Marc Traylor v Kent and Medway NHS Social Care Partnership Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] EWHC 260 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2018-000526 and QB-2021-000914 |
[2022] EWHC 260 (QB)
Mr Justice Johnson
Case No: QB-2018-000526 and QB-2021-000914
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sebastian Naughton and Rachael Gourley (instructed by Hodge Jones & Allen) for the Claimant Marc Traylor
Alison Gerry (instructed by Hodge Jones & Allen) for the Claimant Kitanna Traylor
Edward Bishop QC and Susanna Bennett (instructed by Bevan Brittain) for the Defendant
Hearing dates: 18 January 2022 – 24 January 2022
Approved Judgment
On 8 February 2015 Marc Traylor suffered a psychotic episode. He threatened to stab his daughter, Kitanna Traylor. Police officers, and Marc Traylor's father, attended. In the early hours of 9 February, he stabbed Kitanna several times, causing serious injuries. He was shot three times by armed police officers. He was subsequently prosecuted for attempted murder. The jury found that he was not guilty by reason of insanity.
Marc Traylor brings a claim against Kent and Medway NHS Social Care Partnership Trust (“the Trust”). He says that the Trust was negligent in its treatment of his mental illness, and this caused what happened on 9 February 2015 and his resulting injuries. The Trust accepts that a decision on 3 December 2014 to discharge Marc Traylor from secondary psychiatric care “was not handled correctly” but denies other allegations of negligence. It also says:
(1) Any breach of duty did not cause what happened on 9 February 2015. The cause of those events was Marc Traylor's decision to stop taking his medication.
(2) Marc Traylor voluntarily accepted the risk that he might act as he did on 9 February 2015 because he stopped taking his medication, against medical advice.
(3) Marc Traylor's claim must fail because the events on 9 February 2015 resulted from his own criminal acts.
(4) Alternatively, any damages should be reduced on account of Marc Traylor's fault (“contributory negligence”) when he stopped taking his medication.
Kitanna Traylor brings a separate claim against the Trust. She says that it failed to take positive steps to protect her right to life and her right not to be subject to inhuman or degrading treatment, and that these failings resulted in the events of 9 February 2015. The Trust responds that it was not required to take steps to protect Kitanna Traylor's Convention rights, and that in any event it acted compatibly with those rights. It says that even if it did act incompatibly with her rights, this was not the cause of the events of 9 February 2015. Accordingly, any damages should be limited to an award for non-pecuniary loss to reflect a breach of her Convention rights, rather than compensation for the injuries she sustained.
Directions were made for the two claims to be heard at the same time, and for preliminary issues to be determined (broadly whether the Trust is liable to each of the defendants, including questions of causation but not the assessment of damages). The issues requiring determination are:
Marc Traylor's claim:
(1) Whether, and in what respects, the Trust breached a common law duty of care owed to Marc Traylor.
(2) Whether any established breach of duty caused the events of 9 February 2015. If so:
(3) Whether Marc Traylor voluntarily accepted the risks that flowed from the Trust's breach of duty.
(4) Whether Marc Traylor's claim is defeated on the ground of illegality.
(5) If the claim otherwise succeeds, by what proportion should Marc Traylor's damages be reduced on account of his contributory fault in not taking his medication.
Kitanna Traylor's claim:
(6) The scope of the Trust's obligations under articles 2 and 3 of the European Convention on Human Rights (“ECHR”).
(7) Whether the Trust knew or ought to have known that there was a real and immediate risk to Kitanna Traylor's life or physical safety.
(8) If so, whether it took reasonable steps to avert that risk.
(9) If not, what, if any, heads of loss should be awarded.
At the outset of the trial I directed, with the parties' consent, that the evidence in each case would stand as evidence in both of the cases. Evidence was given by Marc Traylor, Nicole Traylor (Marc Traylor's wife) and Peter Traylor (Marc Traylor's father). Kitanna Traylor provided a witness statement which was not challenged, so she did not give oral evidence. Dr Marcos Pisaca, a consultant psychiatrist employed by the Trust, gave factual evidence for the Trust. Expert evidence was given by Dr Stephen Ginn, instructed on behalf of Marc Traylor and Kitanna Traylor, and by Dr Boris Iankov, instructed on behalf of the Trust.
The agreed facts
Most of the facts are not in dispute. The primary factual issues concern what was said between Dr Marcos Pisaca and Marc Traylor on 4 June 2014.
Marc Traylor was born on 4 September 1974. He has been married to Nicole Traylor since 1995. They have three daughters. Kitanna Traylor was born in 1998. Her sisters were born in 1995 and 2001. The family lived in Kent, apart from a period between 2004 and 2007 when they were in Cumbria.
In November 1994 Marc Traylor was convicted of dangerous driving and affray. When police officers sought to apprehend him, he threatened them with a knife.
In 1999 Marc Traylor threatened Nicole Traylor with a shotgun. The police were called. He was convicted and was sentenced to a community penalty.
In June 2002 police attended at the family home. Marc Traylor had kicked Nicole Traylor in the face causing bruising and swelling.
In July 2002 Marc Traylor was convicted of possession of what is described as “a small firearm”. He was sentenced to a community penalty.
In October 2006, Marc Traylor was about to drive away from a pub after drinking all day. His mother took the car keys. He returned to the pub, grabbed a sword that was hanging on the wall, and smashed a window. He was convicted of affray and possession of a bladed article in a public place. There is a record that during the incident he said that he would “stab someone and kill the kids.” He denied saying that.
In September 2008 Nicole Traylor reported previous incidents of violent attacks carried out by Marc Traylor, including “binding and gagging her, threatening her with knives, handcuffing her to the bed, taking her out to sea in a dinghy and then letting the air out whilst holding a knife to her throat.” Nicole Traylor cannot swim.
On 29 October 2012 Marc Traylor made a 999 call to the police. He said that someone was trying to kill him and that he had just been poisoned. A community psychiatric nurse spoke to him. He attended at Kent and Canterbury Hospital. He was reviewed and discharged with arrangements for him to be seen the following day by the mental health crisis team. On 30 October 2012 Marc Traylor was seen by a community psychiatric nurse. He maintained that his wife was having an affair and that she and her partner were plotting to kill him. There was no rational basis for these fears. Nicole Traylor said that there had been 6 times in the last 20 years where something similar had happened. On these occasions Marc Traylor had taken possession of a knife so that he could defend himself. There was a strong history of mental illness in Marc Traylor's family. When the possibility of treatment was discussed, Marc Traylor said that he had never taken tablets and that he never would. He also refused voluntary admission to hospital for assessment.
Marc Traylor remained at home, but matters deteriorated, reaching a crisis point on 7 November 2012. He was assessed by a consultant psychiatrist. He was fixed on the idea that his wife was having an affair, that an attempt had been made on his life, and that it would happen again. He was detained under s2 Mental Health Act 1983. An entry in the notes says, “he didn't accept nor was going to accept his risperidone [antipsychotic medication] — he explained that he only planned to accept his medication one day prior to his tribunal “so that it looked good.””
In a report dated 14 November 2012 a differential diagnosis was made of morbid jealousy, paranoid personality disorder and persistent delusional disorder. Marc Traylor was discharged from hospital with medication on 23 November 2012, with ongoing input from the crisis team. Over the following days he claimed that he was taking the medication that had been prescribed. Nicole Traylor reported that he was improving due to the risperidone. Later, however, Marc Traylor said that he had not taken his medication during this period, and that he had stopped taking it as soon as he had been discharged from hospital.
In December 2012 Nicole Traylor reported that she had received threatening messages from Marc Traylor. The messages accused her of having an affair. On 28 December 2012 Nicole Traylor reported a text to the mental health crisis team in which Marc Traylor had said she should contact police “before he [the man with whom he thought she was having an affair] kills them all”. Later that day, Marc Traylor climbed on to the roof of a hotel and claimed that two men were trying to kill him. Police were called. He was re-admitted to hospital pursuant to s2 of the 1983 Act.
On 29 December 2012 Marc Traylor assaulted a female member of hospital staff. He later explained that he did so to try and get the keys to the unit so that he could escape from people who were going to kill him. He was described as having a “very disturbed mental state”. Six police officers were required to restrain him. He was transferred to another unit under s3 of the 1983 Act. There was a hearing before the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health)) (“the Tribunal”) on 9 January 2013. Nicole Traylor presented...
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