This blog is written by Cressida Mawdesley-Thomas. Summary The majority of the Supreme Court (Lord Burrows dissenting) has refined “the control mechanisms” in Alcock for bringing a secondary victim claim (that is, claimants who are “the passive and unwilling witness of injury caused to others”). To succeed as a secondary victim, the law now requires that the claimant witness an accident or its immediate aftermath. The bounds of what constitutes “the aftermath” are limited to McLoughlin. However, it is no longer a requirement that the claimant sustains a “sudden shock to the nervous system” cau ..read more

Isaac Hogarth of 12 King’s Bench Walk, instructed by Jasicca Nava of Irwin Mitchell successfully represented the claimant (‘C’) in her claim against Dr King (‘D’). The settlement, reached at a JSM, was approved by HHJ Dunne, sitting as a judge of the High Court on 13 October 2023. The facts In 2013, when ALB was 33 years old when he saw D, a GP, due to rectal bleeding and painful stools. He was prescribed proctosedyl suppositories, but was not referred on, or safety netted. ALB continued to experience progressive symptoms, including rectal bleeding, weight loss, abdominal pain and changes in b ..read more

Henry Charles looks at a recent decision from the Court of Appeal which settles the longstanding question of whether material contribution applies to cases of divisible injury. In this industrial disease claim, the Court of Appeal confirmed inter alia that the doctrine of material contribution applies to divisible and indivisible injury, in doing so shutting the door on nearly a decade’s worth of uncertainty as to whether material contribution applied only to indivisible injuries, or divisible injuries.  However, the case sets a number of hares running as to the scope and application of m ..read more

Andrew Roy KC considers the implications of the Court of Appeal’s recent decision CDE v Surrey and Sussex Healthcare NHS Trust [2023] EWCA Civ 1330 in respect of the vexed and important issue of material contribution. 22 November 2023 Introduction  CDE is a cerebral palsy (CP) case.  It is rare example of a successful appeal against findings of fact. On the face of it, the appeal turned upon the judge wrongly applying the Bolam test in respect of causation (asking what a hypothetical reasonable midwife should have done) rather than properly applying the Bolitho test (asking what the ..read more

Vanessa Cashman summarises this recent clinical negligence case on split liability Part 36 offers, which provides useful insight and clarification following the judgment on this issue in the personal injury case of Mundy v TUI UK Ltd [2023] EWHC 385. Facts C brought a claim against the Trust for attendances on the following dates: 24 December 2009 at Southend University Hospital; 30 September 2010 at Southend; 9 March 2017 at Basildon University Hospital. C made a part 36 offer on 22 December 2022 for 90% of the damages to be assessed. The relevant period ended on 13 January 2023. At a liabili ..read more

John-Paul Swoboda and Christopher Fleming consider the Supreme Court’s decision clarifying the correct test to apply when considering what treatment options a doctor is under a duty to discuss with a patient. Montgomery represented a seismic shift in the law in respect of medical consent. The decision was emblematic of a move away from deference to the medical profession and towards patient empowerment. The Supreme Court’s decision in McCullough[1], settles that the legal test to be applied when considering whether an alternative treatment is to be brought to the patient’s attention is Bolam ..read more

Christopher Fleming looks at a recent Court of Appeal decision which considers whether the Bolam test has a place in determining what alternative forms of treatment should be discussed with patients. It is difficult to think of a judgment from the past 10 years which has had a more profound impact on the ways in which patients interact with healthcare professionals than Montgomery. As it is now widely understood, Montgomery represented a seismic shift away from a paternalistic approach in healthcare, and towards a more patient centred focus. The correct approach to the consideration of risk in ..read more

Thea Wilson looks at the next development in this case in which the Defendant had sought a third-party costs order against an expert witness, because, after this expert’s oral evidence at trial, the Claimant had withdrawn her claim. Followers of 12 King’s Bench Walk’s Clinical Negligence blog may recall my article on tips for dealing with expert evidence in light of the case of Robinson v Liverpool University Hospital NHS Foundation Trust v Mercier, published at the beginning of 2022. The Facts For those not familiar with the case, the facts, briefly, were that the claimant, Miss Robinson, sue ..read more

John-Paul Swoboda discusses this recent case, which relates to events in 1996, and involves consideration of whether Montgomery applies to such historic circumstances. Lying below each number in this judgment lies a significant story. CNZ who suffered severe injury at birth was 26 years old at the date judgment was handed down. The issues were so numerous and complex in this liability only trial that it took 107 pages and 407 paragraphs for Mr Justice Ritchie, a hugely experienced clinical negligence specialist, to determine them. As the circumstances giving rise to this claim took place in 19 ..read more

In this post, Helen Waller writes about dealing with litigants in person in clinical negligence cases, considering the recent case of Doyle -v- Habib [2021] EWHC 1733 (QB). Although not a common issue in the world of clinical negligence litigation thanks to the wide availability of no-win-no-fee representation, on occasion one does come across a claimant (or, sometimes, another party) acting as a litigant in person (“LiP”). Having one party representing him- or herself can fundamentally impact the course and manner of the litigation, especially for the opposing party. It is well known by now t ..read more