Background 

The last year has been one of mixed fortunes for claimants lawyers in clinical negligence litigation. 

The most obvious piece of bad news was the much anticipated decision of the Supreme Court in the appeals of Paul and Polmear. The result made claims for psychiatric injury by secondary victims in clinical negligence claims impossible or very restricted. 

The law relating to claims for psychiatric injury has long been subject to sustained and justified criticism. The approach has been restrictive. The underlying thinking could be said to represent clearly outdated ideas on damage to mental health; either that psychiatric injury does not represent an injury or at best represents a less deserving injury than a physical lesion. The judges who originally framed this area of law came from a background where essentially a practical approach was taken to problems with mental health, such as telling the individual to pull themself together or, in more extreme cases, having them shot for desertion. This arcane understanding was best reflected in insistence on something called “nervous shock”, allied with the concept of a person of reasonable fortitude. The inference from this approach was that robust people do not suffer from mental ill-health save in the most extreme circumstances. 

Against this background, the decision of the Supreme Court could be described as patched-up law. The majority considered that a person who did not suffer physical injury and was not threatened by such injury could only recover for psychiatric injury if the individual witnessed an accident involving a close relative or loved one. While the majority disavowed the historic approach based on nervous shock, the effect of their decision is in practical terms the same. In reality, there is no real rational stopping point between applying some essentially arbitrary rule or proceeding on the same basis as claims for physical injury – that is, reasonable foreseeability. While scarcely articulated in argument or in speeches, it is reasonable to accept that allowing claims for psychiatric injury on the basis of reasonable foreseeability would widen the scope for this to an unmanageable extent. Even persons of reasonable fortitude are known to suffer from psychiatric injury merely on becoming aware of the death of a relative or loved one, and even where the information is imparted in the most sensitive terms possible. 

The only remaining issue is whether a claimant can succeed through alleging that they witnessed an accident caused by clinical negligence. This was discussed in the Supreme Court but left open in the majority speech. Applying the usual definition of an accident – that is, something sudden and unintended – it appears unlikely that there could be claims except in very unusual circumstances. Accidental is not to be equated with traumatic. A badly bungled medical procedure such as involving delivery of a child or resuscitation could not be said to be accidental, however traumatic. It might be argued that if an individual was prescribed the wrong drug, thereby becoming confused and, for instance, walking in front of a bus, someone witnessing this might come within the Supreme Court’s residual approach. However, it is difficult to see why the outcome in this case should differ if the individual was, for example, found dead in their bed. 

Other Key Decisions 

The better news for claimants was in the Court of Appeal’s decision in Holmes v Poeton Holdings Limited. While this case involved disease suffered at work, the Court of Appeal held with relevance to clinical negligence claims that the approach to causation based on material contribution applied both to indivisible and divisible injuries. On this basis, it was not necessary for the claimant to show that he suffered his injury but for the defendant’s breach of duty. 

However, the claim failed on the facts. The question of whether material contribution to damage applies to indivisible injuries has been the subject of conflicting judicial decisions, with recent tendency swaying towards the view that it does not. This may have critical importance in resolving causation in finally balanced cases of indivisible injury. The Court of Appeal left untouched the important question of what is meant by “material” in this context. It was unnecessary to resolve this issue since the Court held that the claimant could not prove that his workplace exposure had been capable of causing his disease. 

This is an area which will no doubt be the subject of further argument, possibly in the remitted hearing in the case of CDE v Surrey & Sussex Healthcare NHS Trust. There the Court of Appeal considered that the trial judge had been wrong to reject the claim on causation in its entirety, but was able to identify on the evidence a period of one minute’s culpable delay in effecting delivery in a case of cerebral palsy. This decision, taken with Holmes, opens the door (or at least leaves it ajar) in relation to claimants seeking to prove causation through material contribution when the breach of duty has had a marginal effect on the outcome. 

Outlook 

For the next year, the most significant challenge will probably not be in the law but in relation to costs, following the introduction of fixed costs for clinical negligence cases settling below GBP25,000. Claimants’ lawyers objecting to this change have argued that it will result in the disappearance of small specialist firms in particular. An interesting parallel here is the position in asbestos litigation, after the Supreme Court held in Rothwell & Others in 2006 that pleural plaques were not an actionable injury. Prior to that time many low value claims had been brought at disproportionate cost. 

The removal of the actionability of pleural plaques did not decimate the market for asbestos litigation, but rather refined it. Cases of high value still persisted. These were increasingly handled by specialist lawyers, either in teams within large firms or in smaller bespoke providers. The insurers were able to use the capacity created by the lack of pleural plaques claims to deal with the higher-value claims more efficiently. This has resulted in a specialist market on both sides, which has substantially reduced the number of litigated claims. It will be interesting to see whether a similar change will take place in the clinical negligence market. However, the availability of specialist lawyers will continue and will likely dominate the market.