"A" v Michael Bernard Bottrill

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Millett,Lord Hutton
Judgment Date06 September 2002
Neutral Citation[2002] UKPC 44
Docket NumberAppeal No. 10 of 2002
Date06 September 2002

[2002] UKPC 44

Privy Council

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Hutton

Lord Millett

Lord Rodger of Earlsferry

Appeal No. 10 of 2002
"A"
Appellant
and
Michael Bernard Bottrill
Respondent

[Majority judgment delivered by Lord Nicholls of Birkenhead]

1

On 9th July 2002 their Lordships announced that they would humbly advise Her Majesty that the appeal should be allowed. Their Lordships said they would give their reasons later. This they now do.

2

The question raised by this appeal is whether under the common law of New Zealand awards of exemplary damages in cases of negligence are, or should be, restricted to cases of intentional wrongdoing or conscious recklessness.

3

The pros and cons of exemplary damages have been much debated. The debate still continues. In the United Kingdom differing views were recently expressed on this issue: see the decision of the House of Lords in Kuddus v Chief Constable of Leicestershire Constabulary [2001] 2 WLR 1789. That is not the issue on the present appeal. Moderate awards of exemplary damages in appropriate cases are an established feature of the law of New Zealand. The Parliament of New Zealand has confirmed the existence of the court's jurisdiction to award exemplary damages, and to do so in cases of accidental personal injury: see section 396 of the Accident Insurance Act 1998. The court exercises this power with considerable restraint. Awards are reserved for "truly outrageous conduct" which cannot be adequately punished in any other way: see Dunlea v Attorney-General [2000] 3 NZLR 136.

4

The present appeal concerns, not the existence of this jurisdiction in New Zealand, but its outer limits. The issue raised is whether the court's power to award exemplary damages is bounded only by the need for the defendant's conduct to be so outrageous as to call for condemnation and punishment. Is this the demarcation of the court's jurisdiction in cases of negligence? Or is the jurisdiction more specifically, and more narrowly, confined?

The facts

5

These questions of law arise in a singularly unhappy case of medical negligence which has aroused much concern in New Zealand. It concerns the wholesale misreading of cervical smears in the Gisborne area.

6

Dr Bottrill is a pathologist. He retired six years ago. Before then he was in private practice in Gisborne. For many years he was effectively the only pathologist examining cervical smears taken from women in the Gisborne area.

7

The Pap smear is a method of screening for cervical cancer and its precursors. A sample, taken from the cervix, is processed in a laboratory and examined under a microscope. This examination usually enables the examiner to report that the cells are normal, or reveal low grade squamous intraepithelial lesion ("SIL"), or high grade SIL, or invasive cancer. Low grade SIL calls for monitoring. High grade SIL calls for intervention. It is completely curable, but failing intervention it will progress to invasive cancer. So prompt diagnosis is of fundamental importance.

8

Between November 1990 and December 1994 Dr Bottrill examined four smears taken from the plaintiff Mrs A. Mrs A was born in 1968 and trained as a nurse. In November 1990 Dr Bottrill reported low grade SIL and in December 1990 "no atypical cells seen". He gave a similarly clean bill of health on examination of the third smear, in May 1992. In December 1994 he reported high grade SIL, and recommended referral for assessment. Investigations followed, and Mrs A was diagnosed as suffering from invasive cervical cancer. She received extensive treatment, including a radical hysterectomy and extensive radiotherapy. The treatment was extremely unpleasant and had several consequences. The radiotherapy destroyed her ovaries. She could have no more children. The surgery left her with a weakness in her left leg. She suffered depression and was unable to work for some time.

9

Subsequent investigation revealed that all four slides examined by Dr Bottrill had been misread or misreported. The first three should have been reported as revealing high grade SIL and the fourth invasive carcinoma. High grade SIL, the immediate precursor of invasive cancer, was present as early as November 1990. Reading slides is not an exact science. Abnormality is a question of degree. But Dr Bottrill's reports on both the second and third slides were two reporting categories away from the correct readings. Had any of the initial three slides been correctly reported Mrs A's treatment would have been far less severe and her prognosis much better. She would not have needed a hysterectomy or radiation.

The proceedings

10

Mrs A made a successful claim for accident compensation. Disciplinary proceedings against Dr Bottrill resulted in a finding of conduct unbecoming a medical practitioner. Mrs A brought court proceedings against Dr Bottrill, claiming exemplary damages. After a four day trial Young J, in a careful and lucid judgment, dismissed the action. He applied the legal principle stated by Tipping J in the leading case of McLaren Transport Ltd v Somerville [1996] 3 NZLR 424, 434:

"Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard for the plaintiff's safety, meriting condemnation and punishment."

11

Young J had no doubt that Dr Bottrill was guilty of professional negligence. But the judge concluded "by a narrow margin" that the case did not fall within the very limited category of negligence cases warranting an award of exemplary damages.

12

Two developments then took place, both as a result of publicity accompanying the trial. Mrs A became aware of ten other women whose cervical slides were misreported by Dr Bottrill. In seven of the ten cases the women had at least two slides misread. In seven cases they had slides revealing high grade SIL read as normal. In four instances women had two high grade SIL smears read as normal.

13

The second development was that public concern at the state of affairs revealed by the evidence at the trial led to the Health Funding Authority carrying out an investigation into the reporting of cervical smear results in Gisborne. All slides read by Dr Bottrill were submitted to re-reading in Sydney. The report from the Sydney laboratory covered 857 slides. The report was alarming. It showed that Dr Bottrill's false reporting rate was 50 per cent or higher. He had been reporting as normal more than one slide in every two which, in fact, revealed high grade SIL.

14

In the light of this fresh evidence Mrs A applied for a re-trial. On 28 March 2000 Young J granted the application. At the trial he had concluded that Dr Bottrill was not as grossly incompetent as Mrs A asserted. He had reached this conclusion essentially on two bases. If Dr Bottrill had been as incompetent as suggested, he would have expected other significant errors to have come to light before the trial. The false readings in respect of one woman, Mrs A, were not necessarily indicative of gross incompetence. The new evidence very substantially undermined a significant step in his reasoning in dismissing the claims for exemplary damages.

15

Dr Bottrill appealed. The appeal was heard by a five judge court, comprising Richardson P, Gault, Thomas, Blanchard and Tipping JJ. By a majority of four to one, Thomas J dissenting, the court allowed the appeal and dismissed Mrs A's application for a retrial. The court defined the circumstances in which an award of exemplary damages may be made in cases of negligence more restrictively than in the citation from the judgment of Tipping J in McLaren Transport Ltd v Somerville [1996] 3 NZLR 424, 434, set out above. The court held that, applying this more restrictive approach, the new evidence from Sydney afforded no justification for revisiting the conclusions reached by the judge at the trial.

16

Mrs A sought leave to appeal to Her Majesty in Council. Leave to appeal was not of right in this case. When granting leave Richardson P noted it would not ordinarily be appropriate to grant leave to appeal against an interlocutory decision of the kind involved in the present case where the court applied well settled principles for deciding whether a new trial should be ordered and where an appeal against Young J's original decision was extant, thus raising the possibility of two successive appeals to London. Richardson P continued:

"However, counsel for Dr Bottrill consents to the granting of leave in this case of great importance, the parties submit that early consideration by the Privy Council of the underlying legal issue as to the test governing the availability of exemplary damages for medical negligence cases is desirable in the public interest and, importantly, Ms Fisher on behalf of Mrs A has elected to abandon the appeal against the original substantive decision. In these circumstances it is in the public interest that leave to appeal be granted."

The scope of exemplary damages in cases of negligence

17

The Court of Appeal, in a judgment given by Richardson P on behalf of himself and Gault and Blanchard JJ, defined the scope of exemplary damages in cases of negligence as follows [2001] 3 NZLR 622, 641 (in paragraph 62):

"… exemplary damages may be awarded for negligence only in those cases where the defendant is subjectively aware of the risk to which his or her conduct exposes the plaintiff and acts deliberately or recklessly taking that risk. That inquiry involves an objective assessment of whether the defendant's conduct amounted to deliberate or reckless risk taking and so whether in that latter situation he or she was subjectively reckless. That test of conscious risk taking will be satisfied where on an objective assessment...

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