The Court of Appeal in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 has overturned the High Court’s decision ([2017] EWHC 2318 (QB)) by awarding damages to an infertile claimant for the costs of commercial surrogacy in California.

The first instance decision

In a previous blog post from September 2017 entitled Surrogacy: The Birth of a New Head of Loss, I discussed the first instance judgment in XX. Following the Trust’s admission that its failures led to Ms X’s infertility, Sir Robert Nelson awarded £74,000 to Ms X for the costs of UK-based surrogacy using her own eggs but not those of a donor. Claire Watson represented the Claimant at first instance.

Whilst the High Court’s decision was significant – this was the first case in which damages for the costs of UK surrogacy had been awarded – it was not the decision that Ms X wanted. She appealed to the Court of Appeal in order to recover the costs of Californian commercial surrogacy. The one-and-a-half-day hearing took place in early November and judgment was handed down on 19 December 2018. On appeal, Claire was led by Christopher Johnston QC.

Commercial surrogacy arrangements are lawful and binding in California, which has a well-established system. In contrast, only non-commercial surrogacy is permitted in the UK, and all surrogacy arrangements are unenforceable. The Law Commission has noted that there are ‘significant problems’ with the Surrogacy Arrangements Act 1985 and it aims to publish a consultation paper on law reform by spring 2019.

When is a doctor responsible for losses suffered after they have given bad advice?  According to the Court of Appeal, if the loss is “coincidental”, it’s not recoverable. 

On 23rd November 2018 the Court of Appeal handed down judgment in the case of MNX v Khan [2018]  in which it considered the extent to which the limits on the scope of duty imposed by “SAAMCO” South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191, applied in clinical negligence cases.  In SAAMCO Lord Hoffman gave the famous example of a doctor, who negligently advised a mountaineer that their knee was fit to go climbing, not being liable for the consequences of the mountaineer being injured in an avalanche, even if but for the negligence they would not have gone up the mountain and so would have avoided the avalanche.  On the facts of MNX, the Defendant GP negligently failed to advise the Claimant that she was a carrier of the haemophilia gene, and as a result when she fell pregnant she did not undergo tests to ascertain whether her child would have haemophilia.  It was accepted by the Defendant that if the Claimant had been given the appropriate advice, she would have undergone those tests and would have terminated the pregnancy.  The Claimant gave birth to a child suffering from haemophilia but also with severe autism.  The issue for the Court was whether or not the costs associated with the autism fell outside the scope of the Defendant’s duty such that they were not recoverable.

This is the clear takeaway from Whipple J’s powerfully reasoned judgment in YAH v. Medway Foundation Trust, judgment 5th November 2018. The facts are typical of many cerebral palsy cases. The Claimant’s daughter was born after a negligent delay in intervention in the face of signs of fetal distress. The Claimant suffered psychiatric injury. In the joint statement the psychiatrists stated:

“We agreed that a number of factors had contributed to YAH having suffered a mental disorder, including the experience of a difficult labour; the worry of knowing whether or not [XAS] would survive and, importantly, the strain of looking after a child with significant disability.”

The Defendant Trust argued that a) the Claimant was a secondary victim not a primary victim; b) whether a primary or secondary victim she could only recover if her injury had been caused by shock.

On 10 October 2018, the important Supreme Court judgment in Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) [2018] UKSC 50 laid to rest any suggestion that non-medical hospital staff do not owe a duty of care to patients.

On the facts, the Appellant was wrongly advised by an A&E receptionist that he would have to wait for 4-5 hours to see a doctor. In fact, he had a head injury and would have been triaged by a triage nurse within 30 minutes. In the event, he felt too unwell to wait for 4-5 hours, left the hospital and suffered a collapse, leading ultimately to a severe and disabling brain hemiplegia. The trial judge found that if he had been told that he would be triaged within 30 minutes, he would have remained in hospital, would have suffered his collapse in hospital and would have made a full or near-full recovery.

The duty of care owed by a receptionist in A&E was characterised as follows: 

“A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance.  The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”

The Court made clear that “the particular role performed by the individual concerned” will be likely to have an important bearing on the questions of duty of care and breach.  

The issue of illegality as a defence in clinical negligence actions is controversial.  It typically arises in a rare category of cases in which alleged failures of medical care results in a patient (the Claimant) suffering a psychotic episode.  As a result of the psychotic episode, the Claimant then commits a criminal act.  This leads to a prosecution and conviction, and potentially pecuniary and non-pecuniary losses.  Should a Claimant be permitted to sue the negligent clinician who failed to treat the underlying condition?

The Court of Appeal recently considered and reviewed this tricky area of law in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841. 

The facts in Henderson were that the Claimant, who had been diagnosed with paranoid schizophrenia stabbed and murdered her mother during a relapse.  It was admitted by the Defendant that it was in breach of duty, and that but for that breach the relapse (and murder) would not have taken place.  The Claimant was prosecuted and convicted of manslaughter by reason of diminished responsibility.  Damages were claimed by the Claimant for resulting losses.

Angus Moon QC and Cecily White acted for the Defendant Trust, and argued that the status quo (i.e. that an individual cannot recover damages for losses arising out of a criminal act) should continue.  The Court of Appeal agreed.  It also affirmed the distinctions within this rule and the reasons why the rule exists. 

  1. There is no doubt that it is harder for a claimant to win a nervous shock claim now than 3 years ago. The bar for what is a ‘shocking event’ is higher following decisions in favour of defendants in Ronayne and Shorter.  Defendants have been encouraged by success to fight more cases to trial.  What though of cases where there is a delay between the breach of duty and the primary victim suffering any injury?   

  2. Many have assumed that cases of delayed injury lack the proximity required by Lord Oliver in Alcock. This assumption is based on the Court of Appeal decision in Taylor v. Novo. I disagree.  In my view the question of whether there can be sufficient proximity between a secondary victim and the defendant in cases where there is a material gap in time between the breach of duty and any injury to the primary victim remains unanswered.  I see no reason in principle why such claims should not succeed.

  3. The issue is particularly relevant to clinical negligence cases. In Shorter Surrey and Sussex NHS Trust [2015] EWHC 614 (QB). Mrs Justice Swift, very experienced in clinical negligence cases, recognised this when she said (§208 & § 209):

“The early claims by secondary victims mainly concerned accidents, most often road traffic accidents. In those cases, it was comparatively easy to identify the relevant “event” (the accident) although, as the authorities show, it was often more difficult to determine precisely what constituted the “immediate aftermath” of an event.

“Cases of clinical negligence present particularly difficult problems. The factual background of cases can be very different and often quite complex. The nature and timing of the “event” to which the breach of duty gives rise will vary from case to case.”