Summary: The High Court has today handed down judgment in Marc Traylor and Kitanna Traylor v Kent and Medway NHS Social Care Partnership Trust, a clinical negligence case full of interesting legal issues including the application of the illegality doctrine, voluntary assumption of risk, contributory negligence and Human Rights Act claims.  Although the claims ultimately failed, the Claimants were successful on a number of the legal arguments, bringing some welcome clarity to the scope of the illegality defence, among other things.

The basic facts are that on 9 February 2015, in the midst of a psychotic episode, Marc Traylor took his daughter hostage. Armed police were called to the scene, and Mr Traylor was shot several times, but not before he had managed to stab his daughter.  Neither were killed, but both were seriously injured.  It is this tragic background that led to two claims being brought against the Trust, which was responsible for managing Mr Traylor’s mental health care and treatment.

1. Today, 13 January 2022, the Court of Appeal handed down judgment in the long awaited nervous shock appeals in Paul v Wolverhampton, Polmear v Royal Cornwall and Purchase v Ahmed. The issue was whether a gap in time between the breach of duty and a subsequent shocking event prevents a nervous shock claim. As the Court of Appeal recognised this is a particular problem in many clinical negligence claims.  In Paul the breach of duty was 14 months prior to Mr Paul’s sudden death whilst out shopping with his daughters on the streets of Wolverhampton.
2. The Court of Appeal clearly wanted to find for the claimants on all the appeals and said so in terms. They found instead for the Defendants on the basis that they were bound to do so by the judgment of Dyson MR in Taylor v Novo. Clearly troubled by that decision they have expressed a strong preliminary view that this case should now go to the Supreme Court for a complete review of the authorities.
3. You will recall that in Taylor v Novo the claimant’s mother was injured at work when shelves fell on her and three weeks later she collapsed and died at home, causing her daughter to suffer PTSD. Dyson MR held that the collapse of the shelving had two consequences. The first was the injury to the mother and the second her death three weeks later. If the daughter had witnessed the original injury there would have been sufficient proximity to permit a successful nervous shock claim, but the gap of three weeks prevented this.
4. Along with many others I have always struggled with the reasoning in Taylor v Novo and in particular how it fitted with the Court of Appeal’s decision in Walters.
5. It is some comfort therefore for us to find that we are not alone. As Underhill LJ, Vice-President of the Court of Appeal said, agreeing with the Master of the Rolls (and this was a heavyweight Court with Nicola Davies LJ sitting too):

“The difficulty however is Taylor v Novo.  I have not found it easy to identify the precise ratio of that decision.”

6. In the end the Court of Appeal held that they were bound by Taylor to find that where there was a gap in time between the breach of duty and the relevant event there was insufficient proximity between secondary victim and defendant to found a duty of care.
7. What is clear is that they could not understand the basis for this finding in Taylor. See the Master of the Rolls comparing cases where death coincides with the breach of duty and those where it does not:

“However I find it hard to see a principled reason why there should be the requisite proximity in the one kind of case but not the other. The arbitrariness of the distinction is illustrated by the example given by Peter Gibson LJ in Sion: why should the doctor who negligently prescribes a fatal medicine be liable to the secondary victim if the patient takes it, and dies (in the requisite shocking circumstances) straightaway, but not if they do so only a few days or weeks later? As the Master of the Rolls demonstrates, Lord Oliver’s references in Alcock to the need for “physical and temporal propinquity” are not directed to the relationship between the breach of duty and the shocking event but rather to the need for the claimant to be close in space and time to the shocking event.”

8. So where does this leave us? Pretty much as we were – waiting for an authoritative determination. Paradoxically although this was a defeat for claimants it may turn out to have been a step closer to success. In the meantime ‘material gap’ clinical negligence cases will just continue to stack up.

The determination of life expectation in cerebral palsy litigation must always be driven by the expert evidence in the particular case.

What is set out below is an approach driven by the evidence received from experts in reported decisions, but – be warned – great care must always be taken to ensure that in each case the court has available to it up to date (i) literature and (ii) experienced clinical expert views specific to the particular claimant.

The key High Court cases which have considered life expectancy in cerebral palsy cases are Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) and Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB).  At the invitation of both sides’ experts in those cases the courts relied on Strauss data. (The latest version of this data – and its  analysis – can be found in Brooks JC, Strauss DJ, Shavelle RM, Tran LM, Rosenbloom L, Wu YW “Recent trends in cerebral palsy survival. Part II: Individual survival prognosis.” Developmental Medicine & Child Neurology, (2014) 56:1065-1071 [“Brooks (2014)”] which can be found along with a plethora of useful articles and commentary on the excellent Life Expectancy Project website.

Having assessed the expert evidence, the first instance judges in both Whiten and Robshaw adopted the following three stage approach (please note – a worked example is included at the end of this article). I should stress that not all experts will agree with this three stage approach or methodology.

“Indivisible Injury” has more than one meaning so make sure you’re not at cross purposes with the judge

1. The essential facts are that the Claimant had chest pain and needed angiography (an investigation of the blood vessels to the heart). He stopped warfarin (a long term anticoagulant) on 23 April, had the angiogram on 27 April and restarted warfarin on 29 April. The next day he suffered an ischaemic stroke which has resulted in permanent and severe physical and cognitive disability.
2. There was a dispute on breach of duty as to whether the total period for which warfarin was stopped should have been 3 days rather than 6 and whether it should have been restarted earlier and at a higher dose.
3. The judge preferred the Defendant’s expert evidence on breach of duty and was entitled to. That’s not the problem.
4. On causation the Claimant’s case was that if the warfarin had been properly managed he either would not have had the stroke or alternatively, the reduced dose materially contributed to the stroke.
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Am I the only one who thinks that the legal tests in clinical negligence are sometimes harder to understand than they should be?

The case law on my favourite topic – Bolam and other tests for breach of duty – is littered with confusion. And it strikes me that Material Contribution is too.

The But For test is, thankfully, beautifully simple and easy to understand. But what if your experts can’t tell whether the outcome would probably have been avoided or the same and you have to use the causation test of Material Contribution ?

The case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB earlier this year is a recent example of the Court addressing both tests on causation in clinical negligence.