Clinical negligence cases of interest – Summer 2015


Liability findings and further comment on secondary victim entitlement

It was held that a NHS Trust had not been negligent in a claim brought by the parents of a baby who had died from aspirating meconium during the mother’s labour. It was held that on a proper interpretation of the foetal heart rate trace, there was no breach of duty by failing to carry out a caesarean section at an earlier stage. It was held that if liability had been established the mother would have been entitled to general damages for the adjustment disorder that she suffered after her baby’s death. The father’s claim for psychiatric injury would have been rejected as there was no shocking event in the sense of an assault on the senses or sudden appreciation.

This was a claim in which a mother and father were pursuing an NHS Trust for damages for bereavement and psychiatric injury following the death of their baby.

The mother arrived at hospital in labour at 08.00. A cardiotocograph (CTG) was started at 08.27, which showed a slightly accelerated foetal heart rate, but within normal range. A deceleration was then noted at 8.56. Thereafter, it partially recovered but failed to reach the earlier level. At 10.00 it was noted the membranes were ruptured and that the baby had passed meconium, however this is not an indication for a caesarean section as per the NICE Guidelines. A CTG at 10.20 had noted an improvement, but by 10.40 this was abnormal. This was reviewed at 10.45. In accordance with the NICE guidelines, an attempt was made to obtain a foetal blood sample, but this was unsuccessful. A decision was taken to perform a caesarean section at 11.15. The baby was delivered at 11.53 and was pronounced dead.

It was stated by the parents’ expert that at 8.48 the CTG showed a “wavy” unstable baseline foetal heart rate indicating ongoing hypoxia. He was highly critical of the decision at this time to undertake a foetal blood sample. It was claimed that any reasonable doctor would have performed the caesarean section in response to the 8.56 deceleration.

The Trust denied liability.

It was held that in making the decision that a caesarean section should have been performed in response to the 8.56 deceleration, the Claimants’ expert had not appreciated the differences between best practice, reasonable practice and practices which no reasonable practitioner would carry out. It was felt that his opinion on the CTG was formulated with the benefit of hindsight and not indicative of the appreciation of how a reasonable doctor would have interpreted the trace. There was also nothing in the NICE Guidelines to suggest the “wavy” nature of the CTG was problematic. The fact that the NICE Guidance suggested that a foetal blood sample should be taken was strong evidence of the reasonableness of undertaking that procedure. It was felt that the care provided in response to the 8.56 deceleration could not be criticised and no breach of duty was found.

However, it was held that if there had been a culpable failure at 10.20 to make the decision to carry out a caesarean section, which would have been performed by 10.50, causation would have been established. This was due to the post mortem examination findings, whereby aspiration of meconium was likely to have occurred at some time after 11.00.

It was also stated that if negligence been established, because of the aspiration of the meconium, the mother would be considered a primary victim and negligence would therefore have occurred when the mother and child were one. It was held that if liability had been established the mother would have been entitled to general damages for the adjustment disorder that she suffered after her baby’s death. The father’s claim for psychiatric injury would have been rejected as there was no shocking event in the sense of an assault on the senses or sudden appreciation (as per Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588, Times, July 8, 2015).

Costs – QOCS


The Court held that the claimant in a failed personal injury claim was protected from paying the defendant’s costs by the qualified one-way costs shifting rules in CPR r.44.17 in a claim where the claimant had entered into two conditional fee agreements, with the second being entered into after the date when the QOCS rules had been introduced.

This is a case where the Defendant charity sought clarification regarding costs and whether their costs should be paid by the Claimant employee in an unsuccessful personal injury claim, or whether she was protected by QOCS pursuant to CPR r.44.17.

The Claimant had instructed solicitors and entered into a conditional fee agreement with them as well as obtaining an after-the-event (ATE) insurance policy. The Claimant solicitor then terminated the CFA prior to Proceedings being issued, and a second CFA was then entered into by the Claimant with her current solicitors. Proceedings were then issued and so were the subject of the second CFA.

The Defendant argued that as the first CFA was entered into prior to the introduction of QOCS on 1 April 2013, the Claimant could not rely on the protection of this. The Claimant argued that the Court had to consider the background of the changes, including the abolition of recoverability from Defendants too. The Claimant also argued that the definition of pre-commencement funding arranged under CPR r 48.2 dealt with the issue of recovering additional liabilities and therefore the proceedings were subject to the second CFA so that if she won at trial the Defendant would not have had any liability to pay any additional liabilities; in those circumstances she was entitled to rely on the protection afforded by the QOCS.

The Court stated that CPR Pt 48 dealt, amongst other things, with the recoverability of additional liabilities and CPR r.44.13 to CPR r.44.17 dealt with QOCS. It was noted that both these changes to the rules were brought in at the same time and with good reason. Post 1 April 2013, a Claimant would no longer need to take out ATE insurance to cover the Defendant’s costs because even if he lost at trial, he would no longer be required to pay the Defendant’s costs pursuant to CPR r.44.15 and CPR r.44.16. As a result of the changes Defendants were no longer liable to pay any additional liabilities to the Claimant in the event of a Claimant winning.

It was held that as the Claimant had issued proceedings pursuant to the CFA entered into with her current solicitors and that the CFA had been entered into after 1 April 2013 the court could not have ordered the Defendant to pay the Claimant’s additional liabilities. This was considered a key consideration to determine the meaning of CPR 44.17 and CPR 48.2, which itself referred to the person by whom the success fee was payable. It was decided that it could not be right that the Claimant should not be able to rely on the protection afforded by QOCS. The Claimant should not be responsible for payment of the Defendant’s costs and could rely on the protection afforded to her by CPR 44.17. She had not entered into a pre-commencement funding arrangement as defined by CPR 48.2.

Quantum Cases


Loss of earnings calculation guidance

The Court considered quantum and in particular the approach to use to determine damages for loss of future earning capacity when the Claimant has suffered an injury resulting in only a minor disability, was in steady employment and at the pre-accident rate. It was held that the Smith v Manchester approach remained appropriate as oppose to Ogden Tables A to D.

Following the accident, the Claimant was working as a lorry driver, with his earnings the same as before the injury. However, two experts agreed that although he had an excellent driving qualification and a good CV, if he lost his present job he would be at a disadvantage in finding new employment because of his injury.

The Judge found that Claimant’s injury was minor, but he was (only just) “disabled” within the explanatory notes in the Ogden tables. The Claimant’s future earnings were determined by using the Ogden Tables A and B, suitably adjusted. The Claimant was awarded damages for loss of future earning capacity of £99,062.04 and general damages for pain, suffering and loss of amenity of £12,500.

The Defendant argued that an award of £12,500 for general damages was outside the permissible range for minor injury and that he was not “disabled” within the definition in the Ogden Tables, but even if he was, damages would have been more appropriately assessed using the Smith v Manchester method.

It was held that the instant court could not go behind the Judge’s findings of fact concerning his continuing symptoms. The Judge had properly carried out the exercise of identifying where the Claimant’s injuries fitted within the conventional framework for determining general damages, not going outside the permissible brackets. The Judge had to consider what he could not do as a result of his injury: he could not undertake DIY and gardening in cold weather; he could not play rugby or swim regularly; and he could not play with his children outside when it was cold. Therefore, the Judge was entitled to conclude that his injury substantially effected his ability to carry out normal activities and that his condition could qualify as a disability.

It was agreed that there were some instances where Tables A to D could be valuable in determining a Claimant’s loss of earnings capacity, however this was not one of them. It was decided that fitting the Claimant within a Band would be very difficult and in determining an appropriate adjustment to the reduction factor was a matter of broad judgement which was no more scientific than the broad brush judgement which the court made when carrying out a Smith v Manchester assessment. The instant case was a classic example of a case where a conventional Smith v Manchester award was appropriate. An appropriate award for future loss of earnings would be two years’ earnings, which amounted to £45,000.00.


K (A CHILD) v SHIRLEY (2015)

Quantum relating to 6wks neck pain.

RTA, on which liability was not in issue.

The Claimant, an 11 year old boy was awarded £2,045.00, including £2,000.00 for PSLA following a road traffic accident in October 2013. He suffered pain in his neck, referring into both shoulders, his lumbar spine and left elbow, which took 6 weeks to resolve and he suffered travel anxiety for three months.



PSLA relating to shoulder problems and linked depression.

Quantum re ongoing pain and restriction of movement in the Claimant’s right shoulder following a shoulder replacement, which was not resolved by physiotherapy, rest or gradual mobilisation.

The Claimant, aged 63 at time of injury, received £36,773.93 for the negligent shoulder injury. This included £17,500.00 for PSLA, being for an extended period of pain and restriction of movement in her right, dominant shoulder, three further operations and an injury for 4 years 5 months. The claimant also developed mild to moderate depression during early 2010 which continued until June 2010 with medication and was expected to resolve with the conclusion of the litigation.



Quantum relating to arm amputation

Accident at work, liability was admitted and the Defendant was subsequently convicted of various health and safety offences in the Magistrates’ Court.

The Claimant, a 27 year old man, received £1,750,000.00, including £110,000.00 for PSLA for injuries sustained during an accident at work in March 2011. Injuries included a traumatic amputation of his right dominant arm, which was caught in the large rollers of a conveyor belt and torn off, leaving him permanently disabled and consequently unable to work as an electrician or HGV driver for which he had been trained. He was unable to do gardening or DIY tasks.

The Claimant was also advised that he was an appropriate candidate for revolutionary new bionic arm and a targeted muscle reinnervation (TMR) operation.



Quantum relating to soft tissue back injuries resolving with no further treatment

RTA, liability admitted in part, 75/25 in the Claimant’s favour.

The Claimant, a 22 year old woman, received £7000.00, including £6215.00 for PSLA for injuries sustained during a road traffic accident. Injuries included soft tissue injuries to her neck, back and shoulder which were expected to resolve within 15 months, and travel anxiety which was expected to resolve within 17 months post accident.