Haithwaite v Thomson Snell & Passmore
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE NICOL,Mr Justice Nicol |
| Judgment Date | 30 March 2009 |
| Neutral Citation | [2009] EWHC 647 (QB) |
| Date | 30 March 2009 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ7X02843 |
[2009] EWHC 647 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Nicol
Case No: HQ7X02843
Marc Rivalland of Counsel instructed by Charles Hoile, Sols for the Claimant
Julian Picton of Counsel instructed by Beachcroft LLP, Sols for the Defendant
Hearing dates: 16 th February to 23 rd February 2009
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.
Mr Justice Nicol:
Introduction
This is a claim brought by Ashley Haithwaite against his former solicitors, Thomson Snell & Passmore, for negligence. The solicitors have admitted that they were negligent. I therefore have to decide what, if any, damage has been suffered by Mr Haithwaite in consequence of that negligence and what, if any, damages the solicitors are obliged to pay him as a result.
Mr Haithwaite consulted the defendants in March 1998 and retained them to advise him and to act on his behalf in connection with proceedings which he wished to bring against the Mid-Sussex National Health Service Trust (“the Trust”). The proceedings against the Trust concerned alleged delays in diagnosing and treating Mr Haithwaite's Subdural Haematoma which had developed in the course of February 1999.
On 12 th December 1998 Mr Haithwaite who was then 27 years old returned home and became very ill. He was suffering severe headache, nausea, vomiting, photophobia and neck stiffness. He was taken by ambulance to the Princess Royal Hospital in Hayward's Heath and arrived there at 4:43 am. A CT scan was performed and identified a subarachnoid haemorrhage (“SAH”) with a focal haematoma to the right of the parasellar region. Later that morning an angiogram showed a large right sided posterior communicating artery aneurysm. That same day Mr Haithwaite was transferred to the Hurstwood Park Neurological Centre under the care of a consultant neurosurgeon, Mr Norris. Mr Norris clipped the aneurysm. In the following days it became apparent that Mr Haithwaite was also suffering hydrocephalus. This was originally treated by a series of lumbar punctures, but that was not sufficiently effective and, on 25 th December 1998, an alternative means of addressing Mr Haithwaite's continuing hydrocephalus was considered necessary. In consequence, on 7 th January 1999 a ventriculo-peritoneal shunt (“shunt”) was inserted. The purpose of a shunt is to divert excessive cerebrospinal space fluid from the ventricles into the peritoneal cavity.
In the meantime, on 28 th December 1998, another CT scan showed that Mr Haithwaite had suffered further damage to his brain. Because of a vasospasm (spasm of an artery) there had been sub-clinical cortical ischaemia (an inadequate flow of blood) and this in turn caused a large right middle cerebral artery infarct. An infarct is an area of dead tissue resulting from an inadequate supply of blood. On 12 th January 1999 Mr Haithwaite was transferred back from Hurstwood Park to the Princess Royal Hospital. He was discharged from there to his home on 14 th January 1999. Mr Haithwaite was living at the time with his girlfriend, Anne Cattermole, and she has devoted a considerable amount of time to his care.
By this stage, therefore, Mr Haithwaite had suffered a subarachnoid haemorrhage, hydrocephalus and an infarct. There is no doubt that these were all serious insults to Mr Haithwaite's brain. Mr Haithwaite's proceedings against the Trust, however, would have made no complaint about his treatment up to this date. I can explain in outline the allegations of negligence which Mr Haithwaite would have wished to pursue against the Trust by giving a brief sketch of what happened during that period although it will be necessary to elaborate later on the evidence as to Mr Haithwaite's condition during this period and the responses of the various medical professionals that he saw.
Mr Haithwaite consulted his General Practitioner, Dr Claiden, and her colleagues at the same practice on a number of occasions in January 1999. He was understandably anxious about the long-term prognosis for his condition. In addition, he was experiencing headaches and earaches. He also had visual blurring. Dr Claiden referred Mr Haithwaite to a Community Psychiatric Nurse, Leone Thatcher. She visited Mr Haithwaite in late January 1999. Following his further complaints of headaches, Dr Claiden's colleague, Dr Usher, referred Mr Haithwaite to the Princess Royal Hospital on 3 rd February 1999. He attended there on 4 th February 1999. He was seen by both a junior doctor (whose identity has not been established) and a registrar, Doctor Qureshi. Both appear to have been physicians (rather than surgeons). These doctors recorded that, since his discharge, Mr Haithwaite had been slurring his words, had poor memory and his blurred vision was deteriorating. He had been vague and vacant the previous day and was repeating himself. He had a pain at the back of his head following sneezing. This was relieved by paracetamol. He had had headaches once a day following the operation. The registrar recorded that, while there were still some headaches and blurred vision and short-term memory loss, there had been no deterioration in those symptoms. He also noted that following paracetamol the headache was almost gone. It was not severe and nothing like the symptoms prior to the SAH (the registrar's emphasis). The registrar reassured Mr Haithwaite that these symptoms did not suggest that there was a recurrence of the SAH.
At one stage it was suggested that the doctors who saw Mr Haithwaite on 4 th February 1999 had been negligent in not conducting further tests but that is not now pursued.
On 8 th February 1999 the Claimant went to see his optician. She considered that he needed to have a neurological review. Her notes record that Mr Haithwaite had reported pain at the back of his head which was worse when lying down and was worse since his operation. Ms Cattermole gave evidence that the optician was also alarmed by her observation of highly unusual characteristics (“big black marks” was Ms Cattermole's recollection of what the optician had said) at the back of Mr Haithwaite's eyes. There is no reference to this in the optician's contemporary notes. Nonetheless on the same day Mr Haithwaite and Ms Cattermole went without appointment to Hurstwood Park.
At Hurstwood Park they were seen by Dr Wakeham who examined Mr Haithwaite. Dr Wakeham was at the time a Senior House Officer. He concluded that there was “nil acute” and did not order a CT scan. In proceedings against the Trust Mr Haithwaite would have wished to allege that (a) a doctor as junior as an SHO should not have taken the decision that Mr Haithwaite's condition did not require further examination; (b) in any case, on the information available to Dr Wakeham, it was negligent not to have conducted a further CT scan. It will therefore be necessary for me to consider in more detail in due course what information was available to Dr Wakeham, whether it was negligent for him to have taken the decision himself, and/or whether in any case it was negligent not to have conducted a further CT scan.
When Mr Haithwaite had been discharged from Hurstwood Park in January, Mr Norris had told Dr Claiden that he was expecting to see him for an angiogram in March. However, Dr Wakeham recorded in is notes of the meeting of 8 February that Mr Haithwaite was due to be seen as an outpatient in the following week.
Mr Haithwaite did indeed see Mr Norris on 17 th February 1999. Mr Norris's note of that occasion says that Mr Haithwaite was “extremely well. Minor headache.” In his letter to Dr Claiden following this appointment Doctor Norris said
“he has made an extremely good recovery … there are intermittent mild headaches and areas of tenderness on the scalp which are not a cause for concern. He recently found that he was longsighted and prescription lenses have helped reduce the frequency of the headaches presumably due to the corrected refraction error. I was delighted to see that he is keen to try to return to work with the Jordan Formula 1 team. I see no reason to discourage him but he needs to be aware that he should ease himself back into his normal duties due to his mild, short-term memory impairment. Before driving a motor vehicle he will need to obtain clearance from the DVLA. Overall he has made an excellent recovery only 10 weeks following surgery. I would anticipate that he will return to his normal status by summertime.”
Mr Haithwaite's proceedings against the Trust would have alleged that Mr Norris was negligent in not ordering a CT scan as a result of this consultation. The evidence of Ms Cattermole is that, while Mr Haithwaite gave an upbeat account of his condition and did indeed express enthusiasm for returning to work, she interjected to tell Mr Norris that Mr Haithwaite was presenting a distorted picture of his own condition and in reality his behaviour had been very troubling. Again this is a matter which I will need to consider in further detail below.
On 25 th February 1999 Ms Thatcher saw Mr Haithwaite again. Her notes of the meeting records Ms Cattermole reporting “how awful the last couple of weeks have been.” She said that Mr Haithwaite had exposed himself in front of her sister, gone to bed in his suit, was confused and was constantly in pain from headaches. Ms Cattermole was at the end of her tether.
Ms Thatcher contacted Dr Claiden who saw Mr Haithwaite the following day (26 th February 1999). She recorded
“Past 4/7 [i.e 4 days] not himself – teabag on floor....
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