Proving liability in PI cases

Roger Pearson on two personal injury cases which highlight the need to prove causation in negligence actions

The need to prove causation in addition to negligence in personal injury actions has been brought into focus by two recent medical negligence settlements in the High Court.

Both cases involved children with broadly comparable conditions, but the settlement sums were vastly different.

The cases ended with one settlement of u1.425 million and the other of u155,000. The reason for the disparity rested largely on the opinions of experts as to causation. In one action negligence and causation were fully established. In the other, negligence was admitted but at a late stage.

In the latter, the case was approaching a hearing date and interim payments had already been made, when the health authority adopted what experts on both sides later accepted as a justified change of stance on causation.

The result was a last-minute blow to the plaintiff, who had anticipated a major award that would enable her to make appropriate provisions for her son who has been severely handicapped since birth. On the basis of new expert evidence she was advised to accept only a fraction of the possible u1 million originally anticipated.

The u155,000 case involved an 11-year-old who suffered brain damage at birth as a result of medical problems. Initially it was believed he was dead in his mother's womb and, and rather than remove him by caesarean section, the birth was left to continue naturally. It was only when he was born that it was discovered he was still alive.

Mr Justice May was told that even if negligence was proved in respect of failure to spot he was still alive, it would have been difficult to prove that such negligence caused the full extent of the boy's brain damage.

The judge, who had been told that on full liability the claim could have been worth up to u1 million, commented in approving the u155,000 settlement : "The cruelty of the case is that the law of this land requires for proper compensation for people who suffer personal injury that they should not only establish that negligence has taken place but also that the negligence in question has caused the injury."

In the other case of a 14-year-old boy a settlement of u1.425 million against Wolverhampton Health Authority and West Midlands Regional Health Authority was approved by Mr Justice McKinnon.

The boy is mentally normal and fully aware of the appalling physical disabilities he suffers as a result of medical negligence leading to oxygen starvation when he was born.

Solicitor in this case, Leonard Crane of Reading-based Clement Charles Crane & Co, says it is vital to get the right experts lined up from the beginning. He says: "In these matters you have to get the right professional experts. It's very important to establish the professional expertise of those you use from the outset.

"If it comes to a contested action then the judge will give weight to the experience of the experts called. You need the best for that reason. Apart from that, however, if you have the right experts it can help lead to settlement without the case reaching a contested hearing."

He believes in this case that having the right experts went a long way to his prime target of settling the matter out of court. He chose his expert witnesses from a panel he has built up, but advises those without such contacts to approach specialist counsel's chambers and then seek direction from them over which experts to chose.

Expert evidence played a major role in the late change of stance in the former case and in cutting the South East Regional Health Authority's potential u1 million bill to u155,000.

Legal executive Peter Williams, under supervision of a partner from the Dover firm of Stillwell & Harvey, represented the plaintiff in that case and says it had apparently been proceeding towards a substantial settlement.

However, a late change in the defendant health authority's stance resulted in new emphasis on the question of causation and, with new reports from experts on both sides, to realisation that it presented a major stumbling block to the level of settlement anticipated. "At the end of the day in such cases it's medical opinion that plays the major part," says Williams.