Causation arguments not precluded by default judgment
Symes v St George’s Healthcare NHS Trust
High Court (QBD)
In this recent clinical negligence case, the High Court had to determine whether the defendant was precluded from raising arguments on causation when default judgment had been entered. Andrew Cousins highlights the key points and implications of the judgment which examines in detail the existing case law on the issue.
In this clinical negligence case the claimant had been referred by his GP to an ENT Consultant employed by the defendant NHS Trust because of a lump on his face. The claimant claimed that the defendant had failed to advise him that the lump was “suspicious of malignancy”, and that the delay in treatment resulted in the tumour spreading to his lungs, leaving him with inoperable lung cancer and only a short time to live.
The defendant’s solicitors made a limited admission in correspondence that a report on a sample had been incorrect and that there had been some delay in treatment, but specifically denied that these factors had any effect on the development of the claimant’s condition and his life expectancy. When the Particulars of Claim were served the claimant relied upon the admission. The defendant did not file an Acknowledgment of Service or a Defence and, of his own volition, Master Roberts made an Order granting the claimant judgment for an amount which the court would decide plus costs.
At a CMC the court gave the parties permission to serve witness statements as to quantum and to rely upon expert evidence in the fields of oncology and care and gave directions for the filing of an updated Schedule and Counter Schedule of Loss.
When the defendant served its Counter Schedule it also served a medical report in support of arguments regarding a denial of causation. The claimant issued an application to strike out the Counter Schedule and the defendant applied to set aside the default judgment.
The applications were heard by Master Roberts who held that the default judgment stood as conclusive on the issues of breach of duty and causation, that the Counter Schedule was struck out, and that the defendant was to re-serve a Counter Schedule that complied with the claimant’s pleaded claim on causation.
The defendant appealed the Order of Master Roberts contending that they were not precluded from contesting causation just because a default judgment had been entered.
Mr Simon Picken QC, sitting as a Deputy High Court Judge, allowed that the defendant’s appeal. He gave a detailed judgment which examined the existing case law on the point and held that:
The determination of what loss and damage was caused by the defendant’s negligence must be part of the exercise of assessing damages. The default judgment precluded the defendant from contesting liability but not causation.
The Particulars of Claim are in effect a “proxy” for the default judgment, setting out the basis of liability. Whilst the default judgment meant that the defendant was precluded from alleging that no loss at all had been sustained, as such a position would be inconsistent with the default judgment, it did not preclude the defendant from arguing the causation point.
Unless the default judgment represented a decision that all of the damage alleged by the claimant was suffered as a result of the defendant’s negligence then it must be open to the defendant to advance causation arguments on the other aspects of damage alleged by the claimant. There was no justification for the conclusion that the default judgment covered all of the damage alleged by the claimant in the index case.
The defendant had not acted in breach of the CPR by not serving a Defence setting out causation although the situation was regrettable and should be avoided in the future.
For further information please contact Andrew Cousins, Solicitor Advocate, Insurance on 0161 603 5093.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.