Tuesday, 21 June 2016

Cerebral Palsy and Material Contribution

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Following my previous posts on material contribution in clinical negligence and its relevance to cerebral palsy claims, comes an interesting decision by Cheema-Grubb J in DS v Northern Lincolnshire & Goole NHS Foundation Trust [2016] EWHC 1246 (QB). 

The Parties' Contentions

The Judge summarised the parties' respective positions as follows:

"4. The case brought on DS's behalf alleges that there was negligent delay at the end of his mother's labour in that the midwives failed to realise that his heartbeat had dropped to dangerous depths until 1500 hours; that this was because inadequate monitoring was being carried out: that once they discovered this the labour should have been managed in such a way that medical assistance was called for minutes before it was and that the doctor who then arrived should have made the decision to deliver by emergency caesarean section at least a couple of minutes before she did. But for the negligent delay DS's delivery would have been achieved 6 or 9 minutes before 1529 hours and the saving of time would have been sufficient to reduce the effects of the period of damaging hypoxia to a materially less damaging injury.

"5. The Trust defends the claim on both negligence and causation. It denies that its midwives or doctor acted in breach of their duties or that they delayed any appropriate and reasonable step in FS's care. Also medical causation cannot be established because on the balance of probabilities even an interval of ischaemic hypoxia shorter by 6-9 minutes that than which DS sustained would have caused essentially the same injury and the only way to avoid it would have been for DS to have been delivered within 10 minutes of the hypoxia starting."


The Judge found against the Claimant on its primary case on breach of duty but went on to consider issues of causation:

"150. Given the findings I have made as to negligence, namely that there was a maximum of 3 minutes of negligent delay from 1504 to 1507 only, the evidence of the remaining experts, particularly those concerned with causation, is strictly of less relevance, as it has not been contended that a saving of 3 minutes would have materially affected the degree of injury. However, lest my findings on breach of duty are challenged subsequently I will go on to consider the case on causation both on the basis of a 6-9 minute negligent delay and a 3 minute negligent delay."

After reviewing the expert and other evidence the Judge concluded as follows:

"196. On the basis of saving 6-9 minutes of negligent delay:

i) It is agreed that DS's motor functions would not be materially different.

ii) Although there is understood to be a relationship between the duration of an acute profound hypoxic episode and the severity of brain injury caused, the relationship is not simple to define. The Claimant was apparently a healthy and robust foetus. He suffered a long period of hypoxia, at least 39 minutes (1500-1539) but more probably longer. Making an allowance of the generally accepted 10 minutes of non-harmful hypoxia (as described by the paediatric neurologists), he survived at least 29 minutes of injurious hypoxia but displays less profound injury than might be expected after that period of exposure. His neurological disabilities are atypical and not at the most severe end of the spectrum.

iii) While common sense suggests that a reduction of 6-9 minutes of exposure (as a proportion of the whole) would have made a difference to DS's cognitive abilities it is difficult to be certain, whether it would have been a material difference. This is especially so when DS's atypical radiology results are taken into account however, I have to apply a lower threshold of proof, namely the balance of probabilities....

vii) I am persuaded that if birth had been as much as 9 minutes earlier, a substantial proportion of the total hypoxic insult would have been avoided and although I cannot calculate it exactly I am satisfied on the balance of probabilities that it would have made a material difference to DS's cognitive abilities so that although the care support he needed may have been the same his ability to manage himself, to make daily (not legal) decisions and the degree to which he would be able to join in his care would have been substantially improved.

"viii) On the other hand, in all the circumstances the Claimant has not persuaded me that it is likely he would have suffered materially less injury had he been delivered 6 minutes before 1529 on 4th June 2005. DS was bound to suffer significant brain damage from the acute hypoxia following placental abruption until resuscitation and although a saving of 6 minutes before delivery and a consequential shorter period of necessary resuscitation may have made some proportionally minor difference to his cognitive functioning, it is impossible to say to what extent that saving of time would have improved his current condition."

Material Difference or Material Contribution?

The evidence and finding of a period of profound hypoxia ischaemia of at least 39 minutes "but more probably longer" is remarkable and very unusual. However the upshot is that context of the (obiter) causation findings was that 6 to 9 minutes of the, say, 29 minutes of harmful hypoxia ischaemia, were avoidable.

The Judge seems to have asked herself the question: has C proved that the "avoidable" period of harmful hypoxia ischaemia made a material difference to the Claimant's cognitive abilities or functioning? She was satisfied that if the avoidable period were 9 minutes, then the answer was "Yes". If the avoidable period were 6 minutes then the answer was "No".

The Defendant appears to have contended that if brain damage, however severe, would have been inevitable even absent the negligence, then the Claimant could not recover any compensation: had hypoxia been longer than 10 minutes then essentially the same brain damage injury would have been suffered (see paragraph 5 of the judgment above). The Judge must have rejected that contention. It is true that the first question in the Bailey v MOD test of causation is:

"If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed".

But there is a difficulty in applying that test to cases of injury caused by a process, some of which is negligent, some non-negligent. Such cases are not, as the Defendant in DS seems to have contended, "all or nothing" in the following sense. In Bailey the injury was a sudden event with more than one, but very distinct, contributory causes. In DS as in  Williams v Bermuda there was a process causing injury. In Williams the process was the development of sepsis. The Privy Council held that,

 "[The] development [of sepsis] and effect on the heart and lungs was a single continuous process, during which the sufficiency of the supply of oxygen to the heart steadily reduced." [41]. On the balance of probabilities the negligent delay, found to be at least 2 hours 20 minutes "materially contributed to the process, and therefore materially contributed to the injury to the heart." [42]."

Likewise with cerebral palsy caused by hypoxic ischaemia. There is a continuous process during which the supply of oxygen to the brain is interrupted. Some of that period is "non-harmful" only in the sense that, without more, it would not cause injury; some is harmful and avoidable; some is harmful and unavoidable. The whole period causes the brain injury. The negligent part contributes to the whole.

Assessing Quantum

How would Mrs Justice Cheema-Grubb have assessed quantum on her finding that a "negligent" 9 minute delay made a material difference to the Claimant's cognitive abilities? The alternatives would have been to assess damages for the whole of the injury, because the avoidable 9 minutes made a material contribution, or to assess damages for the additional injury caused by the avoidable 9 minutes. My guess is that the Judge would have sought to assess on the latter basis because the implication of the judgment on causation is that the Judge approached hypoxic ischaemic brain damage at or around the time of birth as a dose-related injury susceptible to a quantifiable attribution of injury to cause.

The judgment is not easy to reconcile with the approach taken in Popple and, in a closely related case, John neither of which were referred to in the judgment. In Popple Ward LJ held that

 "If [the hypoxic insult] did take 20 minutes, the damage done in the last five minutes must have made a contribution to the overall harm which was more than minimal. I cannot see why the Bailey principle does not apply." 

It is perfectly possible for one court to find on the facts that 5 minutes of a 20 minute period of hypoxia is material, and for another to find that 6 minutes of a 29 minute period is not material. Each case must be determined on its own facts. However, the question Ward LJ asked himself appears to have been, "Did the avoidable period of hypoxia make a material contribution to the overall harm?", not, "Did the avoidable period of hypoxia cause material or quantifiable additional harm?"

The question of whether a negligent period of hypoxia made a a material contribution to the injury sustained is not necessarily the same question as whether it made a material difference to the outcome?

The "material contribution" principle applies precisely in those cases where one cannot quantify the degree of injury attributable to the negligent cause. As was held in the brain injury case of John :

"... the Bailey and Williams cases are cases where it was impossible, not merely difficult, to attribute particular causes to particular loss. The present case likewise entails impossibility rather than simply difficulty. As such, it is not an appropriate case for an apportionment exercise." 

So, the fact that the Claimant cannot prove a quantifiable difference in outcome did not preclude recovery of compensation - indeed the Claimant recovered compensation for the whole of the injury suffered.

It is possible that on the facts the Court might find that a period of avoidable hypoxia has not made a material contribution to the overall harm. But that is a different question from the one the Court appears to have asked itself in DS.

Popple, Williams and John, seemed to establish that where there are successive causes, negligent and non-negligent, which are part of a process leading to the final injury, and the negligent cause made a material but unquantifiable contribution to that process and to the final injury, then the Defendant is liable to compensate the Claimant for the whole of the injury. DS appears to point another way.

Thursday, 9 June 2016

Fixed Costs - Facing the Fear

The Department of Health has given up on the idea of introducing fixed fees in clinical negligence claims in October 2016. No consultation or new implementation dates have been announced but there can be no doubt that, barring massive political upheaval in the wake of the EU Referendum, fixed fees will be introduced, probably in 2017.

Fairly or unfairly there is a perception amongst the public, politicians, opinion formers in the media and the upper echelons of the judiciary, that the costs of civil litigation have got out of hand. It has been decided that costs have to be controlled and fixed costs have been identified as the most effective means of achieving that end. 

It is time to face the fear of fixed costs.

The Grid

In his speech to the Insolvency Practitioners Association earlier this year Lord Justice Jackson started a wider debate about the introduction of fixed fees for fast track and "the lower reaches" of the multitrack (claims up to £250,000) for all civil litigation. He spoke out against "Balkanisation", i.e. the introduction of fixed fees only for certain areas of practice, such as clinical negligence. Lord Dyson has made a similar plea. Perhaps the Department of Health will now pass the issue of recoverable legal costs to the Ministry of Justice, where it belongs.

Lord Justice Jackson proposed a grid of fixed fees for cases according to the band of value of the claim and the stage reached in proceedings. It has been regarded as a frightening spectre by many within the legal sector. 


The prospect of fixed costs is less unappealing when you consider the alternatives: assessment after the event, and budgeting. The recent decision of Master Gordon-Saker in MNM v MGN Limited EWHC B13 (Costs) (understood to be under appeal) in which he halved costs which had been adjudged to be reasonable on a line by line assessment, including a significant reduction to the "reasonable" ATE premium, demonstrates that the new (ish) rules on proportionality can be applied with rigour. Better to know in advance what your recoverable costs are than to find out too late that whilst you have spent costs reasonable you can only recover half of them.

Costs budgeting is time-consuming, costly, and subject to significant variation of outcome depending on the judge involved. 

By whichever means recoverable costs are determined, the government and the judiciary are clearly determined that costs should fall. The choice is not between fixed costs and some other regime that will allow for markedly higher costs recovery. Viewed that way, perhaps the certainty and speed of payment that fixed costs should provide is quite attractive.

Stage Two

In a recent paper and evidence to the Westminster Legal Policy Form Lord Justice Jackson gave grounds to believe that the most worrying aspects of The Grid, will be ameliorated. He emphasised that:
  • The grid was designed to start a debate. Someone, he said, had to take the plunge. The figures in the grid were not intended to be the final word but an "illustration" only.
  • There was a legitimate debate to be had about what constitutes "the lower reaches" of the multitrack. 
  • The grid marked stage 1 of any fixed costs process. Stage 2 would include considerations of the complexity and importance of the litigation. He referred to clinical negligence as being an example of complex litigation. There would have to be additions to the basic figures in the grid in certain cases.

Remaining Concerns

The devil, as they say, may well be in the detail. There will be much lobbying on the figures, escape routes and enhancements within any fixed costs scheme. I remain concerned however about two issues that go to the principle of fixed costs:

  1. The impact on the Junior Bar. I hope that any fixed costs regime will include separate provision, perhaps by way of fixed fees, for barristers. If not, then there is little to no incentive for solicitors facing a fixed remuneration for a stage of proceedings to pay part of that to an outside contractor such as a barrister.
  2. Inequality of arms: a fixed costs regime limits the costs a party to litigation can recover from the other party but it does not limit how much a party can spend. Thus the wealthy party, including institutions such as the NHSLA or motor insurers, can choose to spend more than they know they can recover. A private individual is unlikely to be able to afford to make the same choice. Any fixed costs regime has to guard against this risk by (a) allowing a low threshold for departing from fixed recoverable costs due to the paying party's conduct and (b) allowing for that departure at an early stage in the proceedings (not only after the conclusion of the case).  

I am grateful to the Leeds Law Society and Clarion Solicitors for inviting me to take part in and hosting a Breakfast Panel Discussion on Fixed Costs on 8 June 2016, an event which prompted this post.