Webb v Barclays Bank Plc and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henry |
| Judgment Date | 16 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1141 |
| Docket Number | Case No: B3/2000/2072/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2001 |
[2001] EWCA Civ 1141
Lord Justice Henry
Lord Justice Judge and
Lady Justice Hale
Case No: B3/2000/2072/QBENF
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 Rougier)
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Rees Esq, QC (instructed by Messrs Kennedy for the Appellant)
A Whitfield Esq, QC & Julian Matthews Esq (instructed by Messrs Vizards Staples & Bannister for the Respondent)
This is the judgment of the Court. Mrs Webb, the claimant in this action was born in 1949, and contracted polio in the second year of her life. She coped with courage and determination. She took an intelligent and informed interest in her condition and its treatment, and developed a close professional relationship with her consultant, Mr Jeffrey, who is and was at all material times employed by the second defendants, the Portsmouth Hospital NHS Trust, which we will call the Trust.
In 1994, while in the employ of Barclays Bank she stumbled and fell in their forecourt, tripping over a protruding stone. In this fall she hyper-extended her polio-affected left knee. What appeared to be a minor fall with her returning to work the next day triggered a disproportionate reaction. She was left with a grossly unstable knee.
She consulted Mr Jeffrey. A month after the accident he wrote that she was left with a wobbly joint with poor muscle control. It needed treatment with physiotherapy, bracing (which she was resistant to because of childhood experiences with callipers) eventually looking to arthrodesis, or fusion of the joint.
Mr Jeffrey decided to wait and see how matters developed. Her "knee" (created by a McEwan's osteotomy by Mr Jeffrey in 1984) was grossly unstable. Progress was poor. There was correspondence between the claimant and Mr Jeffrey between June and July. He expressed the view:
"that with the degree of instability you have got, I do not think that anything other than a long term calliper would be any help."
She reacted indignantly, saying she did not want to go back to a calliper.
At about the same time, she began to experience very severe pain in the knee. She tried a calliper. The trial was not a success. It looked ugly, the knee hinges broke, and it did nothing to alleviate her "terrible pain".
She saw Mr Jeffrey on 22nd November. His only note of the consultation was "return in trouble". Mr Jeffrey then suggested (for the first time) an above-knee amputation of the left leg. The claimant did not give evidence before the judge, but he thought it "highly probable" that she was aghast at the suggestion, but prepared to accept, because of her state of mind at the time, the view that there was really nothing else to be done.
Mr Jeffrey discussed the case with a colleague, Mr McLaren, who saw the claimant and her husband, and said he endorsed Mr Jeffrey's view, noting: "I agree that amputation is the best option". There is no evidence that that colleague (Mr McLaren) performed any independent examination. The claimant's husband (who also did not give evidence) states in his witness statement:
"It was not an easy decision to take, and after a lost of discussion, we felt that the best option was to follow the advice given to us by Mr Jeffrey and Mr McLaren and for Elizabeth to have her leg amputated."
This was done on 22nd February 1995.
On 16th May 1996 Mrs Webb commenced proceedings for damages for personal injury against her employer, the Bank, for their failure to properly maintain the forecourt where she had tripped and fallen.
In the original Particulars of Claim there is no question raised as to either the necessity for or the desirability of the amputation. But in her witness statements, Mrs Webb is very disappointed in her condition. She complains of phantom pains, pains in her lower back, great depression, loss of mobility and how it has affected every aspect of her life, forcing her to depend on others.
She did not realise that there was a question as to whether she should have had the amputation until her third witness statement of 31st August 1999, where she says:
"I had no reason to know there was any suggestion that I should not have had the operation until I read Professor Heatley's report of 30th March 1999."
In that report Professor Heatley expresses surprise that the Portsmouth surgeons opted for amputation, doubts whether the advantages and disadvantages of an above-knee amputation and the risks of becoming wheel-chair dependent can have been spelled out to her, and concludes:
"I feel rather sad, indeed despondent, that she had ended up with an amputation, as I personally would have certainly tried a different surgical option."
Mrs Webb concludes the statement by saying:
"The knowledge that the trial in November may now have to be put off, and that I may now have to sue Mr Jeffrey, in whom I have great trust and who has done a lot for me, and will have to undergo further medical examinations has caused me significant distress and continues to do so."
In July 1999 the Bank filed a draft Amended Defence. That document admitted liability for the claimant's fall, asserted that she had been negligently advised, and that had she been properly advised, she would have been unlikely to have consented to the operation, but would have elected to deal with the instability by alternate means, retaining mobility, and avoiding amputation. It is asserted that the claimant's amputation and subsequent problems were due to the intervening negligence of the Trust. Soon after this, the claimant amended her Particulars of Claim to join the Trust in the proceedings, the Bank served its Amended Defence, and on 28th March 2000 served on the Trust a Contribution Notice under Part 20.6 in respect of "any damages" it might have to pay to Mrs Webb.
On 6th April 2000, four days before the hearing date for trial, the Bank settled the claimant's action for £164,874.35. That sum was in full and final settlement of all the claims for the injuries and damage sustained by her as a result of the fall, that is to say to include both the injuries and damage resulting from the fall, and those resulting from the amputation. It was the clear intention of the Bank to settle the entirety of Mrs Webb's claims, against both themselves as her employers and the Trust, while preserving their claim for contribution against the Trust as concurrent tortfeasors. Unfortunately, the paperwork was done out of sequence with the result that Mrs Webb's claim against the Trust (which was to be assigned to the Bank) was extinguished by the acceptance of the settlement before that assignment took place. But the judge was to rule that the Civil Liability (Contribution) Act, 1978 saved them (this is a point to which we must return).
The trial of the contribution proceedings between the Bank and the Trust commenced on 10th April. By then of course Mrs Webb's entitlement to the agreed damages was secure. In the normal course, she might have been expected to give evidence. But in the event neither she nor her husband did so. No explanation was offered by the Bank, other than that their evidence was not necessary. The judge said that he had been handicapped in his ability to form a proper judgment in that neither Mrs Webb nor her husband had given evidence before him. For instance, he felt he could not resolve the issue of her reaction to Mr Jeffrey first raising the question of amputation. But he concluded that it was "highly probable" that she was considerably aghast at the thought of losing part of her leg, but that in her state of mind at the time, she came to accept the view of Mr Jeffrey that there was really nothing else to be done. The judge had the benefit of six witness statements taken from the claimant, but indicated (without further detail) that many questions remained unanswered, and these statements were not entirely consistent in relation to her feelings about callipers and braces (as he clarified in his judgment). He recognised that she was a woman of considerable courage and determination (as her many activities made plain) who was intelligent and well-informed as to her medical condition and its treatment. We have no idea why the Webbs did not give evidence. In our judgment, there is nothing to suggest that she would prove to have been an untruthful witness. What she said in her witness statement about not wanting to sue Mr Jeffrey appears to be a cri de cœur. One can understand her tiring of doctors and medical examinations. We accept what she there said as what she felt. We see in it nothing to suggest any hostility to Mr Jeffrey or to her employers. At the end of the day, all we can say is that we do not have the benefit of her oral testimony.
A further difficulty arises in the judge's approach. At the conclusion of the evidence he indicated to counsel that he believed this was a case where the claimant was entitled to put her case as the loss of a chance. Both counsel sought to dissuade him from this course, but unsuccessfully. The judge therefore set himself the question:
"had she been given proper advice or exhortation, based on the result of investigations which should have been conducted, what would her reaction have been?" (ie would she have given consent to the operation?)
The judge then went on to quote by way of contrast the normal causation test:
"had it been possible to say, with any certainty, what advice, based on the result of his various...
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