Mon04242017

Last updateTue, 24 Feb 2015 5pm

7 Bedford Row

7 Bedford Row

Liam Ryan and Tess Barrett discuss ways of determining unhappy employees from genuinely injured claimants

Cases where employers face claims predicated on stress at work naturally bear certain similarities. One trait, which seems to permeate in a number of cases is that of an employee who, having taken umbrage with a decision or act carried on the behalf of their employer, becomes so entrenched in their opposition to such a decision that their reaction begins to develop into a recognised psychiatric disorder, or to affect their health in other ways. It’s a difficult position for any employer to be placed in. On one hand, an employer is entitled to pursue its genuine commercial interests but at the same time, must balance this against its duty of care owed to its employees. This is particularly true in cases where employees suffering from significant stress react emotionally, perhaps even obstructively to genuinely commercial motivated decisions. In these cases, a cross roads is reached where an employer has to decide on how to proceed, do they accommodate the obstructive employee, or push on fearing the threat of legal action for the greater good of their operation?

Julian Matthews looks at recent case law on the issue of consent to medical treatment including the recent Court of Appeal decision of Webster

Legal and medical practitioners alike recognised that the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] represented a major change in the approach to be adopted when dealing with the issue of consent to medical treatment. What was not wholly apparent was how the principles set out in Montgomery would be applied in practice. There was a genuine concern that the apparently clear principles would be undermined by first instance courts who might feel that the consequence of applying the principles was in some way ‘unfair’ to medical professionals, and would try and re-introduce some elements of the ‘Bolam’ test in order to restrict liability, particularly in relation to assessing what information ought to be provided to the patient at the time any consent to treatment was taken. The Court of Appeal has now delivered its first decision in a consent case since Montgomery, which gives a real pointer to lower courts and practitioners on the extent to which the Montgomery principles will be observed, and how they should be applied in difficult cases.

Susan Reed asks whether the lessons of the Cleveland inquiry have still not been learned

Towards the conclusion of his judgment in AS v TH [2016], MacDonald J said (at para 233):

Julian Matthews explores a defendant’s liability when there are multiple causes of a given loss

I have written recently in this journal about the potentially widespread ramifications of the case of Reaney v University Hospital of North Staffordshire [2015] (see ‘Reducing damages due to pre-existing conditions: a tenable argument?’, PILJ133, March 2015, p22 and ‘Material contribution to damage’, PILJ131, December 2014/January 2015, p17).

Julian Matthews highlights a case that demonstrates the courts’ approach to contribution to injury

The Judicial Board of the Privy Council’s contribution to the common law jurisprudence on causation of damage in the material contribution case Williams v The Bermuda Hospitals Board [2016] provides a welcome clarification of the law in this complex area. The recent decision in John v Central Manchester NHS Trust [2016] is a very helpful illustration of the application of the principles confirmed by that decision.

Justin Slater and Rose Harvey analyse the ramifications of a recent decision on agreements to accommodate children under s20 of the Children Act 1989

While primarily concerned with the jurisdiction of the court to make an order regarding a non-British child, the Court of Appeal in N (Children) (Adoption: Jurisdiction) [2015] also addressed issues arising from the placement in that case of the children in local authority accommodation pursuant to an agreement under s20, Children Act 1989 (ChA 1989). Section 20 provides a powerful tool for good and this discretionary power can both safeguard a child and provide relief for a parent at a time of intolerable stress. While nothing in the leading judgment given by the president of the Family Division, Sir James Munby, in N should discourage the use of s20, there are, as the president reminds us, limits (as set out at paras 157-171 of the judgment). The use of section 20 agreements has been rising steadily since 2013, with 29% of looked-after children in 2015 (19,850) being looked after using s20 (Department for Education, 1 October 2015, see www.legalease.co.uk/looked-after-children). Practitioners must be clear as to exactly what a section 20 agreement is intended to achieve and the nature of its limitations.

Catherine Rayner investigates the draft legislation on recouping termination payments from workers returning to the public sector

Draft regulations on recovering exit payments made to public sector employees, contractors and office holders have now been published. The purpose of the legislation is to allow public sector organisations to claw back all or part of a termination payment if the recipient starts work for another public sector organisation within 12 months.

Deidre Goodwin analyses Eeles applications and the case for reviewing Roberts v Johnstone

Has the time come to reconsider the validity of the apparently immutable Roberts v Johnstone [1989] principle in order to provide a fairer balance in the assessment of reasonable accommodation needs in serious personal injury and clinical negligence claims?

Elaine Banton looks at how much progress the UK’s biggest businesses have made in increasing the number of female directors they employ and highlights what they need to do next

The recent announcement by Lord Davies that Britain’s largest companies should increase the number of female directors they employ to 33% has garnered much media interest. According to his report, Improving the gender balance on British boards, the original 25% target has been met, with 26% of FTSE 100 directors being women in October 2015 compared to 12.5% in 2011.

What are the implications of the reversal by the Court of Appeal of the decision in Reaney v University Hospital of North Staffordshire? Julian Matthews considers the ramifications

In times of financial difficulties, the common law commonly comes to the aid of defendants, by assisting them to restrict their potential liabilities. There is an inherent tension between application of the ‘but for’ test of causation, which leads inexorably to the establishment of principles such as the doctrine of ‘material contribution,’ or creation of the Fairchild exception, with application of a strict doctrinal approach to causation which suggests that a tortfeasor should only be responsible for the actual damage that they have caused, thus limiting the scope of the compensation payable.

Julian Matthews looks at the recent case law on psychiatric injury for nervous shock, where there appears to have been a tightening of the relevant control mechanisms

In relation to psychiatric injury sustained by the close relatives or friends of those who sustain injury or death due to medical negligence, the long established general principles can be put as follows:

The EAT has explored whether an employee who objected to a transfer could bring a claim against the transferee under the Equality Act even though she was never employed by it, explains Jeffrey Jupp

If an employee resigns before a transfer because it becomes apparent that the new employer is likely to discriminate against them, can they bring a successful discrimination claim against the transferee? This was the issue raised in the recent case of NHS Direct NHS Trust v Gunn [2015] decided by the Employment Appeal Tribunal (EAT).

Julian Matthews discusses two recent cases which illustrate the potentially far reaching consequences of the rules of causation of damage

The ‘egg shell skull rule’, under which a tortfeasor must take their victim as they find them and is liable for all of the consequences of negligence, is very familiar to all lawyers, but often forgotten when arguing about the extent of a defendant’s liability. No defendant, however negligent, regards it as fair that the compensation payable will be assessed by reference not only to the direct and immediate consequences of their breach of duty, but will also include compensation for damage, deficits or disadvantages for which they have no responsibility at all. The courts have, over many years, wrestled with this issue, and the results have not been wholly consistent. In my last article I considered this in the context of the doctrine of ‘material contribution’ as it applies to primary causation. Thus, in relation to industrial injuries such as noise induced deafness, the defendant is only liable for such part of the injury as related to the noise exposure for which he was responsible on a time/dose basis: Thompson v Smiths Ship Repairers (North Shields) Ltd [1984]. A similar approach was adopted in relation to asbestosis: Holtby v Brigham & Cowan (Hull) Ltd [2000]. Where, however, an injury is deemed to be indivisible, and incapable of apportionment, material contribution applies, and the claimant is entitled to recover for the whole of their loss, which necessarily includes injury that may well have caused by others, or by environmental factors, for which the defendant could have no responsibility: Wardlaw v Bonnington Castings [1956], and McGhee v National Coal Board [1972].

One of the more intellectually challenging concepts in the field of clinical negligence is that of material contribution. Julian Matthews highlights two recent cases which illustrate some of the issues which arise

There are certain principles in the law of tort which cause external observers to question whether the rules provide common sense answers to common problems. There are two related principles in particular that seem to lead to answers that, from one viewpoint, are counter intuitive. One is the denial of recovery in claims for a lost chance of a better outcome, particularly in cases of delayed diagnosis of cancer: Hotson v East Berkshire HA [1987]; Gregg v Scott [2005] (in which two of the five members of the House of Lords suggested that the denial of recovery favoured by the majority was ‘irrational and indefensible.’) The other is the principle of material contribution, first enunciated in clear terms in Bonnington Castings v Wardlaw [1956], but more recently upheld as applying to clinical negligence cases in Bailey v MOD [2009].

A recent EAT decision has provided welcome clarity about how to determine when a TUPE transfer took place, explains Jeffrey Jupp

The precise date of a business transfer can be an issue of great significance. In Housing Maintenance Solutions Ltd (HMS) v McAteer [2014], the employment tribunal had held that a transfer occurred on 9 June 2011 and not, as the transferee, HMS, had contended, on 1 July. This exposed HMS to very substantial claims for unlawful deductions from wages and protective awards for approximately 200 employees. Some of these claims would have been avoided and others reduced if the later date was the correct date of the transfer.

Meningitis claims present very considerable challenges to clinical negligence lawyers. Julian Matthews looks at a recent decision which illustrates the difficulties, and the importance of clear evidence and analysis

Meningitis is a disease that is widely feared, particularly by parents of vulnerable children, teenagers and young adolescents, but is a disease that can affect anyone, and may not have severe consequences. The meaning of the term is simply inflammation of the meninges. The meninges are the three layers of tissue that surround the brain and spinal cord. The middle layer is called the arachnoid, below which cerebro-spinal fluid (CSF) circulates. Meningitis occurs when infective agents (usually bacterial) cross into the CSF and lead to irritation or swelling of the membranes, and can lead on to inflammatory swelling of the brain itself (encephalitis). This process, if not interrupted, can lead (in some cases very rapidly) to neurological impairment, damage to the brain, and ultimately death. Everyone is familiar with the stories of extremely healthy babies and teenagers who have died or been left with severe neurological impairment as a result of meningitis after a short course of illness. Parents are taught to look out for the cardinal signs of meningitis in babies and children to try and minimise the delay between onset of symptoms and treatment. Given this it is inevitable that where there has been a serious outcome from such an illness and the medical services have been engaged but have not picked up that the illness is present at the first opportunity, the focus of attention will turn to whether a claim can be made for compensation in respect of any delay in diagnosis, referral or treatment.

The Small Business, Enterprise and Employment Bill fails to give zero-hours workers any enforceable rights, contends Catherine Rayner

The Small Business, Enterprise and Employment Bill received its first reading in the House of Commons on 25 June 2014, and will receive its second reading on a date to be announced. The bill contains a number of employment law provisions, including legislation to make exclusivity clauses in zero-hours contracts unenforceable. This article examines the proposed provisions and the issues which they aim to address.

Julian Matthews looks at the case law and some recent illustrations

The standard of care the law requires of a doctor has become well established using the terms set out by McNair J nearly 60 years ago in Bolam v Friern Hospital Management Committee [1957]:

What is the practical impact of January’s changes to TUPE, asks Jeffrey Jupp

It is three months since the majority of the changes to the legislation protecting employees’ terms and conditions on the transfer of an undertaking came into force. Employers and their advisers are now starting to focus on what the changes mean in practice. This article considers the main changes and some of the practical issues being thrown up.

Deirdre Goodwin provides analysis and considers the effect of a finding of incapacity to conduct proceedings upon the status of settlements not approved under CPR r21

In February 2013 this journal published an article on the Court of Appeal ruling in Dunhill v Burgin on the scope of and test for mental capacity (‘Masterman-Lister and Bailey v Warren revisited’, by Deidre Goodwin, PILJ112, p6). It also considered the consequent case management decision of Mr Justice Bean, following remission to the High Court for determination of the effect of a finding of incapacity on a settlement entered into by the claimant in 2002 when she did not have the benefit of a litigation friend and court approval was not obtained under CPR part 21.

Julian Matthews considers the extent to which the court may draw inferences of negligence from the occurrence of commonly arising risks of surgery that a patient has consented to run

The challenge facing all medical practitioners is that the human body is infinitely variable. Despite the astonishing advances in medical technology, this is the primary reason why many procedures carry a ‘recognised risk’ of complications: every surgical procedure is carried out in a truly unique environment. Surgical procedures, in particular, are still associated with a range of greater and lesser risks, most of which have to be explained to patients being obtained. The risks are small, and most patients, having been taken through the nature of the risks, are quite prepared to consent to run these risks, because they will be advised that the complication rate is extremely low, and because of the benefits/necessity of having the procedure performed.

Julian Matthews investigates a fundamental problem with the compensation available when errors are made by private medical or primary care practitioners

The financial upheavals of the past five years have highlighted a number of issues relating to the compensation of successful claimants: none more so than the continuance of the discount rate under the Damages Act at 2.5%, despite the clearest evidence that a secure net rate of return on investments after tax and inflation has been significantly below that level. The justification for leaving the rate unchanged is, of course, that compared to historical rates of return the rate is low, so that over the long term it is likely to be a reasonable average. This does not help those who were awarded lump sum only damages five years ago, where those damages, if invested in secure investments, are now likely to be worth considerably less in real terms.

Luke Blackburn weighs up the pros and cons of a controversial method for employers to cope with peaks and troughs in demand for labour

With the recession putting even the most efficient businesses under pressure, the use of zero-hours contracts is on the rise. They are lawful, although the Labour party is considering reviewing this if it wins the next General Election. The benefits they bring to employers are considerable, but employees and their representatives should be wary to avoid the sort of worker exploitation last seen a century or more ago.

In conclusion to his two-part article, Julian Matthews reports upon a further recent decision in this complex area of medicine and law, and reflects upon whether similar cases can still be pursued given the recent changes to the rules on costs

My last article for the Personal Injury Law Journal concerned awards of damages for negligence leading to a delay in the diagnosis of cancer and, in particular, a review of the approach taken by Mr Justice Bean in the case of JD v Mather [2012], where damages were awarded for a three-year reduction in overall life expectancy consequent upon such a delay.

As the Liberal Democrats have found, the reputational damage caused by failing to deal with allegations of inappropriate behaviour in the workplace can be immense, report Jeffrey Jupp and Patricia Leonard

As is evident from the allegations about Lord Rennard and accounts recorded by the Everyday Sexism Project, sexual harassment is not confined to the workplaces of the 1970s and 80s. It is also clear that it is not restricted to any one sector – recently tribunals have dealt with cases of sexual harassment by hairdressers, trade union representatives, senior managers, bankers and restaurant owners.

Julian Matthews reports on a recent application of the alternative approach to causation suggested by Lord Phillips and Baroness Hale in Gregg v Scott

All clinical negligence practitioners are fully familiar with the difficulties claimants face in establishing that a delay in diagnosis of a malignancy has caused any significant recoverable loss. Since the House of Lords decision in Gregg v Scott [2005], there are few cases where it can be proved that the delay complained of has led to a switch from a patient having a high prospect of cure to a high probability of succumbing to the disease. In most cases even an upstaging of the disease consequent upon the delay cannot be shown in clear terms to have affected the outcome. The arguments that the lesion was particularly aggressive, or the patient particularly susceptible, have a tendency to significantly undermine the implications that may otherwise be drawn from the general statistical data. The problem is exacerbated because with many cancers the relevant studies are based on small sample sizes or a collection of cases over a long period spanning significant changes in the treatment regime applied, so the relevance of the statistical data to the particular case, while superficially helpful, can readily be undermined by careful drilling down into the data sets. Against this background, the requirement for the claimant to prove that any delay in treatment or referral led to a different outcome on the balance of probabilities creates a significant obstacle.

Julian Matthews examines an anomaly that should not exist

In assessing damages for clinical negligence that leads to impairment of sexual function, the case law has traditionally approached the value of impairment rather differently according to the gender of the injured party. The recent widespread publicity concerning the ‘Fifty Shades’ books, and the resulting discussions across all forms of media, have provided definitive proof (not that it was really needed) that the traditional approach which suggested that sexual function is of lesser importance to women than to men is utterly outdated.

Julian Matthews reviews the current position in England in light of the decision of the Privy Council in Helmot v Simon

All lawyers know that the function of damages for personal injury is to put the claimant, so far as is practicable, into the position that they ought to have been in had the accident not occurred. In relation to future losses, costs and expenses, the assessment is inevitably speculative. Under the law, until relatively recently, the only award that a court could make was one of a lump sum. The aim of the court when awarding a lump sum in respect of ongoing future losses is (per Lord Oliver in Hodgson v Trapp [1989] at para 826D):

Julian Matthews examines the psychological impact of clinical accidents, and the important role lawyers may have to play in the psychological health of those at the centre of clinical negligence litigation

Stories are part of the bedrock of human existence. The closest connection between parents and children is frequently bedtime storytelling, and family stories from childhood are the best loved and remembered. Children then go on to create their internal world view following the narrative threads they have been given, acting out the fantasy worlds of Disney, Harry Potter, Star Wars, or The Famous Five, and later, and less obviously, the contained structures of series such as Friends or the Twilight novels and films. This human attachment to stories is just as present in adults, despite greater disguise. The dedication individuals have to their career, family, or other areas of important activity such as charitable work can be seen to spring from an underlying narrative which sets both objectives and path, as well as the texture and content of their life.

Julian Matthews assesses the difficult legal issues that arise when multiple causes give rise to a compound injury

Most clinical negligence litigation arises out of adverse outcomes secondary to medical intervention required for some underlying condition. Given this, it is hardly surprising that issues of causation arise in nearly every case, and that most contested trials have causation disputes at their heart. While determining whether there has been a breach of duty can involve difficult issues of medical judgment, the legal framework for determining whether or not there is a breach is relatively straightforward, and has not caused the courts undue difficulty. The decisions and principles enunciated in Bolam v Friern Hospital Management Committee [1957] and Bolitho v City and Hackney HA [1997] are well understood now not only by lawyers, but by many of the medical practitioners engaged in medico-legal work. Yet even the most legally aware expert can struggle when it comes to issues of legal causation, and lawyers, even eminent members of the judiciary, can have diametrically opposed views when it comes to applying the established principles to complex facts.

looks at recent decisions concerning the line to be drawn between personal responsibility and the liability of others Julian Matthews

In first world societies, the majority live lives that are generally protected from harm by all manner of social structures and institutions. We expect the health service to protect us from the consequence of physical and mental illness, and public health services to provide a risk-controlled environment without rampant pests or diseases. We expect to be protected from crime, and this now includes the criminalisation of anti-social activities such as noisy neighbours or fly-tippers. We expect to have protection of our rights to privacy and family life from the state. All of these areas give rise to litigation when the protection provided falls short of expectations.

Julian Matthews considers the care required when commissioning, reading and relying upon expert reports and interpreting the findings.

The recent Court of Appeal decision in Warner v Penningtons & ors [2011], provides a cautionary tale for practitioners, illustrating the care required when reading and analysing expert reports in clinical negligence and personal injury cases, and an object lesson in ensuring that experts have all of the necessay and relevant material before them.

Julian Matthews looks at the latest authorities concerning the discount rate

In early November 2010 the Lord Chancellor announced a review of the discount rate under the Damages Act 1996. The potential impact of a change in the rate upon many clinical negligence and personal injury claims is substantial. This article examines the immediate issue that arises out of how the court is likely to deal with cases listed for determination in the interim period before that review is concluded.