CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS
This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”. This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law. …
AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?
The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence. However the claimant’s problems came largely from reliance on an…
THE DANGERS OF AN “ENTHUSIASTIC” EXPERT – CASTS DOUBTS ON THEIR RELIABILITY
Most clients are happy to find an expert witness who agrees with their case. Even better, it may be thought, is an eminent expert who feels very strongly about the case. However, as we have seen so often on this…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
PROPORTIONALITY AND PREMIUMS IN CLINICAL NEGLIGENCE CASES: COURT OF APPEAL JUDGMENT TODAY
In West -v- Stockport NHS Foundation Trust [2019] EWCA Civ 1220 the Court of Appeal considered the question of proportionality in relation to clinical negligence actions and the “recoverable” element of ATE insurance. I am grateful to Sean Linley for…
PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENCE EVIDENCE
In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance. The case is interesting for…
PROVING THINGS 154: CLOSE CONNECTION IN TIME DOES NOT ESTABLISH CAUSATION IN A CLINICAL NEGLIGENCE CASE: EXPERTS STRAYING BEYOND THEIR AREA OF EXPERTISE
In AXO v Salisbury NHS Foundation Trust [2019] EWHC 1454 (QB) Mrs Justice YIP considered the issue of causation in a clinical negligence case. Liability was admitted but the claimant failed to establish causation. THE CASE The claimant child was…
ASSESSING EVIDENCE 26 YEARS AFTER THE EVENT: THE JUDICIAL APPROACH
In Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1043 (Ch) John Kimbell QC (sitting as a High Court Judge) considered the question of assessing evidence of a brief incident, 26 years after the event, in a case…
DEPARTING FROM THE BUDGET: IMPORTANT DECISION ON APPEAL: JUDGMENT NOW AVAILABLE
Both Professor Dominic Regan and Acumension have kindly sent me copies of the decision in Barts Health NHS Trust -v-Salmon an appeal in relation to costs budgeting (HHJ Dight CBE, with Master Brown as an assessor, 17th January 2019). A copy…
WHEN WITNESSES DID NOT ATTEND TRIAL 3: ADVERSE INFERENCES ARE DRAWN IN A CLINICAL NEGLIGENCE CASE
There are three cases today about the implications of witnesses not attending trial. This was an issue in Asante v Guy’s and St Thomas’ NHS Foundation Trust [2018] EWHC 2570 (QB). The absence of key witnesses from the defendant led…
PROVING THINGS 129: IMPATIENT PATIENT DID NOT BREAK THE CHAIN OF CAUSATION: SUPREME COURT DECISION TODAY
The Supreme Court decision today in Darnley -v- Croydon Health Service NHS Trust [2018]UKSC 50 marks a development in the law of negligence, and also in relation to proving causation. “Far from constituting a break in the chain of causation,…
CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS
The judgment in Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence. A feature of the case is that the claimant did…
CHANGING WITNESS STATEMENTS: COMPARE AND CONTRAST: EDITING STATEMENTS CAN AFFECT CREDIBILITY
The judgment case of ML (A Child) v Guy’s And St Thomas’ National Healthcare Foundation Trust [2018] EWHC 2010 has an interesting passage on witness statements. It is an example of how early witness statements that were not initially disclosed can…
PROVING THINGS 121: FAILING TO PROVE LOSS OF EARNINGS, AND THE APPROPRIATE APPROACH WHERE FUTURE TREATMENT IS UNCERTAIN
Yesterday I looked at Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB) and the comments from the judge in relation to the joint statement of experts. The case also contains interesting observations in relation to proving damages. These are observations on matters…
EXPERTS, LAWYERS AND THE JOINT-REPORT (1): JUST ONE AGENDA PLEASE
Curiously there are two cases today that deal with the role of lawyers and the joint report. The first I will look at is the judgment of Mrs Justice Yip in Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB)….
PROVING THINGS 111: CAUSATION IN CLINICAL NEGLIGENCE CASES WHERE THERE IS A FAILURE TO WARN: BURDEN OF PROOF REMAINS ON THE CLAIMANT
The judgment of the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 deals with a number of matters. Here I want to look at the question of proving causation in a case where the…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
NB THIS DECISION WAS OVERTURNED ON APPEAL SEE THE REPORT HERE In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a…
PROVING THINGS 98: AN EASY AND OBVIOUS ROUTE TO REFUTE ALLEGATIONS OF NEGLIGENCE (WHICH WAS NOT DONE)
I am returning to the decision of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB). This time in the context of proving, or refuting, allegations of negligence. There was a simple route by which the defendant could have…
EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”
There are several passages in the judgment of Mrs Justice Yip in David John Saunders -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports. That is the problematic “agenda”. A …
FUNDAMENTAL DISHONESTY: INACCURATE STATEMENT OF MEDICAL TREATMENT WAS DISHONEST: NO “SUBSTANTIAL INJUSTICE”
One of the many complex issues that Mrs Justice Cockerill considered in Razumas v Ministry of Justice [2018] EWHC 215 (QB) today was the question of fundamental dishonesty. The claimant gave a misleading account of medical treatment. He was found to…