1. This morning the Lord Chancellor announced that the discount rate would be revised from 2.5% to -0.75%. This clearly has major implications for the calculation of future losses and will lead to much higher awards and settlements than we have seen before. There are also major implications for the calculation of damages for accommodation where this is required as a result of negligently caused injury. Roberts v Johnstone is dead.

The decision in Roberts v Johnstone
2. Since March 1988 and the decision in Roberts v Johnstone [1989] Q.B. 878; the cost of future accommodation has been calculated on the basis of compensation for the loss of use of capital required by the purchase of a more expensive property. In Roberts the Court of Appeal held that appropriate compensation would be calculated on the basis of an assumed rate of return of 2%. In 2001 the Lord Chancellor exercised his power under the Damages Act 1996 to set the discount rate at 2.5% and this figure has been used for R v J calculations ever since.

R v J doesn’t work with a negative interest rate
3. It is a statement of the obvious to say that R v J does not work with a negative interest rate. Claimants using an R v J calculation would be paying money back to the defendant.

It was time for a change anyway
4. For many years claimants have been arguing that the R v J calculation is outdated in an era when house prices are so much greater and where a low multiplier (e.g. in cases of limited life expectancy) would not produce a large enough capital sum to fund the purchase of a property. Today’s announcement cuts through these arguments. R v J was only ever intended as a pragmatic fudge, once it ceases to be pragmatic it simply disappears as an option.

So what are the alternatives?

Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62

This was a consent claim where breach of duty was admitted, there was a dispute about the advice that should have been given and where causation was denied. Unusually the Court of Appeal reversed the first instance finding on causation with the result that the brain damaged child’s case succeeded. 

The decision provides some insight into the type of factual causation evidence that judges find persuasive. It also reminds us of the importance of identifying clearly the advice that should have been given, had a patient-centred, patient-specific approach been adopted.

Today is the official launch of the third edition of Medical Treatment: Decisions and the Law. You can find extracts from the print edition and updates on specific chapters on our website here.

John de Bono QC
AVMA Conference, 2016


Rule 1: The court will (almost) always be sceptical and unsympathetic.

Rule 2: Alcock remains the law. It is arbitrary and unfair.

Rule 3: It is almost impossible to win a secondary victim claim.

Rule 4: Your best hope is to make your client a primary victim.

Rule 5: ‘Shocking’ requires something truly extraordinary.

Rule 6: Walters was correctly decided but will rarely be followed.

Rule 7: Shock is required, neither ‘mere death’ nor a gradual decline will ever be enough.

Rule 8: A gap in time between breach and injury is a huge hurdle.

Rule 9: We should keep fighting these cases, but only the very strongest ones.

Rule 10: Great care is required with factual & expert evidence (including C&P reports).

Please click here to read Conrad Hallin's commentary for the Medical Law Reports.

Serjeants’ Inn Chambers & Oxford Neurosurgery and Spine Practice - 7th Annual Oxford Medical Law Conference
Wadham College
26 September 2016


Legal Update


Duty of Care

1. Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB) (15 April 2016):

a. Neil Caven (“Neil”) a patient at the Defendant hospital (D) suffered from a long-standing (undiagnosed) disease. In March 2003 a doctor at D’s hospital requested a diagnostic test but the test was not performed.
b. In March 2006 Callum Smith (“Callum”) was admitted to hospital and underwent testing and was subsequently diagnosed as suffering from Adrenoleukodystrophy (ALD) (a childhood version of Adrenomyeloneuropathy (AMN)). By the time of diagnosis the condition was too far advanced for treatment to be effective and Callum subsequently died on 26 April 2012.
c. Following Callum’s diagnosis, his brother Connor Smith (“Connor”) underwent testing and was also diagnosed with ALD. Connor received treatment and his general health remained satisfactory.
d. Following the diagnosis of Callum and Connor, Neil was seen in D’s clinic in 2006 and stated that his first cousin had been identified as a carrier of ALD. It was then noticed that the diagnostic test considered in 2003 had never been performed. The test was carried out and Neil diagnosed with the adult form of AMN.
e. C alleged that D was negligent in not performing the test on Neil in 2003 and alleged that had the test been performed it would have led to testing of the wider family which would have included Connor and Callum and would have given rise to their diagnosis 2.5-3 years earlier which would have led to a materially improved outcome for both.
f. The Claim was struck out on policy grounds.
g. HHJ McKenna held: “this is a novel claim where it would not be fair just and reasonable on policy grounds to impose a duty of care on the Defendant in respect of those who are not its patients” (§30).