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Articles | Wed 23rd Sep, 2020
Personal Injury analysis: Laura Johnson, barrister specialising in clinical negligence and personal injury at 1 Chancery Lane, discusses the latest developments in relation to clinical negligence, including significant case law and practical tips for practitioners
What are the key developments in recent clinical negligence cases?
It has been a busy few months for clinical negligence practitioners, with the issuing of the 8th Edition of the Ogden Tables (for further information, see Practice Note: The Ogden tables) and the Court of Appeal hearing the accommodation case of Swift v Carpenter, the judgment in which is eagerly awaited. Two other cases of interest are those of Marshall v Schembri  EWCA Civ 358,  All ER (D) 93 (Mar) and XX v Whittington  UKSC 14,  All ER (D) 05 (Apr).
In light of the judgment in Marshall, how should practitioners approach a ‘counter-factual’ issue of causation?
Counter-factual causation arguments arise in cases where the claimant has established a breach of duty and that loss has arisen ‘which is of a kind likely to have resulted from such negligence’ (Drake v Harbour  EWCA Civ 25). In those cases it will usually be sufficient to enable the court to infer that the loss was probably caused by the breach of duty, even where the claimant cannot precisely prove the mechanism. Lord Jus-tice Toulson explained in Drake that it was open to the defendant to raise any alternative theories of causation, but if the court considered them to be improbable, it would likely fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the breach of duty.
The Court of Appeal has recently considered counter-factual causation in the case of Marshall, where the admitted breach of duty was the failure by the GP to refer the patient to hospital because she was specifically at risk of pulmonary embolism (PE). She subsequently suffered exactly this complication and died. This was sufficient to engage the principle in Drake. In order to argue causation on this basis practitioners must have in mind the correct approach to causation as approved in Marshall: ‘The assessment of causation would turn upon the detailed medical evidence, both as to the overall statistical chances of survival and the particular condition and circumstances of the patient.’ On their own, statistics are insufficient, but if applied to the particular circumstances of the individual they may be enough to prove causation.
In Marshall, the judge considered two particular mechanisms of survival and was not satisfied that the claimant had proved that either would have led to the patient’s survival. He then asked a third question, which was whether looking at the evidence as a whole she would have survived if referred to hospital and concluded that she would. The Court of Appeal endorsed this approach, which involved the court linking statistical evidence to the particular features of the patient, including her relative youth, absence of comorbidities and the fact that she had previously survived an episode of PE.
How has the law on infertility damages changed as a result of the judgment in Whittington?
The law has changed in favour of claimants wishing to pursue damages for donor egg surrogacy both in the UK and abroad, subject to proving that the claimant’s intentions are reasonable, and the foreign country has an established surrogacy system with proper safeguards in place.
Turning to the detail of the decision, the Supreme Court considered three issues. First, whether damages to fund surrogacy in the UK using the claimant’s own eggs could be recovered. Second, whether damages could be claimed for UK surrogacy arrangements using donor eggs. Third, whether the cost of foreign commercial surrogacy can be claimed.
The answer to the first issue was less controversial. Where the claimant had reasonable prospects of succeeding with surrogacy using her own eggs she could claim the cost of this.
The second issue was apparently answered by an earlier, although not binding, Court of Appeal decision (Briody v St Helens and Knowsley Area Health Authority  QB 856) where a claim for UK surrogacy using donor eggs was rejected as not truly restorative of what the claimant had lost. The lead judgment in Briody was given by Lady Hale, then Lady Justice. In Whittington, Lady Hale said of this previously expressed view that it was ‘probably wrong then and certainly is wrong now’. In the Supreme Court judgment she acknowledged the changes in both legal and societal views about the nature of families since Briody. As a result, again subject to the qualification that the treatment must have reasonable prospects of success, concluded that damages could be claimed for the reasonable costs of UK surrogacy using donor eggs.
The third issue, whether the costs of foreign commercial surrogacy could be claimed, was described by Lady Hale as the most difficult. Surrogacy contracts are unenforceable in the UK and it is well established that the UK courts will not enforce a foreign contract that is contrary to public policy. The court concluded however that awarding damages for the costs of foreign commercial surrogacy was no longer contrary to public policy. The reasons given were that a number of elements of the costs of the Californian arrangement would be lawful and recoverable in the UK (for example egg retrieval and legal costs); nothing in UK law prevented the claimant from spending her damages in California on commercial surrogacy; and since Briody, assisted re-production techniques, including surrogacy, had become widespread and socially acceptable with the Law Commission provisionally proposing a new pathway that, if accepted, would enable the child to be recognised as the commissioning parents’ from birth.
The Supreme Court did identify some protective measures however that any party pursuing such a claim must have in mind:
Do you have any practical tips for practitioners regarding these clinical negligence case developments?
In relation to counter-factual causation practitioners need to be alive to those cases where the loss that has ensued from a breach of duty is precisely the kind likely to have ensued from the negligence. If it is and if there is difficulty proving the precise mechanism by which the injury would have been avoided, carefully marshalled statistical evidence linked to the particular characteristics of the claimant might be enough to discharge the burden of proof. Equally, for defendant practitioners there should be focus on proving alternative likely theories of causation.
In relation to surrogacy claims, damages should now be easier to achieve in appropriate cases but practitioners need to focus the evidence on the protective measures identified by the Supreme Court. For claimant practitioners it will be essential to focus on proving the reasonableness of the claimant’s plans and the safe-guards in place if foreign surrogacy is claimed. Reasonableness will include the prospects of the treatment being successful as well as the reasonableness of the arrangements that have been selected. For defend-ants there should be equivalent focus on unpicking whether the plans really do have prospects of being successful, are reasonable and safe.
Interviewed by Sabina Habib.
This article first appeared in LexisNexis