Health and Social Care Update - December 2018
Dec 18 2018
Policy and law relevant to those involved in health and social care work.Read More
The Court of Appeal was less than receptive to criticism of a Judge’s trial management including “excessive questioning” of witnesses, that he had pre-determined certain issues and in effect reversed the burden of proof, for an 8 month delay in producing his Judgment and that his assessment of the expert evidence was wrong and not supported by his own findings.
The background to case brought by GM is that his wife had been successfully treated for cancer in 1994 and subsequent biopsies until 2001 were shown to be negative. However, in 2002 the cancer was found to have recurred and GM’s wife died. GM was successful in proceedings brought against KCH that its pathologist was negligent in failing to exclude the possibility of a recurrence of the cancer treated in 1994 when examining the biopsies taken in 1995 and 1996 and that, but for that negligence, additional investigation would have revealed the recurrence and the resultant surgery would have extended her life. KCH appealed.
Lord Justices Waller, Laws and Hughes dismissed the appeal holding that the Judge had written “an absolutely comprehensive judgment dealing with each and every point in the most rigorous way”. It was accepted that the level of questioning may have included some unnecessary enquiries and, whilst the Court would not encourage Judges to think that level of questioning to be commonplace, this Judge was just doing what he could to understand the evidence. Further, it was held that the delay of eight months to produce the Judgment was not an indication that the Judge had lost his way but an indication of the care taken by the Judge to understand the medical evidence and deal fully with each point. The Court of Appeal found the Judge’s reasoning to be logical and permissible. Waller LJ noted that KCH was seeking a full re-evaluation of the evidence which could only happen if the Judge had mis-directed himself or he had plainly gone wrong. As none of the Judge’s findings could be challenged, it was difficult to see how, cumulatively, there came a point where an arguable case arose. As Laws LJ said during the hearing “nought added to nought still equals nought”. All grounds of appeal were dismissed.
Those advising the Claimant would say that this case always had a predictable outcome. However, first impressions can be deceptive and there are still a number of troubling issues. First, and whichever side one sympathises with, the delay in producing the Judgment is contrary to judicial guidance on the matter and could not have improved his recollection of the evidence. Moreover, during the trial GM was known to be in the final stages of his own terminal cancer and did not survive to hear the outcome of this case into the death of his wife. The Judgment might be comprehensive in terms of length but the analysis of key issues was certainly criticised. The Judge had to recall the first version of the Judgment. The Judge was hearing his first clinical negligence trial, having previously been a Technology & Construction Silk and Deputy Judge. No one should criticise a Judge for speaking out if he has not followed a point, but evidence was produced showing the excessive number of his questions, in places overshadowing the two opposing advocates put together. There is judicial guidance about this to avoid interfering with the parties’ ability to elicit the relevant evidence and it is interesting that the Judge took the unusual step of granting permission to appeal himself straight after the Judgment. The Claimant’s damages were £475,191; given the lawyers involved and the CFA funding it is estimated that the Claimant amassed around £2 million in costs although this is subject to assessment by the Court.
The Court Appeal clearly examined the case put forward by the Appellant in detail but was not persuaded to disturb the Judgment in a sad case involving the death of GM and his wife. However, these forthright criticisms of a newly appointed Judge in a field perhaps unfamiliar to him were not well received. If accepted, they were arguably likely to result in declaring a mis-trial and it was clear that this was not an acceptable outcome. Despite the outcome this is not necessarily an endorsement of how the trial was managed.
The facts of this case are complex and relate to four different Claimants. To summarise, all Claimants were cared for by either the Nugent Care Society or Wirral Metropolitan Borough Council between 1967 and 1980 and brought cases against these respective organisations in relation to allegations of sexual abuse during each individual’s period of care. This judgment concerns appeals and cross-appeals following the determination of the preliminary issue of limitation and prompted the Court of Appeal to give further guidance on the application of s33 of the Limitation Act 1980 (the Act).
A v Hoare  had established that damages for trespass to the person (the cause of action here) had a limitation period of three years with a discretion for the Court to extend that period under s33 of the Act. Please see our August 2008 edition. In Lister v Hesley Hall Limited  UKHL 22 it was held that where there was a sufficient connection between the work of an employee and the acts of abuse committed by him, such as arise from employment in a care home or school where there is close contact between the employee and pupils or patients with the inherent risks involved in that situation, vicarious liability is likely to be established against the employer. The effect of Hoare and Lister together make it much easier to show vicarious liability once trespass to the person in the form of sexual abuse has been established.
The exercise of discretion under s33 of the Act is also different following Hoare as evidence adduced by a claimant that he was inhibited by the abuse is now relevant to the exercise of discretion. Under old law, the question of whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings was relevant to knowledge but not to the exercise of discretion under s33.
In the instant case the Court discussed that the wide and un-fettered discretion under s33 of the Act and suggested that judges may in the future feel that it would be unfeasible to decide preliminary limitation issues on the papers as the strength of the claimant’s oral evidence was in a way relevant to the discretion decision-process. Furthermore, the Court held that any judge must take into consideration all the circumstances, including any prejudice suffered by the defendant and what information would have been available to the defendant if the trial had been heard sooner. The Court of Appeal upheld that the decisions of High Court (in the Nugent case) and Liverpool County Court (in the Wirral case) were correct and dismissed the appeals so that one of the four cases were time-barred.
It is clear that the new Hoare and Lister approach could very easily be construed as pro-claimant as there is a lower threshold to trigger vicarious liability and evidence that the claimant was inhibited by the abuse is now relevant to the exercise of discretion. However, it emphasizes the requirement to consider all the circumstances including prejudice to a defendant. For example, there may be cases, where witness evidence would potentially be significantly hindered by the passage of time or missing records and this could dramatically affect the defendant’s ability to defend the case such as in obstetric cases. However, the focus should be on the prejudice which affects the defendant’s ability to defend and not the prejudice to the defendant of losing a limitation defence (and the potentially wasted costs against impecunious claimants!). In short the correct question to consider is “whether it is fair and just in all the circumstances to expect the defendant to meet his claim on the merits, notwithstanding the delay in commencement”.
This case concerns an appeal to the High Court on the tort of defamation. Claimant 1 (MM) was a mutual protection fund and one of its directors was Defendant 1 (DW). Claimant 2 (RMM) managed mutual protection funds including MM’s. DW left MM and was appointed director of Defendant 2 (PIS), an insurance broker which offered services in competition with MM. DW and PIS sent a circular to MM’s members about the services provided by MM and DW subsequently had a conversation with a member of MM and gave him information regarding why he should change his cover from MM to PIS.
MM brought a claim in libel, slander and malicious falsehood and RMM adopted the malicious falsehood claim on the basis that its income was linked directly to the falsehood. DW and PIS argued that it was essential to a malicious falsehood claim that the words complained of made some reference to the Claimant. As the words complained of in this case did not refer to RMM, the Defendants argued that RMM did not have a claim and should be struck out.
The Court held that it would not strike out RMM’s claim. The basis for this decision was that as RMM’s business was so closely linked to MM, it was a possibility that the words complained of might sufficiently refer to RMM’s business in order to bring RMM within the wide reference limits applicable to malicious falsehood.
We reported this case within the healthcare field it is often
the case that potential defamation claims are not acted upon due to
the possible negative publicity for the organisation involved or
because NHS Trusts cannot sue for defamation. However, this
case serves as a reminder that the tort of defamation is broad and
should not always be ruled out if the false information has a
significant, negative effect on an organisation’s reputation or the
reputation of individuals closely linked to it.