The case is (to my knowledge) the first reported clinical negligence claim arising from the well known Montgomery v Lanarkshire Health Board[2015] AC 1430 principles since last year’s Duce v Worcestershire Acute Hospitals NHS Trust[2018] EWCA Civ 1307 and Khan v MNX[2018] EWCA 2609, and provides a useful illustration of the complexities of factual causation in such cases.

The Claimant – a Consultant Radiologist – jumped from a balcony in an apparent suicide attempt and sustained serious injuries. He is now confined to a wheelchair. He alleged being let down by a number of psychiatric practitioners who, he said, had failed to admit him to hospital when he should have been admitted in light of his psychiatric state. His Honour Judge Mark Gargan dismissed the claim and found for the Defendant.

The decision serves as a reminder of the factors that are likely to sway judges when assessing lay evidence.

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.