There has been a revolution in genetic testing over the past decade. Technological advances have greatly increased the scope and use of testing. Testing is now faster and cheaper.

This has meant that it has become easier to analyse a whole, or large sections of a genome in detail.[1] This innovation brings with it ethical challenges, most notably in terms of consent and disclosure to other family members who may be affected by information identified.[2]

 These developments are beginning to ripple out to clinical negligence litigation. As they do, the courts will be asked to conduct a sensitive balancing exercise between the Claimant’s Article 8 rights and the Article 6 rights of the Defendant to defend himself.

The much-anticipated judgment in Swift v Carpenter [2020] EWCA Civ 1295 provided a neat and just approach to the valuation of capital costs in accommodation damages claims. Helpfully the Court of Appeal provided an easy to apply formula for accommodation claims where claimants have longer life expectancies thereby providing much needed litigation certainty – and also substantially reducing potential expert costs in future cases. Whilst the most usual type of claims were addressed, the Court could not provide answers to all of the more complex capital accommodation claims which may come before trial judges in the years ahead.

Irwin LJ noted that the Court of Appeal’s guidance should not be regarded as a “straitjacket to be applied universally and rigidly”. One area in which the jacket may not fit is short life expectancy cases. The simple application of the Court’s reversionary interest formula to such claimants appears to be one area where the direct application of the guidance may be inappropriate. As stated by Irwin LJ:

“There may be cases where this guidance is inappropriate. However, for longer lives, during conditions of negative or low positive discount rates, and subject to particular circumstances, this guidance should be regarded as enduring.” [§210]

On 4 November 2019 Master Cook struck out a nervous shock claim by the children of Mr Paul who collapsed and died from an untreated heart condition whilst out on a shopping trip with them in the centre of Wolverhampton. I wrote a blog piece commenting upon that decision.

Today Chamberlain J. has allowed the Claimant’s appeal and reinstated the claim. It is not known whether the Defendant will stick or twist with an appeal to the Court of Appeal on what the judge described as a difficult point of law.

The judgment provides an impressive and comprehensive review of the authorities. Chamberlain J. decries judicial squeamishness and says that at a micro level:

“..there is no constitutional reason why the courts should not apply their usual analogical tools. More specifically, there is no reason to favour a  conservative posture in which liability is accepted only where it has already been found to exist on indistinguishable facts. There is nothing to inhibit the courts from aiming for maximal coherence in the principles which govern the circumstances in which the existing control mechanisms will be satisfied. In doing so, they are bound by the rules of precedent, but are otherwise unconstrained.”

Summary: Empirical data suggest that people from Black, Asian and Minority Ethnic (“BAME”) backgrounds are being disproportionately affected by Covid-19 and, on Wednesday 29th April 2020, NHS England gave sensible and important interim guidance to Hospital Trusts, pending an investigation by Public Health England.

Some Trusts are seeking to protect BAME staff with measures including removal from the front line. This blog examines whether these well-intentioned measures are lawful.

Background: While about 14% of the UK population in the 2011 Census were from a BAME background, they make up about 34% of critically ill Coronavirus patients, according to an April 2020 NHS Confederation briefing Between 2017 and 2019, only 11.6% of critically ill viral pneumonia patients were from a BAME background. The same pattern is seen in the US. There is something about Covid-19 that disproportionately affects BAME people.

We are all under attack – but this time, our foe is not a country, a terrorist group or a person. Nor is it a predator. Chillingly, it is not even alive. It is a brand new tiny packet of genetic material which has only a transient existence and cannot reproduce itself – fooling human cells into making copies of it. The soldiers in this war are disproportionately made up of the very people who appear ethnically most vulnerable to it: 44% of UK doctors, and almost 22% of all NHS staff, are from BAME backgrounds. In London, BAME staff make up almost 45% of all NHS Trusts’ staff.

Summary: The Supreme Court in Whittington Hospital NHS Trust v XX [2020] UKSC 14 has upheld the Court of Appeal’s decision to award damages for Californian commercial surrogacy to an infertile British claimant. Such an award of damages is the first of its kind in the fields of personal injury and clinical negligence.

Christopher Johnston QC and Claire Watson successfully acted for Ms X, the claimant/respondent, and were instructed by Alison Eddy and Anne Kavanagh of Irwin Mitchell.

Lessons from the recent cases of:

  • Saunders v Central Manchester NHS Trust 2018 EWHC 343 QB
  • Collyer v Mid Essex NHS Trust 2019 EWHC 3577 QB
  • Schembri v Marshall 2020 EWCA Civ 358.

Surgical cases often provide difficulties for Claimants because it is not always clear how the alleged negligent injury occurred – nothing being noted at the time and the injury only becoming apparent post operatively. In the first two of these recent cases Claimants failed on breach because they could not prove the probable mechanism of injury, let alone that it was negligent. This is quite common in surgical cases because of the limited evidence as to the surgery itself - usually just a short operation note.

Claimants also often have difficulty in proving whether and how a breach has been causative of an injury. In Schembri v Marshall the Court of Appeal gives us a useful reminder of some important principles.

I set out in this article a summary of these cases, the principles they illustrate and some practical lessons to be learnt from them and my own experience in such cases over the last 25 years.