piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Trial by ambush?

In Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) Foskett J, albeit with “considerable misgiving”, allowed a Defendant to rely on surveillance footage that had been disclosed so late that it caused the trial date to be vacated. The decision is not so much of interest because of its outcome but for the judge’s more general comments on the issue of when surveillance evidence might properly be served. Facts It was held that from May 2015, when their pain management expert expressed the view that it was possible the Claimant was “grossly exaggerating for the purposes of financial gain”, the Defendant had every reason to commission surveillance evidence. Its failure to do so until January 2016 was unexplained and unreasonable. A series of lengthy but less culpable delays thereafter meant that the edited surveillance was finally served by post on 24 March, Maundy Thursday and received on Tuesday 30 March. The Defendant’s application to rely on it came before Foskett J on 8 April who decided that the Claimant should have time to consider her position and that therefore the trial due to commence in the week beginning 11 April had to be vacated. When it came back before him later that month he considered the events leading to that outcome and decided that the interests of justice required the evidence to be admitted. However, he declined to reserve costs to the trial judge holding that this was the “clearest possible case in which the order should be that the Defendant should bear the costs thrown away by the vacation of the trial date on the indemnity basis”. The Defendant was also ordered to pay the costs of the Claimant’s experts considering the surveillance, again on the indemnity basis Points of General Application  In reaching this decision Foskett J made a number of useful observations on the approach that parties and the court should take to surveillance evidence. Lawyers on both sides would be well advised to take those points on board, particularly Defendant representatives considering when to disclose footage. At paragraph 1 the judge explained that he was giving the Claimant time to consider whether she in fact wanted to oppose the application on the basis that this type of application can backfire on Defendants and represent a bonus to Claimants. It’s easy to see how unconvincing footage, presumably the high water mark of a Defendant’s case, might lend weight to a Claimant’s case. At paragraph 31, in the course of reviewing the authorities, he reiterated that the question of whether or not there is an ambush does not require a sinister motive to be shown but asks only whether the behaviour is otherwise culpable. Thus a Defendant does not have to be shown to be acting in bad faith or sharply – what matters is the effect of the conduct on the Claimant’s ability to deal with the evidence fairly. The judge observed at paragraph 34 that were it necessary to find a deliberate attempt to wrong foot the Claimant then this could only be done fairly in a mini-trial of the solicitor’s conduct. This is the sort of satellite litigation which is to be avoided. Reassuringly for those advising Defendants it is clear from paragraph 36 that his decision is not to be taken as altering the well-recognised position that a Defendant is entitled to wait until a Claimant has nailed his colours to the mast in a witness statement and/or schedule of loss before serving surveillance evidence. Having considered paragraphs 71 and 71 of Judge Collender QC’s decision in Douglas v O’Neill [2011] EWHC 601 (QB) he held that the fact that footage existed and more significantly had been seen by experts was not determinative of the question of whether permission to rely on it should be given. Experts are capable of putting such material out of their minds when giving evidence, just as they know not to reveal matters discussed without prejudice. In this case the judge notes that the Claimant’s solicitors perceived it was inappropriate for the experts to be shown the surveillance footage before permission to rely on it was given but does not really deal with whether they were correct. One can see that if the experts’ knowledge of the footage is, while not determinative, a relevant factor it might be improper to share it with experts and then make the application. Conversely the experts’ opinion might be required to decide whether to make the application. He observed that any inadequacy in the rules dealing with surveillance was a matter for the Civil Procedure Committee but noted that two cases on that issue were heard in the Royal Courts of Justice on the same day. At paragraphs 44 to 46 he questioned whether case management might resolve many such issues. It is the experience of the Senior Master that Claimants often seek an order specifying a date by which surveillance evidence must be served and this is frequently resisted by Defendants. It was suggested that it would be prudent for Claimants to raise the matter with the court as soon as they are in receipt of expert reports which suggest there might be an issue and indeed for the court to raise it of its own motion at the case management stage. Finally, at Paragraph 47, once a Claimant’s case as to the level of disability is clearly articulated and the Defendant has an expert opinion suggesting the claim is “suspect”, an obligation arises actively to obtain surveillance evidence if proportionate. This is not therefore a decision which particularly advances the law but it is a useful insight into how courts will approach applications of this nature.

Daniel v St George's Healthcare NHS Trust & London Ambulance Service: a human rights cautionary tale?

  Daniel v St George’s Healthcare NHS Trust  and London Ambulance Service [2016] EWHC 23 (QB) Introduction Edward Bishop QC has successfully defended an NHS trust and the London Ambulance Service against claims under the Human Rights Act 1998 brought by the foster family of a man who died of a heart attack in Wandsworth Prison.  The judgment deals with the legal test for liability, causation and victim status.     The central allegation was that there was culpable delay in the attendance of paramedics caused by nursing error and an insufficiently flexible ambulance triage system.  The judge rejected both allegations on the facts and clarified the law on causation in cases of death in custody from natural causes.  She also dealt with “victim status” under the HRA, ruling that the deceased’s foster mother was entitled to bring a claim but his “foster brother” was not. Background James Best (“JB”) was a prisoner on remand at Her Majesty’s Prison (HMP) Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym. The First Defendant (“St George’s”) is a National Health Service (“NHS”) Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB’s life on the day of his death. The Second Defendant (“the LAS”) is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived. The central allegations were that the nurse who attended on JB in his cell failed to request an ambulance quickly enough, and further that there was unnecessary and unreasonable delay in the dispatch of an ambulance by the LAS. The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant’s biological son, and described JB as his foster brother. The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (“HRA 1998”), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“ECHR”). Violation of Articles 2 and 3 Mrs Justice Lang set out the appropriate legal test to be applied when considering whether or not there had been a breach. She reiterated the guidance: “I remind myself that the test to be applied is whether the Defendants did “all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (Osman at [116]). In Rabone, Lord Dyson considered that an “immediate” risk was one which “present and continuing” (at [39]). He added, at [43]:   “The standard required for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”; per Lord Carswell In re Officer L [2007] 1 WLR 2135 , para 21.   The ECtHR and the domestic courts have emphasised that the operational duty must not be interpreted in a way “which imposes an impossible or disproportionate burden on the authorities” (Osman at [116])”   On causation, and having considered the evidence, the test was: “the legal test of causation is whether there was a failure to take reasonably available measures which could have had a “real prospect of altering the outcome”. Put another way, the Claimants have to establish that JB “lost a substantial chance of avoiding the outcome”.”   The court heard extensive evidence, not just from the actual persons involved in the immediate aftermath, but also from medical experts who gave evidence on the chances of survival following such a heart attack. Careful consideration was given to transcripts of the 999 call-outs, and the exact timing of those calls. The criteria and policy of the ambulance service was scrutinised.   Mrs Justice Lang was emphatic in her dismissal of the claims of breach. She did not consider that the “Claimants have succeeded in establishing, on the balance of probabilities, that, even if [the nurse at the prison] had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a “real prospect of altering the outcome” or that JB “lost a substantial chance of avoiding the outcome”.   As for the claims brought under Article 3, the Judge said: “The claim under Article 3 was unarguable, in my view. [the prison nurse] acted promptly, reasonably and professionally and did all she could to save JB’s life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. ” It certainly did not amount to “inhuman and degrading treatment”.   Victim status   Both Claimants brought claims alleging that they were “indirect victims”. Mrs Justice Lang considered the law on victim status, and set out the relevant test:   “In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess: ·       1. the nature of the legal/family relationship between the Claimants and JB; ·       2. the nature of the personal ties between the Claimants and JB; ·       3. the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer; ·       4. involvement in the proceedings arising out of JB’s death.”   On applying that criteria, she was satisfied that the first Claimant was a indirect victim as she had been JB’s foster mother for three years, leading to a longstanding parent-child relationship. JB had no other family of his own, and shortly before his death referred to himself as the first Claimant’s “third son”. Not only this, but the first Claimant had clearly suffered from acute distress following JB’s demise, and had been extremely active in the aftermath of his death.   However, the second Claimant was found not be an indirect victim. The status of “foster brother” is not recognised in UK domestic law or in ECtHR case law. There can be no question that the second Claimant suffered hugely from the loss of a close friend; but this alone is not a sufficient basis on which to found a claim.   The claims were dismissed.

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.