AB (by his Litigation Friend CD) v Royal Devon & Exeter NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 04 May 2016 |
| Neutral Citation | [2016] EWHC 1024 (QB) |
| Docket Number | Case No: HQ12X02351 |
| Court | Queen's Bench Division |
| Date | 04 May 2016 |
[2016] EWHC 1024 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: HQ12X02351
Christopher Wilson-Smith QC and Nathan Tavares (instructed by Stewarts Law LLP) for the Claimant
Robert Seabrook QC and Richard Mumford (instructed by Beachcrofts LLP) for the Defendant
Hearing dates: 2–9 February and 11 February 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant was born on 16 January 1966 and is thus now 50 years old. He had a troubled background, on his account being subject to bullying and emotional abuse at home. At eighteen months old he sustained a serious scald injury to his right shoulder, leading to an extensive period of hospitalisation and permanent shoulder weakness. He became involved in drug abuse from about the age of fifteen. He has an extensive criminal record, consisting for the most part of acquisitive offences associated with drug abuse or of offences of possession of drugs. He has received several custodial sentences.
The Claimant has had a difficult personal and work life. In his late teens he worked on fishing boats but following an accident in which he nearly drowned he left this occupation. He subsequently worked only for intermittent periods, in a hospital, in a factory or as a chef. He has obtained some NVQ qualifications in catering and in industrial cleaning whilst in prison. When he was eighteen years of age, his then girlfriend became pregnant and subsequently gave birth to his daughter, "CD", now his Litigation Friend. The Claimant's relationship with his girlfriend did not last, he says because of the opposition of her family. He had no contact with his daughter from the time when she was about six years of age, until they resumed contact in the last few years. CD gave evidence before me. She sought her father out via the internet in 2010/11 and slowly began to build a relationship with him. Following phone and internet contact, they met for the first time during 2014 and have exchanged visits since. CD has four children and lives in Cornwall. The Claimant has recently moved to be near her. I return to this aspect of the story in more detail later in this judgment.
In 2009, the Claimant was unemployed and living in a council flat in Exeter. He was under the care of the Community Mental Health Team, having a diagnosis of depression and drug abuse. He was suffering a good deal of pain in his right shoulder and was awaiting a shoulder arthroscopy for a surgical operation on the shoulder. He was on strong prescribed painkillers and his general practitioner was concerned about him abusing those prescribed drugs. He had been released from a period of imprisonment shortly beforehand and was being prescribed heroin substitutes.
On 20 June 2009, the Claimant, then aged 43, was admitted to the Royal Devon and Exeter Hospital, Exeter as an emergency surgical admission, suffering from epigastric pain. A condition called cholecystitis was suspected, but in fact the cause of the Claimant's symptoms was a developing spinal abscess. It is agreed that various signs, including loss of motor power in the legs, were missed or not acted upon in time. It was this failure which led to litigation. As the liability issue crystallised between the parties, there was a factual dispute as to whether it was likely that a MRI scan would or could have been performed in time to permit successful surgery. Against this background, liability was compromised on the basis that the Claimant would receive:
"… 60 per cent of such damages as are assessed by the court … if not agreed. Such damages to be assessed on the basis that but for the Defendant's admitted breach of duty, the Claimant would have been neurologically intact after treatment for his spinal abscess."
The compromise on liability was enshrined in a Court Order of 30 June 2014. At the time of the settlement and of that order, it had not been suggested to the Defendant that the Claimant lacked capacity to litigate, or to manage his financial affairs, or that he was or ought to be a protected party. However, it is clear that the Claimant's legal team became concerned as to whether he was capable of managing his own affairs. Reports were obtained from a Dr Denman, Consultant Psychiatrist, dated 14 April 2015 and Dr Luis van Graan, Consultant Neuropsychologist, dated 13 July 201Application was made to the Court on 9 September 2015 and on that date Master Roberts, being satisfied that the Claimant was a protected party, appointed the Litigation Friend. The Order and the supporting expert reports were then served on the Defendant. On 25 September 2015, Master Roberts retrospectively approved the steps taken to date in the litigation, including the liability settlement.
The issue of the Claimant's capacity is potentially significant in the assessment of damages. In fact, there is a good deal of convergence on the facts of the matter, as I shall set out later in this judgment. However, the Defendants make several key points to be considered. They say firstly that the loss of capacity, if and when demonstrated, cannot be attributed to the medical failure, and on that there is agreement. However, the Defendants go on to say that any lack of capacity which is demonstrated, past or future, derives from the Claimant's abuse of illegal drugs. Hence any consequential losses are irrecoverable due to the operation of the legal policy expressed in the Latin maxim ex turpi causa non oritur actio. I address this below.
The Claimant has received a series of interim payments as follows:
The Nature and Development of the Claimant's Physical Disability
| Rate of interest | |||
| Date | IP | p.a. | Interest |
| 07/07/2014 | £125,000.00 | 2% | £3,928.82 |
| 11/05/2015 | £35,000.00 | 2% | £509.79 |
| 16/10/2015 | £100,000.00 | 0.50% | £147.84 |
| Subtotals | £260,000.00 | £4,586.45 | |
| Total | £264,586.45 |
The Claimant sustained an injury to the spinal cord which has left him paraplegic. There is a degree of disagreement between the consultant experts in spinal injuries as to the detail of his lesion. Mr Jamil for the Claimant found on sensory testing that the Claimant's sensory level was at Thoracic 8 ["T8"], although his epidural abscess was confirmed on MRI scan to be at T4. Mr Jamil's view is that it is not uncommon for spinal cord injury victims to have preservation of, or recovery of, sensation for several segments below the actual site of spinal cord damage. Therefore Mr Jamil concludes that it is probable the Claimant's level of injury is at T4. Mr Thumbikat for the Defendants concludes the Claimant has sustained a lesion at T7: using the agreed ASIA classification he is to be described as a T7 ASIA B paraplegic. Mr Thumbikat found the Claimant to have normal sensory awareness at T7 on the left and T8 on the right. In his view, the proper approach is to conclude that, where no specific muscle exists for testing at a particular level (as is agreed to be the case here), if the sensation is normal then the motor level is also considered as normal. Therefore the Claimant is properly classified as a T7 paraplegic. Mr Jamil responds that Mr Thumbikat's approach only holds good if both pinprick and light touch responses were completely normal between T4 and T7. Until then Mr Jamil considers that the neurological level should correspond to the lesion revealed on imaging.
In giving his evidence, Mr Jamil emphasised that in his view this issue is not academic, since a lesion at T6 and above renders a paralysed person prone to the risk of other consequences as a result of "autonomic dysreflexia", a condition of sudden rise in blood pressure which can potentially cause brain haemorrhage. In reply, in the course of his evidence Mr Thumbikat emphasised his view that it was the neurological level which was important. Here the neurological level is at T7 and it would be right to expect the vertebral lesion to be at about the T4 or T5 level since anatomically this is appropriate. Mr Thumbikat also pointed out that the treating clinicians concluded that the overall neurological level was T7. On this issue I conclude in favour of Mr Thumbikat, bearing in mind his analytical approach to the question and the view of the treating clinicians. It therefore seems unlikely to me that the Claimant will be at risk of automatic dysreflexia.
It is agreed between the experts that the Claimant has a small but lifelong risk of suffering syringomyelia, that is to say a development of a syrinx or cavity in the spinal cord. If a syrinx were to develop, it could bring important and sometimes serious additional neurological compromise. In the circumstances the Claimant seeks provisional damages in the case in the light of that risk, a claim in essence not resisted by the Defendants.
The functional effects of his injury are very considerable. He has pinprick sensation down to the sensory level at T7, below which there is reduced perception of sharp sensation down to the anal verge. There is complete paralysis of the lower limbs and paralysis of voluntary anal contraction. The Claimant suffers from contractures of the calf muscles and shortening of the Achilles tendon on each side. He is doubly incontinent. His bladder is managed with a suprapubic catheter, which is changed every five weeks or so by a district nurse. The catheter is connected to a night bag. There have been problems with catheter blockages over time. Bowel management is...
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