Brushett v Hazeldean – The Facts

A pedestrian crosses the road whilst looking at her mobile phone.  She is seemingly unaware of an approaching cyclist, who had cycled through a green light.  There is a collision, and both reportedly suffer injuries.  So why did the Judge order that the cyclist must pay the pedestrian damages and legal costs, yet the cyclist gets nothing?

Reading much of the recent press coverage of this case, one can be forgiven for thinking that this was an unusual, perhaps even unfair result.  But was there more to it?

I was the barrister instructed to represent Gemma Brushett, the injured pedestrian who sued the cyclist for damages.  In my practice I act for both claimants (those who have been injured and seek to be compensated) and defendants in a range of different types of personal injury cases.  I have acted on behalf of many more cyclists than I have pedestrians in my career so far (although I tend to do more medical negligence work than road traffic cases), and am firmly of the view that the use of green modes of transport such as cycling should be encouraged.

I accept that I am not an independent observer of the case.  But I was one of only a handful of people who were present for the 2 days of the trial, and can add some important detail to that put out in the newspapers.


The accident happened shortly after 5pm on 20thJuly 2015.  There were many pedestrians trying to make their way home from work.

The Claimant was attempting to cross King William Street towards Cannon Street.  The Defendant was cycling northbound over London Bridge and intended to cycle up King William Street.

This would have been approximately the Defendant’s view as he cycled through the light that he says was green (although there would have been a greater number of pedestrians than in this photograph).  The crossing is in the top left of the shot where the red double decker bus is.  The traffic lights are perhaps 25 metres away from the collision point at the crossing.

Screenshot 1.png

This is approximately the view that the Defendant would have had from his position on the road perhaps 5 metres away from the crossing.  The Claimant was crossing from right to left on the Defendant’s view.

Screenshot 2


The Claimant did not give oral evidence at the trial of liability.  She had been knocked unconscious by the impact, and suffered concussion with post-traumatic amnesia such that she had no recollection of the accident itself.  Her witness statement described that this was her usual walk from the office to the station to go home.

The police attended the scene after the accident and spoke to 5 witnesses, including the Defendant.  It is important to recognise that the police did not prosecute the Defendant or the Claimant.  In his statement to the police, the Defendant stated that he:

 “…..can see people crossing at the junction of King William Street with Cannon Street so I have sounded my airhorn on my bike, which caused people to part and leave a gap in the middle of the road.  I continued up towards King William Street, but due to the people in the middle island and still crossing I was positioned on the right hand side of my lane, close to a yellow bollard on the middle island.  I believe I may have been travelling at 10-15mph.  As I was approaching this island where most people had stopped, I saw a blond female who was in the middle of the road crossing onto the pavement in the direction of Cannon Street.  She turned to look at me and instead of continuing forward in the direction she was walking she stopped and stepped back into the gap I was travelling into.  I shouted out to her “No” as I was only 2-3 metres away from her.  I put on my brakes but could not avoid colliding with her…..”

The police spoke to 2 witnesses who were standing in the central island at the time of the accident.  They both said that the Claimant walked out from the central island, and that she stepped into the path of the cyclist.  One of these witnesses said that the Claimant wasn’t looking for oncoming traffic. They both blamed the Claimant for the accident.

Another witness was on the left hand pavement.  They said that they heard the “loud horn”and the Defendant shout something “to which the female stepped out”.  There was no comment from this witness as to who they thought was to blame.

The final witness was Mr H.  He had been cycling over London Bridge and had waited at the lights before it turned to green.  He told the police that he was overtaken by the Defendant after the traffic lights. He said that the Defendant sounded his airhorn at that point and“cycled towards a large number of pedestrians who were still crossing the road……..The cyclist did not slow down and I heard him shout something towards the pedestrians.  I then saw the cyclist’s bike strike a lady on the left side knocking her to the ground…….”

Mr H considered that the Defendant was riding too fast towards the pedestrians.  He felt that the Defendant was to blame.

None of the statements given to the police on the day of the accident, including the Defendant’s, mention that the Claimant was using her mobile phone.

The police investigator who attended the scene and spoke to all of the witnesses concluded that both the Claimant and the Defendant were to blame.


The Defendant was unrepresented when he drafted his own Defence.  It was thorough and addressed each aspect of the Claimant’s claim.  It did not expressly plead contributory negligence.

The Defendant instructed solicitors who came on the record in October 2018.  In their Directions Questionnaire filed that month, they sought a direction for an amended Defence to be filed, “with a counterclaim if advised to do so”.

No application for permission to serve an amended defence was made, and no counterclaim was ever brought.

In advance of trial the Defendant filed and served a hearsay notice confirming that he intended to rely on the 4 other witness statements given to the police as ‘evidence of truth of the matters stated’.  This included the police statement of Mr H.  However, by this time the Claimant had already obtained a witness statement from Mr H, who would be called by the Claimant to give live evidence at trial.

The Claimant made an application for summary judgment on the basis that the Defendant’s hearsay notice adopted Mr H’s statement to the police as being the truth.

No attempts were made to bring any of the 3 other witnesses to Court. It remains unclear whether they had a clear and unobstructed view of events, and whether their focus was on the Claimant or the Defendant.  More details of their statements to the police are set out from paragraph 22 of my note of the judgment.


On the morning of the trial, the Claimant’s application for summary judgment was heard.  It was refused.

The Defendant made an application to plead contributory negligence in the alternative.  This was allowed.

The Claimant relied on Mr H as her only witness on the issue of liability. Mr H attended trial and was cross examined by the Defendant’s barrister.

Mr H’s evidence included a voice memo that he had recorded on his mobile phone minutes after the accident in order to provide a more detailed account than that recorded by the police.  His witness statement expanded upon his police statement.  He described in Court that there was a ‘throng’ of pedestrians 5 or 6 deep crossing the road, and estimated that there were 50 people in this group.  He described that he slowed his bicycle because he felt that it was unsafe to proceed with people still crossing.

Mr H said that he was overtaken by the Defendant, who was travelling at around 20mph and had sounded his airhorn.  Mr H considered that the Defendant accelerated as he approached the crossing.  He saw the Defendant collide with the Claimant who was crossing the road.  He remained of the view that the Defendant was to blame.

The Defendant gave evidence at trial.  No other witnesses gave live evidence in support of his case.  The Defendant’s evidence at trial included that:

  • He was knocked unconscious as a result of the collision, but no evidence had been obtained to ascertain whether this had caused any ill-effect on his memory.
  • He was approximately 20 metres away from the crossing when he saw a group of pedestrians crossing the road. He said that the group of pedestrians included the Claimant.
  • It appeared to him that the pedestrians were unaware that there was oncoming traffic.He was aware that there were no pedestrian red man/green man lights at the crossing.
  • ‘Many’ of the pedestrians heeded the sounding of his 115db airhorn, but the Claimant and others continued to cross the road.
  • He accelerated up to 10-15mph after he sounded the airhorn, when people were still in the road.
  • The Claimant was near to the left hand side of the crossing (as he was looking at it) when she looked up from the mobile phone that she had been reading, panicked, and ran or stuttered back across the road in the direction of the central island.
  • He called out loudly, applied his brakes, and attempted to swerve to the right, but was unable to go further as he would have hit the pedestrians waiting on the island.


In submissions, reference was made to speed conversion tables.  10mph = 4.5 metres per second, 15mph = 6.7 metres per second, and 20mph = 9 metres per second.

This was relevant because if the Defendant was travelling at around 20mph as Mr H contended, he would have travelled the approximate 20 metres distance to the Claimant in about 2.2 seconds.  If he was travelling at an average of 12.5mph, he would have travelled the approximate 20 metres distance in about 3.6 seconds.

The Highway Code recommends that cyclists use a bell.  There is no reference to airhorns (they are not expressly prohibited).


My note of the judgment on liability is here.  It is important to understand that this was an extempore judgment given at the end of a long and stressful day in Court.  District Judge Mauger is an experienced, fair and excellent judge.  She has been hearing these types of cases for around 10 years, first as a Deputy District Judge, and then as a full time District Judge since 2014.

My view is that had there been time to prepare a full written judgment, there may well have been a different focus on certain parts of the evidence, but that the ultimate result would have been the same.

My typed note of the judgment will not be a 100% accurate transcription, but it should be pretty close to it.

The trial of the quantum of damages was heard the following week.  It was found that the Claimant suffered a head injury involving concussion, dental injuries including a change to her bite, and facial scarring.  The Claimant was awarded £4,000 in general damages for pain, suffering and loss of amenity, and £161.79 in special damages (reduced from a total award of £8,323.57 for contributory negligence).

The summary assessment of costs is to be dealt with at a further hearing. The Claimant had been awarded more in damages than 2 previous Part 36 offers she had made in attempts to settle her claim without going to trial.


There was more to this decision than the many of the newspaper articles conveyed.

Based on the judge’s finding that the Claimant was using her mobile phone, it was absolutely correct that she was found to have significantly contributed to the accident.  However, the Defendant himself had conceded that he had accelerated towards a crossing which wasn’t clear of people.

If any wider good has come from this case it is that the publicity may encourage cyclists to take out insurance to protect themselves in the event that their riding causes someone to suffer injury.



Brushett v Hazeldean – Note of Judgment

This is my note of an extempore judgment given at the end of a long and stressful day in Court.  My typed note of the judgment will not be a 100% accurate transcription, but it should be pretty close to it:

  1. This is my decision in the claim. In this judgment I deal with liability only. This matter comes before me as a fast track trial in respect of an accident on 20 July 2015 at 5pm.  The accident took place in central London at the junction of King William Street and Cannon Street.  The Claimant was at a pedestrian crossing.  The Defendant was a cyclist cycling along King William Street.  The Claimant brings a claim for personal injury and she bears the burden of proof; she must satisfy me that it was more likely than not that the accident happened in way she said it did.


  1. The Claimant sustained head injuries and has no recollection of the accident at all. She has not given evidence herself on liability.  She relies on an observer who was another cyclist, Mr H.


  1. I heard evidence from Mr H for the Claimant, and from the Defendant himself. In addition, there was a Civil Evidence Act notice.  The police were called and 3 other witnesses gave evidence to the police. They have not been called to give oral evidence, but they have given detailed statements.  The Defendant relies on them.


  1. Those 3 women did not give evidence before me and I must be careful as to the weight I give to their statements. They have not been subject to detailed challenge by cross examination.


  1. The evidence of Mr H was that he was a regular commuter cycling home. He was travelling north over London Bridge intending to continue onto King William Street. The structure of the junction meant that this was the second exit available to him, which is at approximately 10:30 on a clock face.


  1. There are 3 lanes of traffic going north. There are 2 lanes for traffic turning right, and there is 1 lane for turning left or continuing onto King William Street.  Mr H was stuck on a red light behind cyclists who were turning right.  The lights turned green, and sometime after he heard a loud horn.  He couldn’t recall if he had heard a horn before or after being overtaken by the Defendant.


  1. He says that he saw the Defendant approach pedestrians. There were a large number.  He described ‘a throng’ trying to cross King William Street and he felt that he had no reasonable choice other than to stop for the road to clear.  He felt that the Defendant had chosen to sound the horn and shout.  He doesn’t recall what said or if more than one thing was said.  He felt a sense of inevitability that the Defendant would cycle into someone, and he then saw the Defendant cycle into the Claimant.


  1. Mr H said that the Defendant had accelerated and used his horn rather than braking and stopping. He said that the Defendant had made a mistake in so doing.  He went further and said that the Defendant was aggressive and that he had gone and challenged the Defendant by asking him what he was trying to prove.


  1. Mr H said however, that he had not seen the Claimant in any detail and could not say if she was looking at her phone or whether she looked for traffic, nor whether she responded to the horn.


  1. In addition to the statement he gave to police and the witness statement prepared for these proceedings, he also apparently at the time made a voice recording that was played to me. In it, he sets out what happened.  He is heard to be breathless, and I assume it was very shortly after the incident.  He said in the course of the recording that it was a contemporaneous record as the police were not thorough.  He described in derogatory tones that the Defendant was aggressive, reckless, arrogant, and had little remorse.  He said that the Defendant felt that he was more important than everyone else.  The tone of the voice recording was extraordinary.  It sounded as if Mr H had personally engaged in what happened rather than being an independent witness.  I don’t suggest he knew either party, and he said he felt shaken.  The tone was surprising.


  1. Mr H himself, when listening to the recording, said it was awkward and that it was a sanctimonious version of himself. It sounded like it was self-serving, with something in mind.


  1. Apart from the voice recording, he presented as doing his best. The incident was several years ago. It was clear that he couldn’t remember some details.  He was doing his best to assist the Court over an incident that was some years ago.


  1. The Defendant gave evidence. He was an experienced cyclist.  His cycled to work for his commute and to ride at the weekend.  Coming down London Bridge, he was freewheeling to lights which were red.  He slowed, allowing them to turn to green.  He believed he was the first across the lights, and believed that there were no cars or bikes ahead of him.


  1. Vehicles attempt to turn right, and his experience was that the junction was always blocked up. He said he could see from the point that he approached lights on the London Bridge side of the junction that there were pedestrians crossing.  Therefore, he sounded his horn.  This was an airhorn equivalent to a car horn, and is designed to be heard over headphones and by those in cars.


  1. The Defendant said he continued freewheeling into the junction.Pedestrians appeared to notice the horn. Once they cleared, he pedalled again and accelerated as it was uphill on the other side of the junction.  The Claimant was crossing the road on her mobile phone, and at some point when he was close to her, she looked up and was startled.  At the point she looked up she was almost all the way across the road and nearing the pavement on the left side, approximately where the letter ‘T’ is on the ‘LOOK RIGHT’ writing on the pavement.


  1. The Claimant looked up. She was startled.  Rather than continue onto the pavement, she went back into his path towards the central reservation.  He shouted “no”.  The Defendant was towards the right side of the road because he knew that pedestrians had stopped, and so he was keeping clear of the pavement on his left.  He braked, veered to the right, but couldn’t go further. He said he could do nothing to avoid the collision.


  1. The Defendant denies liability, or in the alternative says that the Claimant was contributorily negligent.


  1. As to the manner in which the Defendant gave evidence, he was consistent in all important respects from the evidence he gave to the police through to the Defence that he drafted himself and his witness statement. It was submitted that there was a discrepancy between the police statement and witness statement and Defence, in that he told the police that rather than the Claimant turning in the road and running back, “she turned to look at me and instead of going forward stepped into the gap…….”  I do not regard that as a material inconsistency. There were a number of years in between the statements.  The key point was the same.  The Claimant had been walking to his left, but then went back the other way.


  1. He was consistent throughout that he sounded his horn well in advance of the pedestrians, i.e. from about the white line. There was a discussion of metres, but nobody had measurements and the photographs were not wholly reliable.  It was quite some distance.


  1. He sounded his horn in good time, and most pedestrians moved out of the way either by stopping or getting to the other pavement. It was put to him that he was lying.  Throughout he was unflustered, courteous and mild mannered.  When the opportunity arose, he described that he had felt concerned as to way he was treated by Mr H after the accident.  Whilst the Defendant was also injured in accident and was helped to side of road, he said that Mr H shouted at him and that police asked Mr H to move away.


  1. None of this was put to Mr H during cross examination, nor was it in the Defendant’s witness statement. Mr H volunteered some of this.  My impression of the Defendant, in his manner and consistency, was that it was evident he had thought of how pedestrians were not aware of traffic coming as there was no signal on the crossing.  He gave every impression of being a reasonable road user.  This was difficult to square with the picture presented by Mr H.  There was no evidence from the Claimant herself of what she was doing.  There was the troubling account from Mr H, and the consistent report from the Defendant.


  1. I look to see if I place any weight on the statements of other witnesses. There were 3 statements that were remarkably consistent:


  1. SB was standing on the island in the middle of the road, heading towards Cannon Street station. “A young girl to my left however continued to cross the road was struck by a man riding a bicycle which had proceeded from traffic coming from London Bridge.  The young girl did not look to her left. There was another cycle travelling nearby to the one that hit the girl.  The girl was not looking where she was going.  I feel she was in the wrong.  The cyclist did try to avoid her.  The girl was knocked unconscious for a few minutes.  The cyclist came off his bike during the collision and fell to the road holding his shoulder.”


  1. LH was standing on the island in the middle of the road, heading towards Cannon Street station and was friends with SB. “SB and I crossed to the middle where we waited on the island as cyclists were coming from the direction of London Bridge.  As we stopped, a young girl walked past me on my left into the road and into the path of an oncoming cyclist.  I recall the cyclist shouting something just before he collided with her but I cannot say for certain what he shouted……….”


  1. LT was walking southbound on the west pavement, “approaching the junction of Cannon Street when I heard a loud bike horn, which came from the area of the traffic lights. I looked forward and saw a male cyclist wearing a red/white top, black shorts. The cyclist shouted to which the female stepped out and collided with the cyclist to which they both fell…….”


  1. 3 independent observers who did not appear for questioning agree that the Claimant was at fault. LT says ‘the female stepped out’.  The language suggests that she felt it was the Claimant’s fault.


  1. Whose fault is it? It seems to me that the Defendant owed a duty to other road users to drive with reasonable care and skill.  On his own account the junction was not completely clear.  There were pedestrians on the right, but still some in the carriageway.  He anticipated they would continue onto the pavement.  It seems to me that someone approaching a crossing with pedestrians who are crossing, even when it is their right of way, cannot safely pass the pedestrians (on the crossing) without giving way.  The Claimant was established in the road, the Defendant had right of way.


  1. The Defendant did fall below standard to be expected of a cyclist as he did make a judgment call that it was clear to proceed when in fact there were pedestrians in the carriageway. He had some understanding that when pedestrians are established on the road they must be given way.  He fell below the standard to be expected.


  1. However, the Claimant’s conduct was also an important contributory factor. The Defendant was clear that she was looking at her phone.  None of the other witnesses mention the phone.  SB says in particular that the Claimant did not look to left and was not looking where she was going.  The other 2 women say she stepped out or that the collision was unavoidable.  Mr H said that he didn’t see the Claimant’s actions in particular.  The conduct of the Claimant must have contributed to accident.


  1. I find that the Claimant was looking at her phone, and I accept the account of the Defendant that she turned and went back. None of the other witnesses saw that.  Mr H said he didn’t see her at all.  All others simply say she stepped out, but the Defendant was focussing on her so his account is the most reliable.  The Claimant ‘stuttered back’.


  1. How to apportion? It seems to me the appropriate finding is 50/50, they are equally responsible.  The reason for that is that the Claimant must have equal culpability if she was crossing the road without looking.  The Defendant was someone who could see pedestrians on the crossing still, albeit he thought they were planning to clear.  A cyclist must be prepared for the pedestrians to behave in unexpected ways.



Recovering The Costs Of Attending Inquests

Since Roach & Anor v Home Office [2009] EWHC 312 (QB), there has been greater certainty that inquest costs may be recoverable by way of costs in subsequent civil proceedings.

However, both appeals in Roach concerned cases where there had been no admission of liability before the inquests took place. Roach was also decided before the post-March 2013 proportionality test came into play.

In Douglas v Ministry of Justice and Care UK [2018] EWHC B2 (Costs), Master Leonard considered the recoverability of inquest costs where there had been admissions before the inquest was held.

The Facts

The case involved an 18 year old who committed suicide at HMP Belmarsh within the first month of a life sentence. The Prisons and Probation Ombudsman investigated and found that Belmarsh was unsuitable for the deceased, who instead should have been returned to Feltham Young Offenders Institute where he had been before his sentencing.  The report identified a number of other failings at Belmarsh.

A claim form was issued before the expiry of the Human Rights Act 1998 limitation date (within 1 year of the death), and the claim was stayed pending the inquest.

3 pre-inquest review hearings (‘PIRs’) were held, which considered the scope of the inquest, as well as matters of disclosure and witnesses. Liability was admitted by both defendants after the third PIR.  The Claimant’s solicitor sought clarification on the extent of the admission.  Whilst the Defendants did not specify which alleged failings they accepted were negligent, and/or which infringed Article 2 rights, they did clarify that it was a ‘full admission’ on the claim that had been set out in the claim form.

The inquest jury was called 2 days after the clarification letter. The inquest was heard over 3 weeks, and failings beyond those covered by the earlier Ombudsman report came to light.  The claim settled for £13,500 a few months after the conclusion of the inquest, but without Particulars of Claim having been served.  Costs of the inquest totalled £85,000.

The Defendants argued that liability had been admitted in full, and that the only investigatory purpose in attending the inquest was for quantum. They also, perhaps unsurprisingly, took issue with proportionality and reasonableness.

The Claimant argued that there was no admission as to whether there was any Article 2 breach, or the nature of it (unlike most negligence claims, the damages award in human rights claims can be influenced by the seriousness of the breach and the defendant’s response to the breach). They also argued that the inquest conclusions were a more important Article 2 remedy than damages, and that representation on each day was necessary to inform the conclusions.


Master Leonard’s judgment considered the recoverability of costs in principle, applying the test identified in Gibson’s Settlement Trusts [1981] 1 All ER 233, which is whether the work was:

  • Of use and service in the claim;
  • Relevant to the matters in issue in the claim; and
  • Attributable to the defendants’ conduct.

All 3 must be satisfied in order for costs to be awarded.

The judgment does not examine reasonableness and proportionality, which would be dealt with in the future.

It was held that the admission of liability was ‘full and unqualified’, and included all Article 2 breaches. Whilst it was held that there was no basis for expecting that anything would emerge from the inquest that would significantly change what was likely to be a modest award of damages, Master Leonard said it would be wrong to disallow all time spent.  Whilst the new failings did not add much to quantum, they were not irrelevant.

What Was Recoverable?

Applying the Gibson tests, and notwithstanding that he considered that it was possible to have settled the claim prior to inquest, Master Leonard allowed recoverability of work relating to (i) disclosure and witness evidence of the defendants (but not the other parties), (ii) making submissions to enable a particular conclusion to be reached, (iii) receiving the jury’s conclusion, and (iv) reviewing the conclusion.

Master Leonard disallowed the costs of work relating to (i) apportionment of liability, (ii) general procedural and housekeeping matters of the inquest, (iii) the Coroner’s summing up, and (iv) waiting for the jury’s conclusion.

Practical Implications

If it’s an Article 2 inquest and/or there is a Human Rights Act 1998 element to the civil claim, there is a greater likelihood that the claimant will recover at least some inquest costs, even if there has been an extensive admission of liability before the inquest.

If there is no Human Rights Act element to the inquest or subsequent claim, recovering inquest costs following an admission of liability is much less likely. If there has been no admission then the prospects of costs recovery are good, even if the Human Rights Act is not engaged.

Master Leonard’s judgment offers practitioners a useful indication of the categories of inquest work that are likely to be recoverable following an admission of liability. It may enable practitioners to target attendance only on specific days of lengthy inquests, although of course often this will not be practical.

Whilst proportionality was not dealt with by Master Leonard, CPR 44.3(5) provides that the sums in issue in a claim is only 1 of the 5 factors in the proportionality test. CPR 44.3(5)(e) provides that “any wider factors involved in the proceedings, such as reputation or public importance” must also be considered when determining the proportionality of costs.

Whilst it is important to bear in mind that ‘the proceedings’ are the claim and not the inquest, the fact that the civil claim concerns circumstances of a death and/or an infringement of an ECHR right is an argument for greater costs recovery, notwithstanding that the claim was only for a modest sum of damages.


Res Ipsa Loquitur In Clinical Negligence

The maxim res ipsa loquitur or ‘the thing speaks for itself’, is a long-standing rule of evidence more commonly utilised in other areas of personal injury law.  In a PI setting it has been applied in a wide range of cases including objects falling from buildings, malfunctioning machines, collapsing cranes, and stones in buns.

In clinical negligence, claimant practitioners often bolt-on an assertion that res ipsa loquitur applies when drafting letters of claim or pleadings.  This is often seen in cases where negligence appears more likely on the bare facts.

However, there are strict controls on the application of res ipsa loquitur.  Three conditions are required to be met[1]:

  1. The event is one that would ordinarily not occur in the absence of negligence/fault;
  2. The thing causing the damage must have been under the control of the defendant;
  3. There is no evidence as to why or how the accident occurred.

Once those three conditions are met, the court may draw an inference of negligence against the defendant.  The burden of proof then shifts to the defendant, who must prove that the accident was not caused by their negligence.  Where the defendant cannot discharge that burden, a claimant may succeed in their claim without proving precisely how their injury was caused.


Its use in clinical negligence gained some traction before Bolam and BolithoMahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient’s body.

In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour.  The surgery involved cauterisation.  The Court of Appeal held that this was a case where res ipsa loquitur applied.  The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.

In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim’s application to clinical negligence cases: “I went into hospital to be cured of two stiff fingers.  I have come out with four stiff fingers and my hand is useless.  That should not happen if due care had been used.  Explain it if you can.”


Post-Bolam, its use waned.  In Delaney v Southmead Health Authority [1995] 6 Med LR 355, Stuart-Smith LJ said that he was doubtful whether res ipsa loquitur would be of assistance in medical negligence cases, where unexpected results often occur in the absence of negligence.

Glass v Cambridge Health Authority [1995] 6 Med LR 91 is a rare example of res ipsa loquitur surviving Delaney.  Here, an otherwise fit and healthy 35 year old underwent an exploratory laparotomy, during which the oximeter alarm went off.  It was considered to be a false alarm and switched off.  Later, the patient went into cardiac arrest during surgery and suffered brain damage.  The Court of Appeal held that res ipsa loquitur applied, and that the defendant had not discharged the reversed burden.

Further doubt of the application of res ipsa loquitur in clinical negligence cases was expressed by Hobhouse LJ in Ratcliffe v Plymouth and Torbay Health Authrity [1998], where it was observed:

“Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted. 

However, in the same Court of Appeal case, Brooke LJ (with whom both Hobhouse LJ and Sir John Vinelott agreed) reviewed a number of cases concerning the application of res ipsa loquitur in clinical negligence and stated the following principles:

“(1) In its purest form the maxim applies where the plaintiff relies on the res (the thing itself) to raise the inference of negligence, which is supported by ordinary human experience, with no need for expert evidence.

(2) In principle, the maxim can be applied in that form in simple situations in the medical negligence field (surgeon cuts off right foot instead of left; swab left in operation site; patient wakes up in the course of surgical operation despite general anaesthetic).

(3) In practice, in contested medical negligence cases the evidence of the plaintiff, which establishes the res, is likely to be buttressed by expert evidence to the effect that the matter complained of does not ordinarily occur in the absence of negligence.

(4) The position may then be reached at the close of the plaintiff’s case that the judge would be entitled to infer negligence on the defendant’s part unless the defendant adduces evidence which discharges this inference.

(5) This evidence may be to the effect that there is a plausible explanation of what may have happened which does not connote any negligence on the defendant’s part. The explanation must be a plausible one and not a theoretically or remotely possible one, but the defendant certainly does not have to prove that his explanation is more likely to be correct than any other. If the plaintiff has no other evidence of negligence to rely on, his claim will then fail.

(6) Alternatively, the defendant’s evidence may satisfy the judge on the balance of probabilities that he did exercise proper care. If the untoward outcome is extremely rare, or is impossible to explain in the light of the current state of medical knowledge, the judge will be bound to exercise great care in evaluating the evidence before making such a finding, but if he does so, the prima facie inference of negligence is rebutted and the plaintiff’s claim will fail. The reason why the courts are willing to adopt this approach, particularly in very complex cases, is to be found in the judgments of Stuart-Smith and Dillon L.JJ. in Delaney [see P181 supra].

(7) It follows from all this that although in very simple situations the res may speak for itself at the end of the lay evidence adduced on behalf of the plaintiff, in practice the inference is then buttressed by expert evidence adduced on his behalf, and if the defendant were to call no evidence, the judge would be deciding the case on inferences he was entitled to draw from the whole of the evidence (including the expert evidence), and not on the application of the maxim in its purest form.”

Unlike Hobhouse LJ, Brooke LJ considered that expert evidence would serve to strengthen a res ipsa loquitur argument where the expert confirmed that the result would not ordinarily occur in the absence of negligence.  Brooke LJ also explained that any non-negligent possible explanation would have to be greater than merely theoretically or remotely possible.

Modern Compromise?

In more recent times there have been a number of cases in which res ipsa loquitur or similar principles were held to apply.

Thomas v Curley [2013] EWCA Civ 117 concerned a common bile duct injury sustained during laparoscopic cholecystectomy.  In what was described as ‘an uncomplicated operation’, injury was caused in an area other than that where the operation took place.  The Court of Appeal held that this fact “called for an explanation as to how that might have occurred in the absence of negligence.”  Despite this feature, the Court of Appeal went on to say that this approach “has nothing to do with the reversal of the burden of proof and nothing to do with res ipsa loquitur.”  It was held that negligence had been proved directly by the claimant.

A similar approach was taken by Jackson LJ in O’Connor v The Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244.  Here, it was held that whilst the defendant had not proffered any plausible explanation for how an injury could occur in the absence of negligence, this did not reverse the burden of proof, or invoke res ipsa loquitur.  Jackson LJ did state that the defendant’s failure to provide an explanation was a matter that the trial judge was entitled to take into account, which supported the finding of negligence against the defendant.

Jackson LJ did not go so far to say that the circumstances called for an explanation by the defendant.  However, his approach is virtually one of drawing an inference of negligence because of the absence of explanation by the defendant.

It is difficult, if not impossible, to distinguish Court of Appeal’s ‘calling for an explanation’ approach in Thomas, with Denning’s approach in Cassidy.  Requiring the defendant to explain anything must at least amount to a modification of the ordinary burden of proof.

Similarly, Jackson LJ’s ‘taking into account’ of the lack of plausible explanation by the defendant, is at least in part an inference of negligence.

Surgical cases can be more evidentially challenging for claimants.  They will usually not have witnessed events because they have been under general anaesthetic.  Often the surgeons are unaware of complications until after surgery.  Where an unexpected surgical outcome occurs in these circumstances, claimants will often find it useful to advance an alternative case on a res ipsa loquitur footing.

Alternatively, an unexpected outcome may be said to call for an explanation (Thomas).  Or, if the defendant fails to put forward a more than theoretically possible explanation, this may itself be a factor which goes to prove negligence, or allows negligence to be inferred (O’Connor).


A final note on pleading res ipsa loquitur.  The prevailing view is that it is not necessary to plead the doctrine itself, however, the claimant must allege and prove the facts that allow the inference to be drawn[2].

It is likely to assist claimants hoping for a judge to adopt a Thomas or O’Connor approach, to clearly set out that the facts that require a more than theoretically possible explanation by the defendant.



[1] Scott v London and St Katherine’s Docks [1861 – 73] All ER Rep 246

[2] Scott and Bennett v Chemical Construction (GB) Ltd [1971] 3 All ER 822

June – August 2017 Liability Judgments

I’ve taken a look at some recent liability judgments, and one Court of Appeal case.  Whilst each case turns on its own facts, many of the judgments illustrate how the courts approach resolving questions of fact on the strength of the medical records, and both the lay and expert witness evidence.


JRM v King’s College Hospital NHS Foundation Trust [2017] EWHC 1913 (QB)

In a case where a vascular spinal injury had been suffered at birth, it was alleged that there had been a delay in delivery arising out of a failure to note the mother’s pain, elevated CRP, and producing offensive liquor.  It was also alleged that there was a negligent use of forceps.

It was agreed that there were two possible causes of the injury; one being negligent use of forceps in the OL position, and the other by an embolus.  The Trust maintained that the mother had been in the OA position. Mobile phone photographs taken after birth showed that the child had bruises to his head, face and body.

The claimant failed on the delay in delivery allegation, but succeeded in proving that the mother had been in the OL position when forceps were used.  Gilbart J expressly rejected the evidence of the treating doctors as to the position of the mother, noting that one doctor’s 2016 witness statement contained details not present in a 2009 statement.  Gilbart J also criticised the defendant’s failure to call the other staff present at the delivery as witnesses.

This case highlights the importance of presenting comprehensive evidence to prove asserted facts.  The claimant’s mobile phone photographs showed bruising in a number of areas which were argued as being consistent with their case on mechanism of injury.  The defendant’s failure to call certain witnesses, as well as inconsistencies between the 2009 and 2016 witness statements counted against them.


Dyson v Heart of England NHS Foundation Trust [2017] EWHC 1910 (QB)

A 65 year old woman was admitted for a right total knee replacement, but died 6 days later as a result of untreatable intra-cerebral bleeding following a dose of clexane for a suspected pulmonary embolism.  The claimant’s expert considered that there was a very low possibility of PE, with a more likely diagnosis of atrial fibrillation.  The defendant’s expert also considered that there was a low chance of PE, but considered that it could not be excluded.

The defendant’s expert’s evidence was preferred.  The claimant’s expert was considered to have been too reliant on his own clinical judgment, and unwilling to consider other bodies of opinion.


Lane v (1) Worcestershire Acute Hospitals NHS Trust (2) University Hospitals Birmingham NHS Foundation Trust [2017] EWHC 1900 (QB)

The claimant underwent an angioplasty, but developed ischaemia in her right arm.  She was taken back to surgery to reperfuse the limb, but the clot recurred.  This resulted in a third operation, however, gangrene developed and the claimant ultimately required amputation of her arm.

The claimant alleged that there was a negligent 19 hours delay in undertaking the second surgery, and that the second surgery should have included thrombectomy and angiography.

The defendant argued that both claimant’s experts’ use of a form of words encompassing the Bolam and Bolitho tests, did not represent their own words or opinions.  Conversely, the claimant argued that the defendant’s expert did not correctly state the legal tests.  Both criticisms were rejected by Edward Pepperall QC sitting as a deputy High Court judge.

The claimant’s vascular expert was criticised for identifying a failure to perform a fasciotomy when the claimant did not have compartment syndrome.  The defendant’s experts’ views were that some surgeons would have performed surgery on the claimant sooner, and may have performed alternative procedures, but that the approach taken by the treating doctors was not Bolam or Bolitho unreasonable.  This evidence was preferred by the judge.

This case illustrates the importance of providing an expert who may have asserted an irrelevant or inapplicable view, an opportunity to refine their opinions prior to service.


Jabang v Wadman and others [2017] EWHC 1894 (QB)

A previously fit and healthy claimant awoke one day with severe pain across his upper back.  He saw several GPs over 3 months, and was eventually diagnosed with spinal tuberculosis.  The claimant succeeded in his claim against only one GP in respect of the second consultation, where it was alleged that there was a failure to refer for an x-ray or MRI scan.

The claimant had seen the same GP two weeks earlier when he first developed back pain.  The GP notes recorded that the same pain was “ongoing” at the time of the second appointment.  The trial was held some 6 years after the events, and all witnesses had trouble recalling the details.  The GP’s evidence was that he had a clear recollection of the appointment and that the claimant had described pain on the right side of his back, rather than the spine.  There was said to have been inconsistency between the GP’s oral evidence, the notes, and physiotherapy referral which recorded “thoracic back pain radiating around chest.”  It was held that the failure to refer for an x-ray of the thoracic spine on that occasion was negligent.

On the other occasions, the claimant’s evidence was not sufficiently reliable, and the symptoms with which he presented to the other GP defendants were different.

The first GP’s defence was undermined by subtle inconsistencies in his evidence, the medical records, and the referral letter.  The GP’s evidence that he could clearly recall the appointment despite the passage of 6 years was not accepted.


Shaw v (1) Kovac (2) University Hospitals of Leicester NHS Trust [2017] EWCA Civ 1028

The Court of Appeal held that there could be no free-standing award, or separate head of loss, for the loss of personal autonomy in a claim for failing to provide informed consent.  It was held by the Court of Appeal that if the patient’s suffering was increased by their own knowledge of an invasion of personal autonomy, this could be reflected in an increased general damages award for pain, suffering and loss of amenity.


Giles v Chambers [2017] EWHC 1661 (QB)

The claimant alleged that there had been negligent performance of liposuction.  Following treatment, her legs appeared to subside, leaving an uneven, bumpy and mottled appearance, with asymmetry in her hips.  In places, there was no fat below the skin; just muscle and bone.  The defendant argued that the result was a non-negligent consequence of the ‘highly contoured’ or ‘sculptured muscle’ look that they maintained the claimant had requested.  The claimant disputed that this was her request.  The consultation notes did not record the amount of fat to be removed.  A ‘total cost’ document referred only to general rather than high definition liposuction.

The claimant relied upon an eminent plastic surgeon as their expert.  The defendant relied upon a practitioner with only general medical training.  That expert knew the defendant personally, and leased a clinic room from her.

Judgment was given in favour of the claimant, with the claimant’s lay and expert witness evidence preferred.


Macaulay v (1) Karim (2) Croydon Health Services NHS Trust [2017] EWHC 1795 (QB)

The claimant experienced flu like symptoms.  He was also constipated and struggling to pass urine.  His GP prescribed antibiotics, however, 2 days later an ambulance was called after he developed joint and perianal pain, and had become weak.  He arrived at A&E at 9:30am, and a request for blood tests was made at 2:30pm.  However, he left at around 4:30pm, before the blood tests were undertaken.  He went on to develop sepsis and required multiple amputations.

Much of the dispute was on the aetiology of the infection, for which the judge preferred the claimant’s expert evidence.  The judge found a system error meant that the blood tests were not undertaken by 3:30pm as they should have been, and that the A&E doctor did not communicate the importance or significance of the blood tests to him at 2:30pm.  But for the system error, and but for the failure to inform the claimant, blood tests would have led to a scan being undertaken later that afternoon, which would have resulted in an earlier diagnosis and treatment.

The Trust’s argument that the decision in Darnley meant that the claimant was responsible for his own actions upon leaving A&E was rejected.

Fixed Recoverable Costs In Clinical Negligence Cases – The Consultation

Fixed Recoverable Costs (‘FRC’) are not necessarily a bad thing.  They work reasonably well in other areas of personal injury litigation (RTA, EL/PL), and provided that the remuneration under FRC is such that properly qualified and experienced lawyers will continue to adequately assist injured patients, the introduction of FRC in clinical negligence litigation could be a positive development.

But what exactly is the Department of Health’s rationale for extending FRC to clinical negligence?  And is costs capping really the only proposed change?

The Department of Health (‘DoH’) released their consultation on FRC for clinical negligence claims this week

Some interesting points are raised within the consultation documents:

The Rationale:

In the executive summary (page 5), it is claimed that “the annual cost of clinical negligence in the NHS in England has risen from £1.2bn in 2014/15 to £1.5bn in 2015/16 and legal costs were 34% of the 2015/16 expenditure.”  In other words, legal costs were £510m in 2015/16.

At paragraph 2.18, the £1.5bn cost of clinical negligence in 2015/16 is reiterated.  It is then claimed that “in 2015/16, damages and defence costs were 64% and 8% respectively”.  Damages were £950m, and defence legal costs were £120m.  Claimant legal costs were £410m (there are rounding differences in the figures quoted in the consultation).

On the face of the quoted figures, claimant fees amounting to three and a half times the amount of defendant fees is not necessarily surprising; the claimant is responsible for paying for the medical records, paying court fees, and incurring ATE premiums.  It is also the claimant’s case to prove, and therefore is bound to result in more work.  Some of the quoted 2014/15 and 2015/16 costs will include cases funded under the pre-LASPO regime of 100% success fees, recoverable ATE premiums, and 10% lower PSLA awards.  This no longer applies and these cases continue to tail off.

Whilst the quoted claimant costs include disbursements, VAT and therefore represent the entirety of claimants’ costs, delve deeper and it is revealed that the defendant costs do not include “the cost of NHSLA and NHS Trusts administering clinical claims”.

It is then concluded at paragraphs 2.19, 2.20, and in Table 2 that in 2015/16 £36m was paid out in damages in claims where damages were between £1,000 – £25,000.  In these claims, claimant costs were £80m, defence costs were £13m.  Again, the defence costs do not include the NHSLA and Trust costs.

However, the NHSLA and Trusts are likely to do a greater proportion of work than panel firms in these more modestly valued claims.  And often these cases will conclude without the defendant having obtained expert evidence.  To conclude that claimant costs are necessarily disproportionate to the extent that FRC is required is unsound in the absence of comprehensive data.

More importantly, it misunderstands the meaning of proportionality, which takes into account the complexity of the particular litigation, and the conduct of the opponent.  It is not as simple as a purely monetary analysis, as CPR r.44.3(5) makes clear.

Table 4 shows that there were 3,475 cases settled for damages between £1,000 – £25,000 in 2015/16, Table 2 shows this amounted to a total damages bill of £36m.  The average claimant costs per successfully settled case in this bracket was £23,021.  This includes court fees, expert’s fees and ATE premiums.

Defendant panel firms (not including NHSLA or Trusts) received an average of £3,741 costs per case where damages were settled between £1,000 – £25,000.  Although, defendant panel firms will not have been instructed in all of these cases (it is possible that they weren’t instructed in many of them, but the data hasn’t been supplied).  Defendant panel solicitors also received money from the NHS in some of the 4,983 cases discontinued by claimants.  Claimant solicitors will not have recovered costs in cases where damages weren’t paid out.

The figures are not presented this way within the consultation.  Instead it is said in Table 2 that claimants recovered 220% of damages as costs.  In Table 4, this is presented as claimant lawyers receiving an even more egregious 324% of damages in cases settled between £1,000 – £10,000.

There is no data as to how much the NHS received from claimant solicitors in adverse costs orders.

In paragraph 2.20, it is claimed that “defence costs (excluding the costs of the NHSLA and NHS Trusts administering clinical claims) have reduced from 9% (of £1.2bn) in 2014/15 to 8% (of £1.5bn) in 2015/16.”

This is a bold and misleading statement.  9% of £1.2bn is £108m.  8% of £1.5bn is £120m.  A £12m (11%) increase in defendant panel firm fees over one financial year is attempted to be passed off as a ‘reduction’!

The impact assessment expands the rationale for why government intervention is necessary.  In addition to the perceived disproportionate costs, it is said that “changes to costs in other personal injury claimant markets mean that non-specialist lawyers are now picking up clinical negligence work leading to a significant increase in overall legal costs.”

There is an instantly apparent solution to that problem; bring back legal aid under which only accredited specialist clinical negligence lawyers could act for claimants.

There may well be a public policy imperative to save the NHS as much money as possible.  It is a noble aim.  But it must also be fairly balanced against the right of the injured patient to be able to properly investigate and bring a claim.  The DoH’s primary rationale for bringing in FRC isn’t that ‘the NHS is in crisis, we need to save money’, it is that claimant costs are disproportionate.  The annual NHS budget is £120bn.  The annual cost of litigation to the NHS is £1.5bn; not even 1.5%.

Back Door CPR Changes:

A new pre-action protocol and new civil procedure rules are set to carry FRC into force.  The ‘illustrative’ new provisions can be found at Annex D of the consultation documents.

The most radical proposed or ‘illustrative’ change is found at paragraph 8.15 of the draft protocol, which provides that the claimant must send a paginated bundle of ‘material’ medical records, as well as “(g) copies of the reports of those experts on the issues of breach of duty and causation on which the claimant relies;”

Paragraph 8.18 provides that where the claimant fails to serve the expert report, the defendant may not respond to the letter of claim until the reports are served.  The defendant is under a similar duty to serve expert reports, however, this does not arise until they serve the letter of response.

A discretionary sanction for the defendant failing to serve their expert reports with the letter of response is set out in paragraph 8.27(1); the court ‘may’ subsequently refuse permission for the defendant to rely upon expert evidence at trial.

Such a sanction is not expressly stated to apply to a claimant who fails to serve expert reports with the letter of claim, however, paragraph 8.15(g) implies that any expert reports not served with the letter of claim are those that the claimant does not rely upon.  A stated aim of the protocol is a ‘cards on the table approach’.  It appears likely that a claimant would face a similar discretionary sanction if they do not abide by the rules.

So, on the face of the proposals, this isn’t just about the implementation of fixed recoverable costs; this is a new way of litigating.  Simultaneous exchange of expert report in cases worth less than £25,000 is set to become a thing of the past.  The cards on the table approach is in fact a ‘claimant puts their cards on the table first’ rule.

If the Rules Committee approves the changes as they are currently drafted, it will hand defendants (and their experts) an advantage by being in receipt of the claimant’s expert report before they have instructed their own expert.  The claimant and their expert will not have the same opportunity.

More use of the letter of notification is likely to be made in order to test the waters before the new letter of claim/service of expert evidence phase is reached.  However, there is no requirement for the defendant to do anything meaningful in response to the letter of notification.  And why would they when the claimant’s expert reports will be provided to them shortly thereafter?

This approach is likely, in many cases, to force both parties to incur experts’ fees when they may not need to do so.  Isn’t this the antithesis of the FRC regime?  Very often a commercial view will be taken on cases of modest value, such that the full compliment of reports is not required in order to elicit an admission or settlement at the pre-action stage.  However, under the proposed regime, what claimant firm will risk not being able to rely on a discipline of expert later in proceedings by assuming that breach or causation will be straightforward?

The proposals will, in some cases, result in experts’ fees being unnecessarily incurred.

Finally, a proposed mechanism of exiting the regime is when the number of experts per party on breach of duty and causation exceeds a prescribed number.  ‘Two’ is the illustrative figure for the threshold entered in 12.2(2), and this is being consulted on.


We are almost 4 years since the implementation of LASPO.  The effect of LASPO is due to be reviewed by the MOJ by April 2018.  The data, upon which the conclusions that claimant costs are disproportionate are based, includes costs that were incurred under the pre-LASPO regime.  How can the government conclude that LASPO doesn’t go far enough to achieve proportionality, when the recoverable success fee/full ATE premium run-off period hasn’t elapsed, and they haven’t yet reviewed the effect of LASPO?

Of course LASPO was enacted shortly before the rise in court fees.  This further increased recoverable costs and disbursements which are included within the claimant costs data.

We also await the National Audit Office’s report into the handling of clinical negligence claims.  The NAO said “This study will examine whether the Department of Health and the NHSLA understand what is causing the increase in clinical negligence costs, and evaluate their efforts to manage and reduce the costs associated with clinical negligence claims.”

Why not await the NAO’s findings to see what the cost of litigation is actually driven by, before pursuing a remedy for a problem that may not exist?

We also await Lord Justice Jackson’s report on FRC in all civil cases up to £250,000.


Of course, the one real issue that lawyers on both sides are keen to learn is the level of FRC.  This key detail is conspicuous by its absence, with the DoH awaiting further research by Professor Fenn.  The figures utilised within the consultation documents are specified to be ‘illustrative’ only.

The consultation asks which methodology should be used to calculate FRC, however, without knowing the proposed sums generated by any particular proposed methodology, this has limited informative value.

There is a positive proposal for capping recoverable expert witness costs in these cases at £1,200.  This is proposed to apply to claimant and defendants in every case below £25,000, regardless of the amount of expert witnesses, the number of reports required, the volume of medical records to be considered, or any other variables.  It also appears to assume that one time input is all that will be required during the case.

Where two experts are required (e.g. one for breach of duty and one for causation, condition and prognosis), each expert would have to report for an average of £600 each.  This is well below par.  Experts are not under any cab rank rule, and good experts may refuse to act in these cases for the restricted fees.

Under the proposed revised CPR changes, it is likely that a claimant expert would need to report before the letter of claim stage (even in very strong breach of duty cases), and then again after reviewing the defendant’s expert’s report prior to issue, and potentially again at the joint statement phase.  Claimant experts’ are likely to have to put in more time than their defendant counterparts, yet they will not receive greater remuneration.

The capping of experts’ fees will only extend to recoverable fees.  There is nothing in the proposed rules to prevent any party from spending more on experts.  However, in reality, a claimant will not be able to afford to spend more than is recoverable, whereas a defendant may have considerably deeper pockets.

Those are my initial observations.  I’d be keen to hear others.

Can Chester v Afshar Apply To Cases Other Than Consent?

That was the question asked of the High Court in Crossman v St George’s Healthcare NHS Trust    [1].

The Facts In Crossman:

Mr Crossman began to suffer symptoms of numbness and pain in his arm and neck.  An MRI scan revealed degenerative changes in Mr Crossman’s cervical spine.  A consultant discussed various treatment options with Mr Crossman who advised that spinal decompression surgery be performed if a 3 month course of physiotherapy was not successful.

A series of errors resulted in Mr Crossman being listed for surgery before physiotherapy was commenced.  Mr Crossman queried whether there had been a mistake when he was notified of the date for a pre-operative assessment and admission for surgery, but was told that he would be put to the back of the waiting list if he didn’t keep his appointment.

Mr Crossman underwent surgery and suffered a nerve root injury.  This was a recognised risk of non-negligently performed surgery assessed to be in the region of 0.5%, which Mr Crossman was warned of.  It was originally agreed by the experts that the risk of the injury eventuating would have been the same following a 3 month delay.

It was found by HHJ Peter Hughes QC (sitting as a deputy High Court Judge) that, had surgery been performed at a later date, the risk of the injury occurring ‘may have been somewhat higher’ than at the earlier surgery date, but not to the extent that it was more likely than not that the Mr Crossman would have suffered the injury had surgery been performed at a later date.

It is assumed that the prospects of physiotherapy being successful to the point that surgery would have been avoided or modified were less than 50%.  It is also assumed that physiotherapy would have made no physiological difference in respect of the risks of surgery (this is not discussed in the judgment).

It was accepted that it was negligent to have failed to have followed the plan for physiotherapy prior to undertaking surgery.  However, the Trust alleged that Mr Crossman bore some responsibility for the failure to follow the plan for physiotherapy, and that causation couldn’t be established.

The Judgment:

At trial, perhaps unsurprisingly, Mr Crossman was not held to be at any fault for failing to raise the change in treatment plan prior to his surgery.

Finding that Mr Crossman had succeeded in his case on causation on ordinary ‘but for’ causation grounds, HHJ Peter Hughes QC held that:

Paragraph 40:  “The fact that things went wrong this time is no predictor of things going wrong on any other occasion; indeed, because the risks are so low, it almost certainly would not go wrong on a different occasion. In other words, the Claimant was unlucky and, as the risks were so low, would probably have not been unlucky had the operation been performed as originally planned in three months’ time.”

Paragraph 45:  “In summary, Mr Crossman was unlucky.  Had he had the operation on a different occasion, on the balance of probabilities the operation would have been successful.”

Both counsel discussed the application of Chester v Afshar in submissions, seemingly at length.  The Judge discussed whether Mr Crossman would have succeeded on that basis had he not found for the claimant on conventional grounds.  The Judge considered that the decision in Chester was one arising out of policy grounds concerning patient autonomy in consent cases, describing the extension of conventional causation principles as “exceptional and limited”.  It is not explained how the principle in Chester differed from that which he used to determine causation on conventional grounds.

Chester v Afshar:

The case of Chester is well known.  A surgeon failed to warn Miss Chester of a 1% – 2% risk developing cauda equina as a result of the spinal surgery that he had advised should be undertaken.  Whilst the surgery was performed to a reasonable standard, Miss Chester sadly suffered the rare complication.  The failure to warn of the rare risk was a breach of duty.

But for the breach of duty, Miss Chester’s surgery would have been delayed whilst she considered her options.  There was no evidence to suggest that the risk injury would have been greater or lesser with the delay.  The question for the House of Lords was whether Miss Chester could succeed in proving her case on causation.

The House of Lords were split 3-2 in favour of the claimant.  The majority agreed that a modification of causation principles was justified in Chester on policy grounds, justified by the close connection between the duty to provide informed consent, and the injury sustained.  All three discussed that there was only a ‘modest extension’ of the existing test; not creating an entirely new one.  Steyn LJ and Hope LJ discussed the extent to which ordinary ‘but for’ causation could be sufficient for Miss Chester to succeed.

What’s The Difference?

The essential causation evidence appears to have been the same in both cases; the small risks of either injury occurring would not have been reduced had surgery been performed at later dates.  The risk of the respective injuries occurring at a later date remained significantly less than 50%.

It is difficult to reconcile how ‘conventional’ causation principles were used to reach the decision in Crossman, when the House of Lords found that a modest departure from conventional principles was required in order to find for the claimant on the very similar facts in Chester.

What Next – Does This Decision Help Claimants Or Defendants?

As High Court decisions are binding on the County Court, the first instinct for claimant lawyers may be to use Crossman as authority for the proposition that factual causation can be made out in any case where, but for negligence, there would have been a delay in surgery that resulted in an injury, if the risk of injury would have been lower than 50% at the later date.

However, the House of Lords case of Chester trumps that proposition.  And HHJ Peter Hughes QC said that the modification in Chester can only be utilised for the exceptional and limited circumstances of consent cases.

But can it really be said that Chester v Afshar is restricted for use only in consent cases?  That is not what the House of Lords judgment provides.  It is also difficult to think of any other scenario in English law where the causation test to be applied depends upon the particular category of breach.  Greater departures to ordinary causation principles have been utilised in cases of toxic air at work (Bonnington), exposure to asbestos (Fairchild), and excessive oxygen after birth (Wilsher).

Why should denying a patient the right to a trial of conservative treatment be any less of an affront to patient autonomy and dignity than denying a patient knowledge of all material risks?  The majority of the House of Lords in Chester discussed the undesirability of not allowing a claimant to recover damages where the injury, whilst not necessarily directly caused by the breach of duty, was so ‘intimately involved’, and within the ‘scope and focus’, of the surgeon’s duty.

We await to see if the Trust will appeal the decision in Crossman.  Both claimants and defendants may suffer without clarity from the Court of Appeal.

If Crossman is not appealed, there is scope for claimants to argue that the principle applies beyond consent cases.  The risk of failing is at least offset by the likelihood that a judge would award some modest damages for the additional period of life that would have been enjoyed without the more serious injury, for example the 3 months in Mr Crossman’s case.

[1]  [2016] EWHC 2878 (QB)

Welcome to 2016 Update

After a fascinating time away over Christmas, 2016 has started with a bang with a Privy Council decision on the material contribution test, an abandonment of the most troubling parts of the Access to Medical Treatments (Innovation) Bill, and Jackson LJ’s speech calling for fixed costs in all civil litigation cases valued up to £250,000.


Williams v The Bermuda Hospitals Board[1]

Mr Williams presented at the emergency department of the hospital with severe abdominal pain.  There was a delay in performing a CT scan of over five hours, which in turn delayed the diagnosis of appendicitis and the performance of an appendicectomy.

By the time the operation was performed, Mr Williams’ appendix had ruptured and this caused myocardial ischaemia, causing injury to Mr Williams’ heart and lungs requiring life support in the intensive care unit.

At first instance, the trial judge awarded $2,000 for the additional period of pain and suffering caused by the delay, but held that the claimant had failed to prove that the myocardial ischaemia was probably caused by the defendant’s delays.  It was found as a fact that sepsis had already developed before the hospital’s negligent delays caused further sepsis.

The Court of Appeal of Bermuda applied the material contribution test and overturned the trial judge’s decision awarding $60,000.

The Hospital Board appealed to the Privy Council (with the NHSLA as an intervener) arguing that the material contribution test could only be applied to multiple competing causes that occur simultaneously.  The Privy Council was asked to decide the extent and application of the principle in Bonnington Castings Ltd v Wardlaw[2].  This was a case in which lung disease was caused by the inhalation of dust containing silica.  Some of the dust was negligently generated, but most was not.  The House of Lords held that the lung disease was indivisible and that the negligently generated dust contributed more than negligibly to the lung disease.

The Privy Council held that Bonnington was not distinguishable merely because the sepsis caused by the negligent delay developed after sepsis had already begun.  It was held that the development of sepsis was a single continuous process, which continued (2 hours 20 minutes) longer than it would have done but for the hospital’s negligence.

The full judgment of the Privy Council can be found here

Access to Medical Treatments (Innovation) Bill

Those following my Twitter feed will know that this is a subject that has stirred a great amount of debate!  The controversial clauses 3 and 4 adopted from the original ‘Saatchi Bill’, which did or did not (depending on who you spoke to!) seek to amend the existing common law test for clinical negligence, have been scrapped at the recent report stage.

Whilst a whole host of medical organisations including royal colleges and even defence unions opposed the proposed Bill, the Department of Health summed it up best with their statement: The Department of Health rejected the idea of such an amendment, stating: “We think the intended effect would be that all doctors would remain subject to the existing common law test of negligence.  As a result the purpose of clauses 3 and 4 of the Bill would be unclear.

What survives is the setting up of an innovation database.  In theory, Lord Saatchi’s original Medical Innovation Bill remains in the House of Lords, but one hopes that now the House of Commons have scrapped the same content from the AMTI Bill, Lord Saatchi’s Bill will go no further.

Fixed Costs

Jackson LJ has become synonymous with costs reform, and his latest speech on 28 January 2016 makes the case for even more radical reform. The speech’s title ‘Fixed Costs – The Time Has Come’ gives the theme away, however, the extent of his proposals are sure to surprise many.

Fixed costs, in every civil case, up to the value of £250,000.

The stated problem is that “High Litigation costs inhibit access to justice.  They are a problem not only for individual litigants, but also for public justice generally.  If people cannot afford to use the courts, they may go elsewhere with possibly dubious results.”

A laudable aim, but is there really a problem?  Now I know that Lord Justice Jackson is familiar with CFAs because he was the person who concluded that recoverable success fees should be abolished.  CFAs of course provide no up front cost (and in many cases no costs at all) to the user.

He also cites that it is time to move away from hourly rates as they promote inefficiency, and to move away from cost budgeting because practitioners don’t like it (didn’t he also come up with that in the first place?!)!

You can read the full speech and proposals here: .  I will be following this keenly and I’m sure it will form the topic of a more detailed piece on this blog soon.

[1]  [2016] UKPC 4

[2]  [1956] AC 613


When will the operational duty arise?

This is the third and final post in the series providing an overview on ‘Article 2 Inquests’.  My previous post explored when there would be a breach of the general duty (by system failures).  This post looks at the operational duty.

As with the general duty, Article 2 will be triggered for Inquest purposes when there is an ‘arguable breach’ of the operational duty.

The operational duty under Article 2 will arise:

“if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals…….”[1]

The duty requires the state to take appropriate steps to safeguard the lives of those individuals with a real and immediate risk to their lives in a number of situations.

The early jurisprudence concerned the duties that were owed to patients detained under the Mental Health Act.  Where there was a ‘real and immediate’ risk of suicide because of their mental illness, Article 2 placed a duty on the authorities to take appropriate steps to prevent their suicide.

The circumstances under which the duty arose appeared to be widened by the Supreme Court in 2012 in the case of Rabone v Pennine Care NHS Foundation Trust[2].  This case concerned the suicide of a voluntary mental health patient who died 2 days after she was wrongly allowed home.  The case was important for a number of reasons, but most strikingly; (i) it confirmed that the operational duty was owed to voluntary as well as detained patients, and (ii) the ‘real and immediate’ risk to life was found to have existed notwithstanding that the suicide occurred 2 days after the release from hospital.

Dyson LJ gave the leading judgment and clarified what was meant by ‘real and immediate’.

‘Real’ means a risk of death that is “a substantial or significant risk not a remote or fanciful one”.

‘Immediate’ means a risk that is “present and continuing”.

Whilst there was no part of the judgment in Rabone which expressly precluded the duty applying to medical NHS patients rather than mental health NHS patients, it is likely to be argued that the duty hasn’t (yet) extended to all patients under state medical care.

The House of Lords did look at this issue in 2008 in Savage v South Essex Partnership NHS Foundation Trust[3].  Whilst this was also in the context of a mental health suicide, the defendant Trust argued that there could be no operational duty owed to any hospital patient.  This argument failed.  As Rodger LJ states at paragraphs 65 and 66 of his judgment:

“Article 2 imposes on the hospital authorities and their staff an obligation to adopt a framework of general measures to protect detained patients from the risk of suicide. Why should they not be under the usual complementary operational obligation to try to prevent a particular suicide in the appropriate circumstances?

The only reason suggested by counsel was that it would conflict with the other obligations of the medical staff to their patients. That is hardly so. The operational obligation simply means that, in these critical circumstances, priority has to be given to saving the patient’s life.”

The operational duty has been found by Strasbourg to be owed in an ever increasing variety of circumstances including:

i.  Members of the public living in a slum which bordered a municipal tip, who were killed in a gas explosion[4]

ii.  Care home patients being transferred from one home to another where there was an associated risk of a decrease in life expectancy[5]

iii.  Immigrants in a detention centre[6]

iv.  Military conscripts against the risk of suicide[7]

v.  A person suffering from a serious physical illness treated in a prison hospital[8]

vi.  A child at risk of abuse where the local authority knew of the risk[9].

Public policy may well be responsible for the fact that the operational duty has not been a feature in cases involving fatalities as a result of negligently performed surgery; there will be a ‘real and immediate’ risk to life in a large number of situations e.g. open heart surgery.  But it may well be considered ‘arguable’ that where a patient presents at hospital or to a GP with a real and immediate life threatening condition, and inappropriate treatment is provided, that the operational duty could be owed.

[1]  Osman v United Kingdom (2000) 29 EHRR 245, Para 116

[2]  [2012] USKC 2

[3]  [2008] UKHL 74

[4]  Oneryildiz v Turkey (2005) 41 EHRR 20

[5]  Watts v United Kingdom (2010) 51 EHRR 66

[6]  Slimani v France (2006) 43 EHRR 49

[7]  Kilinc v Turkey [2005] ECHR 367

[8]  Tarariyeva v Russia (2009) 48 EHRR 609

[9]  Z v United Kingdom [2001] ECHR 333 – whilst this concerned Article 3 ACHR, paragraph 23 of Rabone provides this is an irrelevant distinction.


What amounts to a system failure?

In my previous post I discussed the framework which imposes duties under Article 2 ECHR.  Provided there is an arguable breach of any of the substantive duties, an Article 2 Inquest will be ordered.

This post considers what amounts to a breach of the general duty (otherwise known and referred to as a ‘system failure’).  It is a subject that has received close attention in the courts.

The general duty requires state bodies to have in place systems, protocols and procedures to protect the lives of people within its control.  A person may die whilst in the state’s system, but in order for there to be a breach of the general duty imposed by Article 2, it must be established that the failure was in the system itself, not the operation of the system.

R ex parte Middleton v HM Coroner for the Western District of Somerset[1] concerned the suicide of a serving prisoner.  In a decision subsequently endorsed by the House of Lords, the Court of Appeal distinguished between individual negligence and system failings:

“We offer two illustrations, which demonstrate the distinction we have in mind. On the one hand, the system adopted by a prison may be unsatisfactory in that it allows a prisoner who is a known suicide risk to occupy a cell by himself or does not require that prisoner to be kept under observation. On the other hand, the system may be perfectly satisfactory but the prison officer responsible for keeping observation may fall asleep on duty.”

Although it is likely that there will be an overlap between individual and systemic neglect, identifying and having regard to this distinction is important when trying to establish that there has been a system failure

The general/systemic duty imposed by Article 2 includes requirements that state bodies adopt general measures to employ competent staff and to devise appropriate systems of work.  In the absence and/or breach of such measures there will be an arguable breach of Article 2.  This duty was explained in Mitchell v Glasgow City Council[2]:

“The authorities must therefore take general measures to employ and train competent staff and to adopt appropriate systems of work that will protect the lives of the people for whose welfare they have made themselves responsible.  These are general obligations, not directed at any particular individual, but designed to protect all those in the authorities’ care.  If, however, an authority fails to fulfil one of these obligations and someone in their care dies as a result, there will be a violation of his or her article 2 Convention rights.”

The general duty goes wider than systems of recruitment and training.  The case of R (on the application of Humberstone) v Legal Services Commission[3] concerned a number of allegations of negligence, including that flaws in the system caused there to be a delay in dispatching an ambulance The facts of the case are discussed at Paragraph 69 of Smith LJ’s judgment:

“The only allegation which could be said to entail any possibility of systemic failure by the state is that the ambulance took a long time to arrive.  Until shortly before the hearing in this Court, there was no evidence that the Ambulance Service was under-provisioned or that its operational systems were inappropriate.  However……… it appears that there was some delay in despatching an ambulance.  There appear to have been two possible explanations for that delay.  One is that all ambulances save one were busy and the only ambulance not actively occupied was not available because the crew were on a meal break.  The other explanation is that the person who took the call and who despatched the single paramedic did not realise that a double-manned ambulance was or would be required as well………….no attempt had been made to despatch an ambulance until the single paramedic telephoned until control from the house to ask if the ambulance was on its way.  It was not and it took a further 6 minutes before an ambulance was despatched.  It arrived 5 minutes later.”

The applicability of Article 2 to the above facts is discussed at Paragraph 70:

“I am persuaded that this evidence, not previously available, does disclose sufficient grounds for concern about the resources and operational systems of the Yorkshire Ambulance Service as to engage the article 2 obligation proactively to undertake an enhanced investigation.”

The duty has also been considered by the House of Lords in the context of the suicide of a mental health patient within the NHS[4]:

“…….. if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it…..”

The courts have repeatedly warned against dressing up ordinary negligence as a system error.  Just because a doctor or a nurse, or indeed several clinicians have not acted competently does not mean that the particular NHS Trust has failed.  Provided the Trust employs ‘general measures’ to recruit and train their staff to be competent, this is sufficient to discharge the duty even if one or more of their recruits acts negligently.

An example of this is found in  R(Takoushis) v HM Coroner for Inner North London[5].  Where a schizophrenic patient was not seen within the 10 minutes envisaged by the triage system, the Court of Appeal found this not to amount to a system failure.  It was not the system that was to blame, it was the individual lack of compliance with the system.

Identifying an arguable system failure requires a simple distinction.  As put by Sir Anthony Clarke, MR, at Paragraph 51 of Takoushis there are three possibilities where a patient with the state system is harmed by some shortcoming:

i. That the system was a reasonable and adequate one, but that it was not properly operated/implemented on the day in question;

ii. That the system was properly operated/implemented, but there was a failure in the system itself;

iii. That there were both failures in the system and its implementation.

Only if there is an arguable system failure will an Article 2 Inquest be ordered.

[1] [2002] EWCA Civ 390; [2004] UKHL 10

[2] [2009] 1 AC 874 para 66

[3] [2010] EWCA Civ 1479

[4] Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74

[5]  [2005] EWCA Civ 1440