The issue of illegality as a defence in clinical negligence actions is controversial. It typically arises in a rare category of cases in which alleged failures of medical care results in a patient (the Claimant) suffering a psychotic episode. As a result of the psychotic episode, the Claimant then commits a criminal act. This leads to a prosecution and conviction, and potentially pecuniary and non-pecuniary losses. Should a Claimant be permitted to sue the negligent clinician who failed to treat the underlying condition?

The Court of Appeal recently considered and reviewed this tricky area of law in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841.

The facts in Henderson were that the Claimant, who had been diagnosed with paranoid schizophrenia stabbed and murdered her mother during a relapse. It was admitted by the Defendant that it was in breach of duty, and that but for that breach the relapse (and murder) would not have taken place. The Claimant was prosecuted and convicted of manslaughter by reason of diminished responsibility. Damages were claimed by the Claimant for resulting losses.

Angus Moon QC and Cecily White acted for the Defendant Trust, and argued that the status quo (i.e. that an individual cannot recover damages for losses arising out of a criminal act) should continue. The Court of Appeal agreed. It also affirmed the distinctions within this rule and the reasons why the rule exists.

1. There is no doubt that it is harder for a claimant to win a nervous shock claim now than 3 years ago. The bar for what is a ‘shocking event’ is higher following decisions in favour of defendants in Ronayne and Shorter. Defendants have been encouraged by success to fight more cases to trial.  What though of cases where there is a delay between the breach of duty and the primary victim suffering any injury?
2. Many have assumed that cases of delayed injury lack the proximity required by Lord Oliver in Alcock. This assumption is based on the Court of Appeal decision in Taylor v Novo. I disagree. In my view the question of whether there can be sufficient proximity between a secondary victim and the defendant in cases where there is a material gap in time between the breach of duty and any injury to the primary victim remains unanswered. I see no reason in principle why such claims should not succeed.
3. The issue is particularly relevant to clinical negligence cases. In Shorter v Surrey and Sussex NHS Trust [2015] EWHC 614 (QB). Mrs Justice Swift, very experienced in clinical negligence cases, recognised this when she said (§208 & § 209):

“The early claims by secondary victims mainly concerned accidents, most often road traffic accidents. In those cases, it was comparatively easy to identify the relevant “event” (the accident) although, as the authorities show, it was often more difficult to determine precisely what constituted the “immediate aftermath” of an event.

“Cases of clinical negligence present particularly difficult problems. The factual background of cases can be very different and often quite complex. The nature and timing of the “event” to which the breach of duty gives rise will vary from case to case.” 

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Neil Davy recently appeared in a ‘wrongful birth’ case in which the High Court awarded damages to a Claimant for the costs associated with a disability which was unrelated to the Defendant’s admitted negligence. In this respect, MNX v Khan [2017] EWHC 2990 (QB) was said to be the first case of its kind, although Yip J sought to resolve the case by reference to established principles.

It should be noted that the Defendant has been granted permission to appeal to the Court of Appeal.

The facts

The Claimant’s son (‘AM’) was born with haemophilia and autism. It was agreed that the Defendant negligently caused the former by failing to determine that the Claimant was a carrier of the haemophilia gene. But for the negligence, the Claimant would have terminated her pregnancy. The Defendant therefore agreed that the Claimant could recover the costs associated with AM’s haemophilia. However, it was disputed that the Claimant could recover the costs associated with AM’s autism, which was not related to the Defendant’s negligence.

Yip J framed the issue as follows: ‘Can a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability (rather than to avoid the birth of any child) recover damages for the additional costs associated with an unrelated disability?’ [2]

Answering this question with a ‘yes’ would lead to a £9,000,000 award of damages, whereas answering ‘no’ would lead to a £1,400,000 award. Consequently, much was at stake for both parties. In the circumstances, Yip J answered ‘yes’.

The importance of Various Claimants v Barclays Bank [2017]

1. A good claim becomes a bad one if there is no one against whom to enforce a judgment.

2. A doctor might be uninsured where:

a. He has engaged in criminal activity and his MDO have declined cover;

b. You are suing him for something not covered by his MDO e.g. some hip cases under the Consumer Protection Act;

c. He did not have cover – perhaps because of an error.

d. You are claiming more than £10m – that is the limit of most doctor’s indemnity.

e. He was operating on an NHS patient in a private hospital.

3. Your options:

a. Try to persuade the MDO to indemnify (not impossible, but difficult).

b. Consider proceeding against doctor’s own assets (usually unattractive because they have a house which is in joint names and which they cannot be forced to sell).

c. Try to involve the NHSLA/ NHSR either by establishing that some of the treatment was on the NHS or by arguing that there were failures of clinical governance within the NHS which contributed to the injury (as in Paterson cases).

d. Try to establish vicarious liability on the part of someone with deep pockets e.g. the private hospital where treatment took place.

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)

In recent years, there has been an increase in the prevalence and social acceptance of surrogacy arrangements in the UK. However, until judgment was handed down in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), there were no reported cases in which a claimant successfully recovered damages for the cost of surrogacy.

In the first decision of its kind, Sir Robert Nelson awarded £74,000 to the Claimant in respect of the cost of UK-based surrogacy for two children, using the Claimant’s own eggs. Claire Watson represented the Claimant in this significant case.

This was a quantum-only clinical negligence trial. The Defendant admitted negligence in failing to detect signs of cancer from smear tests. Consequently, the Claimant developed invasive cancer of the cervix for which she required chemo-radiotherapy treatment, which led to infertility and severe radiation damage to her bladder, bowel and vagina [1].

The Claimant sought damages for, inter alia, the expense of four pregnancies under a commercial surrogacy arrangement in California or, alternatively, under a non-commercial surrogacy arrangement in the UK. In either case, she would primarily seek to use her own eggs. Importantly, it was agreed by the experts in reproductive medicine that the Claimant will probably achieve two live births [34].

Three aspects of Sir Robert Nelson’s judgment are worth noting.