PROVING THINGS 169: WHEN THE DEFENDANT CALLS NO (LAY) EVIDENCE AND TRIES TO PROVE ITS CASE THROUGH THE CLAIMANT’S WITNESSES

There are a number of interesting aspects of the judgment of HHJ Coe in Esegbona v King’s College Hospital NHS Foundation Trust (false imprisonment in hospital) [2019] EWHC 77 (QB). One of which is the defendant’s failure to call any lay evidence. The other is the fact that the defendant’s approach to the litigation appears to have played a part in the award of aggravated damages.

“It seemed to me that the defendant was trying to establish its case through the claimant’s witnesses, I accept of course that the burden of proof is on the claimant, but the defendant has not put any positive evidence forward save for the opinion of Dr Vletsi.”

THE CASE

The claimant brought an action on behalf of the estate of her mother.  It was argued that in the period before her death the mother had been treated negligently and also unlawfully detained.  The defendant admitted part of the unlawful detention aspect but argued that it made no difference to the mother’s treatment or outcome.

THE JUDGMENT ON EVIDENCE

The defendant called one expert witness (Dr Vletsi) but no lay witnesses to explain the defendant’s conduct in detaining the mother.  This fact was commented on by the judge.

  1. It is a striking feature of this case that the defendant did not call any evidence apart from that of Dr Vletsi. I heard from no-one involved in Mrs Esegbona’s care. She was a patient in the defendant’s hospital for eight months. This is not the sort of single episode encounter where it would be perfectly understandable that a nurse/doctor would have no independent recollection. I heard no positive evidence about any information that was passed on to Wilsmere House. Neither did I hear any generic evidence about the defendant’s and its staff’s usual practice in relation to capacity assessments, best interest decision meetings, discharge procedure/provision of information. I did not hear from Mrs Esegbona’s consultant on the issues of his understanding of his duties under the Mental Capacity Act or his view as to the role of decision-maker. Neither did the defendant call evidence from the PCT or Lewisham about their roles, even on a generic basis. I did not hear from any of the defendant’s psychiatric or nursing teams about Mrs Esegbona’s care/wishes/feelings.
  2. Dr Esegbona and Lynne Phair were cross-examined at length on wide-ranging topics. It seemed to me that the defendant was trying to establish its case through the claimant’s witnesses, I accept of course that the burden of proof is on the claimant, but the defendant has not put any positive evidence forward save for the opinion of Dr Vletsi.
  3. Dr Vletsi seemed to me to be overly willing to give her opinion on areas outside her expertise and in particular where she expressed an opinion on nursing practice, I prefer the evidence of Lynne Phair, who is not only a nursing expert, but who has considerable experience in precisely the sort of case with which I am concerned. I find that Dr Vletsi’s approach to the assessment of breach of duty is inappropriately influenced by her view on causation, namely that it would have made no difference to the care. Of course, there can be a breach even if it is not a causative one. However, I do find that Dr Vletsi was doing her best to help the court.

THE JUDGMENT ON DAMAGES

The claimant succeeded in her claim.  The judge awarded damages for false imprisonment and aggravated damages.

    1. In light of my conclusions I need to assess the appropriate quantum of damages for false imprisonment, aggravated damages, if appropriate, and for pain, suffering and loss of amenity.
    2. I find that Mrs Esegbona was unlawfully imprisoned from the date of Dr Bhavsar’s recommendation on 15th February until her discharge to Wilsmere House on 14th June, a total of 119 days. For the reasons set out above, there had been preliminary plans on 9th February to discharge Mrs Esegbona home and it was clear that she and her family wanted her to go home. Dr Bhavsar set out what was required for a capacity assessment to be made. That was not done. On the same day the defendant decided Mrs Esegbona could not go home. From this point it seems to me clear that the defendants were in breach of their duties pursuant to the Mental Capacity Act and Mrs Esegbona was unlawfully imprisoned.
    3. For the reasons set out above I do not consider that this is a case in which only nominal damages are payable.
    4. The claimant argues that this period of unlawful detention should attract an award of damages in the region of £30,000. The defendant argues that this figure is far too high in circumstances where Mrs Esegbona needed to be in hospital anyway. Of course, I have not found that that is the case.
    5. I was referred to the cases of MK (Algeria) v SSHD [2010] EWCA Civ 980AXD v The Home Office [2016] EWHC 1617 (QB) and Alseran v MOD [2018] 3 WLR 95[2017] EWHC 3289 (QB). Although they identify some principles and parameters, I do not find these comparisons particularly helpful. Each case has to be looked at on its own merits and taking into account the individual circumstances. There is no “initial shock” of detention here. I find that Mrs Esegbona would have been less distressed and frustrated had the defendant complied with its duties. Her voice would have been heard. I accept the evidence of Lynne Phair that she would on the balance of probabilities not have remained an inpatient on an acute ward. She may have gone home either on a trial basis or permanently. She may have been moved to a nursing home on a temporary basis, but in any event her needs, wishes and feeling would have been fully and accurately identified.
    6. I have considered the authorities and the submissions, and I award £130 per day, making a total of £15,470.
    7. The defendant argues that I should not award aggravated damages where Mrs Esegbona was not the victim of clinical negligence, she was a very unwell patient who was given appropriate medical care. Without calling any evidence, the defendant urges me to find that the exclusion of Mrs Esegbona’s family from the decision to discharge to Wilsmere House on 14th June was not “deliberate”. I interpret the written notes as showing in the clearest possible way that the defendant was deliberately excluding the family. It intended that the family should have the minimum possible notice. The location and identity of the nursing home was deliberately not disclosed. The defendant made its decision and was determined to implement it without the family’s involvement.
    8. By reference to the principles summarised at paragraph 22 of AXD v The Home Office, I find that that behaviour falls squarely within the definition of “high-handed” and “oppressive”. Taken together with the additional features in this case of the defendant’s failure to follow the advice of its own psychiatrist on three occasions and their failure to call any evidence in this case to explain the tenor of the notes, I find that it is appropriate to make an award of aggravated damages.
    9. Having looked at some of the authorities, I award £5,000 under this head.
    10. In terms of pain, suffering and loss of amenity, the claimant refers me to the Judicial College Guidelines chapter 1 (E) and relies on the fact that Mrs Esegbona would have been in distress and unable to breathe and would have known she was going to die and thus the award should be (with the uplift), £4,100.
    11. The defendant says that since her distress lasted minutes only on any view, the “immediate unconsciousness” category at 1(D) is more appropriate the bracket with the uplift being £1,200 – £2,450.
    12. On the basis of my findings, Mrs Esegbona either pulled her tube out because she could not breathe or because she was very confused and wanted to go home. She would therefore clearly have been very frightened, distressed and alone (when she should not have been) at the time of her death. However, again on the basis of my findings as to the cause of death she would have died very quickly. For these reasons I assess the quantum of damages in the sum of £3,500.
Conclusion
  1. There will be judgement for the claimant in the sums identified above.