In each issue, we try and cover cases in brief which we were unable to cover in full. Below are the cases covered in brief in Issue 4, March 2020.

Attorney General of St Helena v AB and others (St Helena) [2020] UKPC 1 – Privy Council decision considering whether the Judicial College Guidelines published in England and Wales could be used to quantify PSLA in St Helena. Issue was whether an adjustment should be made to the PSLA amounts to reflect the fact that average earnings were lower in St Helena than England and Wales. Decision – not to make any adjustment. 

ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB) whether the Defendants’ had a duty to tell the Claimant of her father’s diagnosis of Huntingdon’s Disease. The court found that duty contended for by the Claimant did exist, namely “a duty to balance the Claimant’s interest in being informed of her risk of a genetic disorder against her father’s interest in having the confidentiality of that diagnosis preserved” but it was not breached in this case, and in any event she was not successful on causation. 

Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158 (QB) – concerned a failure to diagnosis the Claimant’s actinomycosis infection. At the heart of the Claimant’s case were a number of CT scans. Judge commented that, what the scans in fact show is a matter of fact for the judge to determine with the assistance of the experts and witnesses, on the balance of probabilities. Whether the radiologists’ assessments of the scans, at the time, was negligent is a separate matter, to which the Bolam/Bolitho tests applied. 

Thimmaya v Lancashire NHS Foundation Trust [2020] 1 WLUK 437 – the Defendant NHS Trust applied for a wasted costs order against the Claimant’s consultant spinal surgeon, on the basis that he had comprehensively failed in his duties to the court. For example, he had been unable, at trial, to articulate the test for breach of duty. The Claimant had to discontinue, and the Defendant sought, against the expert, the costs of defending the claim. The Defendant was successful in this unusual case involving 1COR’s own Giles Colin. 

Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 379 (QB) – quantum only proceedings, C had allegedly suffered a brain injury. Raises the novel point of the use of intermediaries in civil proceedings. C argued that he suffered from anxiety and depression and an intermediary would assist him with proceedings. The application was considered and granted by the judge, but she noted that she did not consider the intermediary to be helpful [49]. 

Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB) – Defendant’s appeal against a decision of a Recorder to find in the Claimant’s favour. The appeal was unsuccessful. In particular, Turner J noted that the Recorder’s judgment failed to refer to the Bolam/Bolitho tests but this was not a ground of appeal in so far as he had, in fact, applied the right test. 

King v South Tees NHS Hospital Foundation Trust [2020] EWHC 416 (QB) – The only issue was causation. Specifically, had the deceased been diagnosed when, admittedly he should have been, he would have survived. Extensive consideration of the literature on cancer survival, particularly statistical evidence. Conclusion that: “a person with a 3cm primary tumour has a 68-75% probability of being N0.” 

Ramdhean v Agedo 2020 WL 00620352 – the Claimant claimed damages for personal injury arising out of allegedly negligently dental treatment provided by the First Defendant dentist. His whereabouts were unknown. The dental care provided by the First Defendant was in fulfilment of obligations of the Second Defendant, The Forum Dental Practice Limited, under an Intermediate Minor Oral Surgery contract with Doncaster Primary Care Trust. A key issue was whether the Second Defendant owed any liability to the Claimant. HHJ Belcher found that the Second Defendant owed a non-delegable duty to the Claimant and/or was vicariously liable for the First Defendant’s acts. 

FZO v Haringey LBC [2020] EWCA Civ 180 a case arising out of sexual abuse perpetrated by a teacher against a student. Raised a number of issues, particularly around limitation and vicarious liability, and whether the school could be vicariously liable for assaults committed by the teacher against the student after the student had left the school. The conclusion of the court was that the school was vicariously liable in that situation. 1COR’s own Robert Seabrook QC and Justin Levinson were instructed by the Claimant. 

R (on the application of Lee) v HM Assistant Coroner for the City of Sunderland [2019] EWHC 3227 (Admin) – inquests – Concerned the Article 2 operational duty and the application of Rabone to the facts of the death of the Claimant’s daughter. 

Arowojolu v General Medical Council [2019] EWHC 3155 (Admin) – appeal by a doctor against an erasure decision by the MPT – followed accusations of sexual misconduct – appeal allowed on the basis that the tribunal chair’s advice as to evidence of previous allegations made by the victim against her grandfather had resulted unfairness in a way which invalidated its findings of fact. 

M (Declaration of Death of Child) [2020] EWCA Civ 164 – The Court of Appeal reaffirmed that brainstem death was the applicable test to determine when an individual has died. In any event, regardless of whether brainstem death or whole brain death was adopted as the test, sadly, given his condition, M was dead on either analysis. Once the court was satisfied that M was dead, there was no basis to carry out a best interests analysis. There was no issue as to whether it was in M’s best interests to die, as he was already dead. 

Rotherham Metropolitan Borough Council v ZZ & Ors [2020] EWHC 185 (Fam) – decision as to whether it was in ZZ’s (a baby) best interests to receive life-saving treatment and/or be resuscitated. ZZ was born with a rare congenital malformation where some of the brain hemispheres are not fully formed but are replaced by brain fluid. He could not see or hear, it was likely he could only feel pain. Conclusion – it was not in ZZ’s best interests. 

Practice Guidance (CP: Applications Relating to Medical Treatment: Guidance Authorised by Justice Hayden, Vice President of the Court of Protection) Court of Protection [2020] EWCOP 2 – new practice guidance issued by Hayden J on applications relating to medical treatment. 

Sherwood Forest Hospitals NHS Foundation Trust [2020] EWCOP 5 – hospital application to provide cancer treatment to Mrs H. Application granted. Particular concern raised as to delay in making the application. Also provides a good example of the application of Hayden J’s new practice guidance (above). 

Guys And St Thomas NHS Foundation Trust & Anor v R [2020] EWCOP 4 – Hayden J’s fully reasoned and important decision on anticipatory/contingent orders. 

AG v AM [2020] EWCOP 59 – It was not in the best interests of a patient who had been deprived of his liberty at a specialist nursing home to return to his home. Although there would be benefits to the patient if he were allowed to return home, he would receive reduced medical input at home which would leave him at a significant increased risk of suffering a deterioration in his health, further hospital admissions and/or premature death. 

Swift v Carpenter [2020] EWCA Civ 165 – another stage in the test case concerning accommodation claims. C applied for a Protective Costs Order. It was refused on the basis that C had a private interest in the litigation, it was therefore inappropriate to make such an order.