Lim Poh Choo v Camden and Islington Area Health Authority
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE |
| Judgment Date | 07 July 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0707-1 |
| Docket Number | 1974 C. No. 7783 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 July 1978 |
The Master of the Rolls
(Lord Denning)
Lord Justice Lawton (Not Present) and
Lord Justice Browne
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Mr. Justice Bristow
MR. C. FRENCH. Q.C. and MR. G. NEWMAN (instructed by Messrs. Coward Chance, Solicitors. London) appeared on behalf of the Plaintiff (Respondent).
MR. J. DAVIES, Q.C. and MR. P. SCOTT, Q.C. (instructed by Messrs. J. Tickle & Co., Solicitors, London) appeared on behalf of the Defendants (Appellants).
It happened on 1st March, 1973. A lady doctor, Dr. Lim Poh Choo, had gone into hospital for a minor gynaecological operation. It was for dilatation and curettage. She was quite a healthy woman. She was put under a general anaesthetic. The operation was performed. She was moved from the operating theatre to the recovery room. Whilst she was still unconscious she began to go blue. The doctors call it cyanosis. This was a sign of trouble. It showed that her breathing had been affected. The recovery sister sent for help. They gave her oxygen, but nevertheless the cyanosis increased. Five minutes later her breathing stopped. This affected her heart. The blood stopped flowing to her brain. She suffered what the doctors call "cardiac arrest". The heart was massaged. After 25 minutes her breathing was restored to normal. She was brought back to life. The more's the pity of it! For it was to a living death. Her brain was severely damaged beyond repair. She was in a deep coma for two weeks. At length she recovered consciousness but could not talk. She had two epileptic fits. After four months she could speak a few words and could walk a little with help. Now five years later she is still helpless. Her mind is gone. She can speak a few words, but without meaning or sense. She cannot dress, bath herself or attend to her toilet. In the words of the specialist, she "shows evidence of dementia and gross physical disability due to severe cerebral damage. She will always need total care either at home or in an institution".
Now by her mother (who is her next friend) she has brought an action for damages against the Health Authority. At first they denied liability; as indeed they well might. Accidents such as this do happen in operations through sheer misadventure -some allergy or sensitivity in the patient to a particular drag without negligence at all. But, after consideration the Health Authority accepted liability: and the only issue is the amount of damages. The judge has awarded nearly £250,000. It is a staggering figure. It is the highest sum ever yet awarded in these courts. The Health Authority appeal to this court on this amount.
In considering damages in personal injury cases, it is often said "the defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration". That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension so often repeated that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Baron Parke over a century ago: "Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life … you are not to consider the value of existence as if you were bargaining with an annuity office. I advise you to take a reasonable view of the case and give what you consider fair compensation", see Armstrong v. SER. 11 Jurist 1788, quoted in the leading case of Phillips v. L.S.W.R. (1879) 4 Queen's Bench Division 406.
The lady here was born on 18th October, 1936. So at the operation in 1975 she was 36. She is now 41. She was educated in Malaya. In 1963 at the age of 26 she qualified as a doctor and specialised in psychiatry. She was for eight years working in hospitals out there. She came to England in 1971, when she was 34. She passed her Diploma in Psychiatry and was appointed a Senior Registrar at the Friern Hospital. She was due in April 1975 to take her examination for membership of the Royal College of Psychiatrists. Two distinguished doctors describe Dr. Lim as "a remarkably good doctor, intelligent, conscientious, reliable, able to make good contact with patients, supportive to and popular with the nursing staff". Each doctor regarded it as almost certain that she would have passed her membership examination and obtained a post as a consultant psychiatrist within four or five years.
The disaster happened on 1st March, 1973. She lay stricken in hospitals in England for several months. Then, on 2nd February, 1974, she was flown back to Malaya. She was then taken to her mother's home in Penang where she has been ever since, save for a month or two in a nursing home in Singapore. Her mother looks after her, together with the help of one full-time servant and two part-time servants. It is doubtful, however, how long her mother will be able to look after her. It has been suggested that the best thing would be for her to be moved back to England and put in an institution here where she could be cared for. Especially as she has a married sister living here in London.
If this lady had died under the operation as in former times she would probably have done then, even though it was due to the fault of the hospital, the damages would have beenmimimal. She had no relatives dependent on her. So there would be no payment under the Fatal Accidents Acts. The only sum to be awarded to her estate would be the conventional sum of £750 for loss of expectation of life.
But now, by reason of the advances' of medical science, she was snatched back from death under the operation and has been brought back to a life which is net worth living. The body has been kept alive, but the mind is gone. The doctors and nurses, with the aids available today, say that they can keep the body going for the normal expectation of life. In her case 37 years. But every moment of it distressing to her and those about her. Sadness and happiness are all alike to her. Many might say:
"Twere better she had died".
Such cases, we are told, are not uncommon: and we are faced with the problem: On what principles should compensation be awarded to her? As I said in Taylor v. Bristol (1975) 1 Weekly law Reports at page 1060 the subject needs radical reappraisal. This case gives the opportunity for it.
ON PRINCIPLE
One thing is beyond doubt: Fair compensation must mean that she is to be kept in as much comfort and tended with as much care as compassion for her so rightfully demands: and that she should not want for anything that money can buy. But I see no justification in law or in morals in awarding to her large sums of money in addition to those needed to keep her in comfort. Such extra sums will avail her nothing. She herself can make no use of them. All that will happen to them is that they will be accumulated during her lifetime at high interest rates on which 80 per cent or more will go to the revenue. Invested well the capital will be worth more and more. She will be unable todispose of any of it "by will, since she has not the mental capacity to make a will. On her death, all will go to her then nearest relatives, or if she has then none, I suppose to the Crown as bona vacantia: and the Crown will not know what to do with the money. If she should not last the 37 years, but die within 5 years as a layman may think very probable this huge stun will do no one any good. It was for reasons such as these that Lord Pearson's Commission recommended that non-pecuniary damages should no longer be recoverable for permanent unconsciousness, see pages 393 and 398. Similar reasoning seems to me to apply to permanent insensibility.
One cannot forget, also, that in these days after such an accident as this, the relatives and the doctors are faced with an agonising decision: Is she to be kept alive? Or is she to be allowed to die? Is the thread of life to be maintained to the utmost reach of science? Or should it be let fall and nature take its inevitable course? Such a decision should not be influenced in the least by a law which whispers In the ear: "If she is kept alive, there will be large sums of compensation payable for the benefit of the relatives; whereas, if she dies, there will be nothing". Rather those about her should say: "For mercy's sake, let the end come now".
To be fair to her relatives in this case to be fair to her mother, her sister and her brother they do not ask for anything more than fair compensation on the grounds that I have stated. They want nothing for themselves. They seek to uphold this large award of £250,000 solely so as to ensure that the expenses of nursing and attendance shall be met, whatever the future may bring in the way of inflation. Their fears on this score can, I believe, be met in other ways, as I will show.
It is a modern problem the impact of modern science in prolonging life in a body destitute of mind. To my mind on principle fair compensation requires that there should be ample provision in terms of money for comfort and care during the lifetime of the sufferer such as to safeguard her in all...
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Ebanks (Andrew) v Jephther McClymont
...with the common law aim of providing adequate compensation for the person injured. I agree with Lord Scarman in Lim Poh Choo v Camden and Islington Health Authority [1980] A.C. 174, 190, that "the principle of the common l aw [is] that a genuine deprivation (be it pecuniary or non-pecuniary......
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