A claimant who established that delays in treatment materially contributed to a brain injury suffered by him during a fall was awarded damages from the NHS trust for the whole of his injury and loss. The court examined the “material contribution” test of causation and explained why it was more appropriate in the circumstances than the “but for” test.
The claimant GP claimed damages for brain injury arising from alleged clinical negligence by the defendant trust.
The alleged negligence concerned two periods of delay in the administration of urgent medical treatment. The claimant had fallen backwards down internal stairs leading to his flat upon returning home from a night out. He was found by a neighbour two hours later, slumped in vomit and unable to say anything intelligible. Upon arrival at hospital just before 07:00 he was resuscitated and the triage doctor arranged for a CT scan. For various reasons, including a cancellation of the triage doctor’s booking, the scan was performed more than six hours later at 13:15. That was the first period of delay relied upon by the claimant. The scan showed that the claimant had an acute subdural haematoma requiring urgent neurosurgery. A transfer to a different hospital was immediately arranged. Those arrangements were completed at 14:00. An ambulance was requested at 15:17. While waiting for the ambulance, the claimant had a seizure and lost consciousness. It took doctors between 30 minutes and one hour to stabilise him. The ambulance was sent away around 16:30 and a second one requested just after 17:30. It arrived at 18:40. The delay in transferring him to the second hospital gave rise to the claimant’s second allegation of negligence. Having undergone a craniotomy at the second hospital, the claimant suffered a further seizure and also developed an infection. He had further surgery to relieve inter-cranial pressure. He was left with permanent cognitive and neuropsychological impairment, which prevented him from practising as a GP. The claimant’s case was that without the trust’s two periods of negligent delay, he would have avoided some or all of the inter-cranial pressure which materially contributed to the brain damage sustained in his fall. The trust’s case was that only the second period of delay was potentially culpable. It claimed that the first period of delay had not been negligent because the claimant’s condition had improved so significantly after arriving at hospital that it had been reasonable to cancel the first scan booking. There was also an issue about whether the correct approach to causation was the “material contribution” test, applying Bonnington Castings Ltd v Wardlaw [1956] A.C. 613, Bailey v Ministry of Defence [2008] EWCA Civ 883, [2009] 1 W.L.R. 1052 and Williams v Bermuda Hospitals Board [2016] UKPC 4 or the “but for” test in Wilsher v Essex AHA [1988] A.C. 1074.
HELD: (1) The evidence supported the claimant’s primary case on negligence. Both periods of delay had been negligent: the CT scan should have been performed no later than 10:00, and the second ambulance should have been called soon after 16:30, which was when the claimant had been stable enough to leave the first hospital. The fact that the second ambulance took over an hour to arrive was attributable to the ambulance service, not to the trust (see paras 47-48, 52-59 of judgment).
(2) The evidence indicated that, on a balance of probabilities, the claimant had been suffering damaging intra-cranial pressure before his craniotomy, probably from 12.15 onwards, but at the very least from the time of his first seizure. Had he had the scan before 10:00, he would have been operated upon before he had his seizure, and would have avoided a period of raised intra-cranial pressure for around six hours or slightly less. There was no need to consider what would have happened if the second period of delay had been the only negligent act, but it was worth noting that if it had not happened, the claimant would have avoided a period of raised intra-cranial pressure for one hour (paras 68, 71-72, 80).
(3) The “material contribution” test was the appropriate approach to causation, even though the instant case concerned a material contribution to damage, rather than a material contribution to risk. The “material contribution” approach applied just as much to multiple factor cases, where causes were sequential or cumulative, as it did to “single agency” cases, Bonnington and Bailey applied,Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86, McGhee v National Coal Board [1973] 1 W.L.R. 1, Wilsher and Williams considered. The “material contribution” test having been satisfied, causation was made out, and the claimant was entitled to recover in respect of the entirety of his loss; an apportionment exercise of the sort carried out in Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All E.R. 421 was inappropriate because the evidence could not possibly attribute particular damage to a specific cause, Holtby not applied. The claimant was therefore entitled to recover, without deduction, damages for his loss and injury arising from the trust’s negligence. The appropriate award was £454, 858.65 including interest (paras 88-89, 95-101, 105, 121).
(4) The separate components of the award were: (a) pain and suffering (para.107); (b) care and assistance (para.108); (c) loss of earnings (paras 109-119); (d) travel expenses and future treatment costs (para.120).
Judgment for claimant
Law Lessons 4 Life 