Law and science

HM Coroner for the Isle of Wight v Prison Service (2015)

QBD [Bean LJ & Warby] 01/04/2015

The coroner, who was the claimant, applied under Section 13(1)(b) of the Coroners Act 1988 to quash the inquisition into the death of a man, and also he applied for an order that a fresh inquest should be held.

The deceased (D) was a patient in a prison hospital ward and was found hanging while on the ward. C opened an inquest into D’s death, and at the end of the inquest, an open verdict was held. However, it came to light many years later that another prisoner, who had also been held in the prison with D, confessed to D’s murder and said that he had in fact murdered D by strangling him and he thereafter put him into a position to make it appear he had hanged himself. The prisoner was found guilty and convicted of D’s murder.

C applied to the Attorney General for permission to make the application under Section 13(1)(b) of the Coroners Act 1988, and C was of the opinion that the information recorded on D’s death certificate was incorrect in light of the new evidence and the prisoner’s conviction. The Attorney General granted permission, and the Prison Service did not oppose the application.

It was held that under Section 13 of the Coroners Act 1988, a single question had to be answered and that was whether under the interests of justice a further inquest was either ‘necessary or desirable’, and the case of Attorney General v HM Coroner for South Yorkshire (West) [2012] EWHC3783(Admin) [2013] ACD22 applied. It was obvious that there was only one answer to that question in light of the evidence that the prisoner was convicted of D’s murder. Further that, the interests of justice required that the original inquest into D’s death be quashed and a fresh one ordered.

C’s application was granted.

BK-S (Children) (Expert Evidence & Probability) sub nom BK-s v Hampshire County Council & Ors (2015)

[2015] EWCA Civ 1442

CA (Civ Div) (Longmore LJ, Ryder LJ, Briggs LJ)) 07/05/2015

One of the four children of M, the appellant, the mother of Z, appealed against a finding that she was the only person who caused harm to Z.

The facts are that Z, who was six months old at the time of the incident, was found to have antipsychotic medication, namely olanzapine, in his body on at least three occasions. It was discovered that the olanzapine had not been prescribed to any relevant person. This drug is a sedative and alters consciousness. Further, in large doses, it could be fatal to a child, and in moderate doses, it would not leave any identified lasting injury.

Z was admitted to hospital on three occasions, and initially it was thought that he had gastroenteritis. On the second and third occasion, he was treated for an illness that was undiagnosed and suffered altered consciousness. It was only on the third occasion when a blood test was taken that olanzapine was shown to be present in his blood. The recording was 257 µg/L. Apparently, nine days later, a further blood test was carried out which revealed 43 µg/L of olanzapine in Z’s blood.

As a consequence of the results of the blood test, all of M’s children were removed from her care. It was suspected that there were three potential perpetrators who had given Z the olanzapine, namely M, Z’s father, and Z’s paternal grandmother.

There did not appear to be any evidence of accidental ingestion, but all potential perpetrators denied responsibility or indeed having access to olanzapine.

Z’s primary carer was M, and Z had only had contact with his father and paternal grandmother for a limited period of the week. Further, Z had not been unwell, or there was no evidence that he was unwell during contact with his father and grandmother, which was three days before the latter test of 43 µg/L.

An expert toxicologist was instructed to give evidence concerning the speed at which the drug would dissipate from Z’s body and comment on olanzapine’s half-life. The judge accepted that the half-life was between 21 and 13.7 hours, and concluded that a half-life of 18 hours would be safe. Working back from the day of the blood test, if the father or paternal grandmother had administered the drug, Z would have had a high concentration of olanzapine in his blood, which would have made him extremely unwell – even fatally unwell – at the time of contact with his father and paternal grandmother. The judge concluded that M was the sole perpetrator.

M refuted this, and argued that the judge had wrongly calculated the time of the likely dose that identified her as the sole perpetrator of the administration of olanzapine.

It was held that the judge’s conclusion about the concentration of olanzapine discovered in Z’s blood system by the second blood test was not

“his own speculation nor an unwarranted calculation or deduction of his own. It was a proper inference drawn from the available factual evidence and the uncontradicted scientific opinion evidence. He had decided the symptoms reported on the second and third admissions to hospital were the consequences of ingestion of olanzapine; he relied on medical evidence which impressed him to come to this conclusion.”

Kashif v Simpson (2015)

K was a 44-year-old man who was involved in a road traffic collision on 11 March 2010 when he was driving along a carriageway, when S, the defendant, drove out of a side road and collided with his nearside front bumper. As a consequence, K was injured and pursued a claim against S. Liability was disputed on the basis that S argued that K had been approaching from S’s right with his left-hand indicator on, but had not turned left. K suffered whiplash and an adjustment disorder with anxiety and depression. He also suffered from chronic pain, which led to further stress.

Prior to the accident, K was accordingly a highly motivated man who coped with a very demanding job and the usual family responsibilities. His hobbies included martial arts training, gardening and DIY. Following his accident, K was unable to provide much assistance to his family in regard to gardening and decorating, and he was unable to continue with his martial arts training. He suffered significant psychological and orthopaedic injuries, and the court found for K on a 100% liability basis, and expert evidence, including a consultant orthopaedic spinal surgeon and orthopaedic shoulder surgeon, confirmed that K suffered from significant psychological problems following the accident that would have compounded his perception of his level of disability and had an impact on his recovery.

The court found that he required 10 hours of gratuitous help per week, and he was unable to return to his previous employment, which was a high-pressured job involving sales.

K was awarded damages for pain, suffering and loss of amenity of £40,000, and his total damages, including past and future losses, were valued at £791,110.

Astley (on behalf of the Estate of X, deceased) v North West Ambulance Service NHS Trust (2014)

The deceased, X, underwent gastric bypass surgery on 1 February 2009. She was discharged from hospital two days later with analgesia. However, she continued to experience pain, and by 7 February 2009, her condition had deteriorated. Her spouse, A, telephoned North West Ambulance Service NHS Trust, the defendant, to request an ambulance to take X back to hospital.

A told the ambulance telephone operator that X was in pain and that the pain was so bad that X could not breathe. He also explained that his wife thought that she was going to collapse. Despite this, the ambulance telephone operator did not dispatch an ambulance to take X back to the hospital that had carried out the gastric bypass surgery. Instead, the telephone operator referred the matter to NHS Direct, but did not explain to NHS Direct that X felt as if she was going to collapse and that she was short of breath.

NHS Direct arranged for a doctor to visit X at home, and that doctor did not believe that X should have been admitted to hospital. After the doctor left X’s home address, X’s condition deteriorated, and by 9 February 2009, she was seen by her own GP who visited her at home. When examined by her GP, she was slurring her words and was seen to be lethargic. She was also cold, clammy and pale, but she told her GP that she felt hot. Her GP diagnosed her with ‘postoperative sepsis’, and an ambulance was called to take her to hospital.

Unfortunately, X’s condition deteriorated en route to the hospital. She suffered a cardiac arrest, and the ambulance crew were unable to resuscitate her. She was pronounced dead shortly after her arrival at the hospital.

A pursued a claim against the ambulance service on the basis that on 7 February 2009, there had been:

A failure by D to dispatch an ambulance on 7 February 2009, and this fell below a reasonable standard of care;

A argued that if an ambulance had been dispatched and attended his wife on 7 February 2009, X would have been transported to hospital and referred to the treating surgeons who would have identified that X was suffering from a postoperative leak following the gastric band surgery, and that she would have then undergone surgery to repair the leak and that she would have survived the surgery and made a full recovery with a normal life expectancy.

The ambulance service denied breach of duty, but they did accept that if X had been taken by ambulance on 7 February 2009, she would have been seen by the surgical team, diagnosed, treated and survived. The ambulance service expert evidence concluded that if X had survived, her life expectancy would have been reduced by approximately 10 years.

A settled his case out of court in the sum of £150,000 which comprised £1500 for X’s pain, suffering and loss of amenity, and the remaining £148,500 comprised the statutory bereavement award, funeral costs, loss of financial dependency, loss of services and loss of the intangible benefit of a wife.