In Zeb v Frimley Health NHS Foundation Trust [2016] EWHC 134 QB, the claimant in a clinical negligence claim sought to appeal the refusal of Master Cook to award an interim payment on the grounds that the Defendant Trust had admitted both breach of duty and causation and she was therefore likely to be awarded substantial damages.
The claimant had arrived in the UK from Pakistan. Shortly thereafter she twice visited the emergency department of the defendant hospital but was discharged without admission and/or further investigation. A few weeks later she was diagnosed with tuberculous meningitis which resulted in a devastating brain injury: she was now in a minimally conscious state. The defendant admitted that the claimant should have been admitted to the hospital and treated at an earlier date and that if that had occurred she would have made a full recovery.
However, after service of the Defence, and on disclosure by the Claimant of her medical records in Pakistan, it emerged that before leaving Pakistan, she had been diagnosed with probable tuberculous meningitis, been prescribed a one year course of treatment, and been given a referral letter to that effect for future treating physicians. Not only had she not volunteered this information to the defendant clinicians, she had, on their account, specifically told them that she had been investigated for, among other things, tuberculous meningitis and that those investigations had been normal.
In an Amended Defence, the defendant alleged that the claimant was not only contributorily negligent in failing to continue with the treatment which she had been prescribed in Pakistan and in failing to disclose her diagnosis and treatment but also that her actions broke the chain of causation or were themselves the operative cause of her injury. On that basis, the defendant argued that the Court could not be satisfied, within the terms of CPR 25.7 that the claimant was likely to recover substantial damages and trial and, therefore, that an interim payment should not be made.
The appeal was heard before Garnham J. The defendant was represented by John Whitting QC. The Court accepted that there was a reasonable argument that the claimant’s conduct was a complete and sufficient cause of the damage, and that it had been the first such cause in time. The claimant had received a probable diagnosis in Pakistan with a prescribed treatment, but had failed to complete it, failed to provide the referral letter to the defendant’s hospital, and allegedly told the defendant’s doctors that her tests had been normal. That was arguably negligence on her part, both in Pakistan and in the UK. It was arguable that she had failed to use reasonable care for her own safety, and that her own negligence was the operative cause of her injury. Her conduct had continued throughout the relevant period, affecting the defendant’s conduct. It was also the first successive event to which liability attached. That was arguably a complete defence. There was enough in that argument that the court could not be satisfied that she would obtain judgment for a substantial amount at trial. Her appeal was therefore refused.
