Sion v Hampstead Health Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Staughton,Lord Justice Waite,Lord Justice Peter Gibson |
| Judgment Date | 27 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0527-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. QBENI 93/0122/E |
| Date | 27 May 1994 |
[1994] EWCA Civ J0527-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(ON APPEAL FROM THE HIGH COURT OF JUSTICE)
(QUEEN'S BENCH DIVISION)
(Mr. Justice Brooke)
Before Lord Justice Staughton Lord Justice Waite and Lord Justice Peter Gibson
No. QBENI 93/0122/E
MR. D. BRENNAN QC and MR. I. GOLDREIN (instructed by Messrs. Pannone & Partners, London) appeared on behalf of the Appellant.
MR. A. WHITFIELD QC and MR. A. HOPKINS (instructed by Messrs. Beachcroft Stanleys, London) appeared on behalf of the Respondents.
A young man called Lionel Sion was injured in a motor-cycle accident on 2nd September 1988. He was twenty three years old at the time. He was taken to the Royal Free Hospital in North London, which is administered by the Hampstead Health Authority. His father, then aged 56 and also called Lionel Sion, went to the hospital to be with him. I shall call the father "Mr Sion". He is the plaintiff in this action. For fourteen days he stayed at his son's bedside, watching him deteriorate in health and fall into a coma. Then on 16th September the son died.
Mr Sion's case is that the staff of the hospital were negligent. In particular, they failed to diagnose substantial and continuing bleeding from the left kidney, which resulted in his son entering a coma on 5th September. The allegations of negligence are denied. But as this is a striking-out appeal, we must assume them to be true for present purposes.
This action was started by Mr Sion on 28th August 1991 in the Westminster County Court, and has since been transferred to the High Court. Originally he claimed damages under the Fatal Accidents Act 1976, and also under the Law Reform (Miscellaneous Provisions) Act 1934. Those claims are no longer in issue. There remains the case that Mr Sion puts forward in respect of his own personal injury, loss and damage as the result of the negligence of the hospital staff in caring for his son. In a word, it is said that he has suffered from psychiatric illness ever since. If there is liability, the damages are likely to be substantial, for Mr Sion has given up work and may not be able to work again.
The hospital applied for Mr Sion's claim to be struck out as disclosing no cause of action. That application by-passed the Queen's Bench Master and came before Brooke J. On 18th December 1992 it was decided in favour of the hospital; and Mr Sion now appeals, by leave of the judge.
There are two subsidiary points of law which I will consider before embarking on the main issue. The first concerns the circumstances in which it is appropriate to strike out a case as disclosing no reasonable cause of action. At one time it seemed that we would listen once again to the authorities noted with admirable impartiality in the Supreme Court Practice —both those which say that striking out is only appropriate in plain and obvious cases and those which say something different. But fortunately counsel were able to agree the test which is appropriate for this case. It is to be found in the speech of Lord Bridge of Harwich in Lonrho PLC v. Fayed (1992) 1 AC 448 at p.470. The health authority must show that Mr Sion's claim is obviously doomed to fail.
The second subsidiary point of law arises in this way. At the hearing before Brooke J., Mr Sion's advisers sought to amend their statement of claim. That was resisted on the ground that the amendment would introduce a new cause of action after the relevant period of limitation had expired. In reply, Order 20 rule 5(5) provides that such an amendment may be allowed
"if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
To that there is the rejoinder, that the amendment is only necessary if the original statement of claim disclosed no cause of action; and in that event the condition imposed by rule 5(5) is not fulfilled.
One has to admire the ingenuity of the argument; but it cannot be right. If a statement of claim fails to disclose a cause of action, but by some amendment can be made to do so on the same facts or substantially the same facts as those already pleaded, I cannot believe that the Rule Committee intended that, if the limitation period had expired, there should be no discretion to allow the amendment. It may be that in some cases it should not be allowed; perhaps a plaintiff whose original claim was manifest nonsense should not be allowed to cure it after the limitation period had expired, even if he can do so on substantially the same facts. For example, a plaintiff who pleads that the defendant ran him down in his car, and claims damages for libel, might not be allowed to amend "libel" to "personal injury" after the expiry of the limitation period. But that would be an exercise of discretion, and is not remotely like this case. In my judgment rule 5(5) should be ready as referring to
the same facts or substantially the same facts as an alleged cause of action in respect of which relief has already been claimed …
It was argued that there was an alternative route to the same conclusion. Order 18 r.19 provides that the court may order a pleading to be struck out or amended if it discloses no reasonable cause of action. It is said that this power is not subject to the fetter imposed by Order 20 r.5(5) when the limitation period has expired.
There is no need to express a concluded view; but the argument seems to me distinctly implausible. It would be odd if the power to allow amendment in O. 18 r.19 were wider than O. 20 r.5(5); and positively bizarre that a plaintiff should be in a better position as regards amendment merely because the defendant had been so rash as to apply to strike out the Statement of Claim. Furthermore the rule-making power, in section 35(4) of the Limitation Act 1980, states that Rules of Court may provide for a time-expired claim to be introduced by amendment only in the circumstances set out in subsection (5). Those circumstances are reflected in 0. 20 r. 5(5).
The Statement of Claim
In the light of my conclusion on the amendment issue, this appeal is to be judged as if the amendment had been allowed; as so amended, the Statement of Claim contains what Mr Sion puts forward as his better case. If it can stand, then both the appeal and the amendment must be allowed. If on the other hand it is still obviously doomed to fail, then there is no point in allowing the amendment; the appeal must be dismissed.
The circumstances of the son's treatment at the hospital are pleaded at some length. Salient points on which Mr Brennan, for Mr Sion, particularly relies are as follows:
(1)On 4th September, two days after he went into hospital, there was a serious deterioration in the son's respiratory condition.
(2)On the next day, there was respiratory arrest and cardiac arrest.
(3)The son thereupon went into a coma and was transferred to the intensive care unit.
(4)On 16th September the son died.
Mr Brennan's submission was, that those four events were potentially traumatic events likely to cause shock.
Next it is pleaded that the hospital owed Mr Sion a duty of care. There are then extensive particulars of negligence in the treatment of the son, which I need not set out. Finally one comes to -
PARTICULARS OF PAIN, SUFFERING AND LOSS OF AMENITY
In the premises he suffered a very severe, prolonged and persistent grief reaction, characterised by profound depression, disturbed sleep, impaired appetite and loss of weight. He also has constant intrusive memories of all aspects of the deceased's life, in particular the circumstances of his death and his own experiences at the bedside of the deceased in the last two weeks of his life. In addition he had experienced marked feelings of guilt in relation to the deceased's death. A major factor in this guilt reaction appears to be his rationalisation that his son might have survived if the medical management had been different, and that therefore there was a remote and ill -defined possibility that he himself might in some way have influenced treatment policy. The Plaintiff's prolonged physical proximity to the deceased throughout the time he was in hospital with the resultant observation of his deteriorating condition was probably a contributing factor to an abnormal bereavement reaction. It is likely to be a very long time (certainly a matter of years) before the Plaintiff shows any substantial improvement or any sign of a convincing return to his previous personality. The Plaintiff's psychiatric symptoms are a direct result of the deceased's death and the events leading to it which would not have occurred had the deceased been properly treated. In the premises the Plaintiff's case is that he was exposed directly to events caused by medical negligence which produced nervous shock leading to his present psychiatric illness.
Order 18 rule 12(1A) provides that the plaintiff in an action for personal injuries shall serve a medical report with his statement of claim, and by paragraph (1B) that is to be a report
substantiating all the personal injuries which the plaintiff proposes to adduce in evidence as part of his case at the trial.
There has been some argument as to whether, for the purpose of an application to strike out the statement of claim, it is to be assumed that the plaintiff's whole case is that set out in the report. Or is the report of no relevance for that purpose? I would not myself adopt either of those...
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