Neutral Citation Number: [2014] EWCA Civ 1177
 
Case No: B3/2013/1830 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
COVENTRY DISTRICT REGISTRY
(HHJ GREGORY)
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Wednesday, 26 MARCH 2014
 
B E F O R E:

LORD JUSTICE LAWS 
LORD JUSTICE DAVIS 
LORD JUSTICE RYDER 
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	KADIR	Applicant	
	‑v‑		
	MISTRY & ORS	Respondent	
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Mr D Sweeting QC & Mr J Pendlebury (instructed by Brindley Twist Tafft & James) appeared on behalf of the Applicant
CHARLES ROSTER (instructed by Browne Jackson) appeared on behalf of the Respondent
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J U D G M E N T

1.	LORD JUSTICE LAWS:  This is the claimant's appeal in a clinical negligence case with permission to appeal given on one point by the trial judge.  This morning we have granted an application for permission on another point, which I shall explain shortly.  The appeal seeks to challenge conclusions of His Honour Judge Gregory in his judgment of 13 June 2013 in the Coventry District Registry of the High Court relating to quantum of damage.
2.	The appellant is the widower and personal representative of his deceased wife Saleha Begum, who died on 7 August 2008 of gastric cancer.  She was 32 and a half.  There are four children now aged between 7 and 13.
3.	The respondents, the defendants in the action, were partners in a general medical practice and the deceased was their patient.  The appellant sued them on behalf of himself and the children under the Fatal Accidents Act 1987 and on behalf of the estate of his deceased wife under the Law Reform (Miscellaneous Provisions) Act 1934.  The claim alleged a negligent delay in the diagnosis of Mrs Begum's cancer and a consequent delay in referring her for investigation and treatment.  It is uncontroversial, or now uncontroversial, that that should have been done in about June 2007 whereas the tumour was not diagnosed until March 2008 after an endoscopy and CT scan.  She was in hospital from 21 March 2008 until 4 April 2008.  She was then discharged home and advised only to receive palliative care.
4.	The appeal relates only to the judge's conclusions on the claim on behalf of the estate.  He declined to award any damages for pain, suffering and loss of amenity borne by Mrs Begum before her death or for mental anguish occasioned by the anticipation of an early death.  The judge gave permission to appeal against the first of these aspects, and we gave permission in relation to the second.
5.	As is well known, the Act of 1934 vested in a deceased person's estate all causes of action in a deceased's hands at the time of death.  An award for loss of expectation of life is, however, specifically precluded by the Administration of Justice Act 1982 section 1(1)(a).  But there is a caveat:
"If the injured person's life has been reduced by the injuries the court in assessing damages in respect of pain and suffering caused by the injuries shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced."
6.	The caveat applies, of course, both in the case of a claimant living at the time his action is tried and also in the case of a claim for the estate of a deceased person under the 1934 Act.  It applies in the claim for mental anguish here as regards which we have granted permission.
7.	I will deal with the point on which the judge granted permission first, although it is convenient to set out together the two paragraphs in which he addressed both points now before the court: 
"7.  I have received some very limited evidence from Mr Kadir with regards to Mrs Begum's state of mind.  It appears that according to him when they attended hospital and she was told for the first time of the diagnosis she was told that it had been present for at least six months.  He also says that there was a discussion with her GP and this is reflected in notes, when they asked what the position would have been had she been diagnosed earlier and they got no reply.  He refers to a belief that the delay had caused the cancer to spread.  It is extremely limited.  It falls far short, it seems to me, of the evidence which one would normally expect to see from somebody suffering from a terminal illness giving evidence about how they feel being in that position and the distress and anguish to which that has given rise.  The fact of the matter is that ultimately this is for the claimant to prove upon the balance of possibilities and there has been ample opportunity to do so, and the evidence in relation to that is extremely thin indeed, too thin to establish a claim upon the balance probabilities.
8.  Mr Foster has not shied away from the argument that as a matter of reality this lady suffered significantly less because of the delay of diagnosis than would have been the case if she had been diagnosed when it ought to have been because of the very awful nature of the extensive treatment to which she would have been subjected and the gruelling experience to which that would have given rise.  It is not an attractive submission but, having considered it at length, I have come to the conclusion that it is a submission with merit.  With a good deal of reluctance and, I have to say, some hesitation I have come to the conclusion that this is not a case in which I can make an award for general damages for pain and suffering and loss of amenity.  This is not because I consider there to be any form of set off as argued at one time by Mr Foster.  That is an approach for monetary claims.  Rather it is because the claimant has failed to establish on the balance of probabilities that the deceased suffered from any symptoms from which she would not in any event have suffered.  The evidence suggests that once the deceased had undergone the gruelling experience of failed surgery and chemotherapy she would, by reason of the nature of her illness, have progressed to develop just those symptoms that she in fact developed.  Further, there is no evidence to establish that her symptoms lasted any longer than they would have lasted had she undergone unsuccessful treatment.  In this sense she suffered no more than she would in any event have suffered, albeit at an earlier time."
8.	I turn then to the first issue: should the judge have made any award for pain, suffering and loss of amenity?  The question must be, what pain and suffering were occasioned to the deceased between June 2007 and her death in August 2008 by reason of the respondent's negligence.  It is as I understand it common ground that between June 2007 and March 2008 when the cancer was diagnosed Mrs Begum had relatively few systems, and those were not very acute: some continuing dyspepsia, postprandial epigastric pain, difficulty swallowing and, I understand from December 2007, episodes of vomiting after food.  From March 2008 until her death she received palliative care.  Had the respondents not been negligent she would have been referred for investigation in June or July 2007 and thereafter received treatment.  The position is described by the judge as follows:
"4.  The difficulty with the claim arises from the nature of the illness suffered by the deceased and how she ought to have been treated and I have to try and reconstruct what the sequence of events would have been had she been referred for treatment as she ought to have been in July 2007.  The treatment which she would have undergone would have been a prolonged period of chemotherapy followed by surgery, thereafter a period of recovery for some 10 weeks and then a further course of chemotherapy.  Each of these courses would have lasted about 9 months.
5.  This treatment would have been intensive and, to quote Dr Crosby, gruelling.  Over the period that this treatment would have been experienced the actual complaints of Mrs Begum were relatively modest; some nausea, some difficulty in swallowing and some epigastric pain and occasional vomiting.  These are all symptoms caused by the presence of the tumour.  They are just the sort of symptoms which she would in any event have developed towards the end of her life."
9.	I should add that the evidence was that treatment would only have delayed a fatal outcome and Mrs Begum would likely have died in July or August 2010, having latterly suffered just the sort of symptoms she in fact experienced before her diagnosis.
10.	Mr Sweeting QC for the appellant submits that in deciding whether the appellant had made out a case for general damages for pain, suffering and loss of amenity the judge should have disregarded (a) the suffering involved in the treatment which the deceased would have received if her cancer had been diagnosed when it should have been and (b) the fact that without negligence the deceased would have been exposed effectively to the same pain and suffering by virtue of the cancer as she in fact bore, only about two years later.
11.	It is in my judgment important to bear in mind on this part of the case that there are no special rules for the assessment of general damages for pain and suffering in a 1934 Act case compared with the case of a living claimant, save only the caveat in the Act which allows damages for mental anguish occasioned by the apprehension of an early death.  This part of the case requires the court to undertake what to my mind is a wholly conventional exercise: what elements of pain and suffering as a matter of causation had been occasioned to the deceased by the respondent's negligence?  Of course the case has to be looked at as at the date of death; thereafter she is beyond pain and suffering.  As I put it earlier, the question in this case must be what pain and suffering were occasioned to the deceased between June 2007 when the respondent was relevantly negligent and her death in August 2008.
12.	If the court were looking at the case of a live claimant facing an early death ‑‑ say a person in the position of this deceased just before the date of her actual death in August 2008 ‑‑ it would in my judgment inevitably have had to compare the facts as they eventuated with the facts as they would have been without negligence on the defendant's part.  That is a conventional exercise, to use the phrase I used before.  On this footing the fact that the deceased would have suffered the same symptoms two years later must have been relevant, and the gruelling nature of the treatment she would have received without negligence must also have been relevant.  The comparative exercise which is an elementary feature in deciding what is attributable to the negligence in such a case makes those matters relevant.  On that approach in my judgment the judge was correct to refuse, and was entitled to refuse an award of damages for pain, suffering and loss of amenity.  
13.	The exercise I have described would properly lend to such a result on the evidence in the particular case.  I have to say I was at a loss to detect in Mr Sweeting's submission this morning any articulation of principle which might produce a different result.  The fact that the deceased's suffering caused by the cancer, and the effects of the treatment that she would have received without negligence, were in Mr Sweeting's words "conceptually different" seems me to be neither here nor there.  In those circumstances I would for my part dismiss the appeal on the first issue.
14.	I turn to the second issue.  This relates to the judge's conclusion in paragraph 7 that no damages fell to be awarded for mental anguish occasioned by an apprehension of early death.  I have already set out the caveat to section 1(1)(a) of the Administration of Justice Act 1982; it refers to "suffering caused or likely to be caused by awareness that his expectation of life has been so reduced."
15.	I do not for my part consider that awareness here necessarily means strictly certain knowledge.  The provision is dealing with a state of affairs arising where the claimant or deceased has good objective reason to fear that his expectation of life has been reduced.  As a matter of ordinary humanity, it seems to me plain that if some good objective reason to fear is shown, then a subjective fear and the anguish that surely follows it will ordinarily be liable to be inferred.
16.	What then was the evidence here?  The appellant put in a second witness statement with the judge's permission.  Its contents are not the subject of any effective dispute in this court.  In the statement the appellant asserted:
"The following week [that is the week after Mrs Begum's admission to hospital in March] the family, my wife and I were told that if it had been diagnosed earlier she would have had the possibility of survival.  On 23 May 2008 Dr MG Mistry came to home visit my wife.  Present were my wife and I, my sister, an interpreter and my cousin's brother's wife.  The conversation was about 20 or 30 minutes long.  My wife asked why she had not been referred earlier and if she had been whether she would have survived.  Dr Mistry did not reply."
The appellant added these words:
"It was my wife's belief that the delay caused the cancer to spread."
17.	I make it clear that the judge did not reject this evidence, although Mr Foster appeared this morning to suggest that he did.  It is plain from this witness statement and, I should add, from the medical note of the same conversation to which our attention was drawn by Mr Sweeting, that the question of why the deceased lady had not been diagnosed earlier was a very live one.  
18.	The appellant was recalled to the witness box.  In the course of cross‑examination by Mr Foster for the respondent, this exchange took place at (internal) page 2 line 24:
"Q: Mr Kadir, you say that when your wife and you were first told that your wife had stomach cancer you were told that it had been present for at least six months, is that right?  You were told it had been present for at least six months, is that right?
A:  Yes, hospital told me that."
And a few lines later: 
"Q:  You say that the following week you and your wife were told that if the cancer had been diagnosed earlier she might have survived, is that right?
A:  Yes, and they said that if it was diagnosed before she had a chance of survival, and they could have operated on her."
Mr Foster challenged that evidence but the appellant would not be budged from it.
19.	In exchanges during counsel's speeches the judge seems to have accepted, or perhaps it is fairer to say to have been inclined to accept, that the evidence went at least so far as to establish that the deceased apprehended that late diagnosis had reduced her chance of survival.  I have in mind this passage at page 26 of the transcript (Judge Gregory addressing Mr Foster) line 8:
"Judge Gregory:  Well, not exception of life but there is evidence to suggest that she knew that she had lost the chance of survival."
On the same page line 20:
"Judge Gregory:  You see the comment by the family; had this been dealt with earlier the outcome might have been different or towards that effect and it is inconceivable that there were not conversations of that nature.  Now, remember that Dr Crosby told us that one of the first things that patients want to know is how long have they had the cancer."
20.	It is clear from the next page that Mr Foster sought to persuade the judge that the conversation, the subject of Mr Kadir's evidence ‑‑ I take that to be a reference to the conversation in the second statement ‑‑ was not accurately recorded but there is nothing to show that the judge accepted that submission.
21.	It seems to me plain on the material that we have seen that the evidence gave rise to a proper inference that Mrs Begum feared on good objective grounds that her life had been or may have been curtailed by the respondent's failure to diagnose her condition earlier.  The appellant was not required to prove that his wife knew her life expectancy had been reduced because the respondents had been negligent.  On this ground only and for these reasons I would allow the appeal.  If my Lords agree, a question will arise as to the further disposal of the case as to which as appropriate we will hear further submissions.
22.	LORD JUSTICE RYDER:  I agree with the judgment of Laws LJ.
23.	LORD JUSTICE DAVIS:  I also agree that the appeal on the first issue should be dismissed and the appeal on the second issue should be allowed to the extent described by my Lord, Laws LJ.