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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Webb v Barclays Bank Plc & Anor  EWCA Civ 1141 (16 July 2001)
Cite as:  Lloyd's Rep Med 500,  PIQR P8,  EWCA Civ 1141
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Rougier)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JUDGE
LADY JUSTICE HALE
|ELIZABETH ANNE WEBB
|- and -
|BARCLAYS BANK PLC
PORTSMOUTH HOSPITALS NHS TRUST
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Kennedy for the Appellant)
A Whitfield Esq, QC & Julian Matthews Esq
(instructed by Messrs Vizards Staples & Bannister for the Respondent)
Crown Copyright ©
LORD JUSTICE HENRY:
"... that with the degree of instability you have got, I do not think that anything other than a long term calliper would be any help."
She reacted indignantly, saying she did not want to go back to a calliper.
"It was not an easy decision to take, and after a lost of discussion, we felt that the best option was to follow the advice given to us by Mr Jeffrey and Mr McLaren and for Elizabeth to have her leg amputated."
This was done on 22nd February 1995.
"I had no reason to know there was any suggestion that I should not have had the operation until I read Professor Heatley's report of 30th March 1999."
"I feel rather sad, indeed despondent, that she had ended up with an amputation, as I personally would have certainly tried a different surgical option."
Mrs Webb concludes the statement by saying:
"The knowledge that the trial in November may now have to be put off, and that I may now have to sue Mr Jeffrey, in whom I have great trust and who has done a lot for me, and will have to undergo further medical examinations has caused me significant distress and continues to do so."
"... had she been given proper advice or exhortation, based on the result of investigations which should have been conducted, what would her reaction have been?" (ie would she have given consent to the operation?)
"... had it been possible to say, with any certainty, what advice, based on the result of his various enquiries, Mr Jeffrey would have been in a position to give to Mrs Webb, then I accept that the right approach would be to ask whether on the balance of probabilities, the claimant succeeded in proving, either by direct evidence or by necessary inference that she would have accepted that advice, and thereby avoided amputation and its consequences."
"But the difficulty here is that we do not know what advice Mr Jeffrey would have been in a position to give. We do not know whether a proper examination, both clinical and radiological, would have revealed some bony pathology which was relatively simply curable. The reason we do not know is because Mr Jeffrey never undertook those examinations, and it is no longer possible to examine the knee. By the same token, we do not know what advice Mr Jeffrey would have been able to offer to Mrs Webb as to the range and models of braces available and the chances of ultimately being able to get one which she could tolerate, for the simple reason that such enquiries were never made.
We have, therefore, a situation where the very omissions which have been proved against the defendant are those which preclude the claimant from advancing the evidence necessary to establish causation. I cannot believe that the law could possibly countenance such a manifestly unjust situation by insisting on a balance of probabilities approach in circumstances such as these. How, I might ask, could I be expected to determine the reaction of a woman whom I have never seen, to a dissertation that never took place, the contents of which could be no more than guessed at?"
"... had I taken the view urged on me by counsel [ie deciding the case on the ordinary principles of causation - that is to say deciding on the balance of probabilities] although I am making no definite finding on the point, I feel bound to say that I am extremely doubtful that I should have felt entitled to infer that Mrs Webb would have accepted the suggested advice [ie to have rejected amputation in the full knowledge of relevant facts] or, that having accepted it initially, she would have persevered with the trials of orthosis which, in all probability, would have been protracted."
"Mrs Webb's views on braces I have already dealt with. So, upon this distinctly jejune material, I have to ask myself what in percentage terms is the value of the chance of which Mrs Webb was deprived? Some answer has to be given. While I am uneasily conscious that I may be moving from the realm of hypothesis to that of wild speculation, my answer is 40%."
"... of forming a reasoned opinion on the basis of full knowledge of the relevant facts, and in the light of that opinion to have rejected amputation."
a) £47,898 (being 40% of £119,745 - a figure whose provenance I do not know);
b) 40% of the claimant's costs from 20th September 1999 to 6th April 2000; and
c) the costs of the issues raised in the Amended Particulars of Claim to be assessed.
"1 The judge was wrong in law to conclude that the correct approach as to whether the Claimant would have come to amputation in any event was one of loss of a chance of avoiding amputation; he should have decided that issue on a balance of probabilities. Adopting the correct approach, and given his conclusion that the Claimant (and hence the First Defendant) could not show that she would have avoided amputation on a balance of probabilities, he would have dismissed the contribution claim.
2 In particular, the judge was wrong to distinguish the decisions in Hotson -v- East Berkshire HA  1 AC 750 and Allied Maples -v- Simmons & Simmons  1 WLR 1602.
3 The judge was wrong in law to conclude that because the omissions proved against the Second Defendant had prevented the Claimant from establishing causation, the balance of probabilities approach should not apply. That is in effect to award the Claimant the loss of a cause of action, which is not within the scope of the duty owed by the Second Defendant to the Claimant, namely to avoid causing the Claimant unnecessary physical harm."
"1.1 The learned judge was in error in concluding that the evidence necessary for the claimant to establish causation was not available.
1.2 The learned judge ought to have found that:
1.2.1 the Claimant ought not to have been advised that the amputation was 'the best option' and 'the right way forward' but ought to have been cautioned against it (if it was justifiable to mention it at all) and urged to have further investigations and to consider other options first, and in particular to persist in trying to find a suitable orthosis.
1.2.2 that, on the balance of probabilities the claimant would have accepted the advice that ought to have been given and would not, of her own volition, have been likely to insist on amputation;
1.2.3 the breach of duty at 1.2.1 thus caused the claimant to elect to undergo an above-knee amputation, which was then performed.
1.3 The learned judge therefore erred in reducing the damages attributable to the negligence of the appellant by 60%. The learned judge ought to have awarded the first defendant the full measure of the damages and interest assessed by him as having been occasioned by the amputation."
Q4: some type of intervention would be necessary for the knee in six years.
Q5: that would be some sort of bracing, assuming that the knee was "at that stage" braceable.
Q7: the accident did bring about a change in her condition, albeit a small one. With old polio patients even a comparatively minor change can tip the balance to an accelerated decline in functional activity.
Q8: all agreed that the preferred treatment would have been physiotherapy, hydrotherapy and bracing. Mr Luff would have undertaken further investigations to determine the cause of the pain.
Q10: went to the heart of the matter: "Would you personally have advised an amputation?" All were agreed that the answer was "No".
Q11: "Would you have accepted amputation as a possible option if bracing failed or was otherwise totally rejected?" The note reads:
L and RH rejected this option outright, except in the case of some major complication such as infection. K would have been prepared to consider it if pain was a major factor.
FH would have considered it only as a last resort and after exploring all other modes of treatment as set out in his answer to Question 8. He would also have considered a patellar bone-block operation, as described in his report.
JS and LS, while accepting that amputation has a poor reputation in post-polio patients, would not have rejected it completely as an option, considering that in this particular case (unlike the 'usual' polio case) the patient had a considerable degree of pain, hyperaesthesia, joint deformity and rotational instability of the knee."
Q12: all would have warned of the possibility of an adverse outcome.
Q13: asked whether there was anything in this particular case which would have counted for or against amputation, and K, JS and LS relied on the factors they had alluded to in their answers to Question 11 as being unusual circumstances for a post-polio patient, and would have a significant influence on decision making (but none of them would have amputated) then, but only as a last resort.
Q14: asked whether the claimant's functional capacity five years on from the amputation "... was better, worse, or the same as it would have been with their preferred treatment". Of those that had examined her, their conclusions were: one, very much worse; one, significantly worse; and two, "... managing about as well now as she would have done after five years in a brace".
"... do you think the decision in this case represented a standard of care below that to which Mrs Webb was entitled to expect?"
L, RH and FH answered yes, and K, JS and LS answered no. And finally:
"It was generally agreed that the standard of note-keeping in the medical records was not of a high standard, making it difficult for those who had not seen Mrs Webb to form firm conclusions about the details of her medical condition."
a) Professor Heatley first stressed the very limited investigation that Mr Jeffrey had made. He criticised the limited X-rays, and the absence of X-rays taken from all angles, examined under an image intensifier. He regarded physiotherapy, hydrotherapy and bracing as an ideal solution, while accepting that it could be difficult psychologically to get it to work, to persuade those who in their polio-afflicted youth had had troublesome experiences with heavy callipers to give braces another chance. But he himself had never had to amputate on an old polio victim, having found that other patients with experience of the suggested form of brace were persuasive. He felt "rather sad" that she had ended up with amputation. He was not impressed by the fact that Mr Jeffrey obtained a second opinion accepting amputation from Mr McLaren; the second opinion was given too quickly with inadequate information. He was against amputation, but would not have said it represented a standard of care below what could be expected.
b) Dr Luff regarded amputation was being last in the list of options. Any intervention may have an enormous impact on the patient, and requires a very careful analysis. It was essential that all reasonable avenues of treatment were considered before a decision to amputate. That had not happened here. Radiographs should have been considered and obtained. Amputation had not got a good record with polio patients. He would have been pessimistic as to its chances. He too was not impressed by Dr McLaren's second opinion because no reasons were given.
c) Mr Spivey had never amputated a leg in circumstances such as existed here. He thought that the explanation here must be that both Mrs Webb and Dr Jeffrey were proceeding on the basis that her existing situation was unacceptable, and that desperate measures were necessary - otherwise he could not understand the decision. But amputation should only be offered as a last resort.
d) In his original witness statement Mr Spivey said that the quality of the medical records produced made it difficult to be certain what the medical condition of the knee was, and what degenerative changes there were. In his evidence he expanded that he had seen no record of a proper clinical examination. He would have explained how a calliper could be expected to ease the patient's pain, and he would have spent a lot of time dealing with her objections. He would have persisted with non-surgical means of management for as long as he could. He said that he found that eventually he and his patients agreed. He agreed that some sort of bracing would have been needed, but this turned first on acceptance and compliance by Mrs Webb, and second on whether the knee at the time was "braceable". While he would not have amputated, he did not believe that the decision to amputate represented a standard of care below that which Mrs Webb was entitled to expect.
e) Professor Solomon would have made Mrs Webb aware of all the problems associated with surgical management, and would have advised against amputation at this stage. He would have wanted a good X-ray. However, because there was evidence that she had reasonably good muscle control around her hip, he would not have branded the advice as falling below the standard of care. But, as he made clear in his evidence, he would have been extremely reluctant to amputate, and would have done so only as a last resort. He had, more often that not, been able to persuade patients to carry on with a brace.
"All agree that they would not have advised amputation. It has a notoriously bad outcome for old polio patients and it was the consensus of opinion that it would only be used as a very last resort and as a result of some secondary and potentially life threatening complication. They were also in agreement that, subject to being able to coax Mrs Webb to acquiesce, bracing or orthosis of some sort was by far the preferred option, with occasional assistance from crutches.
Another criticism which all the expert witnesses made, to a greater or lesser degree, concerned the apparent omission, in November 1994, to investigate Mrs Webb's knee in far greater depth and detail, in order to discover just what the underlying pathology was which was causing such severe pain. Various possible methods were suggested.
But I do accept the view of those who tell me that, before deciding on anything so drastic, disfiguring and irreversible as amputation, a full clinical examination, plus a set of good quality X-rays, taken from various angles, were highly desirable.
It is in this respect that I consider the two surgeons who advised Mrs Webb can be validly criticised. In my view Mr Jeffrey was too quick to believe that he had reached the end of the line. By not conducting these investigations, he deprived both himself and Mrs Webb of the full ambit of the knowledge necessary to make a reasoned choice. He was also somewhat too quick to think that there was no point in trying to coax Mrs Webb to try again with the orthosis. He was aware that there were various types and designs that could be made, but there is no evidence that he made any enquiry of the unit that supplied them as to the chances of getting or producing a brace that would have succeeded in significantly reducing Mrs Webb's pain and instability, besides being cosmetically acceptable.
Therefore I agree with those who say he should have done more to indicate how much more preferable it would be to try a brace which would be both effective and acceptable to the wearer.
The breach of duty lies not in the amputation by itself, for any such allegation would be met with the counter that Mrs Webb had specifically consented to it, but rather in the failure to take the steps that were necessary to provide himself and Mrs Webb with the complete information necessary for a choice to be made. Of course it may be that, even with the utmost persuasion, Mrs Webb's loathing of braces could not have been overcome, and she would still have opted for amputation. But she should have been given the fullest information and encouragement in order to wean her towards what all have agreed was the best option."
"In other words had she been given proper advice and exhortation, based on the results of investigations which should have been conducted, what would her reaction have been?"
"We have, therefore, a situation where the very omissions which have been proved against the defendant are those which preclude the claimant from advancing the evidence necessary to establish causation."
"Been through [above-knee] amputation of this left leg with her and her husband today. Everybody's agreed that this is the best way forward."
But, as the judge was to find, it was too early to proceed to amputation.. As the telephone conference showed, none of the doctors taking part would have recommended amputation then, though three of the six would recommend it as a last resort. But matters had not reached that irreversible stage. On the judge's finding, any such advice or recommendation would be premature because first, Mr Jeffrey had not fully investigated the causes of the pain in the left knee, nor had he investigated, or caused to be investigated what modern bracing had to offer Mrs Webb.
a) all experts were agreed that they would not then have advised amputation, with the three who would contemplate it only doing so as a matter of "... very last resort ...", and as a result of some secondary and potentially life-threatening complication;
b) before one reach "... the end of the line ...", ie amputation, it was necessary first, to investigate Mrs Webb's knee in far greater depth and detail to discover what the underlying pathology was before deciding on anything "... so drastic, disfiguring and irreversible as amputation ...", including a full clinical examination, and good quality X-rays, and second, conducting investigations to try and find a brace "... which would be both effective and acceptable ..." to the wearer;
c) that Mr Jeffrey should have given Mrs Webb the fullest information and encouragement to "... wean her towards what all have agreed to be the best option" (ie bracing.
"... highly probable that Mrs Webb was considerably aghast at the thought of losing part of her leg but that, in her state of mind at the time, was prepared to accept the view of Mr Jeffrey that there was really nothing else to be done."
"... it may be that even with the utmost persuasion Mrs Webb's loathing of braces could not have been overcome, and she would have still opted for amputation. But she should have [been] given the fullest information and encouragement in order to wean her towards what all have agreed was the best option."
Later, he said that although he was not making a definite finding:
"I am extremely doubtful that I should have felt entitled to infer that Mrs Webb would have accepted the suggested advice or, that having accepted it initially, she would have persevered with the trials of orthosis which, in all probability, would have been protracted"
"... where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided" (per Gaudron J in Chappel v Hart  LLR 222 at 227).
We respectfully disagree with the suggestion that where a patient has sustained injury in the circumstances envisaged by Gaudron J, any claim must fail unless the patient gives evidence personally about what would or would not have happened if he had been properly informed of the facts before making his decision. What if the patient had suddenly died between a medical procedure carried out when he was not given proper information, and the trial, and without a statement having been taken from him on this direct question? Carried to its logical conclusion, the principle for which Mr Rees was contending would mean that, as a matter of law, such a claim would be bound to fail. That cannot be right. The likely consequences, if any, of medical negligence, in whatever form it may be established, depends entirely on the evidence before the judge, and the conclusions which, as a matter of fact, he is prepared to draw.
"I therefore agreed to the amputation as Mr Jeffrey thought it was the best solution."
It seems to us probable that if Mr Jeffrey had decided and advised against amputation pending the further enquiries, it would not have taken place. And the judge in his judgment rightly proceeded on the footing that he did not "... believe that the search for a successful brace would be a short one". He did not find that she would not have waited, and such a finding would be out of character with the view we have formed of her.
"1 Entitlement to contribution
(1) Subject to the following provisions of this section, any person liable in any respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).
(4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provide, however, that he would have been liable assuming that the factual basis of the claim against him could be established.
2 Assessment of contribution
(1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."
As a matter of statutory construction, we proceed on the basis that "the damage" in section 1(4) must be read as being "the same damage" as is mentioned in section 1(1).
"Had Mrs Webb had to sue the Bank to judgment and the Bank had established an intervening act of negligence on the part of the Hospital, it would have sought to limit Mrs Webb's claim against it to £53,945.56" (the Trust's second skeleton paragraph 6.2).
"For the reasons stated above, the claimants amputation and the subsequent problems related thereto were thus not caused or contributed to by defendants but were solely due to the intervening negligence on the part of the claimant's treatment hospital and doctors."
The plain object of this amendment was achieved when the claimant amended her pleadings to make against the Trust the same criticisms as the Bank had made, as they were to do.
"... the fact that the first defendant has by its pleading argued that it is not liable for post-amputation disability [prevents] it from seeking a contribution."
"[section 1(4)] clearly contemplates a settlement of a claimant's claim before all questions of liability, as between defendants, have been decided. ... In my judgment, at this stage of the proceedings, what we are looking at is the damages claimed by the claimant. Either they will all be ultimately found the responsibility of the first defendant, or they will in part be found to be the first defendant's responsibility and in the other part that of the second. But at this stage, we are looking at the claimant's claim and the contribution sought in respect of that claim."
"... many of the disabilities and aspects of financial loss have two concurrent causes, which would produce overlaps. The proper approach, therefore, is to look at the total settlement sum, assess to what extent the breach of duty of the second defendants contributed to that sum ... "
We conclude that there is no ruling on the pleading point because there was no point raised as to it in the trial proper.
"... it does not seem to me to be established as a rule of law that later negligence always extinguishes the causative potency of an earlier tort. Nor should it be. The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible."
"Held, that if the employer were held liable in damages to the workman, it might be able to prove that if the doctor had been sued by the workman, the doctor would have been liable for some of the damages recovered by the workman, and, in that event, the employer would be entitled to an order for contribution under s.5(1)(c) of the Act.
Whether a tortfeasor can avoid liability for a subsequent injury tortiously inflicted by a second tortfeasor depends on whether or the subsequent tort and its consequences are themselves foreseeable consequences of the first tortfeasor's negligence.
Per curiam. Where an injury is exacerbated by medical treatment, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. If the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need no be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given."
"Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation." (18th Edition, 2-55)
a) the original wrong-doing remained a causative force, as it had increased the vulnerability of the claimant and reduced the mobility of the claimant over and above the effect of the amputation;
b) the medical intervention was plainly foreseeable, and it was also foreseeable that the claimant's pre-existing vulnerability would impose its own risks;
c) given the doctor's conduct was negligent, but not grossly negligent, and given the findings expressed at a) and b) it would not be just and equitable, nor in keeping with the expansive philosophy of the 1978 Act for the wrongdoer to be given, in these circumstances, a shield against i) being liable to the claimant for any part of the amputation damages; and ii) being liable to make such contribution to the Trust's amputation damages as was just and equitable.
"... such as may be found to the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question." (section 2(2) of the 1978 Act)