This newsletter provides updates on recent cases related to personal injury law. In Montgomery v Lanarkshire Health Board, the Supreme Court overturned previous rulings and found that patients should be made aware of any material medical risks or alternative treatments. In road traffic cases, a recent EU court ruling found that insurance must cover any vehicle use consistent with its normal function, placing more claims under the MIB agreement. Two psychiatric injury cases reaffirmed that employers are not responsible for stress claims without notice of particular vulnerabilities and damages for shock require witnessing a horrifying event directly.

1. PERSONAL INJURY UPDATE
MAY 201518 ST JOHN STREET CHAMBERS NEWSLETTER
INSIDE
Ian Huffer provides his regular Personal Injury Law update. This month he provides updates
on Clinical Negligence, Road Traffic Claims, cases involving Psychiatric Injury and Costs.
CLINICAL NEGLIGENCE
In Montgomery v. Lanarkshire Health
Board [2015] UKSC 11 the Supreme
Court overruled the 30 year old
decision of House of Lords decision
in Sidaway v Board of Governors of
the Bethlem Royal Hospital [1985]
A.C 871 which had extended the
Bolam test to the issue of risk
disclosure and information provision.
Mrs Montgomery suffered from
insulin dependent diabetes mellitus
and it was agreed that the
consequential risk of shoulder
dystocia to her child occurring
during vaginal delivery was 9 to 10%.
She was not told of the risk of
shoulder dystocia occurring or the
risk to the child in terms of brachial
plexus injury (0.2%) and/or birth
hypoxia (0.1%) from occlusion of the
umbilical cord. In her doctor’s
opinion, the possibility of it causing a
serious problem for the baby was
very small and advising of the risk
would lead to most women electing
for a caesarean section. During the
vaginal delivery the umbilical cord
was occluded, thereby depriving
the baby of oxygen and after his
birth, he was diagnosed as suffering
from cerebral palsy and brachial
plexus injury. It was the Claimant’s
case that had Mrs Montgomery
been told of the risk of shoulder
dystocia and advised of the
alternative of caesarean section
which she would have elected.
On appeal, the Supreme Court
decided that “ An adult person of
sound mind is entitled to decide
which, if any, of the available forms
of treatment to undergo, and her
consent must be obtained before
treatment interfering with her bodily
integrity is undertaken. The doctor is
therefore under a duty to take
reasonable care to ensure that the
patient is aware of any material risks
involved in any recommended
treatment, and of any reasonable
alternative or variant treatments. The
test of materiality is whether, in the
circumstances of the particular
case, a reasonable person in the
patient's position would be likely to
attach significance to the risk, or the
doctor is or should reasonably be
aware that the particular patient
would be likely to attach
significance to it”.
The Claimant was entitled to
consider the risk of shoulder dystocia
against the relatively low risk to both
mother and baby of a caesarean
section. Had the baby been
delivered by caesarean section it
would have been unharmed and
the Supreme Court found that had
the risks been discussed the
Claimant would have elected to
have a caesarean.
Whilst the decision reflects a much
more modern and enlightened
approach to the doctor-patient
relationship than that adopted 30
years ago, it may less of land mark
decision than many suppose. For
many years, despite the binding
nature of the decision, in practice
judges in the lower courts (e.g.
Pearce v United Bristol Health Care
Trust (1998); and the House of Lords
(e.g. Chester v Afshar [2005] 1
A.C.134) had “tacitly ceased to
apply the Bolam test in relation to
the advice given by doctors to their
patients, and had effectively
adopted the [minority decision]
approach of Lord Scarman [in
Sidaway]’. It is a decision which
reflected changes in both clinical
and regulatory practice (such as
GMC guidance), a better informed
population and social changes over
the years in the relationship between
clinicians and patients who were no
longer passive recipients of clinical
advice.
ROAD TRAFFIC
The full implications of the European
Courts’ decision in Vnuk v Triglay (C-
162/13), handed down in September
2014, has now come to be
appreciated by road traffic
practitioners bringing claims for
client’s against the MIB.
The European Court interpreted the
Motor Insurance Directive’s definition
of motor vehicle in the Directive in
such a way as to mean there must
be a policy of insurance in place to
cover any vehicle for any use
providing that the use is consistent
with the normal function of the
vehicle. This is much wider than that
provided for in domestic legislation
(the Road Traffic Act 1988) and the
MIB agreement which has been
drafted to comply with the Act
rather than the Directive. The MIB will
not deal with a claim where the Act
does not require the individual to be
insured in the first place such as, for
example, where an accident takes
place on private property (a
courtyard in a farm as in Ynuk) or
where a vehicle is not intended or
adapted for road use is used (such
trials bikes, many quad
bikes). This would place
an individual in domestic
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2. 18 ST JOHN STREET CHAMBERS NEWSLETTERMAY 2015
law at a disadvantage, being unable to
pursue a claim against either the insurer
of the vehicle (if there was one) or the
body set up to compensate victims of
uninsured drivers.
Until UK legislation is amended, faced
with the incompatibility, domestic courts
will be constrained to re-interpret UK
legislation and the Agreement to
comply with the Directive, if need be by
adding wording to the legislation to
ensure compatibility (Churchill
Insurance v Wilkinson [2010] EWCA Civ
556 [2012] EWCA Civ 1166).
Alternatively, practitioners will also want
to explore the possibility of a Francovich
action directly against the UK
Government for failing to properly
implement the Directive. My experience
in a case settled before the Vnuk
decision (injury caused by an off-road
trials bike) is that merely by applying to
join the Secretary of State as a Second
Defendant in a Francovich action may
be sufficient to persuade the MIB to
accept the claim (Ademneskel v MIB
[2011] Lawtel).
PSYCHIATRIC INJURY
In two recent cases the High Court has
considered in detail the case law
restated the principles applicable to the
recovery of damages for psychiatric
injury in stress at work claims and clinical
negligence.
In Easton v B&Q [2015] EWHC 880 (QB),
the Claimant, a manager, claimed
damages for psychiatric illness and loss
caused by work-related stress following
a breakdown in May 2010 and a
relapse of his illness on an attempted
return to work in September 2010. Mr
Justice William Davis dismissed the claim
on the basis that the Claimant's
psychiatric illness was not foreseeable.
Following the guidelines in Hatton v
Sutherland [2002] PIQR P241, the court
said that foreseeability depended upon
what the employer knew and he was
usually entitled to assume that an
employee can withstand the normal
pressures of the job unless he knows of
some particular problem or vulnerability.
There were no outward signs of stress
and employers were not expected to
be telepathic. The Claimant had no
psychiatric history and had not raised
any concerns as to work related stress
beyond that of a ‘passing grumble’. He
did not complain because he wanted
to impress senior management. An
employer was generally entitled to
accept what he was told at face value
unless there was good reason to think to
the contrary and there was no general
obligation to make searching enquiries.
The Defendants had provided the
Claimant with a document relating to
managing stress which invited
individuals to approach them with any
concerns about stress. The judge found
that he was not experiencing the signs
set out in the booklet until the point at
which he was suffering from a
psychiatric illness.
As to the relapse he suffered, whilst the
Defendants knew that he had suffered
a psychiatric illness, the fact that he was
still taking medication was not
determinative as many people held
hold down demanding jobs still requiring
medication.
In Shorter v Surrey and Sussex
Healthcare NHS Trust [2015] EWHC 614
the NHS Trust admitted negligence
leading to the death of the Claimant's
sister, which had caused the Claimant
psychiatric disorder.
The Claimant's claim for damages for
nervous shock as a secondary victim
was dismissed by Mrs Justice Swift. The
case law (McLoughlin v O’Brian [1983] 1
A.C. 40 and Alcock v South Yorkshire
Police [1982] 1 A.C. 310) and following
cases (including reports in clinical
negligence claims) made it clear that
the shock must come through sight or
hearing of the event or of its immediate
aftermath.
On the facts found, the Claimant had
not seen any events that could give rise
to a horrifying event or cause her to
experience violent agitation of the
mind. There was not a "seamless single
horrifying event" but a series of events
over a period of time during some of
which the Claimant had been present
but none of which involved a direct
appreciation of a horrifying event.
COSTS
In In Dalton v BT [2015] EWHC 616 (QB)
the High Court held that noise induced
hearing loss (NIHL) was a disease falling
within section V of former CPR Part 45
attracting (in cases where the CFA was
entered into before I April 2013) the
percentage success fees provided for in
that section and not section IV.
IAN HUFFER
civil@18sjs.com
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2
Ian Huffer is a member of
the Civil and Personal Injury
Department dealing in all
areas of Personal Injury
litigation including high
value claims, road traffic
and industrial accidents
and industrial disease
claims.
For further information
please contact:
civil@18sjs.com
18 St John Street
Manchester
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