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
		20/05/2016

Mr Justice Nicol:

1. I handed judgment down in this case on 12^th May 2016. I dismissed the claim. When a draft of the judgment was distributed to the parties, the Claimant requested that I also give my views as to the amount of damages I would have awarded if I had found the Defendant to be liable. It was said that this would assist the Court of Appeal (in case there was an appeal and it was successful) and would be consistent with the overriding objective.
2. If there had been a suggestion that, because the trial was of liability and quantum, the Court was obliged to give judgment on both, I would have rejected this. My decision that the Defendant was not liable to the Claimant was sufficient to dispose of the claim. The order that I made on the hand down was that the claim was dismissed. No further order would follow any indication as to what conclusion I would have come to had the decision on liability been in the Claimant's favour. Nor do I accept that the overriding objective obliges the Court to give a further judgment which will be entirely hypothetical.
3. However, I heard evidence from two psychiatric experts. I heard the Claimant give evidence on her loss and I heard submissions from the parties. Since it may be of some assistance to the parties, I am prepared to give the following indication of the views to which I would have come.

If the Claimant had been told that a substantial piece of placenta was retained, would she have had an operation to remove it?

4. It became apparent during the obstetric and gynaecological experts' evidence that, if a large piece of retained placenta had been identified on 6^th April 2011, it could have been removed with the aid of a regional (i.e. spinal) anaesthetic. An operation under a general anaesthetic would not have been necessary for that purpose. Nonetheless, it was suggested to the Claimant in cross-examination that she was anxious to go home and be with both her new baby and her older child and she would not have wished to remain in hospital to undergo this additional procedure. She rejected the suggestion. I agree that it is very hard for the Claimant to put herself in the hypothetical position when she knows what pain and suffering she in fact endured between Harry's birth and the removal of the item (whatever it was) from her uterus. Nonetheless, I accept that if she had been told that a substantial piece of placenta had been retained, that there was a possibility it would pass out of her naturally, but that it could have been more certainly removed by an operation under regional anaesthetic, she would have chosen that latter option.

Haemorrhage subsequent to removal of retained placenta after such an operation

5. Professor Shaxted agreed that, if the Claimant had had a large piece of placenta removed on 6^th April, her total blood loss during and after the operation would not have been hugely different to her blood loss due to the haemorrhage on 21^st April. However, he added, that the haemorrhage would then have occurred in the hospital, not in a car. Dr Maresh said nothing different and I accept Professor Shaxted's evidence.

Pain and suffering prior to the operation on 21^st April 2011

6. Some of the pain which the Claimant suffered between the birth of Harry and the operation on 21^st April was due to the tear in her perineum. The pain and suffering due to the tear were not attributable to the Defendant's negligence, even on the Claimant's own case. There also has to be factored out the pain which is a common occurrence after a vaginal birth. Had the additional pain which the Claimant suffered been due to the Defendant's negligence I would have awarded some, but not substantial, damages. They would have been in the region of £3,000.

Length of time the first period of the Claimant's Adjustment Disorder continued

7. I heard expert psychiatric evidence from Dr Philip Steadman, called on the Claimant's behalf, and Dr Gary Jackson on the Defendant's behalf. Both doctors had produced reports and there was a report of their meeting which had identified areas of agreement and disagreement. Both agreed that, but for the problems with the Retained Products of Conception, the Claimant would not have developed an Adjustment Disorder. The haemorrhage had been particularly distressing because it had not occurred in the controlled environment of a hospital but in a car park. In Dr Jackson's case, he considered that there were other contributing factors as well. Nonetheless, he agreed that, but for the problems with the Retained Products of Conception, the Claimant would not have suffered from an Adjustment Disorder.
8. Both psychiatrists agreed that Adjustment Disorder was at the mild end of mental illnesses. They disagreed as to the length of time it had lasted (and, a matter I return to below, whether the Claimant had experienced a second episode of Adjustment Disorder, when the Claimant was pregnant with her third child). Dr Steadman considered that the episode of Adjustment Disorder after the birth of Harry had lasted for 1 year. Dr Jackson considered that the Claimant had recovered after about 6 months.
9. Dr Steadman accepted that an Adjustment Disorder would normally last for 6 months, but he said it could be longer. In his view the Claimant had a predisposition or vulnerability which made it unsurprising that it should have lasted rather longer.
10. In her statement the Claimant said that it took her about a year to recover. I note that the Claimant also said in her statement that one of the symptoms of her condition was that she had difficulty in sleeping and, when she did get to sleep, she had nightmares. She told Dr Steadman that the nightmares had continued for 9 months after Harry's birth. She was on antidepressants for slightly longer, but Dr Steadman agreed that a patient would often be advised to continue taking anti-depressants for a further 6 months after they began to feel better.
11. Taking all of this into account, and doing the best I can (as Dr Steadman said in his evidence, it is hard to pin down a precise number of months), I consider that the Adjustment Disorder lasted for not less than 9 months.
12. The parties were agreed that the Judicial College's Guidelines moderate bracket for psychiatric harm gave the appropriate range. This goes from £4,900-£15,900. For this period of Adjustment Disorder I would have awarded damages in the region of £9,000.

Did the Claimant suffer a second period of Adjustment Disorder during her pregnancy with her third child?

13. In her statement the Claimant said that she became very anxious and scared when she was pregnant with her third child, Elsie. She said that all of the emotions that she had been through following Harry's birth came flooding back and that caused her a lot of distress. She told Dr Steadman that these feelings began when she learned that she was pregnant (about August 2013) and continued until she a few days after she gave birth to Elsie in April 2014. Dr Jackson recognised that her fear was that there would be similar complications after Elsie's delivery, but he did not consider that her condition during this pregnancy was sufficient to constitute a mental illness. In the Joint Report the experts' difference of view was repeated: Dr Jackson maintaining that there had been no second period of mental illness; Dr Steadman saying that there had been and it had lasted for about 8 months.
14. On this issue, I found Dr Steadman's evidence to be the more compelling. Dr Jackson accepted at a number of points in his evidence that there were records and statements which he had not seen when he came to prepare his report (although some were apparent to him indirectly through Dr Steadman's report). The Claimant was also someone who was plainly vulnerable to distress and anxiety. I accept that the events following Harry's birth had been traumatic for her and, like Dr Steadman, I accept that this led to a recurrence of Adjustment Disorder, not merely the sub-clinical symptoms as Dr Jackson described.
15. I bear in mind the same caution which Dr Steadman expressed in relation to calculating the length of time which the first period of Adjustment Disorder lasted. Again, doing the best I can, I would estimate that it lasted no less than 6 months. For this I would have awarded a further £5,000.

Past care

16. The Claimant claims £3,305 for care from her parents during most of the period between 8^th April and the end of May 2011 for periods varying between 6 and 24 hours per day in April and 2 hours per day in May. She claims at £8.98 per hour. She says no deduction for the gratuitous character of the care is appropriate because her father was a cab driver and lost earnings by caring for his daughter. I agree with the Defendant that this claim (a) makes insufficient allowance for the care which the parents would have anyway provided for a new mother with a baby and a toddler; (b) makes insufficient allowance for the additional assistance which the Claimant would have needed because of her pain from the tear to her perineum and the unsuccessful attempt to stitch it; (c) in the absence of further particulars and proof of her father's lost earnings, must give allowance for the gratuitous character of the care. In the circumstances, it is not proportionate to calculate the precise loss. It is sufficient to say that I would have awarded no more than £1,500 under this head.

Lost earnings

17. The Claimant claimed that she would have returned to work for 3 days per week 1 year after the birth of Harry (i.e. in May 2012) and would have continued so to work until July 2013, following which she realised that she was pregnant with Elsie. She claims that she would have earned the equivalent of what she had earned as a legal secretary at Reynolds Porter Chamberlain until her departure from them in about May 2008. She says that because of what had happened following the birth of Harry, she was unwilling to leave him and so could not go back to work as she had planned. Her full time salary, she says, would have been £23,000 and her claim for 15 months at 3 days per week with an additional allowance for an increase of 5% p.a. comes to £14,046.
18. The Defendant raises a number of objections to this head of claim. It is sufficient for me to say that I fail to see how this head of loss flows from the Defendant's alleged negligence. The Adjustment Disorder, even on the Claimant's case, was over by May 2012. It could not have been that which caused her not to return to employed work. I recognise that there are difficulties for anyone seeking to re-enter the job market after an absence, but the Claimant in any case had not worked since about May 2008 and so would anyway have faced that difficulty. She says that she felt unable to leave Harry to return to work, but if those feelings were not part of her Adjustment Disorder (which, as I have said, on her own case had come to an end by the time she had planned to return to work), there is not a sufficient causal link for the Defendant to be liable for this head of loss (even assuming it had been negligent).
19. I would not have awarded anything under this head.

Cost of Cognitive Behavioural Therapy

20. Dr Steadman's report recommended this. It would have cost a total of £1,188. Mr Krsljanin commented that this would only have been recoverable if the Claimant had proved that she would have undertaken it. Her witness statement was silent on the issue.
21. I do not think I would have refused recovery of this item on that ground. After all, it could be said that the inclusion of the item in the schedule of loss carries the inference that the Claimant would be so willing.
22. However, a more fundamental problem is that the experts were agreed that the Claimant had completely recovered from her Adjustment Disorder. They also agreed that she was vulnerable to further episodes of mental illness, but they would not be recurrences of her Adjustment Disorder and would not be related to the index events. In those circumstances, while cognitive behavioural therapy might benefit the Claimant, I do not consider that it is a head of loss for which the Defendant would have been liable if it had been negligent.

Other expenses

23. By the conclusion of the hearing there was no separate objection to the miscellaneous costs for which the Claimant claimed totalling £468.

Interest

24. In accordance with the usual law and practice the Claimant would have been able to claim interest on certain of her losses. I do not propose to compute this.

Summary

25. The Defendant is not liable for any damages because the Claimant failed to prove that a substantial piece of placenta had been retained in her uterus. No damages are therefore payable to her.
26. If I had found the Defendant to be liable to the Claimant, I would have awarded:

i) £3,000 for pain and suffering over the period before the piece of placenta was removed.

ii) £9,000 for the first period of Adjustment Disorder (following the birth of Harry).

iii) £5,000 for the second period of Adjustment Disorder (during the pregnancy with Elsie).

iv) £1,500 for past care.

v) Nil for loss of earnings.

vi) Nil for Cognitive Behavioural Therapy.

vii) £468 for miscellaneous expenses.

viii) Appropriate interest.