St George v Home Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Lloyd,Lord Justice Ward |
| Judgment Date | 08 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1068 |
| Docket Number | Case No: B3/2007/2778 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 2008 |
[2008] EWCA Civ 1068
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Mackay
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Dyson and
Lord Justice Lloyd
Case No: B3/2007/2778
Michael Kent QC & Andrew O'Connor (instructed by Treasury Solicitors) for the Appellant
David Pittaway QC & Jane Tracy Forster (instructed by Messrs Hodge, Jones & Allen) for the Respondent
Hearing dates: Tuesday 29 July and Wednesday 30 July 2008
Introduction
The claimant, then aged 29, entered Brixton prison on 29 October 1997 to serve a 4 month sentence for theft. He had been an abuser of alcohol and drugs since the age of 16. He was seen on reception at the prison and said that he was an intravenous heroin user, that he drank heavily and had previously had withdrawal seizures. He declined an opportunity to see a doctor and was allocated to what was described as an “ordinary location”. A health screen interview confirmed that he had epileptic fits that were under investigation, that the drugs he was currently using were intravenous heroin (which he had last used that day) and valium and that he drank five or six pints of alcohol a day. He was assigned to ward 3 of the hospital wing of the prison which at that time was being used as an ordinary unit for the accommodation of category D prisoners. This took the form of an open dormitory with some single beds and some bunk beds. The prison officers remained in control of who slept in which bed and inmates were not allowed to switch beds or bunks at will.
The claimant slept on a top bunk. At about 18.00 hours on 3 November 1997, he suffered a seizure which, it was common ground, resulted from his withdrawal from alcohol and drugs. The seizure caused him to fall from his top bunk a distance of 7 or 8 feet to the floor. He suffered a head wound. His fitting continued without remission so as to justify the agreed diagnosis of status epilepticus (“status”). This is a condition of recurrent seizures without recovery of consciousness between them. He was attended by Home Office nurses at about 18.10 hours and an ambulance crew at 18.57 hours. He was taken by ambulance to King's College Hospital where he arrived at 19.25 hours. The fitting was brought under control at 19.45 hours, but CT and MRI scanning over the following days revealed progressive severe damage to the brain which was agreed to be global hypoxic ischaemic damage and which left the claimant very severely and permanently disabled.
A preliminary issue was ordered to be tried as to whether the Home Office “was liable to the claimant by reason of the matters alleged in the Particulars of Claim and, if so, whether or not any of the injuries pleaded were caused thereby; if any such injuries were so caused, the extent of the same”.
Summary of the judge's conclusions
In summary, the judge found as follows. The Home Office were in breach of duty in (i) allocating the claimant to a top bunk when, to the knowledge of prison staff, he had a history of substance abuse and withdrawal seizure while in prison; (ii) not protecting his airway from obstruction between the time of his fall and the arrival of the ambulance crew and not administering oxygen to him during that time; and (iii) being responsible for various failures which combined to delay the claimant's arrival at hospital until 19.25 hours. The judge found, however, that this delay did not contribute to his brain damage.
There were two principal causation issues. The first was whether, as was contended on behalf of the claimant, the head injury resulting from the fall caused the withdrawal seizure to develop into status, i.e. (to use Dr Reynolds' word) “triggered” the status, or, as was contended on behalf of the Home Office, the status was a consequence of the withdrawal seizure alone. The judge found in favour of the claimant on this issue (which has been referred to as “the trigger theory issue”). The second causation issue was whether, as the claimant contended but the Home Office disputed, the hypoxic ischaemia was caused by airway obstruction and/or the failure to administer oxygen before the arrival of the ambulance. The judge found in favour of the claimant on this issue too, holding that, but for these breaches of duty, the claimant would have made “what would amount to a full recovery, subject at worst to minimal or perhaps transient deficits”: see [48] of the judgment.
The judge also found that there had been contributory negligence on the part of the claimant, the fault lying in his addiction to benzodiazepine and alcohol which was the result of his own lifestyle decisions. He held that the damages, when assessed, should be reduced by 15% to reflect the claimant's fault.
The issues on appeal
The Home Office appeals on the grounds that the judge erred in (i) finding in favour of the claimant on the trigger theory; (ii) finding that the prison staff were in breach of duty in not protecting the claimant's airway or administering oxygen between the time of the fall and the arrival of the ambulance crew; and (iii) finding that the failure to protect the claimant's airway and administer oxygen caused the hypoxic ischaemia. There is no challenge to the judge's finding that the allocation of the claimant to a top bunk was a breach of duty. Further, Mr Michael Kent QC accepts that, unless the judge's decision on the trigger theory issue is set aside, the appeal must be dismissed. This is because on that theory, but for the head injury caused by the fall, the withdrawal seizure would have been self-limiting, would not have progressed to status and could not, therefore, have caused the dreadful brain damage from which the claimant now suffers.
The claimant supports the judge's reasoning on the issues raised by the claimant and cross-appeals on the ground that the judge should not have found any contributory negligence on the part of the claimant at all. The contributory negligence issue is one on which, it seems, there is no direct previous authority.
For the reasons that follow, I would uphold the judge's decision on the trigger theory issue. It is, therefore, unnecessary to consider whether the judge was right to find the prison staff failed to protect the claimant's airway and administer oxygen and right to find that these breaches caused the hypoxic ischaemia. For the same reason, it is not necessary to examine what the prison staff did and did not do during the period between 18.10 hours when the nurses arrived and 19.11 hours when the ambulance left the prison. I can come straight to the trigger theory.
The trigger theory
It was common ground that the “predominant cause” of the diffuse, generalised and bilateral cerebral and cerebellar atrophy (the brain damage) was systemic hypoxic ischaemia. As Mr Kent points out, given the absence of evidence of any traumatic brain injury resulting from the claimant's fall and the fact that it was common ground that he was suffering a withdrawal seizure before he fell, the claimant had the burden of proving that any of the disability flowing from the hypoxic ischaemic brain damage was caused by the breaches of duty alleged.
The trigger theory was advanced by Dr Reynolds, the neurologist called on behalf of the claimant and rejected by Professor Chadwick, the neurologist called on behalf of the Home Office. Both were described by the judge as “immensely distinguished experts” who had a particular interest and experience in the neurology of epilepsy. The judge found Dr Reynolds to be a “quietly confident witness”.
Dr Reynolds said that he thought that the claimant was experiencing an “ordinary” withdrawal seizure as he fell from the bunk to the ground and that the head injury that he sustained when he hit the ground caused him to go into status. He said that status can be triggered by head injury, even one which (as in the present case) is relatively minor and leaves no radiological sign or trace. In support of his opinion, Dr Reynolds said that he relied on (i) his own clinical experience; (ii) the fact that the claimant had suffered three withdrawal seizures in the past, but none had progressed to status; (iii) the fact that withdrawal seizures were common in prisons, and yet none of the witnesses had encountered status before; and (iv) references in the medical literature.
The judge found these reasons “compelling” and accepted the evidence of Dr Reynolds. Mr Kent submits that the reasons were far from compelling and that the judge should have preferred the evidence of Professor Chadwick.
As regards Dr Reynolds' clinical experience, Mr Kent submits that Dr Reynolds was unable to give any example of a case where a patient, who had started fitting, had progressed to status following a mild head injury suffered in the course of the initial seizure. In fact, what Dr Reynolds had to say on the subject only emerged in re-examination. The following exchange took place:
“MR JUSTICE MACKAY: Any re-examination?
MR PITTAWAY: Can I just ask about one matter? Your own clinical experience, which you said that you have, concussions causing seizures and status epilepticus, how commonly have you observed first concussions and minor head injury causing seizures, immediate seizures?
DR REYNOLDS: Oh, quite rarely, quite rarely. Maybe half a dozen times in my career.
MR PITTAWAY: and those have been seizures that have followed...
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