West Law Report

BOUSTEAD (MURRAY) v NORTH WEST STRATEGIC HA

Posted in Breach of duty of care, Clinical negligence, Westlaw Reports by mrkooenglish on June 25, 2008

Last Updated: 5:45PM BST 25/06/2008
Queen’s Bench Division (Newcastle) Mackay J June 6, 2008
Brain damage – Breach of duty of care – Caesarean sections – Cerebral palsy Clinical negligence – Medical treatment – Premature birth – Professional practice Breach of duty by failing to deliver premature baby by caesarean section

FACTS

The claimant (B) claimed that the medical care provided by the defendant hospital (N) to him and his mother (X) was negligent and caused him to suffer an intraventricular haemorrhage which resulted in him sustaining brain damage leading to cerebral palsy. In 1987, when X was 14 years old and approximately 28 weeks pregnant, she was admitted to N suffering loss of blood and period-like pains. She had further episodes of bleeding, and two days later late decelerations of the foetal heart were seen. A consultant (R) allowed the pregnancy to progress as he believed the risks to B were less than those involved in a caesarean given X’s age. The problems appeared to settle until five days later when fresh blood loss and irregular contractions were recorded. Over the next 24 hours the situation worsened with X showing signs of fulminating pre-eclampsia. R discussed the matter with colleagues and decided it was safest for B to be delivered vaginally. The foetal heart decelerated and syntocinon, a drug used to induce labour, was administered. Repeated decelerations of the foetal heart were recorded and the syntocinon dose was at first halved but then increased again. B was born later that day, eight days after X was admitted to hospital. Experts were agreed that when decelerations of the foetal heart were first detected the foetus was hypoxic but that it did not necessarily follow that hypoxic damage was being caused. However, B’s expert gave evidence that the decision to give syntocinon was inappropriate given the clear evidence of deceleration and a reasonable obstetrician would have opted for a caesarian at that point. B submitted that N had negligently failed to act on indications that he should be delivered by caesarean section which would have avoided hypoxic damage.

ISSUE

Whether N had negligently failed to act on indications that B should be delivered by caesarean section which would have avoided hypoxic damage.

HELD (judgment for claimant)

(1) When decelerations of the foetal heart were first recorded it was at a relatively early stage and it was reasonable for R to hope that no further hypoxia would occur and that no significant damage had been done that day. It could not be said that at that time, and with the particular patient and the particular signs, that the decision to adopt the approach that R adopted in the hope the foetus would gain further gestational maturity was not a decision which would also have been taken by a reasonable proportion of his obstetric colleagues of the time, Boland v Friern Hospital Management Committee [1957] 1 WLR 582 QBD and Bolitho (Deceased) v City and Hackney HA [1998] AC 232 applied. Therefore there was no breach of duty at that stage.

(2) An emergency caesarean section could have been achieved within 30 to 45 minutes of a decision being made to do so at the time the syntocinon was commenced, or, at the latest, when a further drop in the foetal heart rate made R anxious. It was plain that substantial further hypoxia and probably hypoxic damage would have been avoided by the decision to proceed with a caesarean. X would have accepted advice to that effect if it had been given. The team had been clinging to a strategy which was no longer defensible given both X and the foetus were at risk at that stage. There had been a negligent breach of duty by virtue of the failure to proceed to an emergency caesarean section either at the time the syntocinon was commenced or when there was a further drop in the foetal heart rate.

(3) On the evidence, there were concurrent cumulative causes of the intraventricular haemorrhage. B had satisfied the burden of proving that N’s breach of duty made a material contribution to his disabilities, Bonnington Castings Ltd v Wardlaw [1956] AC 613 applied.

E A Gumbel QC and H J Witcomb (instructed by Irwin Mitchell) for the claimant. R Seabrook QC (instructed by Eversheds) for the defendant.

SHORTELL v BICAL CONSTRUCTION

Posted in Breach of duty of care, causation, Westlaw Reports by mrkooenglish on June 18, 2008

Last Updated: 7:17PM BST 11/06/2008
Queen’s Bench Division (Liverpool) Mackay J May 16, 2008
Asbestos – Breach of duty of care – Cancer – Causation – Contributory negligence – Smoking – Level of exposure to asbestos – Link between exposure to asbestos and lung cancer – Increasing risk of developing lung cancer

FACTS

The claimant, the executor of the estate of a deceased (S), claimed damages against the defendant (B) for alleged negligent exposure of S to asbestos. S, who had been a smoker for a number of years but had given up smoking more than 20 years before his death, had been exposed to asbestos whilst working for B at a number of power stations as a jointer. Allegedly, he had worked in proximity to other employees who had handled asbestos. S had eventually died of lung cancer. There was no radiological evidence that he had suffered from asbestosis, though he had signs of bilateral pleural plaques together with pleural thickening. A consultant, who had dealt with cases involving asbestos, calculated the level of exposure of S to asbestos whilst working for D at 99 fibres/ml-years.

ISSUE

Whether the exposure to asbestos had caused S’s lung cancer and consequently his death.

HELD (judgment for claimant)

On the evidence, the assessment of the lifetime burden of asbestos suffered by S was 99 fibre/ml-years. Once that measurement was accepted, the exposure to asbestos more than doubled S’s risk of contracting lung cancer, Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UKHL 22, [2003] 1 AC 32 considered. However, S, who had smoked 15 to 20 cigarettes a day for many years, had been contributorily negligent by failing to take care of his health, Badger v Ministry of Defence [2005] EWHC 2941 (QB), [2006] 3 All ER 173 applied. In the circumstances, a 15 per cent reduction in damages was appropriate.

Allan Gore QC and Andrew Macdonald (instructed by Catherine Higgins, Liverpool) for the claimant. Charles Feeny (instructed by Berryman Lace Mawer) for the defendant.

Owner of ladder not liable

Posted in Times Law Report, Work Equipment by mrkooenglish on June 9, 2008

From The TimesJune 4, 2008

Owner of ladder not liable
Court of Appeal

Published June 4, 2008

Mason v Satelcom Ltd and Another

The owner of a room in which a workman fell from a ladder which he happened to find there was not liable to contribute to his damages even though the ladder was under the owner’s control.

The Court of Appeal (Lord Justice Ward, Lord Justice May and Lord Justice Longmore) so held on May 14, 2008, when allowing an appeal by defendants for contribution, East Potential Ltd, from an order of Judge Reddihough, sitting as a Queen’s Bench judge, that they contribute 25 per cent to the damages imposed on the first and second defendants, Satelcom Ltd and Intact Networks Ltd, for personal injury to Adam Mason.

LORD JUSTICE LONGMORE said the claimant was employed by Satelcom to service electronic equipment belonging to East’s neighbour which was on the wall of East’s room. He had accessed the equipment using a ladder he found in the room.

The defendants had claimed contribution on the basis of regulation 3(3)(4) of the Provision and Use of Work Equipment Regulations (SI 1992 No 2932), which imposed duties on a person having control of the equipment to the extent of his control.

East had control of the ladder only to the extent that they could have moved it elsewhere or placed a notice on it, but in the absence of a finding that East owned the ladder it was difficult to say what the extent of their control was beyond ensuring that it did not get in anyone’s way.

CROWLEY v SURREY CC & OTHERS

Posted in negligence, Westlaw Reports by mrkooenglish on June 4, 2008

Last Updated: 3:22PM BST 04/06/2008
Queen’s Bench Division Foskett J May 20, 2008
Health authorities – Learning difficulties – Local education authorities’ powers and duties – Negligence – Special educational needs – Speech disorders – Alleged failure to discover specific language disorder – Liability of local education and health authorities

FACTS

The claimant (C), by his mother and litigation friend, claimed damages against the first defendant education authority and the second to fifth defendant health authorities for alleged negligence in failing to recognise and act appropriately in respect of his learning difficulties. From the age of three C had been identified as a slow developer in terms of learning and speech. During his early school years he was assessed as consistently below normal development for his age and was given extra help at school. When aged six he was given a course of speech and language therapy. At the age of eight his parents sent him to an independent mainstream school that had smaller class sizes, but his language difficulties continued. At the age of 10 a full language assessment had been carried out, which concluded that his language difficulties were part of a more global development delay and recommended smaller classes with a regular language programme. C then moved to the Kingston area, where, at the age of 12, he was assessed for special educational needs. The statement specified that C should attend a mainstream community college and spend time at a language unit. The language unit carried out a thorough assessment and concluded that C had severe receptive and expressive language disorder. In due course C was transferred to a special school with provision for speech and language therapy. C developed schizophrenia at the age of 19, and was unable to manage his own affairs. C alleged that if the authorities had not failed in their duty of care towards him during his school years, independent of that owed by their employees who had assessed him over the years, he would have been better able to cope with and recover from his psychiatric condition and lead a semi-independent life. C argued that (1) by the age of eight, C’s problems were such that the education authority was negligent in not placing him in a school for children with speech and language difficulties and in not forming the view that there should be a full assessment of his needs with a view to producing a statement of special educational needs; (2) after C had been attending the independent school for over 18 months, the education authority had carried out verbal scale testing negligently, or had failed to properly judge C’s true levels of understanding and ability to learn in a mainstream environment; (3) if C’s language difficulties had been appreciated earlier, he should have been sent to a special school with provision for speech and language therapy earlier.

ISSUES

(1) Whether, by the age of eight, C’s problems were such that the education authority was negligent in not placing him in a school for children with speech and language difficulties.

(2) Whether after C had been attending the independent school for over 18 months, the education authority had carried out verbal scale testing negligently, or had failed to properly judge C’s true levels of understanding and ability to learn in a mainstream environment.

(3) Whether if C’s language difficulties had been appreciated earlier, he should have been sent to a special school with provision for speech and language therapy earlier.

HELD (judgment for defendants)

(1) Prior to the age of eight, three different professionals had separately reached the conclusion that C’s language difficulties were associated with the delay in his overall development rather than being caused by some specific congenital language disorder, and the evidence showed that those assessments had been reasonable. At that time there had been a distinction between the two, and a diagnosis of a specific language disorder had been required to start the assessment process for a statement of special educational needs. With hindsight, it would have been helpful for a meeting of those professionally and personally involved with C to discuss his needs, but it would not have altered the position. Accordingly, C had not been deprived of the kind of educational support that someone with a specific language disorder had reasonably been entitled to at the time. C’s move to the independent school could not be blamed on the education authority and they were not responsible for reimbursing the costs of sending C there.

(2) There was evidence that the verbal scale testing conformed to that which a body of reasonable educational psychologists would, in similar circumstances, have performed at the time. There was also evidence that at the time on the basis of the test results C would have been expected to be educated at a mainstream school.

(3) Even if C had been sent to a special school a year or more earlier, the history did not suggest that it would have made any significant difference to the eventual outcome.

(4) On the evidence, it could not be said on the balance of probabilities that C had a readily and obviously diagnosable specific language disorder that anyone had negligently failed to discover.

Nicholas Bowen and Shu Shin Luh (instructed by Teacher Stern Selby) for the claimant. Andrew Warnock (instructed by Weightmans) for the first defendants. Steven Ford (instructed by Browne Jacobson) for the second, third, fourth and fifth defendants.

Punitive Damages: Philip Morris USA v. Williams (2007)

A leading case summery of Harvar Law Review (Issue 121, Nov 2007): Philip Morris USA v. Williams (2007) (11 pages)

Punitive Damages

The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment’s first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture — to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment’s beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite. Last Term, in Philip Morris USA v. Williams,1 the Supreme Court used the Fourteenth Amendment to reaffirm and enrich procedural and substantive due process protections for corporations sued for
punitive damages. This is the sad reality of a legal system and a culture that have often lacked the courage necessary to promote the practice of daily human life in a manner consistent with our values. But by reconceptualizing the kinds of harms that it addresses, we can transform the Amendment — now itself part of the machinery of cruel myth and illusion — into a tool for equality and justice.

Social Networking sites’ negligence immunity

Posted in Harvard Law Review (case), Law and information, negligence immunity by mrkooenglish on May 18, 2008

Harvard Law Review (Issue 121, Jan 2008) Case summary: Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007)

INTERNET LAW — COMMUNICATIONS DECENCY ACT — TEXAS DISTRICT COURT EXTENDS § 230 IMMUNITY TO SOCIAL NETWORKING SITES

TRAIN & SONS LTD v FLETCHER

Posted in Measure of damages, Westlaw Reports by mrkooenglish on May 15, 2008

Last Updated: 11:45PM BST 14/05/2008
Court of Appeal (Civil Division) Sir Mark Potter P, Hooper and Moses LJJ April 24, 2008
Court of Appeal (Civil Division)

Sir Mark Potter P, Hooper and Moses LJJ

April 24, 2008

Awards – Dependency claims – Fatal accidents – Interest rates – Calculating interest on damages for loss of financial dependency

FACTS

The appellant (T) appealed against an award of interest to the respondent (F) in respect of her fatal accident claim arising from the death of her husband (H). H had died from the effects of a malignant mesothelioma resulting from his exposure to asbestos in the course of his employment with T. The parties had agreed the amounts in respect of the past loss of financial dependency from date of death to date of trial, further loss to the date of retirement and loss after retirement. In relation to interest on damages for loss of financial dependency, it was agreed that the full rate from the date of death to trial was 14.75 per cent. The judge rejected T’s argument that the award of interest should be at half, rather than the full, rate and limited to the past loss of financial dependency. The judge made an award of interest from the date of death to date of trial upon the whole of the damages claim including future loss. T argued that the judge was bound by the decision of the House of Lords in Cookson v Knowles [1979] AC 556 and so should have awarded interest only on that part of the loss of dependency that related to the period between death and trial, and, in departing from that case, the judge had gone outside the scope of his statutory discretion. F submitted that the observations in Cookson in relation to the award of interest on damages for loss of financial dependency constituted a guideline, which was neither a rule of law nor a binding principle but a rule of practice that was open to the court to revise. F argued that the application of the guidelines in Cookson could lead to under-compensation where a multiplier calculated as at the date of death was used to include both pre-trial and post-trial losses.

ISSUE

Whether the judge was bound by the decision of the House of Lords in Cookson v Knowles [1979] AC 556.

HELD (appeal allowed)

(1) The judge was bound to follow the guidelines in Cookson, which left no room for doubt that the nature of the award of that part of the damages claim that related to post-trial losses was a claim for future loss upon which an award of interest was inappropriate. Furthermore, an award of more than half the short-term interest rate on the total pre-trial loss led to over-compensation. To depart from the method of calculation prescribed in respect of the award of interest in Cookson would be to depart from the clearly stated principle underlying and integral to it. With regard to the multiplier, it was clear that in a fatal accident case the multiplier had to be selected at the date of death, Cookson and Graham v Dodds [1983] 1 WLR 808 applied, Wells v Wells [1999] 1 AC 345 considered.

(2) The alteration of the guidelines in Cookson was not a course properly open to their lordships’ court. The appropriate forum for such reconsideration was the House of Lords.

Patrick Limb QC (instructed by DWF, Manchester) for the appellant. Peter Cowan (instructed by Thompsons) for the respondent.

LANGDON v WILLIAMS

Posted in Clinical negligence, Westlaw Reports by mrkooenglish on May 15, 2008

Last Updated: 11:46PM BST 14/05/2008
Queen’s Bench Division Henriques J April 25, 2008
Queen’s Bench Division

Henriques J

April 25, 2008

Clinical negligence – Diagnosis – General practitioners – Medical treatment – General practitioner’s failure to diagnose meningitis at consultation

FACTS

The claimant infant (C) claimed damages for personal injury based on the alleged negligence of the defendant general practitioner (W) in failing to properly examine and diagnose her. C’s mother (L) and grandmother (G) had taken C to be examined by doctors on several occasions over a period of two weeks, complaining that C was suffering from symptoms not dissimilar to a cold.

The symptoms had not dissipated by the time G took C to be examined by W. W diagnosed C as suffering from a viral infection and prescribed a course of Calpol. W’s note of his examination recorded that C had been suffering from acute nasopharyngitis and that he had conducted a chest and ear examination. C’s condition deteriorated and G took her to hospital. Once admitted to hospital C was intubated with inotropic support and diagnosed as suffering from meningococcal septicaemia.

Although C was eventually stabilised she had suffered significant scarring and physical injury and there remained the possibility that her mental development would be impaired as a result. C submitted that at the time she had been taken to be examined by W, she was manifesting symptoms which after a scrupulous and careful examination would and should have mandated an immediate admission to hospital, and that W had failed in his duty to properly examine and diagnose C.

W submitted that if C had been in the condition described by L and G in their evidence, he could not have failed to observe and note such symptoms and properly act on them.

W argued that his note disclosed no more than a common minor childhood upper respiratory tract infection and there was nothing to suggest that he had negligently discharged his duties on that basis such that L and G must have exaggerated their claims as to C’s state of health.

ISSUE

Whether W was liable in negligence to C for his failure to properly examine her during a consultation.

HELD (judgment for claimant)

Having considered all the material in relation to L and G’s evidence there was no reason to doubt the veracity of their claims regarding C’s state of health at the time she was examined by W.

G’s evidence was consistent and transparently honest. Furthermore, in view of the expert evidence in relation to the proper examination of patients suffering from meningitis, W had failed to take sufficient steps to assess C’s responsiveness.

In light of those findings, W’s note of the consultation was inadequate and should have recorded the history of the duration of the illness and the additional symptoms as described to him by L and G during the consultation.

On the balance of probabilities W had failed to exercise the ordinary skill of an ordinary competent general practitioner in carrying out the consultation.

Robin Oppenheim QC (instructed by Parlett Kent) for the claimant. John Grace QC (instructed by Medical Defence Union) for the defendant.

SUTCLIFFE v BMI HEALTHCARE LTD

Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Auld, May and Longmore LJJ
May 18, 2007

Brain damage – Breach of duty of care – causation – Clinical negligence – Expert evidence – Hospitals – Failure of nursing staff to monitor vital signs – Judge’s findings of fact on causation

FACTS

The appellant (S) appealed against the dismissal of his negligence claim against the respondent hospital (B) in respect of personal injuries sustained after a routine knee operation. Following the successful performance of the operation, during which S was given a general anaesthetic, S was taken to a recovery area, where it was noted that his oxygen saturation levels had dropped to 90 per cent. S was nonetheless discharged to a hospital ward, where he remained overnight. S was able to self-administer morphine. At 06.00, the nursing staff observed that S was asleep and, as he had not slept for most of the night, decided not to wake him to carry out vital signs monitoring. He subsequently suffered severe and permanent hypoxic brain damage which the parties agreed had resulted from regurgitated gastric contents being aspirated into his lungs. Because S was in a deep sleep and had been affected by the morphine, his gag reflex had been impaired. The judge below had found that in deciding not to perform vital signs monitoring, the nursing staff had exercised reasonable clinical judgment, in accordance with a reasonable body of nursing opinion. Furthermore, based on the opinion evidence of a preferred anaesthetist expert, the judge had found that even if the nurses had carried out the vital signs observations, they would have been able to rouse S, but the aspiration and resulting brain damage would still have occurred.

S submitted that

  1. (1) the cause of the injury could be traced back to negligence in the recovery room following the operation, when oxygen saturation was measured at 90 per cent, but no remedial action was taken. But for that initial negligence, S would not have been regarded as a routine patient and his levels of consciousness would have been monitored;
  2. (2) the judge had been wrong to accept a nurse’s evidence that it was reasonably justifiable nursing practice to have left S to sleep without monitoring, which should have included observations on his levels of consciousness and rousability. That monitoring would have detected a reduced level of consciousness in time to take remedial action before the brain-damaging aspiration occurred. Based on the principles propounded in Bolitho (Deceased) v City and Hackney HA [1998] AC 232, the judge should have rejected the nurse’s opinion as not having a logical basis, and therefore not representing a body of responsible opinion, as the risks of not performing those observations had far outweighed any risk of performing them;
  3. (3) the judge had erred in failing to recognise that there were degrees of rousability, and that S’s consciousness should have been assessed with this in mind. Specifically, the judge had been wrong to accept and prefer the opinion evidence of the expert anaesthetist, that although the morphine had suppressed the gag and cough reflex, it would not have made S unrousable. S’s level of consciousness could be judged from the fact that he did not cough or wake up when he vomited.

ISSUE

Whether the judge had been entitled to rely on the opinion evidence of an anaesthetist expert witness in finding that there was no causative link between the omission and the injury.

HELD (appeal dismissed)

(i) The judge had been entitled to find, on the evidence, that S’s oxygen saturation must have recovered on the ward during the night, and well before 06.00.

(ii) The lack of vital-signs monitoring by nursing staff did not involve questions of diagnosis and treatment. The risk had been that S might not in fact have had a satisfactory normal pulse, temperature or blood pressure, but the judge had accepted that, at the relevant time, on the evidence they would have been within normal limits. As the risks involved were not of the kind that fell for consideration under the principles set out in Bolitho, they were therefore irrelevant. The nurse’s opinion that it had been within proper nursing competence to leave S without making those observations had a logical basis, in that it had been reasonable to decide to let a patient who had had little sleep since his operation continue to sleep. It was plain that the nurse had weighed up the risks and benefits.

(iii) It was clear that the judge had dealt with degrees of rousability. The judge’s finding as regards S’s rousability after 06.00, which was critical to the issue of causation and to his conclusions, had a firm evidential base, and had not been shown to be wrong. The judge had been entitled to accept the expert anaesthetist’s opinion as (a) the judge had been entitled to regard him as in general the more persuasive of the expert anaesthetists; (b) expert witnesses from other disciplines had deferred to the anaesthetists on the critical issues in the instant case; (c) the preferred expert had experience of the effect of morphine in the quantities taken by S on consciousness and levels of sedation. He was therefore entitled to say, based on his experience and opinion, that the amount of morphine taken by S would not make a patient such as him deeply unconscious; (d) if morphine did suppress the gag and cough reflex, it was not illogical for it to do so when the effect on a patient’s consciousness was less than profound, because a reflex was an action or function that occurred apart from consciousness; (e) the preferred expert’s evidence was supported by that of another expert, who had referred to S’s breathing rate as indicative that his consciousness was not severely depressed.

John Grace QC and Laura Davidson (instructed by Boyes Turner) for the appellant. Susan Rodway QC and Vikram Sachdeva (instructed by DLA Piper Rudnick Gray Cary) for the respondent.

Shit happens

Posted in cause of action, Measure of damages by mrkooenglish on May 14, 2008

Professor Slapper explains what kind of accidents can be compensated:

In 1993, the Court of Appeal ruled in a case about an assistant nurse who had been injured when she bashed into a bedside locker at Winwick hospital in Warrington. Lord Justice Hoffmann said that just because she was injured in a bad accident while on her employer’s premises didn’t mean she would automatically win. She had to show that the accident was caused by the fault of the hospital. Hoffmann said: “Not every accident is somebody’s fault”, adding, “In my judgment there was no evidence to show that the hospital’s arrangement of the furniture was negligent.”

Supervening event effect

From The TimesMay 14, 2008

Supervening event effect
Whitehead and Another v Hibbert Pownall & Newton (a Firm) in the Court of Appeal
Court of Appeal

Published May 14, 2008

Whitehead and Another v Hibbert Pownall & Newton (a Firm)

Before Lord Justice Laws, Lord Justice Rix and Lord Justice Rimer

Judgment April 4, 2008

Where solicitors had negligently failed to prosecute a claim for damages for clinical negligence on behalf of a mother in respect of future losses for a wrongful birth, those losses were curtailed by the death of the mother; the solicitors were not liable in a subsequent claim for professional negligence brought on behalf of the mother’s estate for what amounted to a windfall in that, had her claim been brought to a successful conclusion before her death, the recoverable damages would have not have been curtailed by her death but would have extended to cover the costs of care into the future.

The Court of Appeal so held allowing the appeal of the defendant, Hibbert Pownall & Newton, formerly a firm of solicitors in Ashton-under-Lyne, and dismissing the cross-appeal of the first claimant, Eric Whitehead, suing on his own behalf and as administrator of the estate of Paula McLeish, deceased, from Mr Justice Griffith Williams who, on May 9, 2007, awarded damages to Mr Whitehead in his capacity as administrator, and dismissed the claim in his personal capacity.

Mr Bernard Livesey, QC and Mr Michael Harrison for the solicitors; Mr Gordon Bebb, QC and Mr James Counsell for Mr Whitehead.

LORD JUSTICE LAWS said that the Court of Appeal in Charles v Hugh James Jones & Jenkins ([2000] 1 WLR 1278, 1290) left open the question what should be done when, after the date of the notional trial, some entirely new event supervened which, if taken into account in the later professional negligence claim, would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action.

That further question had arisen in the present case. It was important not to take too narrow a view of the guidance afforded by the principle restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they happened since the notional original trial and so were by definition unknowable at that time.

Lord Justice Rix delivered a judgment concurring in the result; Lord Justice Rimer delivered a concurring judgment.

Solicitors: Davies Arnold Cooper; Donns LLP, Manchester.

JOHNSTON v NEI INTERNATIONAL COMBUSTION LTD; ROTHWELL v CHEMICAL & INSULATING CO LTD & OTHERS; TOPPING v BENCHTOWN LTD; GRIEVES v FT EVERARD & OTHERS

Last Updated: 7:01pm BST 24/10/2007

House of Lords
Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance
October 17, 2007

Asbestos – Causes of action – Employers’ liability – Pleural membrane – Psychiatric harm – Risk – Pleural plaques – Risk of future disease and consequent anxiety – Actionable damage – Asbestos fibres – Anxiety – Risk of diseases – Fear of future injury – Person of reasonable fortitude – Psychiatric injury – s. 32a Supreme Court Act 1981

FACTS

The appellants (C) appealed against a decision ([2006] EWCA Civ 27, [2006] 4 All ER 1161) that pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did not become actionable damage when aggregated with the risk of future disease and consequent anxiety. One of the appellants (G) appealed against a decision that psychiatric injury suffered by him was not a reasonably foreseeable consequence of the negligence. C, who had been negligently exposed to asbestos dust by the respondent employers, had developed pleural plaques. The presence of such plaques did not usually occasion any symptoms. The plaques did not cause asbestos related diseases, but they signalled the presence in the lungs and pleura of asbestos fibres that might independently cause life-threatening or fatal diseases. G had developed not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. C submitted that, although they had no free-standing claim for the risks of developing diseases in the future as it was not pleural plaques themselves that gave rise to them and they had no free-standing claim for their anxiety, taken in combination, those various elements amounted to an injury that was more than negligible.

ISSUE

Whether pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did amount to actionable damage when aggregated with the risk of future disease and consequent anxiety, neither of which in itself was actionable.

HELD (appeals dismissed)

(i) The symptomless plaques were not damage that could found a cause of action. Neither the risk of future disease nor anxiety about the possibility of that risk materialising amounted to damage for the purpose of creating a cause of action, Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176 and Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65 applied. Although the law allowed the risk of future disease and consequent anxiety to be taken into account in computing the loss suffered by someone who had actually suffered some compensatable physical injury, in the absence of such compensatable injury, there was no cause of action under which damages could be claimed and, therefore, there could be no computation of loss in which the risk and anxiety could be taken into account, Brunsden v Humphrey (1884-85) LR 14 QBD 141 considered. Also, the pleural plaques did not amount to damage when aggregated with the risk of future disease or anxiety. It was not possible, by adding together two or more components, none of which in itself was actionable, to arrive at something that was actionable. Further, the Supreme Court Act 1981 s. 32A, which allowed a claimant to obtain provisional damages where there was a chance that a serious disease would develop in the future, did not support the aggregation theory. The provision made it clear that it applied only where the claimant had a cause of action.

(ii) G’s psychiatric illness was not a reasonably foreseeable consequence of his employers’ breach of duty. It was not foreseeable that the creation of a risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude, Page v Smith [1996] AC 155 distinguished on the facts.

David Allan QC, Ivan Bowley, Frank Burton QC and Harry Steinberg (instructed by Thompsons) for the appellants. Michael Beloff QC, Michael Kent QC, Michael