Experiment at Home!

The Court of Appeal in Sutcliffe v Aintree Hospitals NHS Trust [2008] EWCA Civ 179 concluded that an experiment performed by the claimant’s expert following an expert meeting may have justifiably caused him to alter his views on causation.

The claimant underwent an elective caesarean under a spinal block anaesthetic. She subsequently developed a chronic neuropathic disease known as arachnoiditis which caused her to suffer severe neurological and physical consequences. The trial judge concluded that the claimant’s injuries were the result of contamination of the spinal anaesthetic, bupivicaine, with a cleansing agent, chlorhexidine and that this was as a result of negligence by the Trust.

The parties’ anaesthetic experts Professor Pollard for the claimant and Dr Lyons for the defendant agreed during an expert meeting that “contamination can occur without the practitioner being aware, despite otherwise exercising proper care. It is standard practice to have open pots of cleaning solution on the tray”. Both experts agreed that the breach of duty could not be established.

The defendant submitted that the agreed evidence indicated that the only way there could be liquid-to-liquid contact required to produce contaminant in a damaging quantity was if there was a substantial spillage or dropping of the needle into the chlorhexidine depression in the relevant tray. The judge’s assessment of the clinicians was that they normally operated to a ‘very high’ standard. Professor Pollard during oral evidence informed the court that he had conducted an experiment to assess how easily chlorhexidine could contaminate a syringe filled with bupivicaine. He used a sugar mixture to simulate the bupivicaine and carried out the experiment with a syringe only, without attaching a needle as would happen in theatre. He was asked by the trial judge to repeat the experiment using a needle and did so returning the following day to advise the court that liquid to liquid transfer took place and this would be as a result of a breach of duty. The trial judge accepted Professor Pollard’s amended evidence and relied on literature which supported the conclusions of the expert’s experiment.

The defendant appealed this judgement on the basis that the oral evidence of Professor Pollard, was incongruous with the judge’s assessment of the clinicians in question and that the pre trial evidence given by Professor Pollard did not support the judge’s verdict.

On appeal, the Court held that Professor Pollard was entitled to come to new conclusions based on his experiments, and the judge was entitled to accept this new evidence, even though it contradicted the previous agreed evidence. Appeal dismissed.

Comment

This case on the face of it appears concerning insofar as the Court of Appeal have accepted evidence from an expert following an impromptu experiment. What is the standard of the experiment conducted? Does such an experiment need to be verified by other professionals before being accepted by the courts? Should the results of such an experiment be jointly agreed in such a case? There are more questions than answers arising from this judgement.

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Noise Induced Deafness – There’s No Limit

In Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182 the issue of limitation was once again considered by the Court of Appeal. The claimant, Mr Furniss, brought a claim for noise induced deafness arising out of his employment with the defendant. His claim was dismissed by the court following a preliminary issue hearing on the grounds that he had issued his claim outside the limitation period and his claim was statute barred by sections 11 and 14 of the Limitation Act 1980 (”the Act”). The claimant appealed.

Section 11 of the Act states that a claim must be brought within 3 years of the date on which the claimant’s cause of action accrued, or the claimant’s “date of knowledge” if later. “Date of knowledge” (defined in Section 14 of the Act) refers to the date on which the claimant knew that his “injury in question was significant”. The limitation period can be disapplied altogether if the court chooses to apply its discretion under section 33 of the Act.

The claimant had worked for the defendant from 1976 to 1982, and had never been provided with hearing protection during the course of his employment. He attended his GP in 2003 about a deterioration in his hearing and was advised that he had a build up of wax, which was removed. In 2004, following a further deterioration in his hearing, he was diagnosed with tinnitus, which according to a consultant was a result of noise exposure.

He issued a claim for damages on 3 June 2006. The defendant argued that for the claim to proceed the claimant must establish that his date of knowledge was on or after 3 June 2003. The court held that the claimant knew about his injury around 1998 and dismissed the claim, refusing to exercise its discretion under section 33.

The claimant appealed, arguing that there was no evidence to substantiate the judge’s conclusions that he ought to have known about his hearing loss in 1998. He was not asked about when he first thought he had lost his hearing and the only period about which he was asked was in 2004. Furthermore, the judge’s reasons for statute barring his claim were unsupported by expert evidence.

The Court of Appeal held that the trial judge had not properly dealt with the issue as to when the claimant knew about the significance of his injury. Had this question been dealt with, the judge would have seen that there was little evidence to support the finding that the claimant was aware of the significance of his hearing problems by 1998. No conclusion was reached as to when the claimant had knowledge that his injury was significant. The defendant’s burden of proof under sections 11 and 14 of the Act had not been discharged and the claimant was allowed to proceed.

Comment

Challenging a claim on the grounds of limitation is always a difficult call for a defendant and whilst the court at first instance took a hard line, on appeal the court’s sympathies were with the claimant as we so often see in limitation cases.

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Approach Malingerers with Caution

In Jones v Royal Devon & Exeter NHS Foundation Trust [2008] EWHC 558 the court considered the sensitive issue of malingering in a claimant with a prolonged pathological grief reaction following the death of her daughter.

The claimant’s daughter Bron Bawdon Jones (“Bron”) suffered hypoxic ischaemic encephalopathy at birth and died the following day after the withdrawal of life support. The defendant admitted liability and the claimant sought damages for bereavement and psychiatric injury with consequential losses which included a claim for loss of earnings and pension.

The claimant’s psychiatric expert concluded that she suffered from continuing post traumatic stress disorder (“PTSD”). The defendant’s expert concluded that she had suffered an adjustment disorder in the form of a pathological grief reaction, but that this had resolved by December 2004. The defendant submitted that the claimant’s evidence was “a variety of contradiction, sophistry, obfuscation and disingenuous”, arguing that the claimant could not establish her loss and she was a malingerer.

It was held Mr Justice King that the claimant was not a malingerer; however he did mention that there were “troubling aspects of her evidence”. He said that he was “entirely satisfied” that the claimant was suffering from a “prolonged pathological grief reaction” which was exacerbated by the effects of trauma and feelings of guilt and self blame. She had not suffered from PTSD but she had suffered a psychiatric injury that fell into the moderately severe category and was awarded £20,000.

Comment

This case highlights the danger for defendants who allege malingering. We would always recommend such an allegation is approached with caution particularly in emotional and sensitive cases where the court’s sympathies will be firmly with the claimant.

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