surfaces on which she had competed earlier in the year. Mr Glyn took some further x-rays and after a discussion with the farrier, it was recommended that pads should be fitted under Anna's shoes. I accept that this particular measure resulted in further marked improvement. As Mrs McGarel-Groves observed: "…much of the tension which resulted in lower marks being given for her tests simply disappeared."
35. 2000 was a very successful year for Anna. She did extremely well in the various international and national competitions in which she competed and she crowned her performance for the year by winning the 2000 French National Championship. There is no doubt that by 2000 Anna was one of the best dressage horses in Europe. So it was that, as the French National Champion, it appeared that Anna would be an automatic choice to represent France in the European Championships that were due to take place in August 2001.
36. However, Anna's performance when she competed at Le Touquet on 11^th and 12^th May 2001 was not up to her usual standard. Msr. Lepage spoke to Msr. Assouline and said that he felt there was a significant problem in terms of Anna's performance. It was the French view that this was not a hormonal problem (i.e. was not linked to the fact that she had been in season at the time), but that it was orthopaedic in nature and needed appropriate treatment with cortico-steroids. Msr. Lepage made clear to Msr. Assouline that he considered it necessary to treat Anna's perceived orthopaedic problems with cortico-steroids so that she could perform satisfactorily in a further competition in July 2001 so as to be selected to represent France in the European Championships in August. Msr. Lepage gave Msr. Assouline the impression that the proposed treatment would be a repeat of the treatment given in 1999.
37. Msr. Assouline telephoned Mrs McGarel-Groves and told her about what had occurred and what was proposed. He told her that the proposed treatment was to be a repeat of the treatment given by Msr. Lepage in 1999. Mrs McGarel-Groves agreed to the proposed treatment, again on the basis that Mr Glyn would be in attendance to protect her interests and to ensure that Anna was treated properly and not endangered. So it was that arrangements were made for the French team vet to come to High Meadows on 18^th May 2001 in order to carry out the necessary treatment. At some stage, Msr. Assouline's wife telephoned Mrs McGarel-Groves and confirmed that the examination had been booked for the 18^th May and that Mr Glyn had been asked to attend.
38. I accept Mrs McGarel-Groves' evidence that she did not worry about the proposed treatment because she was completely unaware that it might have disastrous consequences. As with the earlier set of injections by Msr. Lepage in 1999, Mrs McGarel-Groves did not attend. As Mrs McGarel-Groves stated in paragraph 32 of her witness statement:

"I did consider attending, but having discussed this with (Mme. Assouline) it was agreed that as I live so far away there was no need for me to attend, that Michel and Mr Glyn would be there anyway and they would let me know what happened. Also (Mme. Assouline) said that they could contact me if necessary. I put my faith and trust, once again, in Mr Glyn to represent my interests."

39. At some point before the 18^th May, Msr. Lepage contacted Msr. Assouline to explain that, since he was now a "Directeur" of the French Dressage Team, he would not be attending High Meadows to examine and treat Anna himself, but would be sending instead Msr. Grandiere, the new French National Team Veterinary Surgeon. Subsequently, Msr. Assouline had a brief telephone conversation with Msr. Grandiere to discuss arrangements and to give directions. Msr. Assouline also telephoned Mr Glyn and asked him to attend, as requested by Mrs McGarel-Groves. Msr. Assouline explained that the French vet was coming to investigate Anna's poor performance at Le Touquet and to discuss ways of improving it. It is likely that Msr. Assouline also mentioned that it was proposed to repeat the treatment given in 1999.
40. In his witness statement, Mr Glyn described the events of 18^th May 2001 in the following terms:

"18. The Day Book entry records for 18 May 2001 … that I was to attend at 12.00 noon. I arrived for the visit in good time to find that Msr. Grandiere was already performing a gynaecological examination on "Annastasia". The mare had been in season when she performed poorly in May 2001 and it was considered by her Trainer to be a factor that might be responsible for her poor performance. Msr. Grandiere and Msr. Assouline were therefore interested in trying to stop the mare coming into season close to any competitions as indeed I had been – hence the previous use of Regumate. When Msr. Grandiere attended on 18 May 2001 he had his own Ultrasound Scanner with him and he was scanning her ovaries upon my arrival.

19. Msr. Grandiere was attending for the French National Dressage Team. He was the Team Veterinary Surgeon. I was there partly out of courtesy and partly to provide a history. The horse was restrained in cross-ties whilst the scanning was undertaken. During the course of the scanning Msr. Grandiere was chatting away with Msr. Assouline in French. My knowledge of the language is limited and I was not able to follow their discourse. I was only involved in the conversation at their request.

20. After Msr. Grandiere had finished his Clinical examination of the reproductive tract there was a general discussion as regards the mare's ovulation. We discussed a possible plan for avoiding the oestrus behaviour during Competitions. We discussed the use of Progesterone versus Regumate. (It was agreed that a sample of Regumate would be dispatched to Henry Leach Laboratories for the development of suitable Forensic Tests to establish the safety regarding possible dope testing). We also discussed managing the mare's oestrus cycle to ensure that the mare ovulated and finished oestrus before the start of the Competition. Most of my discussion with Msr. Grandiere concentrated on this area of treatment. I would be attending the horse after his departure and hence the need for my involvement in the ongoing management of her breeding cycle. It was only after this aspect had been considered in some detail that … he then addressed with me what treatment had been given by Msr. Lepage in 1999. Msr. Grandiere was aware that Msr. Lepage had been to treat the horse in 1999. However he did not show me any records and enquired as to the treatment and what had been injected. Prior to my attendance I had checked my records and was therefore able to tell him that Msr. Lepage had injected the horse's hocks. I made reference to the OCD Lesion that Msr. Lepage considered he had been able to identify from the x-rays. I did not see Msr. Grandiere examine "Annastasia" orthopaedically. Although it was not explicitly spelt out to me it was evident that Msr. Grandiere had the same treatment plan in mind. I recall walking to the boot of his car with him where he collected his drugs. I do not know what drugs he administered because the labels were in French but it is my belief from the volume and appearance that he injected Methyl Prednisolone intra-articularly into both Tarso-Metatarsal joints and he made several injections of Dexamethasone around the dorsal spinous processes in the saddle area of the back. I do not know how many injections he administered nor the volume of each injection but I can say they were injections in multiple sites in the back.

21. At no stage did Msr. Grandiere discuss with me whether such injections should take place or how many sites or the total dose or the need for injections.

22. The decision to carry out intra-articular injections in a field environment with all the attendant risk was a matter for him given that he was the French Dressage Team Veterinary Surgeon. He was not doing something so extreme or contrary to the welfare of the horse that it required my intervention. I had a high regard for his standing as a Veterinary Surgeon for the French National Team.

23. At no stage did Msr. Grandiere explain to me why he was carrying out his treatment or what he was doing."

41. As I have already indicated, Mrs McGarel-Groves wanted Mr Glyn to be present at High Meadows when Anna was examined and treated by Msr. Grandiere, because he was Anna's vet and Mrs McGarel-Groves relied on him to protect her own interests and to ensure that Anna was not endangered in any way. However, Mr Glyn strongly disputed Mrs McGarel-Groves' claim that he attended High Meadows on 18^th May in any sort of supervisory role. He was also at pains to distance himself from the decision to inject Anna with cortico-steroids. Indeed, Mr Glyn effectively played down the significance of his role at High Meadows on 18^th May by suggesting that the reason he attended was merely "partly out of courtesy and partly to provide a history": see paragraph 19 of his witness statement quoted above. In the course of his oral evidence, Mr Glyn put the matter in this way (I quote my note of his evidence):

"I was there to observe Msr. Grandiere, to provide a history of Anna and to continue the management of her oestrus cycle.

I was not there to take part in any discussion about the treatment of the mare.

I was not consulted at any stage about the orthopaedic treatment of Anna.

This was not a routine consultation – I needed to be told precisely what I was required to do.

The previous treatment referred to in my invoice dated 18^th May (page 184) related back to what had been done in 1997 and 1999. The word "possible" is redundant.

Msr. Grandiere wanted to know what Msr. Lepage had done in 1999 and where and I told him. He (Msr. Grandiere) was not interested in my views.

There was absolutely no discussion about whether there were to be injections because there were to be injections. That is why Msr. Grandiere had come over.

All I did was to hear him say that he was going to inject Anna.

The French vets had decided that this mare was to be treated with steroid injections. That was not a matter in which I was involved – but I was involved in the control of Anna's oestrus cycle."

42. Mr Glyn also referred to his invoice dated 18^th May 2001 and confirmed that it was essentially his record of what had occurred during Msr. Grandiere's visit and treatment of Anna. The body of the invoice is in the following terms:

"Attend with French Team veterinary surgeon, Erik Grandiere. Discuss previous examination and treatment. Possible need for further joint or back injection. Left tarso-metatarsal joint shows substantial joint effusion with release of joint fluid under pressure with needle into joint. This could be responsible for slight stiffness on left rein.

Observe as both tarso-metatarsal joints are prepared aseptically and injected with methyl Prednisolone intra-articularly.

Observe as dorsal spinous processes T10-18 are prepared aseptically and injected with dexamethasone.

Discuss possible plan for avoiding oestrus behaviour during competitions. Discuss pros and cons of progesterone versus Regumate. Dispatch sample of Regumate to Henry Leach Laboratories for development of suitable forensic test establish safety regarding possible dope testing. Should consider managing cycle to ensure mare has ovulated and finished oestrus before start of competition."

43. It has to be said that, on a straightforward reading of the text of Mr Glyn's 18^th May invoice, one is left with a strong impression that Mr Glyn was not simply an observer of the injections administered to Anna, but that he had played a part in the actual decision-making relating to that form of treatment on 18^th May (see, in particular, the first three sentences of the opening paragraph of the invoice). In my view, this general impression is greatly strengthened by Msr. Grandiere's account of the events of 18^th May to which I refer below (see, in particular, paragraphs 6 and 7 of his first witness statement and paragraphs 5 and 6 of his second witness statement).
44. In paragraph 17 of his witness statement, Mr Glyn sought to explain the meaning of the text of his invoice of 18^th May. He said that the entry "Discuss previous examination and treatment" related to the fact that he was able to inform Msr. Grandiere of the treatment undertaken by Msr. Lepage in 1999. He went on to state that the entry "Possible need for further joint or back injections" was a record of Msr. Grandiere's reaction to the information supplied to him about Msr. Lepage's treatment. He said that the entry "Left tarso-metatarsal joint shows substantial joint effusion with release of joint fluid under pressure with needle into joint" recorded what he saw happen when Msr. Grandiere injected the left hock. The entry "This could be responsible for slight stiffness on left rein" was said to be an aide memoir. Mr Glyn went on to confirm that he had not known what drugs had been used, but that he had (wrongly) assumed that they were the ones that he had recorded in his 18^th May invoice. He concluded paragraph 17 of his witness statement as follows:

"T10-T18 is simply an abbreviation I use to mean the region of the thoracic spine that lies directly under the saddle. This is the approximate area I saw Msr. Grandiere inject but I was not informed as to the precise sites used. Msr. Grandiere did not tell me that he was injecting into those areas. I assumed he injected dexamethasone … . At no stage was I involved in any clinical examination and indeed at no stage did I witness (Msr. Grandiere) performing an orthopaedic clinical examination of the horse."

45. As I have already indicated, the wording of Mr Glyn's invoice strongly suggests that he was much more involved in the decision-making as to the nature of the treatment to be given to Anna on 18^th May 2001 than he was prepared to accept in evidence. For her part, Mrs McGarel-Groves accepted that she had not spelt out to Mr Glyn what she expected of him. She was content to assume that, as Anna's vet, Mr Glyn would do whatever was necessary to ensure that Anna was treated properly and not endangered in any way and, in that sense, his was a supervisory role.
46. However, although Mr Glyn strongly disputed that his duties involved any form of supervision of Msr. Grandiere's treatment of Anna on 18^th May, he did accept that his duties had included observing the treatment in question: see my note of his evidence and the text of his invoice (see, respectively, paragraphs 41 and 42 above). Furthermore, as Mr McPherson succinctly observed in paragraph 8(b) of his written closing submissions:

"As a corollary of the duty to observe, Mr Glyn's role also included and obligation to "take action" in the event that Msr. Grandiere did something "extreme", "contrary to the welfare of [Anna], "totally against accepted methods of veterinary practice", or "even remotely inappropriate".

47. I am satisfied that it is apparent from Mr Glyn's own evidence that he accepted that his duty to observe Msr. Grandiere's treatment also involved or gave rise to a further duty to intervene to protect Anna if the proposed or actual treatment was in any way inappropriate. It suffices to quote the following passages from his evidence:

(i) "He was not doing something so extreme or contrary to the welfare of the horse that it required my intervention": see paragraph 22 of Mr Glyn's witness statement.

(ii) "I believe it would have been inappropriate for me to have intervened because I would have been questioning the competence of the French National Team's Veterinary Surgeon. Unless there was a welfare issue or something totally against accepted methods of Veterinary Practice it was not for me to intervene in the treatment": see paragraph 25 of his witness statement.

(iii) "If Msr. Grandiere had behaved in an inappropriate way that I could see immediately was contrary to Anna's welfare, I would have "leapt in" – but not if I observed familiar procedures by a competent colleague": my note of part of Mr McPherson's cross examination of Mr Glyn.

(iv) "I would not have used 80mg of Triamcinolone myself. If Msr. Grandiere had told me that he was going to inject 80mg of Triamcinolone, I would have commented that it was a high dose and asked for his reasons … he would have needed to convince me. I think that with such an exceptionally high dose, you would have to discuss it with the owner's agent (Msr. Assouline) and point out the risk of laminitis as a potential problem. If I had known that Msr. Grandiere was going to administer 80mg of Triamcinolone, I would have spoken to Msr. Assouline about it. …"

"If Msr. Grandiere was proposing to do something even remotely inappropriate in his treatment of Anna I would have taken action": both passages taken from my note of Mr Lawrence's cross examination of Mr Glyn.

48. Before moving on to deal with the treatment that Msr. Grandiere actually administered to Anna on 18^th May, it is important to note that Mr Glyn had, in effect, rendered himself unable to judge whether the treatment in question was "contrary to Anna's welfare" or "totally contrary to accepted methods" or "inappropriate". Although Msr. Grandiere told Mr Glyn that he proposed to inject Anna with cortico-steroids and Mr Glyn watched him whilst he prepared two different cortico-steroids for use, Msr. Grandiere did not identify the cortico-steroids nor did he tell Mr Glyn what dosage of each he proposed using. Despite knowing that a "high" dose of cortico-steroids involved a sufficient risk of laminitis to make it necessary to discuss the matter with the owner's agent and being aware of his duty to intervene if the proposed treatment was inappropriate, Mr Glyn neither inquired as to the identity of the drugs in question nor as to the proposed dosages. The reference in his invoice to the injection of methyl Prednisolone was based on an incorrect assumption as to the identity of the drug that he observed being injected into Anna's hocks (it was actually triamcinolone: see below), although he correctly identified the cortico-steroid that was injected into her back (dexamethasone).
49. In his first witness statement dated 31^st December 2003, other than confirming that he had injected Anna with steroids, Msr. Grandiere was unable to confirm what drugs he had administered and what doses he had used, although it is noteworthy (for reasons that will become apparent later) that he referred to drugs in the plural. There is no suggestion in Msr. Grandiere's first witness statement that he had only injected one type of cortico-steroid. So far as material, he said this in his first witness statement:

"5. … I exhibit … the facsimile I sent confirming the consultation, the fact that I would take the relevant drugs with me and the fact that the instructions were always given by Msr. Lepage with respect to what treatment was to be administered. I do not have my clinical records and therefore cannot confirm the drugs nor the dosages administered. I had brought these drugs from the Clinique Veterinaire Equine de Chantilly over with me from France.

6 … I did not consider that I was taking instructions from Mr Glyn in respect of what treatment was to be administered as I considered that to be the role of Msr. Lepage. I did discuss the treatment with Mr Glyn. Had we been in disagreement on the treatment I would have proceeded in any event as ultimately the decision to refuse treatment would be that of the trainer/rider whom was Msr. Assouline. If Msr. Assouline had been in disagreement in respect of the treatment I would have discussed matters further with Msr. Lepage.

7. … after discussion with Mr Glyn (I) proceeded to take ultrasound scans of the spinal area and the lombo (sic) sacral area … I also recall that the trainer Msr. Assouline provided me with x-rays, which had been taken, and the relevant medical records showing the previous steroid injections that had been given to the horse. …

8. I do also remember that as part of my examination we did a trotting up examination in the yard.

9. As far as I can recall the injections were administered to the dorsal spinal area and the tarso metatarsal joints."

50. However, shortly before the trial commenced, the Clinique disclosed a copy of a "Facture" (i.e. an Invoice) that had been written by Msr. Grandiere for the purpose of enabling the Clinique to prepare an invoice for its fee for the treatment that had been administered to Anna on 18^th May. Msr. Grandiere had composed the "facture" himself in his own handwriting and he accepted that he had done so either on 18^th or 19^th May 2001, when he had a clear recollection of the treatment that he had administered. In contrast and as he admitted during the course of his evidence, Msr. Grandiere no longer has "a precise memory of what happened" on 18^th May 2001.
51. Although the document is in French, Msr. Grandiere's "facture" presents no translation difficulties and its meaning is, as it seems to me, perfectly clear. Translated into English, it is in the following terms:

"INVOICE

Mr Michel Assouline

45 Mindelheim Avenue

East Grinstead

RH19 3US

Sussex

GB

19/5/01

"Annastasia"

Sedation

Tarsometatarsal injections

Hocks right and left

1 Kenacort 80 in each

2 x 62.38

Inter-spinal injections

Caudal thoracic region

20 cc Voren suspension

6 ampoules Zeehl"

52. In my opinion, so far as concerns the administration of cortico-steroids to Anna, Msr. Grandiere's own contemporaneous handwritten document (i.e. his "facture") clearly records that he had injected a single dose of Kenacort 80 (triamcinolone) into each of Anna's hocks and that he had injected a total of 20cc (i.e. 20ml) of Voren suspension (dexamethasone) into the caudal thoracic region of Anna's spine. Msr. Grandiere accepted that, assuming that he did not give Msr. Assouline any treatment sheet recording what he had done (and that appears to have been the case), his handwritten facture was the only record of the treatment that he had administered to Anna.
53. However, in evidence Msr. Grandiere maintained that he had not injected Anna with Kenacort 80 (triamcinolone), that he would never inject two types of cortico-steroid at the same time and that he had only used Voren suspension (dexamethasone) to inject both Anna's back and her hocks. In giving a further account of the events of 18^th May in a second witness statement dated April 2005, what Msr. Grandiere said was this, so far as material:

"4. … I refer to my conversation with Msr. Lepage prior to my visit to Msr. Assouline's yard. I wish to clarify that, while I do not remember the precise details of what was said during that conversation, the instructions given to me by Msr. Lepage relating to the treatment of Anna were very particular. Msr. Lepage was quite specific about the drugs to be administered, the dose and the location of the injections. Msr. Lepage's instructions were that I should administer Voren Suspension, exactly the same treatment that he had administered to her in 1999, provided there was enough time before her next competition. …

5. … I had asked Msr. Assouline to ensure that Mr Glyn be present during my visit so that he could inform me about Anna's history. Mr Glyn gave me a brief medical history in which he mentioned the treatments administered by Msr. Lepage in 1999 (the details of which I already knew) and Sue Dyson in 1997 (Mr Glyn told me that she had also administered corticosteroids). It was therefore clear to me that Anna had received corticosteroids injections in the past without any ill effects. If she had reacted badly to them before, I would have expected Mr Glyn to have mentioned it during our discussions.

6. Mr Glyn, Msr. Assouline and I talked in English about the treatment which I planned to administer. In particular, we discussed the sites of the injections; sites of previous injections; and whether the drug would pass through Anna's system before the next competition. There was also a discussion about her ovulation and how to control it. In paragraph 24 of his witness statement, Mr Glyn states that he was not consulted about the use of corticosteroids. However, he was certainly aware of the treatment that I administered because we discussed certain aspects of it.

7. …

8. The Clinique … have disclosed a manuscript note which records the treatment which I administered to Anna. … I wrote this note myself the day after I treated Anna, on my return to France. It records that I administered 20ml of Voren Suspension … with Zeehl, a solution which is widely used to dilute steroids and other such drugs. I injected 12ml of the dose into her back, with a further two 4ml injections into each of her tarso-metatarsal joints.

9. There is a reference to Kenacort 80 on the manuscript note. I did not inject Anna with this drug. This is a different type of cortico-steroid to Voren Suspension and I would not have used them together. …

10. I cannot recall the reason why Kenacort 80 is mentioned in the note. I would have taken a selection of drugs with me to England, including Kenacort 80 and Voren Suspension, as is my usual practice when attending on this type of case. I can only assume that the Kenacort was opened and could not then be reused. Because the note would also have been used for invoicing purposes, it may be that I included the reference to Kenacort so that it could be charged on the invoice. So, for example, one possible explanation for the reference to Kenacort is that I started preparing to inject Anna with triamcinolone (Kenacort 80) on the understanding that she would be competing soon. While doing so, it might have become apparent during conversations with Msr. Assouline that there was there was sufficient time before his next competition with Anna for me to use Dexamethasone (Voren Suspension). This is the first choice drug for this type of treatment and the one which Msr. Lepage had instructed me to use if there was enough time. I might therefore have abandoned the Kenacort 80 preparation in favour of the Voren Suspension. However, I would already have started to prepare the Kenacort, which would now be wasted. As I have already mentioned, I do not recall whether that was the precise reason why Kenacort appears on the note but I cannot think of any other explanation. Certainly. I would not have used Kenacort in conjunction with Voren Suspension under any circumstances."

54. There is, of course, another obvious explanation as to why Msr. Grandiere "mentioned" Kenacort 80 in his "note", namely the reason given in the note itself; i.e. that he had injected 80mgs of Kenacort (triamcinolone) into each of Anna's hocks (a single dose of Kenacort 80 is 80mgs). Having heard Msr. Grandiere give evidence about the matter, I am entirely satisfied that this was precisely what he did, notwithstanding his evidence that he did not. Not only did he admit that he did not have a precise memory of the treatment that he administered but, in my view, his complex "possible explanation" for the reference to Kenacort 80 was not only highly implausible, having regard to the clear terms of his own handwritten record, but it was also inconsistent with the other, far more reliable evidence as to what actually happened on 18^th May. In the paragraphs that follow I give my reasons for that conclusion.
55. I accept Mr Glyn's evidence that he accompanied Msr. Grandiere when he went to the boot of his car to collect the drugs that he was going to use (see paragraph 20 of Mr Glyn's witness statement). Msr. Assouline did not accompany them and it was not suggested to him that he had done so. Once they reached Msr. Grandiere's car, Mr Glyn then watched as Msr. Grandiere prepared two different drugs. Mr Glyn knew that the drugs were cortico-steroids, although he did not know what types. In order to prepare the drugs for use, Msr. Grandiere opened the bottles of each of the drugs to be used, diluted as necessary (this only applied to the Voren suspension) and then drew up each drug into syringes for injection into Anna.
56. The packaging and the bottle-size of each of the drugs used by Msr. Grandiere were quite different. The Voren suspension was in a relatively large single bottle in a red box and both box and bottle were clearly marked "Voren", the remainder of the labelling was in French. The Kenacort 80 was in a number of very small bottles marked "Kenacort 80" and contained in a yellow box. The remainder of the labelling was also in French. Kenacort 80 came complete with pre-sterilised syringes.
57. Although Mr Glyn did not know precisely what drugs were used, I accept his evidence that he saw two different drugs prepared for use and that he saw more than one syringe being used by Msr. Grandiere when treating Anna. I quote the following from my note of his oral evidence in chief:

"We walked together to Msr. Grandiere's car. Anna had been sedated.

We went to the boot of the car. We were still discussing the control of Anna's oestrus cycle.

Msr. Grandiere started preparing some drugs for the injections.

He prepared two different drugs.

One was a large volume drug, requiring a larger syringe, which he proceeded to dilute.

The other drug was of a much smaller volume, literally only a few ml. It appeared from its volume to be a concentrated suspension. I thought it was methyl prednisolone (see page 184).

The other larger volume drug appeared to have the opacity, consistency and volume of dexamethasone (i.e. Voren suspension).

There was one large syringe that contained the diluted dexamethasone.

The other drug was in a very small volume syringe. There may have been one or two of these small volume syringes.

Msr. Grandiere then moved all the prepared drugs and their containers to near where Anna was secured in the cross ties.

He then proceeded to use more than one syringe.

He used the large volume syringe to inject several sites in Anna's back.

I was not able to get close because of the cross ties, but I did observe the squirt of joint fluid."

58. In my view, it is clear from Mr Glyn's account of what he saw and from what he recorded in his 18^th May invoice, that Msr. Grandiere prepared and then proceeded to administer two types of cortico-steroid to Anna by injecting one into several places in her back and injecting the other into each of her hocks. There was no conversation with Msr. Assouline that might have caused Msr. Grandiere to decide not to use one of the two drugs that he had prepared for use. One of the drugs was contained in a larger volume bottle, it required dilution and was drawn up into a large volume syringe. Mr Glyn correctly assumed that to be dexamethasone and he saw it being injected into Anna's back. The other drug that Mr Glyn saw Msr. Grandiere prepare involved the use of much smaller syringes. I am satisfied that Msr. Grandiere prepared two such syringes, one for each of Anna's hocks. This second drug was clearly Kenacort 80 (which, from its appearance, Mr Glyn wrongly assumed to be methyl prednisolone) and it was a dose of Kenacort 80 that Msr. Grandiere injected into each of Anna's hocks.
59. Accordingly, in my view, it is abundantly clear from Mr Glyn's evidence of what happened and the details that he recorded in his 18^th May invoice that, when he treated Anna that day, Msr. Grandiere did administer both the cortico-steroids that he had just taken the trouble to prepare for use in the treatment of Anna. He injected a total dose of 20 ml of Voren suspension into a number of sites in Anna's back and he injected each of her hocks with a dose of Kenacort 80, each dose being 80mgs.
60. I reject Msr. Grandiere's evidence that he only used one type of cortico-steroid in his treatment of Anna (i.e. Voren suspension) and am content to ascribe his evidence to that effect to an unsatisfactory process of ex post facto reasoning rather than to any deliberate attempt to mislead. I found both his written and his oral evidence about this aspect of the matter wholly unconvincing and not such as to cast any doubt on the accuracy and clear meaning of his own contemporaneous written record of the treatment that he administered to Anna, particularly in the light of Mr Glyn's evidence as to what happened. I am entirely satisfied that Msr. Grandiere's own handwritten "facture" correctly records the treatment that he administered to Anna that day. I am fortified in that conclusion by the rapidity with which Anna actually did develop laminitis after the injections, bearing in mind that there is only a very slight risk of a horse developing laminitis after being treated with a normal dose of cortico-steroids.
61. In fact, the identity of the drugs and the dosage of each that Msr. Grandiere did administer to Anna in the course of his treatment was soon identified as a key issue in the case – so much so that the parties asked me to deal with it as a preliminary issue after I had heard all the factual evidence, but before hearing any expert evidence (it was realised that my answers to the questions posed would have a significant bearing on the extent to which it would be necessary to call expert veterinary evidence). The agreed wording of the Preliminary Issue was as follows:

"On 18^th May 2001 did Msr. Grandiere inject Annastasia

1 With Voren suspension into her back and Voren suspension into her hocks?

2 With Voren suspension into her back and Kenacort 80 into her hocks?

In the case of (1), what dose of Voren suspension did Msr. Grandiere inject into each of Annastasia's hocks and what dose of Voren suspension did Msr. Grandiere inject into Annastasia's back?

In the case of (2), what dose of Kenacort 80 did Msr. Grandiere inject into each of Annastasia's hocks and what dose of Voren suspension did Msr. Grandiere inject into Annastasia's back?"

62. For the purpose of determining the questions posed by the preliminary issue, I was asked to assume certain matters, as the result of those matters having been agreed by the expert veterinary witnesses instructed by the parties, namely:

"1. That there was no clinical justification on 18^th May 2001 for injecting Annastasia with (i) 20ml (15.8 mg) of Voren suspension in her back and (ii) either 40mg or 80mg of Kenacort 80 in each hock.

2. That on 18^th May 2001 no competent vet acting reasonably would have considered there to be any reason to inject Annastasia with (i) 20ml (15.8mg) of Voren suspension in her back and (ii) either 40mg or 80mg of Kenacort 80 in each hock.

3. That even by itself (i.e. ignoring the fact that Voren suspension was injected by Msr. Grandiere on 18^th May 2001) the injection of either 80mg or 160mg of Kenacort 80 between the 2 hock joints would have been in excess of what is generally accepted by competent vets as being appropriate."

63. After hearing full submissions on the preliminary issue, I gave my answers on 13^th May 2005 to the effect that I was satisfied that, on 18^th May 2001, Msr. Grandiere had injected doses of not less that 80mg of Kenacort 80 into each of Anna's hocks and a total dose of 20ml of Voren suspension into her back: see the terms of the Order of 13^th May 2001 giving my answers to the questions posed. As agreed with the parties, I have now given my detailed reasons in the course of this judgment (see paragraphs 49 to 60 above).
64. As I have already indicated, it was common ground that there was no clinical justification for the treatment that Msr. Grandiere actually administered to Anna on 18^th May 2001, that his treatment was therefore in breach of the duty of care that he owed to Mrs McGarel-Groves and was negligent (see the matters agreed by the experts for the purposes of the preliminary issue quoted in paragraph 62 above and see also the written closing submissions of counsel for each of the parties). It was also common ground that Mrs McGarel-Groves should have been warned of the risk of laminitis if it was proposed to administer any such treatment to Anna: see, for example, my note of Mr Lawrence's cross examination of Dr Alistair Barr, Mr Glyn's expert veterinary witness, in which Dr Barr said this:

"If at least 80mgs of triamcinolone was to be injected into the horse as well as dexamethasone into her back, I agree that the client should have been warned of the risk of laminitis. This is based on an intuitive assumption that the larger the dose the greater the risk of laminitis.

And in re-examination he said this:

"After I was sent a copy of the facture I contacted the solicitors and said that it looks like an overdose. The dose administered by Msr. Grandiere should not have been administered. The dose of triamcinolone was 3 or 4 times what would have normally been administered in the United Kingdom. 160mgs is a long way above what would normally be administered."

65. It was also common ground that, if Mrs McGarel-Groves had been told or warned about the proposed treatment as she should have been, she would not have allowed the treatment to go ahead and Anna would not have died. Consequently, it was accepted by all the parties that, in the light of my findings of fact as stated in my answers to the preliminary issue, Msr. Grandiere is liable to Mrs McGarel-Groves for negligence in the agreed amount of £350,000. As Mr McPherson succinctly observed in his written closing submissions:

"The only issue of interest to (Msr. Grandiere and the Clinique) that remains to be resolved is (a) whether they, and they alone, are liable for that sum, or (b) whether Mr Glyn also has a liability for that sum."

66. In my view, Mr Glyn was also in breach of duty to Mrs McGarel-Groves and is also liable to her in the agreed sum of £350,000 (which, in his case, takes into account his outstanding fees). In his case, as Mr Lawrence observed in paragraph 8 of his written closing submissions, the primary case against him rests on an analysis of the scope of Mr Glyn's retainer. In my view, it is sufficient for the purposes of this case to approach the matter on the basis of the duties that Mr Glyn expressly and/or impliedly accepted that he owed to Mrs McGarel-Groves, i.e. duties to observe the treatment and to intervene if it was remotely inappropriate or contrary to Anna's welfare (see paragraphs 46 and 47 above), although I acknowledge the force of Mr Lawrence's submissions that his retainer was much more comprehensive than Mr Glyn was prepared to admit (see paragraphs 10 to 20 of Mr Lawrence's closing submissions) .
67. As I pointed out in paragraph 48 above, Mr Glyn effectively rendered himself unable to judge whether the proposed treatment was inappropriate by his failure to make any inquiry as to the types of cortico-steroids that were to be used or as to the dosages that were to be administered. As it seems to me, that was an extraordinary failure, given that Mr Glyn knew perfectly well that two different cortico-steroids were to be used, that Anna's back and each of her hocks were to be injected at the same time and that a "high" dose of cortico-steroids would involve a sufficient risk of laminitis to make it necessary to warn (in effect) Mrs McGarel-Groves. In the course of his evidence, Mr Glyn accepted that if he had known that Msr. Grandiere was proposing to inject 80mg of triamcinolone into each of Anna's hocks, he would have intervened. If he had done so, the proposed treatment would not have gone ahead and Anna would not have died. Thus, for example, according to my note of Mr Lawrence's cross examination, Mr Glyn said this:

"I would not have used 80mg of triamcinolone myself. If Msr. Grandiere had told me that he was going to inject 80mg of triamcinolone I would have commented that this was a high dose and asked for his reasons. …

…

I think that with such an exceptionally high dose, you would have to discuss it with the owner's agent … and point out the risk of laminitis as a potential problem.

If I had known that Msr. Grandiere was going to administer 80mg of triamcinolone, I would have spoken to Msr. Assouline about it. …

If Msr. Grandiere was proposing to do something even remotely inappropriate in his treatment of Anna I would have taken action."

68. In my view, the position is put very clearly by Mr McPherson in paragraphs 18 and 19 of his written closing submissions, with which I entirely agree, as follows:

"18. If a professional is tasked with "observing" a procedure, it is clearly incumbent upon him to take reasonable steps to clarify and seek an understanding of what he is in fact "observing" in the event that what he sees is unclear, incomplete or otherwise insufficient to provide him with a complete and accurate picture of the procedure. Thus in order to fulfil the role described above Mr Glyn needed not only to observe the steps being taken by Msr. Grandiere but also to obtain a complete and accurate understanding of what he was observing – in particular, of the Treatment that was intended/proposed. Without such an understanding, he could not possibly know whether the Treatment was sufficiently "extreme", "contrary to the welfare of [Anna]"," totally against accepted methods of veterinary practice" or "even remotely inappropriate" to require intervention on his part.

19. Mr Glyn simply did not have such an understanding of what Msr. Grandiere was intending to do or of what Msr. Grandiere in fact did. He was therefore not in a position to assess whether or not the proposed Treatment required intervention on his part and was not in a position to fulfil that part of his role on 18^th May 2001."

69. Mr Edis stressed that Mr Glyn was not the treating vet and that the treating vet was an experienced and competent vet. He submitted that in all the circumstances Mr Glyn properly discharged his duty to observe the treatment administered to Anna and that, although Mr Glyn could have inquired as to the identity of the drugs and the dosages, he was not obliged to do so. I do not agree. As Mr McPherson submitted (see paragraph 23 of his written closing submissions):

"Mr Glyn's justification for not asking about the Treatment or positively considering whether or not it was appropriate – that Msr. Grandiere gave the appearance of being competent – misses the point. Competent vets can and do act in an incompetent way and administer inappropriate treatment. The only way of ascertaining (a) whether Msr. Grandiere and the Treatment fell within that category (as the Court found that he/it did) and (b) whether his intervention was required to protect Anna against inappropriate treatment was for Mr Glyn to ask the relevant questions. "Assumptions" as to competence and appropriateness were unnecessary and unjustified."

70. In effect, as Mr McPherson observed, Mr Glyn's acknowledged duties of observation and, if necessary, intervention provided the essentials that Mrs McGarel-Groves required for herself and for Anna, namely a line of defence against an apparently competent vet acting incompetently. By failing to ask the relevant questions (which Msr. Grandiere would have willingly answered) Mr Glyn failed to provide that line of defence. If he had asked the relevant questions, he would have realised that the treatment was, at the very least, inappropriate and he would have intervened, as he himself accepted in evidence.
71. Accordingly, for those reasons I have come to the firm conclusion that, in failing to inquire as to the identity of the cortico-steroids that Msr. Grandiere proposed to use and as to the dosages that he proposed to administer, Mr Glyn was in breach of his admitted duties to observe the treatment and to intervene if necessary. As a result, Msr. Grandiere went ahead with the treatment with fatal consequences for Anna.
72. It follows that Mr Glyn is also liable to Mrs McGarel-Groves for breach of duty in the agreed sum of £350,000. In all the circumstances and having regard to the existing length of this judgment, I have come to the conclusion that it is unnecessary to consider the more difficult question of whether there would be a duty to warn an owner of any proposed treatment involving the use of cortico-steroids in any event. In my view, the firm view that I have reached on the established facts of this case makes a consideration of that wider question largely academic.
73. As to the apportionment of responsibility as between Msr. Grandiere/the Clinique and Mr Glyn, I am not persuaded that it should be 60:40, as suggested by Mr McPherson, nor should it be 100:0, as submitted by Mr Edis. However, both are clearly correct in submitting that Msr. Grandiere should bear the lion's share. In my view, having regard to their respective roles and responsibilities in the matter, the liability for Mrs McGarel-Groves' losses should be shared between Msr. Grandiere and Mr Glyn on an 85:15 basis.
74. Conclusion. For the foregoing reasons, there will be judgment for Mrs McGarel-Groves for damages in the sum of £350,000. I will hear further submissions from Counsel as to the precise form of the Order and as to any other consequential applications.