1. Today, 13 January 2022, the Court of Appeal handed down judgment in the long awaited nervous shock appeals in Paul v Wolverhampton, Polmear v. Royal Cornwall and Purchase v. Ahmed. The issue was whether a gap in time between the breach of duty and a subsequent shocking event prevents a nervous shock claim.   As the Court of Appeal recognised this is a particular problem in many clinical negligence claims.  In Paul the breach of duty was 14 months prior to Mr Paul’s sudden death whilst out shopping with his daughters on the streets of Wolverhampton.
  2. The Court of Appeal clearly wanted to find for the claimants on all the appeals and said so in terms. They found instead for the Defendants on the basis that they were bound to do so by the judgment of Dyson MR in Taylor v Novo. Clearly troubled by that decision they have expressed a strong preliminary view that this case should now go to the Supreme Court for a complete review of the authorities.

The determination of life expectation in cerebral palsy litigation must always be driven by the expert evidence in the particular case. 

What is set out below is an approach driven by the evidence received from experts in reported decisions, but – be warned – great care must always be taken to ensure that in each case the court has available to it up to date (i) literature and (ii) experienced clinical expert views specific to the particular claimant.

The key High Court cases which have considered life expectancy in cerebral palsy cases are Whiten v  St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) and Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB).  At the invitation of both sides’ experts in those cases the courts relied on Strauss data.  (The latest version of this data – and its  analysis – can be found in Brooks JC, Strauss DJ, Shavelle RM, Tran LM, Rosenbloom L, Wu YW “Recent trends in cerebral palsy survival. Part II: Individual survival prognosis.” Developmental Medicine & Child Neurology, (2014) 56:1065-1071[“Brooks (2014)”] which can be found along with a plethora of useful articles and commentary on the excellent Life Expectancy Project website: www.lifeexpectancy.org).

Having assessed the expert evidence, the first instance judges in both Whiten and Robshaw adopted the following three stage approach (please note - a worked example is included at the end of this article).  I should stress that not all experts will agree with this three stage approach or methodology.

“Indivisible Injury” has more than one meaning so make sure you’re not at cross purposes with the judge

  1. The essential facts are that the Claimant had chest pain and needed angiography (an investigation of the blood vessels to the heart). He stopped warfarin (a long term anticoagulant) on 23 April, had the angiogram on 27 April and restarted warfarin on 29 April.  The next day he suffered an ischaemic stroke which has resulted in permanent and severe physical and cognitive disability.

  2. There was a dispute on breach of duty as to whether the total period for which warfarin was stopped should have been 3 days rather than 6 and whether it should have been restarted earlier and at a higher dose.
  1. The judge preferred the Defendant’s expert evidence on breach of duty and was entitled to. That’s not the problem.

  2. On causation the Claimant’s case was that if the warfarin had been properly managed he either would not have had the stroke or alternatively, the reduced dose materially contributed to the stroke. 

Am I the only one who thinks that the legal tests in clinical negligence are sometimes harder to understand than they should be ?

The case law on my favourite topic – Bolam and other tests for breach of duty – is littered with confusion. And it strikes me that Material Contribution is too.

The But For test is, thankfully, beautifully simple and easy to understand. But what if your experts can’t tell whether the outcome would probably have been avoided or the same and you have to use the causation test of Material Contribution ?

The case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB earlier this year is a recent example of the Court addressing both tests on causation in clinical negligence.

This is a strange read.

The issue on appeal to the Supreme Court was:

If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?”

The High Court’s answer was that a claim lies for all of the costs. That was reversed on appeal. The Supreme Court upheld the Court of Appeal. For the underlying facts, see the brief account at the end of this blog.

A very common scenario in clinical negligence and personal injury claims is that the claimant’s negligent injury occurs on a background of pre-existing disability  – how does the court assess the damages for care in the claim?

Examples of pre-existing disability in my own cases have included-

  • Hydrocephalus;
  • Spina bifida;
  • Significant learning disability;
  • Partial spinal cord injury at C5 resulting in tetraparesis.

The cases of Sklair and Reaney give some guidance as to the correct approach.