Whilst they did not form the mainstay of the case, Bolitho issues were considered by the Court of Appeal in Sutcliffe (by his wife and litigation friend J Sutcliffe) v BMI Healthcare Ltd [2007] EWCA Civ 476.

The Claimant (B), a fit and healthy 33 year old who played regular sport, ended up brain damaged following a routine knee operation. The injury was caused by vomit aspirating into the B’s lungs whilst he was asleep because the gag reflex which usually operates to make a person who vomits in their sleep wake up and cough did not occur. Nurses had taken a decision not to wake the Claimant up for his 6am observations because he had slept little during the night. The Claimant argued that this was negligent and had the nurses attempted to rouse B at 6am to perform routine observations of pulse, temperature and blood pressure, his reduced level of consciousness would then have been detected incidentally. The Judge dismissed the claim at first instance finding that the decision not to wake the Claimant at 6am had been reasonable as B appeared to be making an “entirely normal recovery”.

On appeal, the Claimant argued that the evidence of the Defendant’s nursing expert, which was that it was reasonable practice for the nurses to have allowed B to carry on sleeping, should have been rejected as not having a logical basis and therefore not representing a body of responsible nursing opinion in accordance with Bolitho principles. These principles require going further than traditional ‘Bolam reasonableness’ by weighing up the comparative risks of a particular course of action against the benefits before it can be considered reasonable medical practice. In this case the risks of not performing the routine observations were bound to outweigh any risks of performing them.

The Court of Appeal rejected this and indicated that Bolitho did not really apply as the risks involved were not of a kind that were relevant under Bolitho and the reasonable nursing practice in question related to a decision not to carry out nursing observations at 6am in order to let a patient who had got little sleep rest and those observations were not linked to any diagnosis and treatment of the patient as such.

When does Bolitho apply?

The implication of this is that the weighing up of comparative risks in the Bolitho manner is strictly only necessary when there are questions of diagnosis and treatment to consider and should not just be applied literally to all decisions which may be taken over a period of treatment. However in this particular case, the nursing expert’s opinion about reasonable practice was supported by other evidence which was helpful in concluding that her opinion did have a logical basis in any event. Defendants should be aware that even where Bolitho may not technically apply, their case will be particularly strong where an expert’s opinion that a practice is reasonable is supported by other evidence.

Avoiding Smith v Manchester awards

In Johnson v Warren [2007] All ER (D) 36 (May) the Court of Appeal dismissed the Claimant’s appeal against the decision that she was not entitled to an award for disability on the labour market (commonly known as a Smith v Manchester award). She tried to argue that her injuries arising from the Defendant’s negligence had left her unable to work. The medical evidence was that she could not carry out strenuous physical work but was fully fit to carry out clerical work (which she had done in the past). The first instance Judge found that despite medical evidence to the contrary the Claimant did not believe she was fit for any work and was not therefore seeking work. On this basis, her award of damages did not include an amount for disability on the labour market.

The Court of Appeal confirmed that in cases where there is no risk that the Claimant will be out of work even though she cannot work in a physically demanding job, because she is fit to work in a clerical position and clerical work is available to her, a Smith v Manchester award of damages is not appropriate.

Good news for Defendants

This case is good news for Defendants as it rules out payouts to Claimants who argue they are unable to get a job because of their injuries in circumstances where those injuries do not prevent them carrying out, for example, clerical work.

At what stage is ‘without prejudice’ status available to communications between parties’ before commencement of proceedings?

This was the question before the Court of Appeal in Barnetson v Framlington Group Ltd and another [2007] EWCA Civ. It was not disputed by either party that “without prejudice” status can attach to communications that take place before legal proceedings are commenced. However the precise stage at which a without prejudice status was available to parties attempting settlement of a matter pre-litigation was disputed.

The Court of Appeal in overruling HHJ Seymour QC’s decision held that the public policy of “discouraging recourse to litigation and encouraging genuine attempts to settle whenever made” behind the ‘without prejudice’ rule means that the rule cannot be confined to negotiations once a dispute is begun or threatened. The Court of Appeal held that the crucial question to consider is, “whether in the course of negotiations the parties had contemplated or might reasonably have contemplated litigation if they could not agree”; and the proximity to the commencement of litigation is not therefore decisive.

The dangers of not marking “without prejudice” correspondence as such were considered in the January 2007 edition of Claims Online, particularly in relation to concessions extracted by Claimants before proceedings are brought. This decision is helpful with regard to the ‘without prejudice’ status of early concessions that may have been made by NHS Trusts with future legal proceedings in mind but should not be relied upon as an alternative to good practice.

The ongoing battle on Indexation – RPI v ASHE

The basis of indexation on the increasingly common periodical payment form of settlements favoured by the NHSLA was the subject of Bullimore J’s decision in Corbett (by his mother and Litigation Friend) v South Yorkshire Strategic Health Authority [March 2007].

The Judge held that it was appropriate to index future periodic payments against the Annual Survey of Hours and Earnings (ASHE) rather than the Retail Price Index (RPI) and the question of affordability of this for the NHS was not one for the Court to consider as it would not be “just or practicable…to adopt different approaches as to the appropriate indexation measure, depending on the identity of the Defendant”.

The future…

The case demonstrates that indexation will remain a major issue, at least until higher judicial authority on the topic becomes available. Thompstone is due to be heard in the Court of Appeal in November of this year and it is likely that the policy considerations outlined in the Corbett judgment will feature in the submissions from both parties. Bevan Brittan LLP will be representing the Trust in this appeal and will report the outcome in a future edition of Claims Online.

Defendants should be aware that Bullimore J’s earlier refusal to postpone hearing the indexation issue until the outcome of the appeal against Thompstone v Tameside & Glossop Acute Services NHS Trust [2006] is known was upheld by the Court of Appeal ([2006] EWCA Civ 1797) and it is therefore possible that there may be more High Court rulings on the issue before November.

Another noteworthy finding

Defendants should note that Corbett also held that the care package proposed by the Defendant would breach the Working Time Regulations 1998 as the daily rest of eleven consecutive hours would not be available to the live-in care workers. When relying on any care package involving live-in carers, Defendants should consider whether there any Working Time implications.