Dobson and Another v North Tyneside Health Authority and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE THORPE,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 26 June 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0626-1 |
| Docket Number | CCRTI 95/1360/G |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 1996 |
[1996] EWCA Civ J0626-1
Lord Justice Butler-Sloss
Lord Justice Peter Gibson
Lord Justice Thorpe
CCRTI 95/1360/G
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTH SHIELDS COUNTY COURT
(HIS HONOUR JUDGE HARKINS)
Royal Courts of Justice
Strand
London WC2
MR. RICHARD HONE (Instructed by Messrs Hindle Campbell, North Shields, NE30 1QQ) appeared on behalf of the Appellant
MR. MICHAEL CURWEN (Instructed by Messrs Samuel Phillips & Co, Newcastle Upon Tyne, NE1 6SR) appeared on behalf of the Respondent
This is an appeal by the Plaintiffs, Brenda Dobson ("the Grandmother"), suing as the Administratrix of the estate of the late Deborah Dobson ("the Deceased"), and Andrew Steven Dobson ("the Son"), the Deceased's infant son suing by his grandmother and next friend, the Grandmother. They appeal from the order of His Honour Judge Harkins on 7 August 1995 in the Newcastle-upon-Tyne County Court. The Judge dismissed the Plaintiffs' appeal from the order of District Judge Marley, who had acceded to the application of the Second Defendant, the Newcastle Health Authority, to strike out the claim against it. The Judge gave leave to appeal.
The facts of this case are unusual. I take them not only from the Plaintiffs' pleadings but also from the Affidavit of the Second Defendant's solicitor, Miss Searl, filed in support of the application to strike out. Although that Affidavit is strictly inadmissible under the rules, because the sole ground for the application was that the Particulars of Claim disclosed no reasonable cause of action, Mr. Hone for the Plaintiffs relies on part of the Affidavit and takes no objection to the admission of the facts to which Miss Searl deposed. And he has given us further factual information to which Mr. Curwen for the Second Defendant has not objected.
The Deceased was born on 28 January 1969. She does not appear to have married but gave birth to the Son on 18 December 1988. She collapsed at work on 5 October 1991 and was taken to North Tyneside General Hospital and was then transferred to Preston Hospital, both being hospitals of the First Defendant. Electroencephalograms were taken and the report made on her suggested a liability to primary generalised epilepsy. No CT scan was taken and she was discharged on 10 October 1991. Her condition deteriorated and on 12 December 1991 she became very ill and was taken to the Royal Victoria Infirmary in Newcastle for a CT scan. This showed two brain tumours. She was taken to the Newcastle General Hospital, a hospital of the Second Defendant, where an operation was to have been performed on her on 15 December 1991 at 10 a.m. but she died 4 1/2 hours before.
The coroner required a post mortem examination to be carried out to determine the cause of death. Dr. Robert Perry, a consultant neuropathologist at Newcastle General Hospital, was asked by the Coroner to carry out the autopsy. It is not in dispute that Dr. Perry was employed for a fee as an independent consultant. The autopsy was performed on 16 December 1991 in the course of which Dr. Perry removed the brain and fixed (or preserved) it in paraffin. In his report to the Coroner he summarised the cause of death thus:
"Death was due to:
1a Brain-stem herniation due to 1b a multi-focal brain tumour.
(Probable terminal haemorrhage into the tumour cavity—natural causes)"
Following that report the Deceased's body (minus the brain) was returned to the Deceased's family for burial and was buried.
Dr. Perry was not required by the Coroner to carry out a histological examination of the tumours. However it was Dr. Perry's normal practice to undertake histological tests and he intended to do so in due course. That practice was not followed and that intention was not carried out in the present case. The brain was delivered to the Newcastle General Hospital by Dr. Perry for storage. But when by letter dated 29 September 1993 the Plaintiffs' solicitors asked the Department of Neuropathology at the hospital for the histology relating to the tumours, they were told by Dr. Perry by letter dated 12 November 1993 that no report additional to the post mortem report was requested by the Coroner within 12 months of the autopsy and that they had almost certainly disposed of any material which they had. The solicitors wrote again on 25 February 1994 asking if paraffin blocks were available, but on 9 March 1994 Dr. Perry confirmed that the department did not have paraffin blocks from the autopsy. Miss Searl, exhibiting the correspondence to her Affidavit, commented that the requests of the Plaintiffs' solicitors could not be complied with since there had not in fact been any histological examination of the tumours nor was the brain by that time extant.
On 5 October 1994 the Plaintiffs commenced these proceedings. Immediately before that letters of administration to the Deceased's estate had been take out by the Grandmother. The Plaintiffs sued the First Defendant in negligence. Their case is that if the tumours had been detected in October or November 1991 by a routine CT scan, the Deceased would have survived if the tumours were benign; if they were malignant, she would probably have died, but the pain which she suffered could have been ameliorated with radio-therapy. It was therefore important for the Plaintiffs to discover whether the tumours were benign or malignant. Mr. Hone told us that the Second Defendant was originally joined because it was assumed that histological specimens would have been taken, and it was sought to obtain discovery and production of the specimens from the Second Defendant. That is surprising in the light of the correspondence to which I have referred and which preceded the commencement of proceedings.
I find it difficult to discern from the existing Particulars of Claim what cause of action was being asserted against the Second Defendant. But that is unimportant as it is well-established that if a pleading can be saved from striking out by an amendment which shows that the plaintiff has a proper cause of action, the Court will allow the pleading to be so amended. The Plaintiffs, when faced with the application to strike out, applied for leave to amend the Particulars of Claim. They wish to make the following allegations against the Second Defendant:
"2 … The Plaintiffs' case against the Second Defendants is that they failed….to keep and preserve the brain of the Deceased pending further investigation or to take a section of the brain tumours (which seems almost unimaginable). It is now asserted that the brain of the Deceased is no longer extant. That deprives the Plaintiffs of definitive proof that the brain tumours concerned were benign rather than malignant. The Plaintiffs accordingly rely upon the maxim omnia praesumuntur contra spoliatorem to the effect that the evidential burden is shifted to the Second Defendants to prove that the tumours were malignant.
…….
10. Further or alternatively, the Second...
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