piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Daniel v St George's Healthcare NHS Trust & London Ambulance Service: a human rights cautionary tale?

  Daniel v St George’s Healthcare NHS Trust  and London Ambulance Service [2016] EWHC 23 (QB) Introduction Edward Bishop QC has successfully defended an NHS trust and the London Ambulance Service against claims under the Human Rights Act 1998 brought by the foster family of a man who died of a heart attack in Wandsworth Prison.  The judgment deals with the legal test for liability, causation and victim status.     The central allegation was that there was culpable delay in the attendance of paramedics caused by nursing error and an insufficiently flexible ambulance triage system.  The judge rejected both allegations on the facts and clarified the law on causation in cases of death in custody from natural causes.  She also dealt with “victim status” under the HRA, ruling that the deceased’s foster mother was entitled to bring a claim but his “foster brother” was not. Background James Best (“JB”) was a prisoner on remand at Her Majesty’s Prison (HMP) Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym. The First Defendant (“St George’s”) is a National Health Service (“NHS”) Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB’s life on the day of his death. The Second Defendant (“the LAS”) is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived. The central allegations were that the nurse who attended on JB in his cell failed to request an ambulance quickly enough, and further that there was unnecessary and unreasonable delay in the dispatch of an ambulance by the LAS. The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant’s biological son, and described JB as his foster brother. The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (“HRA 1998”), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“ECHR”). Violation of Articles 2 and 3 Mrs Justice Lang set out the appropriate legal test to be applied when considering whether or not there had been a breach. She reiterated the guidance: “I remind myself that the test to be applied is whether the Defendants did “all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (Osman at [116]). In Rabone, Lord Dyson considered that an “immediate” risk was one which “present and continuing” (at [39]). He added, at [43]:   “The standard required for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”; per Lord Carswell In re Officer L [2007] 1 WLR 2135 , para 21.   The ECtHR and the domestic courts have emphasised that the operational duty must not be interpreted in a way “which imposes an impossible or disproportionate burden on the authorities” (Osman at [116])”   On causation, and having considered the evidence, the test was: “the legal test of causation is whether there was a failure to take reasonably available measures which could have had a “real prospect of altering the outcome”. Put another way, the Claimants have to establish that JB “lost a substantial chance of avoiding the outcome”.”   The court heard extensive evidence, not just from the actual persons involved in the immediate aftermath, but also from medical experts who gave evidence on the chances of survival following such a heart attack. Careful consideration was given to transcripts of the 999 call-outs, and the exact timing of those calls. The criteria and policy of the ambulance service was scrutinised.   Mrs Justice Lang was emphatic in her dismissal of the claims of breach. She did not consider that the “Claimants have succeeded in establishing, on the balance of probabilities, that, even if [the nurse at the prison] had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a “real prospect of altering the outcome” or that JB “lost a substantial chance of avoiding the outcome”.   As for the claims brought under Article 3, the Judge said: “The claim under Article 3 was unarguable, in my view. [the prison nurse] acted promptly, reasonably and professionally and did all she could to save JB’s life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. ” It certainly did not amount to “inhuman and degrading treatment”.   Victim status   Both Claimants brought claims alleging that they were “indirect victims”. Mrs Justice Lang considered the law on victim status, and set out the relevant test:   “In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess: ·       1. the nature of the legal/family relationship between the Claimants and JB; ·       2. the nature of the personal ties between the Claimants and JB; ·       3. the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer; ·       4. involvement in the proceedings arising out of JB’s death.”   On applying that criteria, she was satisfied that the first Claimant was a indirect victim as she had been JB’s foster mother for three years, leading to a longstanding parent-child relationship. JB had no other family of his own, and shortly before his death referred to himself as the first Claimant’s “third son”. Not only this, but the first Claimant had clearly suffered from acute distress following JB’s demise, and had been extremely active in the aftermath of his death.   However, the second Claimant was found not be an indirect victim. The status of “foster brother” is not recognised in UK domestic law or in ECtHR case law. There can be no question that the second Claimant suffered hugely from the loss of a close friend; but this alone is not a sufficient basis on which to found a claim.   The claims were dismissed.

Personal Injury and the Party Manifestos

Is there anything in the parties' manifestos which might affect the field of personal injury? Reforms since 2010 include a new fixed costs regime, costs management/budgeting and greatly increased court fees. Civil liability has been removed for breaches of health and safety regulations. But what is being promised for the future? The Conservative Manifesto includes a pledge to reform human rights law. It would scrap the Human Rights Act and introduce a British Bill of Rights. The intention is that this will break the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate arbiter of human rights matters in the UK.  More is said in the section on the European Union: the Bill will remain faithful to the basic principles of human rights but “will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.” The manifesto also pledges to continue “the £375 million modernisation of our courts system, reducing delay and frustration for the public.” A commitment is also made for an ongoing review of legal aid. The Labour Manifesto takes the opposite view on the Human Rights Act. It states that Labour would protect it and reform rather than walk away from the European Court of Human Rights. The manifesto is silent on what that reform would be. The manifesto also includes a pledge that access to legal representation would not be determined by personal wealth but would remain available to those who need it. The Liberal Democrat Manifesto states that the Liberal Democrats would protect the Human Rights Act and enshrine the UN Convention on the Rights of the Child in UK Law. It specifically states that the Liberal Democrats would take “appropriate action to comply with decisions of the UK courts and the European Court of Human Rights.” The Liberal Democrats have a commitment to introduce a Freedoms Act which would “cut back on the petty over-regulation of everyday life… permitting swimming in open bodies of water.” (Tomlinson v Congleton springs to mind…). They would “carry out an immediate review of civil Legal Aid… and court fees, in consultation with the judiciary…” They would “reverse any recent rises in up-front court fees that make justice unaffordable for many, and instead” spread the fee burden more fairly. They would also retain access to recoverable success fees and insurance premiums in asbestosis claims and where an individual is suing the police. There is also a pledge to support innovation like the provision of “civil justice online” and expansion of ADR. The UKIP Manifesto states that the burden of complying with EU laws on health and safety can be overwhelming for small firms. The manifesto has a commitment to repeal EU Regulations which stifle business growth. As to human rights, UKIP would remove the UK from the jurisdiction of the European Court of Human Rights and make the UK’s Supreme Court the final authority on matters of human rights. It would repeal the Human Rights Act and introduce a UK Bill of Rights which would complement the UN Declaration of Human Rights and “encapsulate all the human and civil rights that UK citizens have acquired under UK law since Magna Carta.” The Green Manifesto states it will “move towards a written constitution with a Bill of Rights” it also has a commitment to keeping the Human Rights Act and retaining the UK’s membership of the ECHR. There is a pledge to “restore the cuts to Legal Aid, costing around £700 million a year” although it is not clear whether this has anything to do with personal injury. It is interesting that none of the political parties have a commitment to reinstate civil liability for breach of health and safety regulations made under the Health and Safety at Work Act 1974.   Trivia Comparative lengths of the manifestos: Conservatives:                 84 pages Labour:                            86 pages Liberal Democrats:          158 pages UKIP:                              76 pages Green:                              84 pages   Commitment requiring more explanation: “Ban high-frequency Mosquito devices which discriminate against young people.” (Liberal Democrats)

CA suggest no need for causation in HRA claims?

The Court of Appeal has given judgment in Sarjantson v The Chief Constable of Humberside Police [2013] EWCA Civ 1252, an important and interesting decision on the operation of police officers’ duties to protect citizens under the Human Rights Act 1998 (“HRA”).   Mr Sarjantson (“C”) was attacked and injured by a group of young men armed with baseball bats and bricks in the early hours of 9th September 2006.  Several members of the public made 999 calls to the police, describing the group as violent and dangerous and reporting that they were attacking various people.  The first time that C’s name was mentioned - as a victim of the attacks - was about seven minutes after the first 999 call.  The police (“D”) arrived, but only after a delay of some eleven minutes; this delay was later criticised in an internal police investigation.  The assailants were convicted of assault and violent disorder and sentenced to lengthy terms of imprisonment.   C alleged that D had violated his article 2 and/or 3 rights under the European Convention on Human Rights (“ECHR”), by failing to attend the scene of the attacks as quickly as they should. D responded by seeking to strike the claim out, arguing (a) that C was not – adopting the words of used in Osman v United Kingdom (2000) 29 EHRR 245 - an “identified individual or individuals” and the duty to protect under articles 2/3 therefore did not arise and/or (b) that even if D had attended as soon as possible, the assault on C would not have been prevented, as it occurred before D could reasonably have been present at the scene.   The circuit judge struck the claim out.  The CA has re-instated it, holding (a) that D’s duty to protect citizens under the HRA is not limited to identified individuals or groups but can extend to the public at large and (b) causation is not a necessary ingredient of a claim under the HRA, so that even if D’s earlier attendance would have made no difference C can still succeed.  As Lord Dyson MR put it: “A finding that a response would have made no difference may mean that there is no right to damages.  But it is not relevant to liability”.   The case seems to mark a significant extension of the scope of the HRA to provide redress for those injured by the criminal acts of third parties.  The fact that a duty to protect may arise under the HRA to the public at large may, for example, mean that the claimant in a case such as Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (the final victim of the “Yorkshire Ripper”), would now have a claim under the HRA (whereas a common law claim would fail on proximity).   And on causation the case seems to sit uneasily with Lord Brown’s remarks in Van Colle v Chief Constable of Hampshire Police [2009] 1 AC 225, in which His Lordship indicated that proving causation – albeit on the basis of the loss of a “substantial chance” of making a difference – was needed to establish a cause of action under the HRA (see paragraph 138).

CRO's: When is it time to go for 'the General'?

Some of you in the world of personal injury and clinical negligence may have had the misfortune of encountering vexatious litigants. Those litigants where another file opens, before the last file is closed - where much time, money and energy is spent on claims and applications that are eventually struck out as being totally without merit.   Following the case of Russell West v Gary Taylor-Duncan & Ors [2013] handed down on 12 September 2013, I thought a brief post on Civil Restraint Orders might be called for. In my experience, these orders are being sought more frequently. However, one must be careful to ensure that they are applying for the correct type of order and that they pass the relevant hurdles. It can be all too tempting to apply for the most extensive order too soon.   ·         A Limited Civil Restraint Order binds the Claimant from making further applications in the index claim without first obtaining permission.   ·         An Extended Civil Restraint Order (which is not the most “extensive” order, despite what the name may suggest) prevents the litigant from issuing further applications or claims    ·         Lastly, the General Civil Restraint Order prevents the litigant from issuing any claim or application in any of the specified courts without first obtaining permission. It is long since accepted that these orders do not infringe Article 6 of the European Convention on Human Rights because it does not bar the subject of the order from litigating; it simply limits their freedom to litigate so that they must obtain permission before issuing. It is often tempting to rush for the General Civil Restraint Order. But these orders are made in very limited circumstances. The case of West v Taylor-Duncan (2013) helpfully demonstrates the point. Mr West had persistently issued unmeritorious claims and re-litigated matters. The Court had no trouble concluding that a Civil Restraint Order of some kind was appropriate. The Court carefully reviewed the seven unmeritorious claims and found that there was a “common thread” between them – thus suggesting that an Extended CRO was appropriate.  Indeed, in some respects there was a significant overlap between the claims (in terms of cause of action and the facts), which is why the Master had stated that some of them were wholly without merit. On behalf of the Defendants it was argued that some of the claims were wider than the index claim, and sought a General Civil Restraint order on the basis that Mr West was now issuing claims based on a wider factual and legal basis. The Court found that there was some force in the Defendants’ argument that some of the claims went wider than the index claim. However, the matter was borderline and the court had to be satisfied that an extended Civil Restraint Order would not be appropriate in order to make a General CRO. There was no doubt that if Mr West continued in the same vein and brought wholly without merit claims not caught by an Extended CRO, a General CRO would suitable; however, it was not yet appropriate. Accordingly, Mr West was made subject to an Extended CRO. This illustrates that you must be prepared for the court to closely examine the earlier claims and applications (simply evidencing that the claims were struck as totally without merit is not sufficient), and you must satisfy the court that the less extensive order is not sufficient. If the Extended CRO proves insufficent, it remains open to you to make a further application for a General CRO during the course of the Extended CRO. This could mean more time, cost and energy - but you just might get there in the end! concerning any matter involving and/or relating to and/or touching upon and/or leading to the index proceedings without first obtaining permission.    

Shut out: The UK Supreme Court’s first "secret hearing"

Bank Mellat v HM Treasury UKSC 2011/0040     The Supreme Court held a hearing in secret today, for the first time in its history.   According to the BBC, the justices spent 45 minutes in a locked session with a security guard stood outside the door to prevent anyone from entering. The hearing was so sensitive that the justices had to leave one courtroom and set up in another which had greater soundproofing.   The hearing arises out of the Treasury’s decision in 2010 to ban an Iranian bank from operating in the UK, using powers under the Counter-Terrorism Act 2008. The government alleged that the bank had been indirectly involved in financing companies linked to the Iranian nuclear programme.   At first instance, Mr Justice Mitting permitted some of the government’s evidence to be adduced behind closed doors on grounds that it contained sensitive material that may compromise national security. The first instance judgment was therefore produced in two drafts, with only the redacted version being made available to the public.   A nine-strong panel decided that the court did have jurisdiction to consider the closed judgment, but would only do so if persuaded (on the basis of submissions in open court) that it was necessary for the purpose of fairly disposing of the appeal. At that stage the court was not so persuaded. Lord Hope described the government’s refusal to spell out even its basic national security case in open court as ‘cloak and dagger stuff’ that was ‘difficult to swallow’.   The court was reluctantly persuaded this morning that it was indeed necessary to consider the closed judgment and that this would necessitate a closed hearing. According to Lord Neuberger ‘unless and until an appellate court sees the judgment, it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted’. He went on ‘no doubt in due course when we have completed the closed hearing...we will have quite a few things to say about this unhappy procedure.’   The court clearly has it in mind to use this episode to issue guidance to other courts faced with similar requests for a closed hearing. But whatever tests and safeguards are laid down, the use of secret courts is bound to become more widespread with the passage of the Justice and Security Bill.   Where litigants are prevented from seeing the State's evidence against them, hearing its submissions on that evidence, or understanding what part that evidence played in their claim being dismissed, the balance of justice is dangerously skewed. And far from being immune to these changes, PI litigation, employers’ liability in particular (for instance, claims by wounded servicemen against the MoD) may yet become the area of law most acutely affected.

What is it about Preston County Court?

The case of R (on the application of Sharing) v Preston County Court [EWHC 515] is perhaps a surprising one to comment on in a personal injury blog. It concerns wrongful eviction, rent arrears and judicial review. However it is of wider interest because the claimant, whose claim for damages was dismissed by the district judge and whose application for permission to appeal to the circuit judge was also refused, successfully had the refusal of permission to appeal quashed in the administrative court and remitted to a different circuit judge. Both this case and the case cited below came from Preston County Court and the circuit judge in concern ended up in the judicial stocks...   The facts of Sharing are, in brief, as follows. The claimant brought a claim for damages for unlawful eviction. The defendant relied upon two witnesses: a WPC and another tenant. At trial he said that the WPC had been served with a witness summons but had said she was unavailable - he was a bit cagy about it when pressed. The other witness was held out to be an independent witness. The trial judge found the independent witness to be essentially truthful and that the claimant had lied about a tenancy deposit. He dismissed the claim finding the police evidence favoured the defendant. The claimant then obtained a statement from the WPC to the effect that she had not received a witness summons, she had been available and that when she interviewed the ‘independent’ witness, she had assumed she was in fact the defendant’s partner because of the way they related to one another. The WPC also provided other evidence which undermined some of the defendant’s case. The claimant then sought permission to appeal on the basis of the WPC’s fresh evidence. That permission was refused and hence an application was made to the Administrative Court for judicial review. Wilkie J was troubled by the way the circuit judge had conducted the hearing saying that, from the transcript, it was apparent that he gave counsel for the claimant an ‘extremely rough ride’. He did not permit her to develop the main point she wished to make and he repeatedly said the case had been won or lost because the district judge had not believed the claimant. He found with great hesitation and regret that the circuit judge acted in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of the WPC and his repeated interruptions of counsel and the way he focused on the way in which the district judge had decided the case was the clearest possible evidence of apparent bias. The key case on applying for judicial review of the decision of a circuit judge is R (on the application of Strickson) v Preston County Court & Ors [2007] EWCA Civ 1132. There Laws L.J. said that before JR could be granted a defect much more fundamental than an error of law had to be established. He said ‘I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both) and a case where… the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case.’ He gave a number of examples: the court embarking on an enquiry it lacks all power to deal with, failure to enquire or adjudicate upon a matter which was its unequivocal duty to address, a substantial denial of the right to a fair hearing, a court acting ‘incomplete disregard of its duties’. Photo courtesy of Freefoto.com

Transsexual seeking NHS breast augmentation loses appeal

In R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247 the Court of Appeal has dismissed the appeal of a male to female transsexual who was seeking NHS funding for breast augmentation surgery.  In 1996 AC was diagnosed with Gender Identity Disorder (GID).  The PCT provided AC with hormone replacement therapy and was prepared to fund genital reassignment surgery, which AC declined.  AC was disappointed with her breast development as a result of the hormone therapy and sought funding for surgical enhancement, which the PCT declined.  Her challenge to this decision by way of judicial review was unsuccessful at first instance.  She appealed.  The main issue in the case was disposed of in short order by the Court of Appeal (per Hooper LJ): "I understand why the appellant feels aggrieved that the respondent funds the core gender reassignment procedures outlined in the Policy, notwithstanding the absence of evidence of limited clinical effectiveness, but does not also fund breast augmentation surgery for persons like the appellant (given, in particular, that there is no professional consensus on the classification of core and non-core procedures for gender reassignment). But the answer in law to that feeling is that the respondent, in exercising its statutory responsibilities, has to make very difficult choices as to what procedures to fund and not to fund and the choice made in this case is not irrational...  this conclusion disposes of the case”. Hooper LJ went on however to consider arguments that had been pursued on the issue of discrimination.  The PCT had defended its policy in part by arguing that to grant funding for this surgery to transsexual women could be considered to amount to discrimination against women born female who were similarly dissatisfied with the size of their breasts.  It was argued against the PCT that this reasoning was unlawful because it involved treating different cases in the same way improperly.   It was said that breast augmentation for an individual in AC's position was not simply a matter of improving body image but was an important part of the gender transformation, in other words it is an issue of identity rather than simply of body image. The Court of Appeal ultimately decided that discrimination was not proved. The question was essentially what the “relevant characteristic” was when deciding whether to treat particular cases alike or differently in respect of access to breast enlargement surgery.  The Court of Appeal recognised the competing views held by the parties, but concluded that, in the context of making difficult decisions and judgments about treatments and the use of resources, the PCT was entitled to take its view that at the time of presentation both a transsexual female and a congenital female had the same reason for seeking the same treatment.

Lord Woolf Warns of Human Rights Conflict

Whatever your views about the Human Rights Act 1998 ("HRA"), most lawyers would admit that it has led to many interesting developments in the law, although not as many as were feared as we approached the turn of the century and the Act coming into force.  The approach of the courts in this jurisdiction has, for the most part, been reasonably restrictive although it is clear that in the arena of public and administrative law in particular, the HRA has had a pivotal role in shaping the law. For many personal injury lawyers the HRA impacts little on day to day practice, save for ticking the box on various court documents to confirm that there is no human rights issue in a claim.  Equally, whether one acts primarily for claimants or defendants, the HRA has an influence that cannot be ignored.  For example, the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004] AC 182 has changed not only the conduct of inquests where Article 2 of the European Convention on Human Rights ("ECHR") is engaged.  As coroners have become more used to conducting wide ranging inquiries and giving narrative verdicts the scope of even traditional inquests has expanded.  Further, if one acts for or against public bodies, an almost inevitable occurrence at some time during the career of most personal injury lawyers, the scope of the duty of care and the obligations owed by agents of the state to individuals in certain areas have also been influenced by the courts' recognition of Convention rights.  It has been well publicised that the government is considering the future of the HRA both as a result of longstanding policy objectives and also following dissatisfaction in some quarters about the influence of the Convention on difficult issues such as prisoner voting rights and whether those on the sex offenders register should have a right to appeal to have their name removed after a certain period of time.  David Cameron has announced an intention to set up a Commission to consider whether a UK Bill of Rights should be introduced. On Monday Lord Woolf, Lord Chief Justice from 2002 to 2005, was interviewed on Radio 4's Today programme.  Although Lord Woolf made it clear that he did not take issue with the setting up of a Commission to consider the issue of human rights, he warned: "We have got a stark option: either we accept the European Convention, or we don't accept it and decide to leave the Council of Europe. It's very difficult to do what [Justice Secretary] Mr Clarke indicated he would like to do when he's chairman of the relevant body, because there are 47 signatories in Europe which are signatories to the European Convention as well as ourselves. To try and amend that is a virtually impossible task...  If you have a further convention - a British convention [the Bill of Rights] - there's going to be a complication in the position, because you're going to have two conventions to which the courts are going to have a regard." Whatever one might think about prisoner voting rights and the sex offenders register, it is easy to anticipate that emotive issues such as these will lead to strong and often polarised views.  Further, whether one is for or against the influence of the ECHR within the UK, one can see that difficult issues such as these do not make a good platform on which to base a discussion about the influence of the HRA on UK law over the last decade.  The incremental and often restrictive approach of the courts in allowing HRA arguments to expand the law much beyond our pre-existing common law receives little attention in the media.  In addition the cases where the HRA is relied on to expand the rights of "the good" rather than "the bad" also usually do not make good press.  An objective and carefully considered discussion about the influence of the HRA, good and bad, across all areas of law over the last decade should be welcomed by all.  Ten years is a reasonable period to enable proper reflection on quite what impact the HRA has had.  However, one cannot help but wonder whether politicians should be reminded not to base that discussion and consideration primarily on hard and topical issues such as prisoner voting rights and the sex offenders register.  After all, at law school most students are taught the old adage: hard cases make bad law.  It seems equally likely that over reliance on hard issues can give rise to bad politics too.