Losses attributable to death by suicide not too remote
Eileen Corr v IBC Vehicles Ltd [2008] UKHL 13

This was a claim by Mr Corr’s widow to recover the financial losses attributable to the suicide of her husband. Mr Corr had been employed by IBC as a maintenance engineer. In the course of his employment, he had suffered a head injury and developed post traumatic stress disorder and depression. He had begun proceedings against IBC but later committed suicide by jumping from the top of a multi story car park.

IBC accepted both that they had breached their duty to Mr Corr and that it was the depressive illness that drove Mr Corr to take his own life. However they argued that Mr Corr’s suicide was not reasonably foreseeable and amounted to a novus actus interveniens that broke the chain of causation. In the alternative they argued that there should be a reduction for contributory negligence.

The Judge at first instance had found that Mr Corr’s suicide was not reasonably foreseeable. However that decision was reversed by the Court of Appeal who found that as suicide was a common consequence of severe depression, it was reasonably foreseeable that Mr Corr’s suicide would result from the Defendant’s breach.

The House of Lords dismissed IBC’s appeal. IBC owed Mr Corr a duty to avoid causing him psychological as well as physical injury and Mr Corr’s depression was a foreseeable consequence of their breach of duty. Suicide could amount to a novus actus, if it was a conscious decision by the deceased in the absence of any mental illness. However at the time of taking his own life Mr Corr was suffering from a depressive illness which impaired his capacity to make reasoned judgments about his future. In taking his own life Mr Corr had acted in a way that he would not have done but for the depression brought on by the accident.

Comment

Whilst finding against the Defendant on the issue of foreseeability, the House of Lords deliberately left the door open for Defendants to raise the issue of contributory negligence in future cases. The majority were unwilling to make a finding of contributory negligence in this case because the issue had not been fully argued in the courts below. However, they were also of the opinion that it could be appropriate to make a reduction for contributory negligence in cases where the deceased’s capacity to make an informed judgement was only “impaired” and had not been eliminated.

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“Discounted” CFA valid
Gloucestershire County Council v Evans & Ors (2008) EWCA Civ 21

This claim related to a property dispute. An agreement was reached under the terms of which one of the defendants (Evans) was to pay Gloucestershire County Council £135,000 and its costs.

The Council’s solicitors had entered into a Collective Conditional Fee Agreement with their client. Under the terms that were agreed, the solicitors “basic charges” were stated to be £145 per hour. They were entitled to a success fee of 100% on basic charges if their client won, but had agreed to be paid only £95 per hour if their client lost.

Evans argued that the CFA was unenforceable. The Council’s solicitors were only at risk of losing £50 per hour if their client lost whilst they were entitled to recover £290 per hour (£145 per hour basic charges plus 100% success fee) if they won. Evans claimed that this breached section 58 of the Courts and Legal Services Act 1990 and the Collective CFA Regulations which capped the maximum success fee at 100%.

The issue between the parties was whether the 100% success fee should apply to the solicitors “basic charges” rather than to the costs that were actually “at risk”.

The Court of Appeal were not prepared to adopt the “purposive” interpretation suggested by the Defendant. The concept of "costs at risk" did not find expression in the Act. In fact the Act provided that the lawfulness of the percentage increase was measured by reference to the fees that would have been payable if the agreement was not a CFA. The agreement provided for basic charges of £145 per hour, which was the amount of the fees that would have been payable if the agreement had not been a CFA.

The Court of Appeal found that the possibility that success fees might lead to unreasonable results in some discounted fee CFAs was not a reason for giving the statute an impossible interpretation.

Comment

Those regularly acting for Defendants can take no comfort from this decision which displays the courts’ continuing dislike of technical challenges to the CFA regime. The Court of Appeal was not convinced that allowing a success fee based on hypothetical “basic charges” raised the spectre of potential abuse. The Court felt that the paying party’s interests were adequately protected by their ability to challenge the hourly rate and the level of the success fee on detailed assessment. This remains to be seen.

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Not Negligent for Obstetrician to “Wait and See” in the face of an Improving CTG trace
Hickman v Sandwell and West Birmingham Hospitals NHS Trust 2008

The Claimant was born on 11 October 1996. Around 80 minutes prior to delivery her mother complained of back pain whilst on the antenatal ward, a CTG trace was commenced and the fetal heart was found at 54 bpm. The treating midwives arranged for immediate transfer to the labour ward.

On arrival initial preparations were made to take the Claimant’s mother to theatre for a caesarean section and a CTG trace was then re-started. Although the fetal heart rate had improved to around 90-100 bpm it was still outside the normal range and the obstetric registrar was called. On arrival the registrar was informed of the bradycardia on the antenatal ward and she reviewed the CTG trace. Over the next few minutes the fetal heart rate improved further to a baseline of 120bpm with normal variability and no decelerations.

In view of the improved CTG trace the registrar decided to observe for 20 minutes. She asked the midwives to call her back urgently if there was any change in the observations. Around 15 minutes later the fetal heart baseline gradually reduced to 100bpm and a decision to deliver by caesarean section was made. The caesarean section was carried out within 25 minutes of the decision. At delivery the Claimant was significantly depressed and required intensive resuscitation. She went on to develop cerebral palsy.

The Claimant, based on the evidence of their expert Mr Bowen-Simkins, argued that the registrar should have been standing by on arrival at the labour ward and should then have decided to deliver the Claimant by caesarean section immediately following her assessment. It was the Claimant’s case that delivery by caesarean section within 30 minutes of the registrar’s first assessment would have avoided all injury. In the face of clear recovery of the CTG trace, the Defendant denied that the decision to wait was negligent. Further, the Defendant, represented by Bevan Brittan, argued that the Claimant’s brain injury was probably sustained before transfer to the labour ward in any event.

Comment

His Honour Judge MacDuff QC found that the decision to “wait and see” was not negligent. Most obstetricians would have done the same. The literature confirmed that in the face of a prolonged deceleration or abnormally low baseline the first process is to try to find a cause and correct it. If the fetal heart rate returns rapidly to normal the placenta is effective in resuscitating the fetus; a low pH is usually rapidly corrected and, where the CTG recovers fetal acidosis will do so too. On the finest balance of probabilities the damage occurred during the bradycardia on the antenatal ward. Case dismissed.

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