Mrs Gabriele Shaw (The Personal Representative of the Estate of William Ewan (Deceased)) (Appellant/Claimant) v Dr Jan Kovac and Another (Respondents/Defendants)
|England & Wales
|Lord Justice Davis,Lord Justice Underhill,Lord Justice Burnett
|18 July 2017
| EWCA Civ 1028
|Case No: B3/2015/3806
|Court of Appeal (Civil Division)
|18 July 2017
 EWCA Civ 1028
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION
HIS HONOUR JUDGE PLATTS (SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Underhill
Lord Justice Burnett
Case No: B3/2015/3806
David Berkley QC and Matthew Mawdsley (instructed by Pearson Solicitors and Financial Advisors) for the Appellant
Alexander Hutton QC and Nicholas Pilsbury (instructed by Browne Jacobson LLP) for the Respondents
Hearing date: 22 June 2017
On 26 September 2007 Mr William Ewan, aged 86, died following an operation for a trans-aortic valve implant conducted that day. In due course his daughter, Mrs Gabriele Shaw, acting as personal representative of his estate, brought proceedings in negligence against the first defendant, a surgeon supervising the conduct of the operation. The first defendant was at that time a consultant interventional cardiologist working at the Glenfield Hospital in Leicester, which was managed and administered by the second defendant.
The core of the claim in negligence advanced was that neither the deceased nor his family was given proper information as to the true nature of, and risks inherent in, the actual surgical procedure deployed; and that in consequence no properly informed consent was given by the deceased to such an operation. It was said that the defendants were negligent in failing to give the requisite information and that, had it been given, Mr Ewan would have refused the operation altogether. In the event, liability was eventually conceded by the defendants. Judgment for damages to be assessed was entered against the defendants, on 2 July 2015 and 24 October 2015 respectively. It was for this purpose accepted that Mr Ewan would never have undergone the operation (from which he in fact died) had he been given proper information as to its risks.
At the trial fixed for the assessment of damages HHJ Platts, sitting as a Judge of the High Court, on 28 October 2015 at the conclusion of a three day hearing assessed damages at £15,591.83 (inclusive of interest). The award included an amount of £5,500 for pain, suffering and loss of amenity.
On this appeal it is argued that the judge should in addition have awarded a sum representing a further and distinct head of loss: that is to say, as compensation for what was described as "the unlawful invasion of the personal rights" of Mr Ewan and his "loss of personal autonomy." It was accepted before us that such an award would be novel, in the sense that a right to recover under such a head of loss has never before been acknowledged in an action framed in negligence ostensibly in respect of personal injuries. It is said, however, that recent developments in the law and the increasing emphasis given in modern times to the right to personal autonomy of an individual both justify and require that modern courts should acknowledge such an actionable head of loss. The appropriate figure suggested in this case is £50,000.
The appellant claimant was represented before us by Mr David Berkley QC and Mr Matthew Mawdsley. The respondent defendants were represented before us by Mr Alexander Hutton QC and Mr Nicholas Pilsbury.
An initial point arose at the appeal hearing. The appeal had been listed for hearing before us on 23 June 2017, together with an application on behalf of the appellant to adduce further evidence (which, in the event, was withdrawn at the hearing). On the morning of the appeal hearing itself Mr Berkley sent an e-mail indicating that his client objected to two of the members of the court – myself and Burnett LJ – hearing the appeal and would be asking us to recuse ourselves. He told us at the hearing, when asked, that it had not been possible to indicate the objection earlier as his client, Mrs Shaw, had only very recently returned from a holiday.
The basis of the recusal application was apparent bias. It was made clear that actual bias was not being asserted.
The application was made in the following circumstances.
After the death of Mr Ewan there was an inquest. Mrs Shaw (who is a qualified, though non-practising, barrister) involved herself very closely indeed in the inquest proceedings. Those proceedings were very complex and very protracted. Numerous parties, including the estate of Mr Ewan, were legally represented. The inquest itself eventually took place over some two weeks in January 2011. By his summing-up the deputy assistant coroner left a series of questions to the jury. The answers to some of those questions showed that the jury, on the evidence deployed before it, had among other things concluded that Mr Ewan had been suitable for the trans-aortic valve implantation procedure adopted; that he was aware of the nature of the procedure; and that he had given his informed consent to the operation. The jury concluded that death was "the unintended outcome of a therapeutic medical procedure."
Mrs Shaw was most dissatisfied with the conduct and outcome of the inquest. She felt strongly that, among other things, not all the relevant information had been obtained or placed before the jury. She considered that unlawful killing and neglect should have been left as possible verdicts. She also considered that no reasonable jury could come to the conclusion that this one did on the issue of consent: her perception being that Mr Ewan had, in effect, been cynically used as an unwitting participant in a high-risk trial of a new and untested kind of aortic valve surgical procedure. She further, among other things, complained that there was apparent bias on the part of the deputy assistant coroner.
At all events she in due course commenced Judicial Review proceedings in 2011. During them she – as Mr Berkley frankly put it – took every point. She throughout those proceedings acted in person.
The matter came on for hearing in the Administrative Court on 21 and 22 January 2013 before my Lord (then Burnett J) and HHJ Peter Thornton QC, the Chief Coroner. All of the many grounds advanced by Mrs Shaw were rejected. Burnett J gave the lead judgment, comprising 99 paragraphs, in dismissing the claim.
Mrs Shaw sought to appeal. All of her proposed grounds were rejected, on the papers, by Sir Richard Buxton. However, amended grounds were then advanced and at an oral hearing of the renewed application for permission to appeal Aikens LJ referred two of the grounds to the Full Court. The matter then came before the Full Court on 11 February 2014. The members of the court were Hallett LJ, me and Floyd LJ. Mrs Shaw was still acting in person. The principal judgment, comprising 29 paragraphs, was delivered ex tempore by Hallett LJ. She refused the renewed application. I (as did Floyd LJ) shortly stated that I also would refuse the renewed application for the reasons given by Hallett LJ. If it be relevant – and it doubtless is not – I had no recollection of the matter until it was drawn to my attention by Mr Berkley and even then minimal recollection of it.
The legal test for apparent bias is well settled by authority at the highest level. Shortly put, it is whether a fair minded and informed observer would conclude, on the facts, that there existed a real possibility of bias: see , ; , .
What then, in the present case, gives rise to apparent bias?
Mr Berkley acknowledged that he could not argue for apparent bias simply by reason of the fact that Burnett LJ and I had (separately) been involved as judges in decisions adverse to Mrs Shaw in the previous judicial review proceedings relating to the inquest. But he said that there was more.
So far as my Lord was concerned, Mr Berkley said that an appearance of bias would arise from a statement made by him at paragraph 68 of his judgment in the Administrative Court. In dealing with a certain schedule put forward by Mrs Shaw purporting to advance details of deaths of patients in the course of trials relating to the new trans-aortic valve in question Burnett J there had said: "I regret to say that the schedule was misleading" – going on to explain why. Mr Berkley saw fit to assert that such a finding impugned Mrs Shaw's integrity: hence there was, he said, apparent bias for the purpose of the present appeal.
That is an untenable argument. Burnett J was expressing himself, as he was entitled to, by reference to the schedule put before him. That this might be seen to be in some way by way of a reproof of Mrs Shaw is for present purposes nothing to the point. To the extent that this statement was a criticism of Mrs Shaw it plainly comes within paragraph 28 of the judgment of the court (delivered by an exceptionally strong Court of Appeal) in the case of , where it was said:
"The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection."
Such a remark as made by Burnett J could not begin (from the perspective of a fair minded and informed observer) to show a predilection against Mrs Shaw in any subsequent litigation in which she was involved.
Likewise, in the case of ... it was stated that the
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