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Neutral Citation No.: [2009] NIQB 10
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Ref:
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DEE7404
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Judgment: approved by the Court for handing down
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Delivered:
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13-02-09
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(subject to editorial corrections)*
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IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
BETWEEN:
ELAN NEESON AS PERSONAL REPRESENTATIVE OF
PATRICIA GARDNER DECEASED
Plaintiff;
-and-
PHYLLIS AGNEW AND OTHERS
PRACTISING UNDER THE NAME OF TUGHAN & COMPANY SOLICITORS
Defendants.
________
DEENY J
[1] The plaintiff in this action is
the personal representative and daughter of Patricia Gardner deceased. She
sues her former solicitors. The first defendant was not personally involved in
the case. The deceased, who was then about 73 years of age, was referred
to the Belfast City Hospital in February of 1998 complaining of a cough, weight
loss and weakness. A tender lump was found on her right neck and on 18
February 1998 a fine needle aspiration of the lump disclosed a thyroid
carcinoma. The deceased was informed on the 24th of that month that it was
intended to carry out a total thyroidectomy to remove this carcinoma. That
operation was successfully carried out on 25 March. It is the plaintiff’s
contention that that operation was an unnecessary trauma to her late mother
which ought not to have been carried out.
[2] The reason for that was that in
parallel with the treatment of the thyroid lump investigations progressed with
regard to the plaintiff’s cough. An x-ray on 26 February was recorded as
looking normal but she was referred to a CT scan report which suggested “a focal
lung mass”. The plaintiff was not referred to a chest physician. A
bronchoscopy was carried out on 5 March 1998 but it revealed no malignant cells.
The plaintiff was discharged home four days after her thyroid operation but
continued to be unwell. She was re-admitted to the City Hospital in late
April. Further tests disclosed that she had a well advanced and highly
malignant lung cancer. She remained in hospital and died there from this
lung cancer which had spread to other parts of her body, on 7 June 1998.
The plaintiff’s contention is that if she had been properly investigated in
February and March 1998 this would have been obvious and she would not have been
put through the trauma of the thyroidectomy as her condition was in any event
without hope of survival.
[3] The plaintiff, who on her own
evidence had a very close relationship with her mother, pursued this matter
vigorously. She had a three hour meeting with doctors and representatives
of the Eastern Health and Social Services Council and Board. She
complained to the Ombudsman who upheld the treatment of the deceased by the
hospital. The plaintiff came to accept that nothing the hospital would
have done would have prolonged her mother’s life in the light of the highly
malignant nature of the lung cancer. However she remained aggrieved that
her mother had been subjected to an operation which she believed was
unnecessary.
[4] In or about May of 2001 the
plaintiff consulted the partner in Tughans with the intention of bringing such a
claim. I find that at that time and for a considerable time afterwards a
claim could have been brought against the Belfast City Hospital or the Trust
then responsible for it as it would have been within three years of the date of
the plaintiff’s state of knowledge. However a writ was not issued by the
defendants until 7 February 2002. Nor was the matter pursued with enormous
expedition thereafter. The plaintiff consented to remittal of the matter
to the court of the Recorder of Belfast. This was heard by Her Honour
Judge Kennedy on or about 22 June 2005. The then defendant took the
limitation point against the plaintiff and succeeded. She appealed to the
High Court and the matter was heard, again on the limitation issue on 4 and 5
May 2006. On that occasion I upheld the decision of Judge Kennedy that the
proceedings had been brought more than three years after the plaintiff’s date of
knowledge of her cause of action within the meaning of the Limitation Order.
Like her I considered it was not an appropriate case for the exercise of the
court’s discretion. I record that neither party felt my decision in that
regard inhibited me from hearing this matter in February 2009.
[5] The plaintiff shortly afterwards,
having been properly alerted by Tughans, went to her present solicitors and a
writ against Tughans was issued on 20 November 2006. No evidence was
called by the defendants on the issue of primary liability here. I find
they were in breach of their duty of care to the plaintiff and are liable to her
in damages.
[6] In their helpful submissions, Mr
Brian Fee QC for the plaintiff and Mr Patrick Good for the defendants referred
to a number of leading text books including Charlesworth and Percy on
Negligence, 11th Edition, para. 8-292FF; Jackson and Powell,
Professional Negligence, 6th Edition 11-284; Michael Jones, Medical
Negligence, 3-144 and Flenley and Leech: Solicitors’ Negligence and Liability,
2nd Edition. There is a helpful summary at Charlesworth at para. 8-293
which I quote:
“The approach to quantifying loss where a solicitor has been negligent in the
conduct of a contentious case involves, first, assessing the amount of damages
which the claimant would have realised had the lost action been successful; then
discounting for the risks that the case would not have succeeded at all.
This approach will be applied, for instance, where a solicitor fails to issue
proceedings within the limitation period, or having issued them, fails to pursue
them timeously so that they are struck out: if the claim enjoyed good prospects
of success it may be that no, or only a small, deduction will be made from the
damages recovered to take account of litigation risk. Should they have
been very poor and the claim for damages may fail altogether, or only a nominal
sum be recovered.”
Counsel were agreed that although this was a medical negligence case it was not
necessary for the court to be satisfied that the estate of the deceased would
have had a better than 50-50 chance of recovery in the earlier action.
[7] My first task therefore is to
assess what damages would properly have been awarded in the County Court in 2005
if the claim of the estate had not failed on the limitation point. The
Guidelines for the Assessment of General Damages in Personal Injury Cases in
Northern Ireland, 2002, do not seem to expressly attempt evaluation of an
unnecessary operation and nor did counsel express a professional opinion about
it. Nevertheless the court’s attention was drawn to a number of factors in
arriving at a valuation. Mr Good relied strongly on the opinion expressed
by Mr Colin Russell FRCS, consultant surgeon, in his report of 13 January 2003,
which was in evidence. He pointed out that patients following this
operation were typically allowed home on the second or third post-operative day
and that in the United States some were now treated on a day patient basis.
He went on:
“Whilst I am not personally supportive of this strategy it does, I believe,
reflect the relatively minor degree of discomfort experienced by patients
following the thyroidectomy. The fact that Mrs Gardner was able to be
discharged from the surgical ward on the fourth post operative days suggest to
me that the pain she experienced following her operation was neither severe nor
prolonged.”
The plaintiff’s other doctor Dr Todd was a physician and less familiar with the
patient at the time of surgery than a surgeon would be. He did not
directly contradict this view in any way. The plaintiff herself said that
her mother was in considerable pain and after initial reluctance resorted to
painkillers. She was given morphine overnight after the operation at least
once. The staples from the operation were taken out in two different
procedures. Although discharged home she said she was in constant pain
from the thyroid but also from pain in her clavicle and elsewhere which
hindsight shows to have been caused by the other cancer. However her
throat was sore specifically following the operation. As mentioned she was
re-admitted to hospital on 27 April in what the plaintiff describes as great
pain but it is clear that the unfortunate lady was then suffering from her
highly advanced lung cancer. (It seems that she had been a life long
smoker).
[8] While the plaintiff’s then junior
counsel rather optimistically mentioned a figure of £20,000 when writing an
opinion for the insurer Indemnis, his other valuations internally had a maximum
of £10,000. His successor as junior counsel for the plaintiff in the
original action thought the value might be as little as £3,500. They were
both experienced junior counsel at the time. In the event having refused
to make any offer the counsel for the hospital at a late stage was instructed to
offer £7,500 and costs in settlement of the action. The plaintiff’s
solicitor and counsel, and indeed her medical expert Dr Todd, all were in favour
of accepting this sum, wisely I consider in the circumstances. However the
plaintiff refused it. I cannot disregard this offer but I must not give it
undue weight. The Trust would have had some knowledge of the plaintiff’s
date of knowledge with regard to the limitation point but they would not have
full knowledge of what she would say and nor could they safely predict whether
the court would exercise its discretion on her behalf. There was an
interesting comment by Dr Todd when he gave evidence before me. His
attention was being drawn to his evident lack of certainty about the case in
correspondence with the solicitors. Although he believed, quite clearly
strongly, that the operation should not have been carried out he expressly
acknowledged that the resources of the defendants in the original action would
be unlimited. An army of witnesses could come from them, he said. It
was he that sought support from a surgeon and preferably another chest physician
if the case was going on. It was then and still is the position that
plaintiffs are not obliged to disclose and exchange their medical reports and
this salutary warning from the consultant chest physician, who told me that he
appeared for both plaintiffs and defendants and medical negligence is a useful
reminder of the wisdom of that rule. In this particular case it may mean
that the defendant thought the plaintiff’s case was larger and stronger than it
was. Unhappily, I have to say, she rejected the offer of settlement.
I acknowledge difficulty in putting any precise valuation on this very unusual
heading of damages ie. an unnecessary operation for a dying lady but my
assessment is that it would have been in the range of £7,500-£10,000.
[9] I must then consider the chances
of success which the plaintiff enjoyed if her case had been brought timeously.
As indicated above Dr Geoffrey Todd, MB, MRC Phys, a chest physician from 1985,
was strongly of the opinion that she was not properly assessed in the weeks
after she was first seen on the City Hospital. If she had been this well
advanced lung cancer would have been detected and no responsible surgeon would
have carried out the operation and the operation would not have taken place.
Dr Russell disagreed with him but laying the emphasis on the freedom from blame
of the surgeon who carried out the thyroidectomy. Dr Todd did not disagree
with that in evidence before me but was of the opinion that he has not in full
possession of the facts. I must bear in mind in looking at this matter
that as the law currently stands the plaintiff would have had to have shown no
responsible surgeon, properly advised of the true state of affairs, would have
conducted the operation. As Dr Russell says it might well be that he might
be criticised for not performing the thyroidectomy rather than the reverse.
Dr Todd himself acknowledged that many witnesses may have been called by the
Trust to defend their conduct at the time. He also showed reluctance in
his written attendances and in evidence to actually use the word negligence or
carelessness against those who treated the late Mrs Gardner. It seems to
me that those who were advising her then were right in saying that this was a
case with considerable difficulties. I would assess her at having a better
than 50-50 chance of succeeding, in the light of the strong opinion of Dr Todd,
but not at all a certainty.
[10] Taking these two assessments together and
viewing the matter in the round, as counsel urged me to, and perhaps a little
generously, as one English authority recommends, I consider that the value of
the lost chance to the estate of the deceased was £6,000. That represents
the compensation for the general damages which the estate could recover.
[11] The case does not end there. In amended
and amended amended statements of claim the plaintiff seeks to recover a number
of other items. Item 1 at paragraph 15 of her amended statement of claim I
will defer for a moment. Items 2 to 8 are actual outlay which she paid for
at the request of her solicitors when pursuing the action consisting of fees for
the writ, and two medical witnesses, a consultation room, x-ray scans, a Mr
Clarke and the fee for remitting to the County Court.
[12] In addition the plaintiff owes her second
junior counsel £1,527.50 which has not yet been paid. She owes the
defendants, that is the City Hospital, £4,673.70. At first glance it would
appear that this estate was fully entitled to recover these wasted costs as they
were wasted because the case was being brought out of time. However, with
the encouragement of her then solicitors, the present defendants, the plaintiff
took out a policy of legal insurance with Indemnis. She paid a premium of
£2,140 which earned her cover of £9,000. The defendants have expressly
pleaded in their amended defence that she has a duty to mitigate her loss and
that the said sum of £9,000 would cover the fees which I have mentioned above.
Tughans are very properly not claiming for their own fees, although the amount
of those are mentioned in the statement of claim. The defendants are
waiving that claim for fees.
[13] After the plaintiff lost in the County Court
but before the hearing in the High Court the defendant properly informed
Indemnis of what had happened. Indemnis wrote, in two letters from Abbey
Legal Protection, a company in the same group apparently, confirming that the
plaintiff was covered for a total of £9,000 at that time in respect of the
initial action but they would not cover the further costs of the appeal.
If, of course, she had won on the appeal and gone on and won the substantive
action she would have recovered the costs set out above. It was not
therefore right to seek to recover those sums from Indemnis unless and until she
failed in the High Court. This happened in May 2006 and as recorded above
she then addressed herself to her present solicitors. Quite remarkably,
she did not thereafter ask Indemnis for the £9,000 or any part thereof to which
she was apparently entitled until a few days before the trial before me.
She gave a number of different reasons, in her evidence for this. One
reason was that there was a clause in the policy relieving Indemnis of liability
if the action failed on a limitation point. However Indemnis knowing that
it had failed on that basis nevertheless in the two letters of 5 July 2005 and
13 October 2005 confirmed that the cover was still in place for the costs
incurred to date. When pressed with that by Mr Good she then contended
that a senior partner in Tughans had told her that they would cover the costs if
Indemnis did not and that is why she did not claim it. It was pointed out
to her in cross-examination that that promise, if it had been made, which I
think was not accepted, was “if Indemnis failed to cover her”. Why had she
not claimed? It then emerged that she had rung the company the previous
Friday and in a telephone call she said that they had indicated that they were
unwilling to pay her. Mr Fee’s solicitors had been unable to get any firm
answer from them from their contacts. She then, said in cross-examination
that she did not ask the insurer over the previous two years because the other
partner in Tughans had written the following sentence in a letter of 6 July 2005
to her. “The legal expenses insurers have also confirmed that if we win
the appeal and continue with the case you will continue to be covered by them up
to £9,000.” “If we win the appeal” was an error on his part as the insurer
had not thus qualified its’ undertaking. But counsel pointed out that he wrote
that in a letter which enclosed the insurers letter. Furthermore a further
letter, as I have said, was written on 13 October 2005. She said she
thought it would be stealing to ask Indemnis, a remark I simply cannot
understand given that the lady had paid the premium and was entitled to whatever
cover was available in return. Listening to her I have to say that I
formed the impression that she wanted to punish Tughans by making them pay these
costs rather than seeking them from the insurance company. However, she
has a duty in law to mitigate her loss. She told me in her sworn testimony
that her present solicitors had known about these costs from the time she went
to them. I note that the first statement of claim, signed by junior
counsel, was served before the primary limitation period regarding a claim under
a contract had expired. It may be that period is not applicable in this
situation, in any event. She has the insurers’ letters. She may well
succeed in recovering the amounts from them. Suffice it to say that she
had a duty to do so and no satisfactory explanation has been given for her
failure to do so. In those circumstances I do not think I can properly
visit the defendants with the costs sought in the statement of claim up to that
figure of £9,000. As they fall short of that figure therefore she does not
recover those special damages.
[14] The court is left with one more decision in
relation to the premium she paid. Is she entitled to recover that?
The plaintiff’s counsel accepted that there appears to be no precedent in this
jurisdiction for recovering an insurance premium. Mr Good pointed out that
although it did happen in England that was on foot of an express statutory
provision at Section 29 of the Administration of Justice Act 1999. In any
event he said it would be wrong to order his clients to pay the premium which
she had paid for she could then be recovering twice. She had the benefit
of the premium in the cover provided by the insurer. If she had not
exercised her right to that premium that was her responsibility. She may
well succeed in exercising it now.
[15] Mr Fee offered the ingenious solution that
the plaintiff would assign her rights to the defendants to the insurance policy.
Mr Good rejected that offer and doubted that the court had any power to order
such an assignment. He noted that no authority was offered for that
proposition nor had it been pleaded. He questioned in the light of the
recent history, not unreasonably, whether the plaintiff would co-operate with
the defendants in the matter. Finally it might be an unhelpful way to
approach the insurers in this position. I am persuaded that he is correct
in that regard.
[16] The final aspect of the award of damages is again a somewhat unusual one.
Tughans made clear to the plaintiff when she arrived that they had hourly rates
when acting for their clients. Even if she succeeded she would have to pay
them costs on a solicitor and own client basis because they would not recover
their costs in full from the defendant, at the rates which they charged.
She accepted that at the time and in her evidence to the court. Over the
luncheon adjournment on the second day the parties agreed that any award for
general damages would therefore have to be reduced by a sum of £3,000 on the
basis that even if the estate had been successful originally and recovered
damages that much would have been deducted on a solicitor and own client costs
basis. I am therefore required to deduct the sum of £3,000 from the sum of
£6,000 which I assessed earlier leaving an award to the plaintiff of £3,000.
Mr Fee submitted that interest in any award should be that of a judgment debt.
The authority for that would appear to be Pinnock v Wilkins & Sons The
Times, 29 January 1990. However if the plaintiff had won the initial
action I have no doubt that the hospital would have paid the damages within the
normal period of three weeks stay unless they were appealing, and then the
plaintiff would either have invested the money in some way or spent it. I
think an estimate of bank interest over the period seems to be a more
appropriate way of measuring interest and in the circumstances I will fix that
at 6% from the 14th day of July 2005 until the 13th day of February 2009 which
gives a figure for interest of £645 and a total award of £3645.
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