Kent (Plaintiff/Appellant) v Dr Griffiths (First Defendant) Dr Roberts (Second Defendant) London Ambulance Service (Third Defendant/Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Schiemann,Sir Patrick Russell |
| Judgment Date | 11 December 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1211-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 1998 |
| Docket Number | No QBENI 98/1240/1 |
[1998] EWCA Civ J1211-9
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM ORDER OF MR JUSTICE MOSES AND MR JUSTICE NELSON
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Lord Justice Schiemann
Sir Patrick Russell
No QBENI 98/1240/1
QBENI 98/1241/1
MR E FAULKS QC and MISS E A GUMBEL (Instructed by T G Baynes of Sidcup, Kent) appeared on behalf of the Plaintiff/Appellant
MISS M O'ROURKE (Instructed by Capsticks of London) appeared on behalf of the Third Defendant/Respondent
MR A KENNEDY (Instructed by Hempson of London) appeared on behalf of the First and Second Defendants
1. This is an appeal from two decisions of different judges taken in relation to an application by the third defendant pursuant to Order 18 Rule 19 of the Rules of the Supreme Court that the plaintiff's allegations of negligence against the third defendant, and hence the plaintiff's claim against the third defendant, be struck out on the grounds that it discloses no reasonable cause of action. In dealing with an application of this kind the court will not admit evidence, and the facts must be assumed to be those as set out in the pleadings. What follows must be understood in that light.
2. History
In February 1991 the plaintiff was a married woman, 26 years of age, with one child living in Orpington, Kent. She was also pregnant for the second time. She was asthmatic, and on 16th February 1991 she was very wheezy, so she telephoned her general practitioner, the first defendant, who arrived at her home at about 4 pm. At 4.27 pm the first defendant telephoned the third defendant using the 999 service, and asked for an ambulance to be sent to the plaintiff's home at once as an emergency, in order to take the plaintiff to Queen Mary's Hospital. The servant or agent of the third defendant who received that telephone call said to the first defendant "OK doctor I'll get someone down there." The distance from the ambulance station to the plaintiff's home was about 7 miles, and the journey time, as ultimately recorded by the ambulance crew, was nine minutes. The nationally recommended maximum standard time from the receipt of a call to arrival of an ambulance at the scene was 14 minutes.
At 4.39 pm the plaintiff's husband telephoned the third defendant again. He was told "they're well on their way to you, they're coming from quite a way, give them another 7/8 minutes, alright." At 4.55 pm the first defendant telephoned the third defendant yet again, and was told that "the ambulance is on its way to you, it should be a couple of minutes."
In fact the ambulance arrived at about 5.05 pm, thirty eight minutes after the first call, and the first defendant then travelled with the plaintiff in the ambulance on the journey to the hospital, which took about 6 minutes. They arrived at about 5.15 pm. During that journey the plaintiff was given oxygen intermittently, but before the journey was over she suffered a respiratory arrest with tragic consequences, including serious memory impairment, change of personality, and a miscarriage.
3. Legal Proceedings.
On 8th February 1994 the plaintiff began this action. There are allegations of negligence against the first defendant and the second defendant as general practitioners with which I need not be concerned but there were also five allegations of negligence against the third defendant. In substance, as originally pleaded, those allegations fell under two heads:
(1) Failure to respond promptly to the calls:
(2) Failure to give oxygen continuously on the way to hospital.
On 15th December 1994 the third defendant served a full defence which in paragraph 3 admitted "a duty to provide ambulance services on request, including emergency services, as soon as reasonably practicable in all the circumstances of a particular request." In paragraph 6 the third defendant set out in some detail how they responded between 4.27 pm on 16th February 1991 and the arrival of the plaintiff at Queen Mary's Hospital.
In due course the case was set down for trial and fixed for hearing on 1st February 1999, but on 22nd June 1998 the third defendant took out a summons seeking leave to serve an amended defence, and also seeking an order that the plaintiff's action be struck out as disclosing no reasonable cause of action. The proposed amendment to the defence deleted the quoted admission that a duty existed, and denied, as a matter of law, that the third defendant owed any duty of care to the plaintiff to respond to the request for an ambulance, whether as an emergency or at all. It also denied that the failure to respond promptly was actionable at the suit of the plaintiff. The line of defence originally advanced was preserved, in the alternative. The trigger for this dramatic change of position by the third defendant was, as Miss O'Rourke for the third defendant frankly admits, the decision of this Court in Capital & Counties plc v Hampshire County Council (1997) QB 1004, in which judgment was delivered on 14th March 1997.
When the summons came before Nelson J on 27th August 1998 he gave leave to the third defendant to amend its defence, and also gave leave to the plaintiff and to the first and second defendants to make consequential amendments to their pleadings. Counsel for the plaintiff indicated their intention to amend so as to allege that at 4.39 pm the servant or agent of the third defendant was negligent in advising the plaintiff's husband that the ambulance would take 7 to 8 minutes to arrive. If accurate information had been given the plaintiff could and would have been conveyed to hospital by other means. However, the plaintiff's counsel was not yet in a position to say that her application to make the proposed amendment to the statement of claim would be pursued. Accordingly Nelson J dealt only with the first issue, which arose in relation to the third defendant's application to strike out, namely whether that application should be entertained at all having regard to the time that had elapsed since the close of pleadings, the proximity of the trial, and the fact that such an application could only be dealt with on the pleadings, no evidence being admissible (Order 18 Rule 19(2)).
Subject to the proposed amendment to the statement of claim Nelson J declared himself "satisfied that the duty of care question can be considered as a matter of law without the need for a court to hear further evidence". He also declared himself satisfied that "there is no prejudice to the plaintiff likely to arise as a result of the delay which cannot be compensated for by way of costs". Accordingly he adjourned for hearing by Moses J on 9th September 1998 the second issue which arose in relation to the application to strike out, namely whether, in all the circumstances, such an order should be made.
4. Appeal from Nelson J
In this appeal Mr Faulks, QC., for the plaintiff, does pursue the issue of delay and has invited our attention to a passage from the judgment of Beldam LJ in Halliday v Shoesmith (1993) 1 WLR 1 at 5 which stresses that if an application of this kind is to be made it should be made promptly before costs are incurred, not at the eleventh hour, and that if it is made at the eleventh hour unless there is some persuasive explanation for the delay the court will simply not "embark on hearing such an application". Here there is no satisfactory explanation for the delay. The Court of Appeal in Capital & Counties upheld two decisions at first instance which were reported in 1996, and the decision of the Court of Appeal was reported long before June 1998, but, as Miss O'Rourke submits, Order 18 Rule 19 does expressly permit an application to strike out to be made "at any stage of the proceedings", and Halliday was a somewhat exceptional case in which the application was made at the opening of the trial. She submits, and I accept, that once Nelson J found that the delay in making the application caused no prejudice to the plaintiff which could not adequately be met by means of an award of costs it was open to the judge to decide as he did that the application to strike out should be considered on its merits. Whether it could be properly resolved in favour of the third defendant without hearing evidence is, as Mr Faulks contends, a matter which really goes to the substantive merits of the application which were argued before Moses J.
5 . Decision of Moses J
Before Moses J there was a draft re-re-amended Particulars of Claim which set out the amendments canvassed before Nelson J, that is to say it relied on the third defendant's failure to give accurate information to the plaintiff's husband at 4.39 pm. For some reason which eludes me, despite Miss O'Rourke's attempt to explain, the learned judge did not formally give leave to re-re-amend, but decided the issues before him on the basis of the proposed amendments. In any event it seems to me that we should now give leave, leave being required because this is an amendment of some substance, not merely one consequential upon the third defendant's amendment of its defence. Miss O'Rourke did not oppose that course, and so, during the course of argument, we gave leave. That means that the plaintiff's case against the third defendant now falls under three heads
:
(1) failure to respond promptly:
(2) misrepresentation in response to the 4.39 pm call:
(3) failure to give oxygen continuously in the ambulance.
Moses J decided that because of the decision of Capital & Counties the plaintiff's claim...
To continue reading
Request your trial