West Law Report

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.

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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.