Clinical Negligence & Personal Injury Newsletter: July 2021
Introduction
Welcome to Hardwicke’s Personal Injury and Clinical Negligence team newsletter, June 2021 edition, edited by Nye Moloney. This is a particularly special edition because it is the final Hardwicke newsletter before we become Gatehouse Chambers from 19 July 2021. The change of name coincides with our move to fantastic new premises at 1 Lady Hale Gate in Gray’s Inn. You can read more about our new name and building here.
The Supreme Court revisited scope of duty and the SAAMCO principle earlier this month. The hypothetical clinical negligence scenario in SAAMCO – “A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.” – was considered again in the wrongful birth case of Khan v Meadows [2021] UKSC 21 and a professional negligence case in Manchester Building Society v Grant Thornton UK LLP UKSC 20. Charles Bagot KC and William Golightly analyse the Supreme Court’s decision and their ‘6-stage enquiry’ for negligence cases.
There have been a number of important clinical negligence judgments in recent weeks. Gemma Witherington was junior counsel for the successful NHS Trust Defendant in King v Royal United Hospitals Bat NHS Foundation Trust [2021] EWHC 1576 (QB). Gemma has written an article for Lexis Nexis explaining more about this case.
We also had Eady J’s judgment in Negus and Bainbridge v Guy’s and St Thomas’ NHS Foundation Trust [2021] EWHC 643 (QB). I’ve considered this case alongside other consent cases and have looked at when there is a duty to obtain a patient’s consent on technical choices.
Of course, this has also been a busy time in the Personal Injury world, not least with the implementation of the whiplash reforms on 31 May 2021. Emma Woods has written a helpful practitioner’s guide on the reforms for Practical Law.
Editor – Nye Moloney
Activity Report – What we have been up to and what we'll be getting up to over the coming month
- Has been sitting as a Deputy Master in the High Court and as a Recorder. He recently handed down a written judgment in the High Court touching on whether and in what circumstances a local authority owes a duty of care in the exercise of child protection functions to child victims of abuse: HXA v Surrey CC[2021] EWHC 250 (QB).
- Is Leading Counsel for the NHS in 3 cases being heard together on appeal by the Court of Appeal later this year to consider the law of proximity in secondary victim claims arising out of clinical negligence.
- Charles’ niche practice in fatal accident claims continues with instructions for both Claimants and Defendants. He is representing the family of a patient who absconded whilst a psychiatric inpatient and was subsequently found deceased. He has also received instructions for insurers in a multi-vehicle collision which resulted in 6 fatalities, where issues of drug driving and illegality arise.
- Is currently considering a novel application for genetic testing on behalf of an NHS Trust.
- Striking out the defence in a Admiralty claim last week. The fatal accident matter moves to a mediation, now limited to issues of quantum.
- Being instructed to defend a claim against a corporate client who repudiated their licence agreement to occupy business premises on the basis they were not Covid secure. The issue of whether the failure to install adequate covid measures is capable of amounting a repudiatory breach by the landlord/occupier, is now proceeding to trial.
- Being instructed to bring a claim, and defend the counter claim, concerning a gas explosion which destroyed or damaged three homes. One of the legal issues in the claim, is whether the owners of the domestic gas heater were obliged to have it inspected or serviced regularly before the explosion. This may have implications for all of us who own – for example – a toaster; which has the potential to malfunction and burn down next door’s house.
- Settled a clinical negligence claim involving negligently performed laparoscopic bowel surgery at RTM for £210,000.
- Settled a claim on behalf of the claimant where an aerobic instructor slipped poolside during a class and suffered an internal degloving of her groin and upper thigh. Liability was not admitted, but the claim settled for £430,000.
- Represented the family of a teenager at an inquest, where the deceased was struck by a train late at night. Conclusion of Misadventure (due to inebriation and trespass on train line) but interesting questions re the use of drones to search for a reported trespasser and question of why train company did not cut the power to the line when they knew there were no further trains due for a number of hours.
Jasmine has been busy dealing with several Animals Act cases and had recently been brought in by Lexis Nexis as Consultant Editor for Halsbury’s Laws volume on Animals.
- Concluded a 4 day limitation trial.
- Acted for the successful Defendant a Section 33 hearing where the Claimant was only 1 month late in bringing their claim to Court.
- Successfully settled a long-running clinical negligence claim on behalf of the Claimant for £155,000 at a JSM. The Claimant had suffered a complex hand injury after she was negligently kept in a plaster cast for too long.
- Received instructions on behalf of a Claimant with genetic disabilities in a claim involving a change in design of medication dispenser causing them to receive a prolonged lesser dosage.
- Undertook the questioning of a witness at the Grenfell Tower Inquiry.
- For the Claimant, drafted advices and liaised with experts in claims arising from allegedly negligent dental treatment.
- Provided advice for the Claimant on Part 36 offers in a case involving serious orthopaedic and brain injuries arising from a road traffic accident.
- Drafted defences in a variety of personal injury claims arising from accidents at work and at railway stations.
- For the Claimant, provided advice on the merits of a claim arising from allegedly negligent administration of injections to the eye resulting in visual loss.
- For the Claimant, provided advice in a Fatal Accidents, loss of dependency claim.
- Advised on quantum in a claim involving friction burns
- Was instructed in a multi-track case arising out of food poisoning from a restaurant.
- Settled a Defence in a claim involving a slipping accident in a car park
- Successfully represented the Defendant at trial, in a claim arising out of a road traffic accident.
Events
#Brews
The team continues to host the popular Brews – short, practical and free remote webinars focussing on recent developments or particular topics of interest. Our next Brew on Monday 26 July 2021 will be on Advocacy in Inquests and Inquiries. Members of the team have been involved in several high-profile Inquests and Inquires, and this Brew will offer practical hints and tips for those involved with these cases. Look out for the sign-up invitation which will be sent out soon, or email events@gatehouselaw.co.uk to register early.
New Podcast
Following their Clinical Negligence Review 2021 Brew, Nye and Helena recorded a podcast looking at a selection of key clinical negligence decisions in the last 12 months. All our Clinical Negligence and Personal Injury Podcasts can be found here. As we all begin to return to the office, what better accompaniment is needed for your commute?!
Informed Consent: When Is There A Duty To Obtain Consent On Technical Choices?
The Supreme Court in Montgomery imposed (or perhaps clarified) a duty to ensure that any patient is aware of the material risks involved in any recommended treatment. They also extended the duty to obtain informed consent to informing the patient of “any reasonable alternative or variant treatments.”
Click here to read the article by Aneurin Moloney.
What is the scope of duty in clinical (and other professional) negligence claims? The latest word from the Supreme Court in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20; and Khan v Meadows [2021] UKSC 21
The Supreme Court’s joint decisions in MBS v Grant Thornton and Khan v Meadows have provided much needed clarity to the scope of a professional’s duty in negligence claims.
This article deals mostly with the consequences of the court’s decision in the second case, the clinical negligence claim of Khan v Meadows, but it must be emphasised that the cases should be viewed together.
Click here to read the article by Charles Bagot KC and William Golightly.
“Hardwicke Unrobed” - Get to know us better
Each month, a member of our Clinical Negligence & Personal Injury team has to spin ‘the Wheel of Questions’ and answer the first three questions that come up. This month, Colm Nugent tried his luck with the wheel.
Q. What was your first job?
A. My first ‘proper’’ job was a chicken catcher (for Moy Park Chicken) in the Summer when I was a student. It was probably the worst job in the entire world. But it paid really well and I had a large student debt to clear.
My first employed job was in Sales Promotion: below-the-line marketing for the company then called now called Glaxo Smithkline. I got a car and a secretary and an expense account. I thought I’d died and gone to Heaven.
Q. What’s been on your mind lately?
A. Will video-hearings (and telephone-hearings) become the post-Covid norm?
And if they are, will I actually miss travelling to various towns and cities to attend them?
That; and will I ever get to use my airmiles before they expire?
Q. Where do you most hope to visit?
A. Antarctica.
Handily enough, British Antarctic Territory is on the ‘green list’ for travel.
Unfortunately, no ships or planes go there.
Want to try for yourself?
Click on the wheel below!
Contact Us
If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team.
To find out more about our Clinical Negligence & Personal Injury Team and their work, visit the Clinical Negligence & Personal Injury page on our website. To view a copy of our privacy statement, please click here.
This edition of the PI & Clinical Negligence newsletter was edited by Nye Moloney. Comments or queries about this newsletter? Please get in touch with him!
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