ZZZ v Yeovil District Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 26 June 2019 |
| Neutral Citation | [2019] EWHC 1642 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: D90BS793 |
| Date | 26 June 2019 |
[2019] EWHC 1642 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Bristol District Registry
Winchester Combined Court
The Law Courts,
Winchester SO23 9EL
Mr Justice Garnham
Case No: D90BS793
Bradley Martin QC (instructed by Langleys Solicitors LLP) for the Claimant
James Counsell QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing Dates: 20th, 21st, 22nd, 23rd May 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
On 25 October 2011, a collision between two motor vehicles occurred at the junction of Vagg Hill and Tintinhull Road, Yeovil in Somerset. A young woman, known in these proceedings as XXX, was a rear seat passenger in one vehicle. She was using the lap seat belt fitted in the car. The other vehicle was driven by a person known in these proceedings as ZZZ. XXX sustained serious spinal injuries in the collision and was taken to Yeovil District Hospital (hereafter “the Hospital”) by ambulance. She was assessed before being transferred for treatment to Musgrove Park Hospital (“Musgrove Park”).
In November 2012, XXX began proceedings against ZZZ for damages. On 18 March 2015, at the Bristol District Registry, the court approved settlement of that claim. Pursuant to that settlement, XXX was paid a lump sum of £3 million together with substantial annual periodical payments for future care and case management.
ZZZ, acting through her insurers, then commenced contribution proceedings against Yeovil District Hospital, an NHS trust. ZZZ alleged that when XXX presented to the emergency department of Yeovil District Hospital her injuries were indicative of a lap belt injury; that, nonetheless, no spinal precautions were taken in the emergency department; that on arrival she had voluntary movement of her legs but, within 2 hours, she had lost the ability to move or feel her legs; and that the likeliest explanation for that development was the failure by the Hospital properly to protect the spine.
This claim for contribution came on for hearing before me on 20 May 2019 at Winchester Combined Court. ZZZ, the Claimant in these proceedings, was represented by Bradley Martin QC and the NHS Trust by James Counsell QC. I am grateful to both counsel for their clear and economical advocacy and submissions.
THE EVIDENCE
I summarise below the factual, documentary and expert evidence I heard.
The Lay Evidence
Five lay witnesses were called to give oral evidence. Each confirmed their witness statements and was cross-examined upon them.
Julie Napier is a cardiology nurse at the Hospital who, by chance, was a witness to the accident. She explained in her statement how, on 25 October 2011, shortly after 9am she was driving to work on the Tintinhull Road heading towards Yeovil. As she approached the junction, she saw a red car pull out from a turning to her left and across the oncoming traffic. She told me, in evidence, that it appeared that the red car was seeking to go straight across the junction. In fact, the red car drove into the path of an oncoming grey vehicle on the opposite side of the road to Ms Napier. The two vehicles collided with considerable force and the red car was left on its side.
Ms Napier went to assist. She saw that the young woman driving the red car, ZZZ, was trapped in her vehicle as it rolled over. She saw the driver of the grey car, a Mr Cavalier, getting out of his vehicle. She saw there were three young people sitting in the backseat of that vehicle, all very distressed. Two of those young people managed to get out of the car, but one woman was trapped. That was XXX. Ms Napier went to assist her. She was screaming hysterically and complaining about pain in her stomach. Ms Napier went into the vehicle to try to help. She was aware that there was smoke and a smell of burning in the vehicle and she feared that it might catch fire. She attempted to calm XXX, telling her ambulances were on their way. XXX told her that, in addition to the pain in her stomach, her back was sore.
As a nurse, Ms Napier recognised that there was a risk of further damage to XXX's spine in helping her to escape from the car, but she also appreciated the risk of fire. She decided to undo the seatbelt but keep XXX as still as possible while they awaited the ambulance. After a few minutes the ambulance and fire brigade arrived. XXX was extracted from the vehicle by means of a longboard and taken to the ambulance.
When XXX arrived at the Hospital she was triaged by a nursing sister who allocated her to Staff Nurse Lynsey Guy, the second witness to give evidence before me. XXX was handed over to her by ambulance staff at about 10.15. XXX was accompanied by her mother and a younger brother. When Ms Guy received her, XXX was lying flat on a trolley. Ambulance staff told her that XXX had been involved in a road accident “which had a combined speed of approximately 60mph”. They told her that XXX had been a rear seat passenger with a lap belt and she had suffered abdominal injuries. She was also told that XXX had learning disabilities, although she was able to communicate with Ms Guy. Ambulance staff did not suggest to her they had any concerns about XXX's neck or back. Ms Guy was confident that had they had such concerns they would have told her.
Ms Guy completed the nursing section of the hospital admission form. She noted, as follows:
“Ambulance admission. Road traffic collision – combined speed? Patient rear seat passenger. Lap belt in situ. Complaining of pain in abdomen. 10mgs oral morphine given in ambulance to good effect. Learning disabilities”
She made a similar note in the nursing notes, although in those she added the words “combined speed approximately 60mph”. Ms Guy also completed a set of entries on the observation chart for XXX. In those, she recorded normal power for XXX's left and right leg.
Like the other hospital witnesses from whom I have heard, Ms Guy was interviewed by hospital staff conducting a “serious incident review”. The record of that interview notes that XXX was handed over to her by the ambulance crew and that Ms Guy took a more detailed handover from the crew. It was recorded that the crew told her that XXX had been involved in a road traffic accident “the speed of which was unclear”. They were concerned that she had an abdominal injury as a result of her seatbelt. Ms Guy said that XXX was not on a spinal board when she was admitted and was not wearing a cervical collar. She was already on a trolley, but Ms Guy was not able to say how she had been moved there. She told the inquiry she was confident that the ambulance crew were “not concerned about her back or neck at all”
Ms Guy told XXX that she needed to take off her trousers because an x-ray might be required. XXX assisted in that process “by lifting her bottom off the trolley”. Ms Guy then carried out an initial full set of observations and tested the power in her limbs. She told me that XXX was able to push against Ms Guy's hand with her feet. It was on that basis that Ms Guy was confident that XXX had full power in her legs.
Ms Guy told the investigators that the clinical presentation and the history she had obtained were consistent with the description of XXX's condition given by the ambulance crew. XXX gave no indication of having a back injury.
Ms Guy told me she was not aware that there had been a telephone call from Ambulance Control to the Hospital before XXX's arrival. Ms Guy was aware that the ambulance crew, or the consultant in charge, or the nurse in charge of the emergency department could make what is called “a trauma call”. No such trauma call was made in this case. She could not say where the information that the Claimant had been involved in a 60mph collision came from. She said when XXX lifted her buttocks to assist in the removal of her trousers she did so by “the minimal amount” necessary to enable the trousers to be removed, a distance she estimated at “an inch or so”.
Ms Guy said that at no time did she see XXX sitting up on the trolley; she was always lying flat. Ms Guy could not remember if she had a pillow beneath her head but said that those are not often used in the emergency department. Given that XXX had abdominal pain it did not surprise her that no pillow was used on this occasion. The sides of the trolley would be lifted, by perhaps a foot, so as to ensure the patient could not roll off the trolley.
Sally Bojas, the third lay witness, was a health care assistant working at the Hospital on 25 October 2011. She told me that as she was walking past the cubicle in the emergency department she heard a patient cry out. She looked into the cubicle and saw XXX lying on a trolley “having a sort of fit”. Her mother was with her and calmed her down and said she often behaved in that manner. Ms Bojas amended the admission form to add reference to a pre-medical history of epilepsy and to a drug (Keppra) which XXX is prescribed. In the nursing notes, she wrote against the time 10.50am, “Patient had small epileptic fit but Mum kept her calm and she fully recovered”.
In line with the hospital's policy, Ms Bojas then conducted neurological observations on XXX. In particular, she checked her lower limbs. To her surprise, she was told by XXX that she could not move her legs, or she gave no response to touch. Although XXX's mother suggested she was behaving in this way to gain attention, it was Ms Bojas's impression that the symptoms described were genuine. She was concerned and reported the matter to a Dr Irbash who attended on XXX.
Ms Bojas' entry in the observations...
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