Webster (a child by his litigation friend, Heather Butler) v Burton Hospitals NHS Foundation Trust  EWCA Civ 62
The Court of Appeal (Jackson, Simon, Flaux LLJ) determined an appeal brought by a child (W) who suffered from cerebral palsy caused by a prenatal injury to his brain. It was not disputed that if W had been delivered 3 days earlier, he would have avoided the injury. An ultrasound scan carried out 2 months before delivery revealed anomalies with the foetus, but a consultant obstretrician (H) had admittedly acted negligently in failing to arrange further scans. A month later, and a day before the scheduled due date, the mother was admitted to hospital feeling unwell. It was W’s case that H should have offered the possibility of induction of labour which, if accepted, would have avoided the injury. The judge at first instance found that H was not justified in categorising the scan as normal. However, adopting the Bolam test, he concluded that a body of consultant obstretricians would not have been deflected from their usual conservative course and could not be said to have acted irrationally or illogically. Further discussion with the mother would not have changed the outcome.
(1) Following the decision in Montgomery v Lanarkshire Health Board  UKSC 11, the Bolum approach was no longer correct. The doctor’s obligation, other than in cases where it would damage the claimant’s welfare, was to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that would affect their health and well-being on proper information;
(2) The question was whether the instant court could assess the conclusion the judge would, or should, have reached on the issue of liability if he had adopted that approach. That involved identifying what information H should have presented to the mother on 27 December, and what her response would have been. H should have told the mother that there was “an emerging but recent and incomplete material showing increased risks of delaying labour in cases with [that] combination of features”. If the mother had been given that information, she would have wanted to be delivered on 27 December, even if the information had been couched in terms of contrary arguments in favour of non-intervention. In those circumstances, the hospital’s submission that, rather than agreeing to induce his patient, H would have sought a second opinion, was rejected. The judge’s decision on liability was reversed.
The Secretary of State for Work & Pensions (SSWP) appealed against a decision of the Upper Tribunal (UT) that the respondent was entitled to compensation under the vaccine damages payments scheme. It was accepted that the respondent had been left with severe narcolepsy and cataplexy as a result of receiving a pandemic influenza vaccine at the age of 7. However, his mother’s initial claim under the Vaccine Damage Payments Act 1979 was refused on the basis that SSWP denied that he was ‘severely disabled’ to the extent of 60% (as required under the Act). The First Tier Tribunal (FTT) agreed that at the time of his assessment by a specialist in paediatric neurodisability and sleep medicine, the respondent was not 60% severely disabled, but it determined that significant future improvement in his condition was unlikely and found that it could take account of future problems that were reasonably foreseeable at the date of the assessment. The UT upheld that decision.
The Court of Appeal (Sir Terence Etherton MR, Davis LJ, Underhill LJ) held:
(1) If an individual was assessed as having a lifelong condition, it was hard to see why that should not be taken into account in assessing the extent of the disablement. Courts were used to assessing loss on a balance of probabilities on present evidence with no particular difficulty beyond a difficult evaluation as to whether the 60% threshold was reached. Several reasons suggests it could not have been Parliament’s intention to impose a requirement to determine the extent of disablement at the time of the assessment: (i) such an approach had the potential to turn the scheme into a litigation game; (ii) it would involve an element of arbitrariness, with much depending on when the applicant first happened to apply; (iii) the fact the scheme provided for a fixed sum of compensation, without possibility of argument over quantum, was consistent with a process designed to look to past and future on a holistic basis. The words of the Social Security Contributions and Benefits Act 1992 (particularly Sch. 6, para 6(1)) were readily compatible with including a future period. The UT had been justified in looking to the respondent’s prognosis;
(2) Although the injuries described in Sch 2 of the 1982 Regulations did not fit at all well with the respondent’s injuries and loss of faculties, that did not mean that Sch 2 was entirely to be ignored. Having regard to Sch 2 would not be a wholly empty exercise in relation to a non-physical injury. Read as a whole, the UT’s decision did not fall into the error of regarding Sch 2 as some kind of strait-jacket, as opposed to guidance.
The appellant had suffered injury when she fell on paving which was maintained by the respondent. She initially began her claim under the EL/PL Protocol. It later ceased to continue under that Protocol, although the precise reasons for this were disputed.
The case thereafter proceeded under the PI Protocol. The respondent failed to give pre-action disclosure pursuant to that Protocol and the appellant had made an application for the same. Disclosure had been given by the time that the application was heard but the appellant received her costs of the application in the sum of Â£1,250. On appeal the costs had been reduced to Â£300 on the basis that her application was caught by the EL/PL fixed costs regime. The appellant appealed the reduction.
The Court of Appeal was asked to decide whether the fixed costs regime applied to applications for pre-action disclosure in cases which were started, but no longer continued, under the EL/PL Protocol.
The Court of Appeal held that fixed costs do apply to such applications. From the moment of entering the Portal, the intention was that fixed costs would apply to a claim at all subsequent stages. Part 45 clearly provided that fixed costs were “the only costs allowed”, subject to a very small category of clearly stated exceptions.
While an application for pre-action disclosure was self-contained and distinct from the main action, there was a close connection between the two. It was apposite for such an application to be classed as an “interim application” for the purposes of r45.29H.
There was real force in the appellant’s submission that limiting claimants to fixed costs would deprive pre-action disclosure application of their value as a “spur to compliance”. However, the answer was not to exclude such applications from the fixed costs regime. Applying assessed costs to such application could give rise to unwelcome satellite litigation. The answer lay in the availability (in exceptional circumstances) of an application under 45.29J for costs exceeding fixed recoverable costs. The Court of Appeal acknowledged that the Rules Committee may need to keep the issue under review as it may be that claimants in such cases struggle to demonstrate “exceptional circumstances”.
The claimant, who had been drinking, was struck whilst crossing the road between two pubs. The defendant was driving at 20mph, had not been drinking, and was not distracted. Notwithstanding this, she had failed to see the claimant. In all the circumstances, had she been negligent
The expert evidence suggested the claimant had been in the road when the defendant was 20 metres away. Although the claimant was wearing dark clothes, the carriageway was well lit and his bare face and arms contrasted with the dark surface of the road. There was nothing preventing him being visible. The defendant should have seen him from approximately 6 metres away and taken evasive action. An emergency stop would not have been required, only a slight steering adjustment. The incident occurred at a junction and a reasonably careful driver would have considered it likely that people would be looking to cross the road.
There was a degree of contributory negligence on the part of the claimant but his carelessness had not been the predominant cause of the accident. He was in the road and ought to have been seen. Contributory negligence was assessed at 30%.
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If youâ€™ve recently been caught speeding, whether by a speed camera or by police officers, you will probably still feel very shocked and worried about the future.
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The Court of Appeal set out the approach to be taken when considering an appeal from the decision of CICA in relation to a decision not to waive the time limit in the Scheme with respect to a claim which had been brought 40 years out of time. The FTT upheld the decision; but the UT allowed an appeal on the basis that the FTT had erred in its approach to the question of whether the deceased ex-partner (who had brought the claim) was a qualifying claimant under the Scheme; the approach to the deceased’s conduct had been inconsistent; and the tribunal had engaged in ‘speculation without evidence’ on when the deceased’s children had sufficient information to bring a claim.
â€¢ The court had to exercise restraint and proceed with caution before interfering with decisions of specialist tribunals. It was important to identify the tribunal of fact, to keep in mind that it had heard the evidence, and to respect its decisions. When determining whether a question was one of fact or law, the court should have regard to context, so as to ensure both that decisions of tribunals of fact were given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field, AH (Sudan) v Secretary of State for the Home Department  UKHL 49,  1 A.C. 678 and R. (on the application of Jones) v First-tier Tribunal (Social Entitlement Chamber)  UKSC 19,  2 A.C. 48 applied.
â€¢ The tribunal and not the UT was the tribunal of fact in the instant case. The UT’s jurisdiction was limited to one of judicially reviewing the tribunal’s decision. The UT had no jurisdiction to interfere with the tribunal’s decision, absent a public law error. The instant case was not one calling for guidance from the UT to shape the development of law and practice in respect of claims under the scheme. It followed that in classifying issues before the tribunal as those of fact or law, questions of context could have, at most, only very limited bearing
â€¢ The UT decision was untenable and could not stand.
A consultant plastic surgeon appealed against a finding of negligence arising from the respondent’s claim for an unsatisfactory breast augmentation operation. The respondent had alleged that she had undergone the operation in reliance on the negligent advice of the surgeon. At first instance the judge had found that the surgeon had unintentionally allowed the respondent to leave the consultation with the impression that after breast augmentation a more invasive mastopexy would not be needed for 5-10 years; whereas in fact the Claimant was advised following the augmentation procedure that a mastopexy was required in 10 months.
Held: The surgeon had been found negligent because she had failed to dispel an impression which she had not herself expressly given and which she had neither known nor ought to have known the patient had somehow derived. The question which the judge ought to have asked himself was whether anything said or done by the surgeon at the consultation would have been reasonably understood by a patient in the patient’s position as an assurance that it would be between 5-10 years before she would require a mastopexy. A defendant medical professional ought not to be liable in such circumstances unless she was responsible for the patient getting the wrong impression or, having realised the misapprehension or in circumstances where she ought so to have realised, took no steps to dispel it.
The Claimant owned a new build property which had been constructed by the First Defendant. She fell over a step in the garden and suffered serious injuries. Her pleaded case was that the First Defendant had breached the contract of sale by failing to complete the work to a satisfactory standard and in compliance with building regulations.
The Claimant made three applications one week before trial. Only one was opposed. By this application, the Claimant sought permission to amend her particulars of claim to allege that there had been a breach of common law duty.
The application was refused. There was no real reason advanced in support of the amendment which appeared to simply represent a late change of mind. The new allegation was substantially different and could not be met by the Defendants on the basis of the current evidence, certainly not without additional work. Allowing the amendment would require the trial date to be vacated if the Defendants were not to be faced with a new allegation at a very late stage.
A cathedral appealed against a finding that it was liable for the injury suffered by the respondent. The respondent alleged that he had tripped over a piece of concrete which stuck out from the bottom of a bollard within the cathedral precincts.
HELD: (1) A trial judge must strike a balance between the nature and extent of a risk and the cost of eliminating it when assessing whether a visitor would be reasonably safe in using the premises for the purposes of the Occupier’s Liability Act 1957. Not all foreseeable risks are sufficiently serious to require an occupier to take steps to eliminate them. The assessment of this seriousness amounts to an exercise of judgement by a trial judge.
(2) The trial judge in this case did not recognise in his judgment that not all foreseeable risks require action to be taken by the occupier. He could not have reached the decision he did if he properly took a practical and realistic approach to the dangers which the cathedral was required to rectify. The piece of concrete was extremely small and could not be said to pose a real danger to pedestrians.
The court determined liability and contributory negligence as a preliminary issue in a claim for personal injury brought by the Claimant, a pedestrian, who was struck by the Defendant’s vehicle while attempting to cross a road. The Claimant, who had been drinking, sustained serious brain injuries and consequent loss of capacity.
Held: (1) On the balance of probabilities, the accident had occurred at about 20-25 mph just before a raised pedestrian crossing; (2) before crossing, the Claimant had briefly stopped at the kerb, which allowed time for the Defendant to brake; it was foreseeable that the Claimant might step into the street, and yet the Defendant had failed to observe him or slow down such as to avoid a collision; he therefore failed to exercise the care of a reasonably prudent motorist; (3) the Claimant had not only failed to look right before crossing but he had also chosen not to cross at the crossing itself; had he done so, the collision would have been avoided. His failure to take care was linked to his alcohol consumption. The court gave judgment for the Claimant, but discounted damages by one third due to contributory negligence.