Judgment – Penelope Smith v The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust

Articles | Wed 18th Sep, 2019

HHJ Berkley gave judgment for the Defendant this week in Winchester County Court in the claim of Penelope Smith v The Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust. Angus Piper of 1 Chancery Lane represented the Defendant at trial.

The Claimant claimed for personal injuries which she contended were negligently caused by her employer (the Defendant Trust). She alleged that she had been obliged to carry out lengthy tasks of manual CPR over a period of 3 consecutive days, which had led to a left wrist injury which failed to improve and ultimately required surgery.

In dismissing the Claimant’s claim Judge Berkley found that the Defendant had complied with its disclosure obligations in terms of the records, which suggested that the Claimant had not in fact performed CPR on 3 consecutive days as contended. He found that the Claimant’s recollection of 3 lengthy CPRs on consecutive days must have been incorrect, though there was no dishonesty on her part.

In terms of causation the judge accepted the submissions in Mr Piper’s Skeleton argument to the effect that little or no weight should be given to the Claimant’s expert ergonomic evidence. The Defendant did not challenge that evidence with its own ergonomic evidence, and had indeed served no ergonomic evidence in rebuttal, but did so on general principles and in the light of the joint orthopaedic evidence, which opined that the Claimant’s ergonomist had made a “completely unrealistic assessment of biomechanical data”. The judge also held that in any event the Claimant’s symptomology was caused by a subsequent incident where she caught her thumb whilst supporting a patient, and not in the course of performing manual CPR which was the basis of her claim.

In respect of breach of duty, the judge agreed with Mr Piper’s submissions that injury from manual CPR was not reasonably foreseeable in any event. It was accepted that manual CPR is a procedure that is performed on tens of thousands of occasions per year, yet there is no cohort of evidence to suggest that its performance causes injury to practitioners.

The Judge held that there was no known risk and neither breach of duty nor causation could be established by the Claimant. There was no obligation on the Defendant to perform an ergonomic risk assessment of the manual CPR task as contended by the Claimant’s Counsel, and had such an assessment been carried out it would in any event have concluded that manual CPR was perfectly safe. The judge approved the comments of Hale LJ (as she then was) in Koonjul v Thameslink Healthcare Services at paragraphs 10 – 18. And he expressly accepted Mr Piper’s submission that the report of the Claimant’s Ergonomist, Mr Hinkley, was “unhelpful and unrealistic” in its content.

The claim was dismissed, with costs to the Defendant, not to be enforced without leave.

The full judgment is available here: Penelope Smith v The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust