Leeson v Marsden another
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE COX DBE,Mrs. Justice Cox: |
| Judgment Date | 13 May 2008 |
| Neutral Citation | [2008] EWHC 1011 (QB) |
| Docket Number | Case No: TLQ/07/0828 |
| Court | Queen's Bench Division |
| Date | 13 May 2008 |
The Honourable Mrs Justice Cox Dbe
Case No: TLQ/07/0828
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Robin Oppenheim QC (instructed by Davies & Partners, Solicitors) for the Claimant
Angus Moon QC (instructed by Radcliffes Le Brasseur, Solicitors) for the First Defendant
Martin Porter QC (instructed by Bevan Brittan LLP, Solicitors) for the Second Defendant
Hearing dates: 31 January 2008 to 4 February 2008
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
Susan Leeson (the Claimant) seeks compensation for serious injuries sustained as a result of clinical negligence during the Defendants' treatment of her in December 2000. She was admitted to the Bristol Royal Infirmary (BRI) in the late afternoon of 13 th December 2000 with an undiagnosed spinal epidural abscess, having already been admitted and then discharged earlier on that day.
Her case, essentially, is that she should have been referred to hospital before the 13 th by the First Defendant, Dr Marsden, who was at the time of these events a trainee GP at the Montpelier Health Centre. She contends, had she been so referred, that she would have made a full recovery. The First Defendant disputes both breach of duty and causation. As against the Second Defendants (the Trust), who are responsible for the BRI, her main allegation is that she should not have been discharged home earlier on the 13 th, but should have been admitted, diagnosed and treated appropriately, so that she would have made either a complete recovery or a better recovery than she in fact did. Breach of duty in that respect is admitted, but the Trust disputes causation. Her secondary allegation against the Trust, which is the subject of a bare denial on the pleadings, is that she should have been medically reviewed more quickly than she was when she first arrived at the BRI on the morning of the 13 th.
The Claimant, who is now aged 56, underwent surgery in the early hours of 14 th December and treatment in the Intensive Care Unit. She was in hospital for approximately four months. She has been left with residual spinal cord damage and a residual quadriparesis, with some loss of bladder and bowel function. Her current neurological status is likely to be permanent and the Defendants accept that there is a significant neurological deficit. This is therefore a substantial claim for personal injury damages.
The Claimant promptly sought legal advice about these events in January 2001. She issued proceedings within the three-year limitation period, on 24 th November 2003, following receipt of supportive expert medical opinion and detailed letters of claim sent to both Defendants, dated 27 th August 2002, under the clinical disputes pre-action protocol. However, her former solicitors failed to serve the claim form in time. It was served a day late on 25 th March 200The Defendants contended that the claims should be struck out and resisted the Claimant's application for an extension of time. Ultimately, in January 2006, the Claimant failed on this issue before the Court of Appeal. She then instructed her current solicitors with a view to bringing a professional negligence claim against her former solicitors.
On 14 th June 2006, the House of Lords gave judgment in the case of Horton v Sadler and Another [2007] 1 AC 307. In this decision the House departed from its previous decision in Walkley v Precision Forgings Limited [1979] 1WLR 606, that where a Claimant issued proceedings within the ordinary limitation period he was not prejudiced by section 11 of the Limitation Act and could not, therefore, invoke section 33 to disapply its application to a second action brought after expiry of the time limit. After seeking leading counsel's opinion the Claimant then issued this second claim against the Defendants, out of time, on 19 th December 2006. The claim and detailed Particulars of Claim were served on 25 th January 2007 and a deed of indemnity for costs has been agreed with the Claimant's former solicitors. In response both Defendants pleaded limitation and abuse of process. Following Master Yoxall's order that there should be a trial of preliminary issues a hearing took place before me to determine:
(i) Whether I should exercise my discretion under section 33 of the Limitation Act 1980 to disapply the limitation period and to permit this claim to proceed; or
(ii) Whether this action is an abuse of the process and should be struck out.
Master Yoxall gave directions for this hearing, including the exchange of witness statements. Dr. Marsden declined to serve a witness statement and has instead signed as true the Defence filed on her behalf and the contents of a document prepared by her counsel, Mr. Moon QC, providing further information requested by the Claimant. In the event the parties agreed that no oral evidence was necessary before me, save for Ewan Lockhart of the Claimant's current solicitors, who was tendered to be cross-examined by the Defendants. I have, therefore, reached a conclusion on the preliminary issues on the basis of the documentary and written witness evidence before me, the oral evidence of Mr. Lockhart and the helpful submissions of leading counsel representing each of the parties.
In view of the matters to which I must have regard in determining these issues it is necessary to describe in some detail the nature of the substantive claim and of the Defendants' responses to it, together with the procedural history, so that the issues and the parties submissions may be properly understood.
The Substantive Claim
The Claimant had a long-standing history of chronic pain in her neck and left arm due to cervical spondylosis. On 27 th November 2000, however, she awoke with pain which was different both in nature and location from her long-standing symptoms, namely pain in the middle of her back radiating over her right shoulder blade and down her right arm. She was seen by her GP, Dr Bailward, who agreed to review her if the pain worsened. Later that night she was admitted to the Accident and Emergency department of the BRI where, as the Trust admits, she was noted to have left-sided chest pain in addition to worsening pain in her thoracic spine. She was also pyrexial and tachycardic and gave a history of flu-like symptoms. A diagnosis of urinary tract infection or chest infection was made and she was discharged home with antibiotics.
Her pain and flu-like symptoms did not improve and her case is that, by 28 th November, she had developed weakness in her right hand, and the hand and fingers had begun to curl inwards.
She requested a home visit on Saturday 2 nd December and was seen at home and examined by Dr Marsden. The Claimant's account is that she told Dr Marsden about the pain radiating down her right arm, the weakness in her right hand and the fact that her right hand fingers had begun to curl inwards. She asked Dr Marsden whether this meant that she could have had a stroke. Dr Marsden decided to prescribe antibiotics and to review the Claimant the following day. At paragraph 11 of the Particulars of Claim it is pleaded, in summary, that there was no unitary diagnosis to explain her ongoing symptoms; that there were now signs of an acute neurological lesion, which could not be explained by a chest infection, a resolving pleurisy or pneumonia; and that her presentation was such as to demand either discussion with the doctor who was responsible for training Dr Marsden or with another, more experienced colleague from the surgery, or referral to hospital that day. If there had been referral the Claimant's case on causation is that she would have been admitted and investigated; and that the epidural abscess would have been diagnosed, leading to appropriate treatment and a full recovery.
Whilst Dr. Marsden's note of this visit, made subsequently on 4 th December, includes a reference to, “… loss of sensation and power in R arm” she disputes the Claimant's account that she was told about her right hand fingers starting to curl, pleading at paragraph 7(ii) of her Defence:
“There is no note to the effect that the Claimant told the First Defendant that the fingers on her right hand had begun to curl: in the premises it is denied that the Claimant did so inform the First Defendant.”
A positive case is then pleaded by reference both to the contents of her note and to what would have been her usual practice in such circumstances, a form of pleading commonly to be found in Defences served on behalf of Defendants in clinical negligence litigation.
Thus, at paragraphs 7(ii) and (iv) Dr Marsden pleads as follows:
“… After taking a history from the Claimant and her daughter including a history that the Claimant's right arm felt numb and weak, the First Defendant would have examined the Claimant's spine and where the Claimant was complaining of pain. It appears from the note that the First Defendant found no localised tenderness. It also appears from the note that the First Defendant found that the Claimant's power in her right arm and her reflexes were normal and that she had an area of coarse crackly breathing at the base of her left lung. The First Defendant prescribed higher dosage antibiotics and appears to have decided to review the Claimant the following morning.
…..
(iv) It is the First Defendant's case that she would have taken a detailed history and that there was no indication that the Claimant was suffering from an impending severe neurological...
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