Davies v Frimley Health NHS Foundation Trust [2021] EWHC 169 (QB)
This was a claim brought by the widower of a woman who died of bacterial meningitis. She had been admitted to hospital two days earlier with a history of severe headache and middle ear infection. The Defendant admitted that following her admission there had been a negligent delay between 10:40 and 13:20 in commencing intravenous antibiotics. Quantum had been agreed and the only issue to be determined was that of causation.
Causation on the balance of probabilities
His Honour Judge Auerbach, sitting as a Judge of the High Court, identified the question to be determined as what would have happened if IV antibiotics had been commenced at 10:40 – was it more likely that Mrs Davies would have survived or died? It was appropriate to draw on the picture painted by all the evidence, namely the evidence about Mrs Davies and what happened to her, the evidence of the experts on the basis of their experience and judgment and the literature to which they referred. It was also appropriate to rely on whatever insight could be properly gained from the benefit of hindsight. He noted that in the case of Schembri v Marshall [2020] EWCA Civ 358 (Issue 5) the Court of Appeal had upheld a judgment in favour of the estate of a patient who had died of pulmonary embolism, despite the fact that it was not possible to identify the precise mechanism by which she would have been saved had she been in hospital, because the bigger picture pointed to that conclusion [117]-[121].
The judge noted that untreated bacterial meningitis is deadly and progresses fast, but that IV antibiotics are highly effective in treating the disease and therefore survival rates are high [125]-[126].
Expert evidence was heard from microbiologists, ENT specialists and neurosurgeons. The overall consensus was that the meningitic process had begun the evening or night before admission. By the time of admission the intracranial pressure was raised but not critically so. Likewise temperature and pulse were raised but did not point to the process being fatally advanced. Mrs Davies was in appalling pain but was still able to communicate. By around 14:00 her condition was much worse and she declined rapidly. The overall picture indicated that IV antibiotics would probably start to take effect in the brain between 30 minutes and an hour and a half after administration and would quickly neutralise any bacteria continuing to come in from the ear [131]-[137].
The judge considered that the overall picture of events as they unfolded, of Mrs Davies’ background risk, presentational and diagnosis indicators, pointed to the overall conclusion that had IV antibiotics been administered at 10:40 it was more likely that she would have survived than died [138].
However, it was necessary to decide causation on the basis of the whole of the evidence, including any later events that might show the case to be different from how it appeared at the point of admission. The Defendant relied upon the fact that the outcome had been fatal, despite good prognostic indicators at 13:20. It was argued that the rapidity of her decline meant that antibiotics at 10:40 would not have saved her. The judge rejected that argument and accepted the Claimant’s microbiology expert’s answer that the disease had been progressing during the period of delay, and deterioration was not linear. Rather, it reaches a crisis point at which there will be a sudden decline, as in this case. The judge also considered that the range of literature gave more or less detailed or direct support to the Claimant’s case on causation, but none undermined it [139]-[143].
Further, the judge did not consider that the Defendant’s microbiologists’ experience matched that of the Claimant’s and did not accept that the clinical course was particularly unusual or pointed to a conclusion that by 10:40 it was too late. The Claimant’s ENT expert supported the Claimant’s microbiologist’s view, whereas the Defendant’s ENT expert more squarely deferred to other experts. As to the neurosurgeons, whilst the Claimant’s expert did not ultimately support his case on causation, he did not go against it. On the other hand, the Defendant’s expert’s opinion that this was a fulminant infection already beyond treatment by the time of admission to hospital represented an isolated viewpoint and was rejected [150]-[164].
The judge concluded that whilst Mrs Davies had an aggressive disease it was still amenable to treatment and had not reached the tipping point after which she was likely to die by 10.40. Accordingly, the claim succeeded on the basis of conventional “but for” causation [166]-[167].
Material contribution
The judge nonetheless proceeded to consider the alternative causation argument, based on the Claimant’s expert neurosurgeon’s view that the outcome was uncertain but that “any delay between about 10:10 and 12:00 in administering antibiotics made a material contribution to her decline and death” [168]-[169].
The judge set out the leading authorities on material contribution and the parties’ submissions on further cases but did not fully subscribe to the analysis of either side [170]-[199]. His view on establishing causation of damage was as follows:
- Where the harm is divisible, a party will be liable if their culpable conduct made a contribution to the harm, to the extent of that contribution;
- Where the harm is indivisible, a party will be liable for the whole of it if they caused it applying “but for” causation;
- If two wrongdoers have both together caused an indivisible injury in respect of which it is impossible to apportion liability between them, then each is co-liable for the whole of the injury suffered [200].
These were described as the “orthodox” routes to liability (though be warned, the meaning of ‘divisible’ and ‘indivisible’ harm is something of a moveable feast in the context of material contribution – see UK Healthcare Law blog post on the case). A distinct further route arose in the limited types of cases to which the approach in Fairchild v Glenhaven Funeral Services Limited [2003] 1 AC 32 applied. In mesothelioma cases the effect of the Compensation Act 2006 was that each contributor to the risk was co-liable for the whole of the harm. Otherwise it is apportioned as in the asbestos exposure case of Heneghan v Manchester Dry Docks Limited [2016] ICR 671 [201].
The judge noted that in Bailey v Ministry of Defence [2009] 1 WLR 1052 the Court of Appeal had pointed to the existence of an additional “novel” route by which a party could be held liable for the whole of the harm caused, but that in AB v Ministry of Defence [2010] EWCA Civ 1317 it was held that both Bailey and Bonnington Castings v Wardlaw [1956] AC 613 were in truth conventional cases of divisible harm and that in the latter there ought to have been an apportionment. That was in effect the position of the court in the cases of Heneghan and in Sienkiewicz v Grief (UK) Limited [2011] 2 AC 229 and of the Privy Council in Williams v The Bermuda Hospitals Board [2016] AC 888 [203]-[207].
He concluded at [210]-[211] that:
“In the present case Mrs Davies died from a disease which, whilst it involved a process that took its course over a period of time, led to the indivisible outcome of death. The sole task of the Court has been to determine on the balance of probabilities whether, in a but for sense, the failure to start IV antibiotics by 10:40 on the day of admission caused her death or not.
As I have said while I fully appreciate that some of the experts felt ultimately unable on the clinical evidence available in this very difficult case, to answer that counterfactual question in quite that way, the Court is obliged, on the evidence it has, including such assistance as the experts feel able to provide to do so, as best it can. That I have done. For the reasons I have given, I do not think that any other legal doctrine could have been brought to bear in this case”
Comment
The judge’s approach was in line with that approved in Schembri, emphasising that the ultimate determination of the issues of causation is for the court, assisted by experts and other evidence as appropriate to reach a conclusion, standing back and applying common sense and pragmatism. The judge’s analysis of the material contribution argument has been cited in the recent case of Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 – to be covered in a later edition. Soole J agreed with the approach and considered himself bound by AB. However,he opined that this was a legal issue that was ripe for authoritative review.
Matthew Barnes appeared for the Defendant. He did not contribute to this article.
