Clinical Negligence Blogs

11 November 2021 - Written by Jonathan Owen

Castello v Gonschior: The Importance of Choosing the Right Discipline of Expert in Clinical Negligence Claims and the Limitations of Res Ipsa Loquitur

In Castello v Gonschior [2021] EWHC 2742 (QB), Lambert J provides an important reminder of the importance of choosing the right experts and an example of the relevance, or lack of relevance,...

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9 November 2021 - Written by Philip Turton

Oh Flower of Scotland... Haggerty-Garton v ICI [2021] EWHC 2924 (QB)

On 3 November 2021 the newly appointed Ritchie J handed down his judgment in Haggerty-Garton v ICI [2021] EWHC 2924 (QB), a mesothelioma case brought in the High Court but, pursuant to a consent order agreed between the First Claimant and the Defendant, ...

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2 November 2021 - Written by Rochelle Rong

Limitation in Clinical Negligence Claims

Civil practitioners dealing with personal injury claims are generally familiar with the three-year limitation period imposed by section 11 of the Limitation Act 1980. Put simply, claims for personal injury (whether arising from negligence, nuisance or breach of duty) ...

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26 October 2021 - Written by Thomas Herbert

Material Contribution in the Spotlight (Again) following Thorley v Sandwell & West Birmingham Hospitals NHS Trust

This blog deals with the causation aspects of Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB). Ph...

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19 October 2021 - Written by Georgina Cursham

Costs Order against Dental Expert who Showed a Flagrant, Reckless Disregard for his Duties to the Court

Having blanked his screen and left the ongoing court proceedings to pick up his son from school, the Claimant’s expert witness in ...

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12 October 2021 - Written by Philip Godfrey

Breach of Duty and Hospital Guidelines: Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)

This case considered the interplay between hospital guidelines and breach of duty in the clinical negligence setting. In summary, the Court found that: The guideline relied upon by the Claimant did not apply to the procedure...

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22 September 2021 - Written by Tom Carter

Illegality in Clinical Negligence Claims

A man with longstanding mental health issues walks into a pub with a can of petrol and a knife. He proceeds to pour the petrol on himself and says he is going to burn the pub down. The police are called, he is arrested and whilst in police custody, he undergoes a Ment...

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7 September 2021 - Written by Philip Davy

Vicarious Liability and the Non-Delegable Duty in the Context of Dental Negligence Claims: Hughes v Rattan

For several years in the 2000s and 2010s, the law relating to vicarious liability and non-fault liability more generally was 'on the move'. However, in the last couple of years, the case law dealing with non-fault liability has bee...

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14 July 2021 - Written by Nikhil Arora

Secondary Victims: Still Second-Class Claimants?

In King v Royal United Hospitals Bath NHS Foundation Trust [2021] EWHC 1576 (QB), the High Court once again demonstrated the difficulties faced by Claimants who suffer psychiatric condi...

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30 June 2021 - Written by Richard Seabrook

High Court Provides Further Guidance in Relation to Interim Payments

In AL (by her Mother and Litigation Friend, S) v Collingwood Insurance Company Ltd [2021] EWHC 1761 (QB), a catastrophic brain injury case, Robin Knowles J provided further guidance to practitioners as to the application of the established principles previous...

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29 June 2021 - Written by Philip Turton

They Tried to Make Me File a Budget - I said No, No, No...

Master Davison closed the door, firmly, on costs budgeting in the Asbestos List in Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB). Philip Turton reports on the decision. The judgment can be read ...

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24 June 2021 - Written by Thomas Herbert

Mission Creep: Begum v Maran (UK) Ltd and the Duty of Care

“That the tort of negligence is a mess goes almost without saying.” So said David Ibbetson in How the Romans Did for Us: Ancient Roots of the Tort of Negligence (2003) 26 UNSWLJ 475. As James Plunkett ...

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24 June 2021 - Written by Rochelle Rong & Alexandra Pountney

Meadows v Khan in the Supreme Court: Scope of Duty in Clinical Negligence Claims

In Meadows v Khan [2021] UKSC 21, the Supreme Court unanimously dismissed Ms Meadows' appeal, finding that there was no principled basis for excluding a clinical negligence claim from the ambit of the 'scope of duty principle' in the tort of negligence. The j...

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22 June 2021 - Written by Nikhil Arora

Success Fees in Mesothelioma Cases: Moutarde v SIG Logistics

In this blog, Nik Arora reviews the decision in Moutarde v SIG Logistics to limit the Claimant's success fee in a mesothelioma claim to 27.5%. Q. When is a trial not a trial? ...

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11 May 2021 - Written by Richard Seabrook

Considerations of Consent, Capacity and Best Interests

Imagine the following scenario. A patient, known to have mental health issues, has been consenting to a proposed or potential course of medical treatment. Then, as the need to embark on that treatment crystalizes and becomes urgent, consent is withdrawn. The treatment...

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10 May 2021 - Written by Rochelle Rong

The Key to a Successful Application for an Interim Payment: PAL v Davison [2021] EWHC 1108 (QB)

In PAL (a child by her mother and litigation friend COL) v Davison [2021] EWHC 1108 (QB) (judgment here), Yip J granted the Claimant’s application and ordered a furthe...

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3 May 2021 - Written by Georgina Crawford

The Great British Public (and Their Dogs) v Farmers

I am sure that in our Brave New Covid World my dogs are not the only dogs who roll their eyes when I announce it’s time for (yet another) walkies. But where does the huge increase in the use of public rights of way leave our landowners, or more specifically the ...

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29 April 2021 - Written by Patrick Limb QC

Cauda Equina: Tells & Tales About the "Horse's Tail"

Cauda equina syndrome is a rare and severe type of spinal stenosis. A narrowing of the spinal canal causes the nerves in the lower back to become severely compressed. Typically, but not exclusively, it results from a prolapsed disc bulge. The condition requires urgent...

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22 April 2021 - Written by Philip Turton & Katie McFarlane

Secondary Victim Appeal Listings in Paul and Polmear

In March, as part of the Ropewalk Chambers' Spring Webinar series, Philip Turton and Katie McFarlane reviewed the law relating to secondary victims in light of the decisions in Paul v The Royal Wolverhampton NHS Trust [2020] PIQR P19 and Polmear v Royal C...

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20 April 2021 - Written by Cassandra Williams

Clinical Negligence Cases: When the Bolam Test Does Not Apply

The law requires medical practitioners to use diligence, care, knowledge, skill and caution in administering treatment to a patient. The question of whether a medical practitioner has met the requisite standard of care is often considered by reference to the test laid...

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12 April 2021 - Written by Edward James

High Court Considers Whether Cardiac Surgery Leading to Re-Do Surgery Was Negligent

In Negus v Guy’s and St Thomas’ NHS Foundation Trust [2021] EWHC 643 (QB), the High Court considered whether an NHS Trust was...

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1 April 2021 - Written by Thomas Herbert

Wrongful Birth, Wrongful Life & Negligence: Considering Toombes v Mitchell

Thomas Herbert's article on Lambert J's decision in Toombes v Mitchell [2020] EWHC 3506 (QB), which considered the correct interpretation of section 1 of the Congenital D...

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30 March 2021 - Written by Abigail Scott

Causation in Occupational Cancer Claims: An Overview

The law adopts a nuanced approach to causation in occupational cancer claims. Practitioners dealing with such claims must be alive to the distinctions and difficulties that may arise in this area. This post provides an overview of the application of the different test...

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23 March 2021 - Written by Abigail Scott

Revisiting the Close Connection Test for Vicarious Liability: Adult Sexual Abuse Cases

In The Trustees Of The Barry Congregation Of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356, the court revisited the two-stage test for vicarious liability and considered the application of the tailored close connection test to cases involving adult vict...

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19 March 2021 - Written by Patrick Limb QC

The Cost of Care: Night-time Carers Are Not Entitled to Minimum Wage During Periods of Sleep

Today, 19 March 2021, the Supreme Court handed down judgment in the conjoined appeals of Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (T/A Clifton House Residential Home) [2021] UKSC 8. This is an employment law case that will ...

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17 March 2021 - Written by Christopher Lowe & Alexandra Pountney

Informed Consent: Updated GMC Guidance

The topic of consent has been increasingly contentious since the Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] AC 1430, which shifted the focus from Bolam-style clinical paternalism to patient autonomy. ...

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25 February 2021 - Written by Philip Godfrey

Cauda Equina Syndrome and Referrals for Investigations: High Court Rejects Claim for Delayed Scan

In Jarman v Brighton and Sussex University Hospitals NHS Trust [2021] EWHC 323 (QB), the Claimant brought a claim against the Defendant hospital for failing to promptly diagnose Cauda Equina Syndrome ("CES"). This case is of note for two reasons: ...

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23 February 2021 - Written by Rachel Young & Thomas Herbert

Revisiting the Test of Material Contribution in Clinical Negligence Claims following Davies v Frimley Health NHS Foundation Trust

In Davies v Frimley Health NHS Foundation Trust [2021] EWHC 169 (QB), the High Court considered the question of causation in circumstances where the deceased had suffered from acute pneu...

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19 February 2021 - Written by Cassandra Williams

Fundamental Dishonesty in Clinical Negligence Cases: Unreliable Does Not Necessarily Mean Dishonest

In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB), HHJ Platts, sitting as a High Court Judge, declined to make a finding of fundamental ...

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17 February 2021 - Written by Philip Godfrey

Non-Delegable Duties of Care and NHS-Funded Private Services

In Hopkins v (1) Akramy (2) Badger Group (3) NHS Commissioning Board [2020] EWHC 3445 (QB), the High Court considered, as a preliminary issue, whether an NHS Primary Care Trust ("P...

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8 February 2021 - Written by Gareth McAloon

'Seconds Out!': Secondary Victim Claims Arising from Clinical Negligence to go to the Court of Appeal

Claims by secondary victims arising from clinical negligence have for many years been a battleground between Claimants and the NHS, particularly where the psychiatric damage that is the subject of the claim occurs many months after the purported breach of duty in...

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3 February 2021 - Written by Richard Gregory

Bankrupt Claimants: Tips for Practitioners

Bankruptcy orders are relatively rare. Having never exceeded 10,000 per year before 1990, they exceeded 100,000 in 2009, and have only occasionally dipped beneath that figure. Even at those numbers, in recent years they approximate to 26 people per 10,000, or about a ...

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26 January 2021 - Written by Shilpa Shah

Interim Payments on Account of Costs in Clinical Negligence Cases

Whilst clinical negligence practitioners are especially accomplished in ensuring that they properly advise their clients to claim an interim payment on account of damages when this best suits their client’s needs, the opportunity of seeking an interim payment on...

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19 January 2021 - Written by Thomas Herbert

Court of Appeal Considers 'Lost Years' Claims in Head v The Culver Heating Co Ltd

In a judgment handed down on 18 January 2021 in Head v The Culver Heating Co Ltd [2021] EWCA Civ 34, the Court of Appeal unanimously allowed an appeal against the decision of HHJ Melissa Clarke dismissing the Claimant's 'lost years' claim. The judge had dismi...

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18 January 2021 - Written by Jason Cox

Limitation Practice in Clinical Negligence Cases After Azam

Clinical negligence cases can be complex enough without the added difficulty of delay in bringing proceedings resulting in a limitation defence. When it is raised by Defendants it is currently common for cases to be managed so that limitation will be tried as a prelim...

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18 January 2021 - Written by Jessica Woodliffe

Latest Instalment in Insurers' Challenge to CRU Provisions

In R (on the application of (1) Aviva Insurance Ltd (2) Swiss Reinsurance Company Ltd) v The Secretary of State for Work and Pensions [2021] EWHC 30 (Admin), Henshaw J dealt with certain consequential matters arising from his ...

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14 January 2021 - Written by Abigail Scott

Very Late Applications for Expert Reports: The Key is 'Significance'

In Knapman v Carbines [2020] EWHC 3586 (QB), HHJ Cotter QC considered the balancing exercise to be conducted upon a very late application to rely on an expert report. The Context Mr K...

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30 November 2020 - Written by Jessica Woodliffe

Certain Compensation Recovery Unit Payments Declared Incompatible with the European Convention on Human Rights

In R (on the application of (1) Aviva Insurance Ltd (2) Swiss Reinsurance Company Ltd) v The Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin), the Claimants challenged the unintended and onerous consequences of the Compensation Recovery Unit ...

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17 November 2020 - Written by Jack McCracken & Sarah Hopkinson

A Look at Two US Cases on Potential Liability for COVID-19

Jack McCracken and Sarah Hopkinson revisit the question of liability for COVID-19 infections, this ti...

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16 November 2020 - Written by Sarah Hopkinson & Kate Longson

Identifying the Correct Defendant in RTA Claims

This is a brief guide to identifying the correct Defendant(s) in RTA claims. We will consider the position of the Defendant tortfeasor, the hierarchy of claims that can be brought against the tortfeasor’s insurer and when claims are correctly to be intimated aga...

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28 October 2020 - Written by Christopher Lowe

Informed Consent: Where Are We Now?

In Montgomery v Lanarkshire Health Board [2015] 1 AC 1430, the Supreme Court held that "[t]he doctor is ... under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and...

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19 August 2020 - Written by Patrick Limb QC

Contributory Negligence in Clinical Negligence Cases

Travel back seven decades: the Law Reform (Contributory Negligence) Act 1945 was given Royal Assent on 15 June 1945; three years later, on 5 July 1948, the NHS was founded. At the level of principle, the statute effected a radical ...

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30 June 2020 - Written by Cassandra Williams

Proving Causation in Clinical Negligence Claims: Pitfalls and Hurdles

In the context of clinical negligence cases, causation can be just as tricky to establish as breach, perhaps even more so. The difficulties arise in part because many of these cases involve Claimants who were injured or ill before seeking the treatment or advice that ...

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21 April 2020 - Written by Thomas Herbert

Recovering Inquest Costs in Subsequent Civil Proceedings

It is well-known that, in principle, the costs of an inquest are recoverable in a subsequent clinical negligence claim. The leading case in this regard, also well-known, is Roach v Home Office [2010] QB 256. Ever...

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