Timothy Symes v St George's Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Simon Picken |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] EWHC 2505 (QB) |
| Docket Number | Appeal No: QB/2014/0222 |
| Court | Queen's Bench Division |
| Date | 23 July 2014 |
[2014] EWHC 2505 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Picken QC
(sitting as a Deputy Judge of the High Court)
Appeal No: QB/2014/0222
(Claim No: HQ13X00161)
Paul Stagg (instructed by Bevan Brittan LLP) for the Defendant/Appellant.
Peter Skelton (instructed by Cogent Law) for the Clamant/Respondent.
Hearing date: 11 July 2014
APPROVED JUDGMENT
Mr Simon Picken QC:
Introduction
These are clinical negligence proceedings in which the Claimant, Timothy Symes, alleges negligence on the part of the Defendant, St George's Healthcare NHS Trust, arising out of his treatment by the Defendant. Specifically, on 29 January 2009, the Claimant was seen by an ENT consultant working for the Defendant, a Mr Williamson, having originally, in October 2008, been the subject of a referral by his GP because of a lump on his face. That lump has, most sadly, turned out to be a malignant tumour, and the Claimant complains of two things: first, a failure to advise him that his lump was "suspicious of malignancy"; and secondly, a failure to arrange for an urgent superficial parotidectomy to be carried out within two weeks. The Claimant says that these failures have resulted in metastasis of the tumour to the lungs and invasion of the facial nerve, as diagnosed in May 2009. The Claimant has developed inoperable lung cancer, and has only a short time to live.
The hearing before me was the Defendant's appeal against the decision of Master Roberts, on 21 March 2014, ordering that:
1. Judgment having been entered in default against the Defendant on 2 nd July 2013, the matters pleaded in §22-§26 of the Particulars of Claim served on 10 th May 2013 shall stand as conclusive on the issues of breach of duty and causation there pleaded.
2. Those paragraphs of the Defendant's Counter-Schedule that are inconsistent with §§24–26 of the Particulars of Claim shall be struck out in accordance with the Draft annexed to this order.
3. The Defendant have leave to serve an Amended Counter-Schedule that is consistent with §§24–26 of the Particulars of Claim by 4pm on 21 st April 2014.
Permission to appeal was initially refused on paper by Swift J. However, permission was subsequently granted by Lewis J after an oral hearing on 19 June 2014.
The facts
I need to set out the background to the making of Master Roberts's order before I come on to address the parties' submissions.
On 10 October 2011, before proceedings were issued, Bevan Brittan LLP ('Bevan Brittan'), the Defendant's solicitors, wrote a letter to the Claimant's solicitors, Cogent Law ('Cogent'). That letter, which plainly followed previous correspondence, was headed "LIMITED ADMISSION" and stated, inter alia, as follows:
"…
We appreciate that your own investigations are still in their early stages but we have conducted our own investigations and obtained expert evidence and are now in a position to make the following limited admission. We do so out of a desire to resolve this case fairly and promptly for your client and to minimise costs to the NHS.
Admission
We are now in a position to admit that the report of the FNA sample dated 19 January 2009 was incorrect in reporting a pleomorphic adenoma. This sample indicated an adenoid cystic carcinoma and ought to have been reported as such.
Further, it is admitted that there was a delay in an urgent superficial parotidectomy which was recommended on 29 January 2009. It was recommended that this operation should have been carried out within two weeks. In fact, Mr Symes had his parotidectomy on 19 May 2009.
No further admissions are made at this stage and, in particular, it is denied that the delay in treatment of approximately 90 days has had any impact on:
1. The nature or extent of the surgery which Mr Symes underwent. Even if the diagnosis had been timeously made and surgery carried out sooner, Mr Symes would always have had to undergo a total parotidectomy, sacrifice of the upper branch of the facial nerve and resection of skin.
2. The postoperative treatment that he underwent. Post-operative radiotherapy could not have been avoided.
3. The subsequent development of pulmonary metastasis.
4. Mr Symes' life expectancy.
The above position is supported by independent expert evidence."
As to that last reference, it is the evidence of Daniel Morris, an associate solicitor at Bevan Brittan with conduct of the case on the Defendant's behalf, that the same day he sent Cogent, as I understand it on a without prejudice basis, a preliminary report from Professor Symonds, who is Professor of Clinical Oncology at the University of Leicester.
Proceedings were subsequently, on 14 January 2013, issued by the Claimant, only for the Claim Form then to be struck out because of a failure to serve it. Proceedings were then apparently re-issued, with service of the Claim Form and the Particulars of Claim taking place on 10 May 2013.
The Particulars of Claim set out the background to the claim in considerable detail, and at paragraph 23 (after a section dealing with "Breach of duty") the Claimant made it clear (in a section headed "The Defendant's admissions") that he relied on the two admissions contained in Bevan Brittan's 10 October 2011 letter.
The Particulars of Claim then went on to deal with what was described as "Causation" as follows:
"24. If the Claimant had been told on 29 th January 2009, that the lump on his neck appeared to be malignant, then he would have wanted to ensure that it was removed urgently and would have made contact with the Hospital in the event that his surgery was delayed.
25. It is the Claimant's case that, on the balance of probabilities, in January/February 2009, the Claimant's tumour:
a. Had not metastasised to his lungs; and
b. Had not invaded his facial nerve – which was found to be normal on 14 th January and 8 th March 2009.
26. Consequently, if the Claimant had undergone surgery by mid-February 2009, then on the balance of probabilities:
a. He would not have suffered the pain and discomfort associated with his developing tumour between then and his eventual operation 19 th May 2009;
b. He would only have required a superficial parotidectomy, without sacrifice of the left facial nerve; and
c. He would not have developed metastatic cancer."
This was followed by a section headed "Loss and damage", as follows:
"27. As a result of the Defendant's negligence, the Claimant has suffered personal injury, loss and damage.
PARTICULARS OF PERSONAL INJURY
The Claimant was born on 25 th December 1967. He was aged 41 at the time of the Defendant's negligence and is now aged 44.
The Claimant continues to suffer from paralysis of the left part of his face. This results in a conspicuous cosmetic disfigurement, about which the Claimant is uncomfortable, self-conscious and distressed.
At the present time, the Claimant's pulmonary metastasis is asymptomatic and he remains generally well. However, the Claimant continues to be angry and upset about the delay in his diagnosis and its effect on his life expectancy and his ability to live a normal life with his partner, including having children whom he could see grow up.
Further particulars of the Claimant's injuries, his condition and prognosis are set out in the report of Mr Stuart Quine, Consultant ENT and Head and Neck Surgeon, dated 3.10.2012.
PARTICULARS OF SPECIAL DAMAGE
Please see the attached Schedule."
The "attached Schedule" set out some modest "Past Losses" (totalling under £9,000), whilst stating "to be assessed" next to "General Damages" and "tbc" next to all references to "Future Losses", including as regards "Care and assistance" and "Lost Years". I understand that this reflects the usual approach to such schedules.
The Claim Form and Particulars of Claim having been served on the Defendant (strictly speaking, Bevan Brittan on behalf of the Defendant), there was then a conversation between Mr Morris and the Claimant's solicitor, Michelle Rabone at Cogent. This took place on 5 June 2013 and is recorded in an attendance note which Mr Morris prepared. That attendance note, omitting parts apparently relating to without prejudice discussions, refers to two telephone conversations: the first when Mrs Rabone called Mr Morris to ask "what the position was with regard to the freshly served particulars of claim and claim form", and the second when Mr Morris called Mrs Rabone. As to the latter, the attendance notes states (the emphasis is in the original):
"… DXM [Mr Morris] said on checking the file he did now in fact have the necessary authority and she would shortly be receiving a letter admitting liability. DXM said he wanted to make clear and he hoped this would be clear from the letter but for the avoidance of any doubt, we were going to repeat the admission that had previously been made and which was recited in the particulars of claim. We would admit that the admitted breach of duty had caused some damage and on that basis we would admit liability and consent to judgment for the Claimant with damages to be assessed. However, DXM said that whilst liability was admitted we were putting the Claimant to strict proof on nature and extent of damage and we did not accept that he would have avoided the development of he metastatic lung disease and we also did not accept that he would have avoided the degree of facial nerve injury which he suffered.
…".
The same day, 5 June 2013, Mr Morris says that he sent Cogent a letter in similar terms. The letter was headed "ADMISSION" and was in the following terms:
"We are now in a position to respond to the Particulars of Claim dated 25 April 2013. We repeat the admission...
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