Abstract
FAMILY
[2010] EWCA Civ 1744
M, a six-year-old boy, suffered with Rasmussen's encephalitis, a rare progressive brain disease. As a result of the disease M suffered with frequent epileptic seizures, partial sightedness, global developmental delay and precocious puberty.
Medical reports indicated that the condition was life-threatening and clinicians expressed concern that M's parents were not cooperating nor were they giving adequate consideration to possible treatment options for M. On this basis, the local authority instituted care proceedings in respect of M. M's parents were opposed to subjecting M to surgical intervention but sought further investigation into possible drug therapies that M might benefit from. However, the local authority felt that M would benefit from surgery and as such asked the court to determine the matter. The hospital responsible for M's treatment provided a statement to the court supporting surgical intervention as the optimal mode of treatment for M, but stating that it was not the only method of treatment available.
The local authority conceded that such a matter was normally to be decided by a child's parents in conjunction with treating clinicians, but that in this case it was in M's best interests for the courts to intervene.
It was held that the question of surgical intervention was a matter for M's parents and treating clinicians to decide and not the local authority. Since neither the treating clinicians nor M's parents had requested the court's involvement, there was ‘no proper dispute and no issue for the court to decide’. It was noted that the Children Act 1989 had clearly marked the boundaries between the responsibilities of the courts and those of local authorities. It was within the parameters of the court's functions to decide whether M should be the subject of a care order, but it was not the responsibility of the court to make decisions which were clearly the responsibility of another nor should the court make decisions which were clearly outside of its ambit.
CRIMINAL LAW
[2010] EWCA Crim 1404
L had been working as a self-employed locum pharmacist at a pharmacy operated by Tesco when a customer presented with a prescription for the steroid prednisolone. The pharmacy correctly produced a label for the drug prednisolone; however this was mistakenly attached to a box of propranolol, a beta blocker, and given to the customer. The customer took a quantity of the propranolol before collapsing and required hospital treatment. In accordance with pharmacy protocol, L had initialed the dispensing label, indicating that she had checked the item.
The matter went to court and L was convicted of supplying a medicinal product with a misleading label, contrary to the Medicines Act 1968 s.85(5)(b) and s.91(1). At trial it was held that a pharmacist in L's position ‘supplied a medicinal product for the purposes of s.85(5)(b)’ when she dispensed medication.
L appealed against her conviction. The issue to be decided was whether, as a self-employed locum pharmacist, L was capable of being ‘a person who in the course of a business carried on by her sold, supplied or had in her possession for the purposes of sale or supply, medicinal products in a package that was likely to mislead as to the nature or quality of the product in the package’ for the purposes of s.85(5)(b). L argued that as a locum pharmacist, she had not been acting in the course of a business carried on by her. However, the Crown directed her to s.132(1) of the act which stated that the term ‘business’ included a professional practice. The Crown submitted that by virtue of her status as a professional pharmacist, L was included in this definition and as such had been acting in the course of a business carried on by her.
It was held that L was not a person carrying on a business and that in this case, for the purposes of s.85(5)(b), the business was being carried out by Tesco. The court concluded that there was a clear distinction between ‘that which was done by the person engaged by the employer, and the business carried on by the employer’ and that the proper construction of s.85(b) was that ‘the person carrying on the business for the purpose of that section was the employer and not the employee’. In addition to this the court clarified that L did not come within the section merely by virtue of her professional status either. L's conviction under s.85(b) was therefore substituted for a conviction for supplying a medicinal product that was not of a nature demanded by a purchaser contrary to s.64(1) and 67(1) of the act, and L was fined £300.
HUMAN RIGHTS
[2010] EWCA Civ 701
T had undergone male to female gender reassignment surgery when in 2002 she applied for her state pension to be backdated to her 60th birthday. In 2006, when the secretary of state had failed to respond to her request, T wrote again requesting that her pension be backdated. This time the secretary of state responded by stating that T would only be entitled to a pension from the age of 65 and T appealed.
The matter went to a tribunal which treated her claim as having been made in 2006, despite the matter having initially been raised by T in 2002. The tribunal concluded that as T did not hold a full gender recognition certificate under the Gender recognition Act 2004, ‘she was not entitled to legal recognition of her new gender and therefore not entitled to claim a state pension as a woman’.
T appealed the decision, but the Upper Tribunal maintained the position, stating that that T did not fulfill criteria to be treated as a woman which would allow her to claim a pension from 60 under Council Directive 79/7. T argued that her original claim was made in 2002 before it was even possible to obtain a gender recognition certificate under the 2004 Act, and that as such, her claim should be determined according to the law in place at that time.
It was held that the provisions of the Gender Recognition Act 2004 could not be applied retrospectively and that as such, T's claim had to be determined according to the law in force during 2002. At that time, it was not possible for a person who had acquired a new gender to claim the legal rights attributed to their new gender in the UK. However, Article 4(1) of Council Directive 79/7 prohibited member states from allowing a situation to arise whereby there was no legal means for citizens to obtain recognition of their acquired gender. At the time of T's initial claim, the UK had failed to implement Council Directive 79/7. Therefore by virtue of Article 4(1) the secretary of state was forced to recognize that T had acquired certain rights when she acquired her new gender, one of those being the right to claim a state pension from the age of 60.
PERSONAL INJURY
[2010] EWCA Civ 724
In 1998, S was sentenced to life imprisonment. Prior to her incarceration, S had sustained significant damage to her teeth and undergone ‘extensive restorative work’.
Shortly after being imprisoned, one of S's fillings fell out and she made a request to see a dentist; however. it was almost seven months before her request was satisfied. Over the next six years, S made numerous requests for dental treatment but claimed that the prison failed to provide her with adequate dental care. She claimed that she had suffered almost seven years of toothache and dental pain as a result.
The Home Office was originally found to be in breach of duty for having caused significant delays in S accessing dental treatment. The court assessed S's damages for pain and suffering to be in the region of £45,000 based upon £250 per week, multiplied by the number of weeks that S claimed to have been in severe pain. This figure was then adjusted to reflect additional periods of moderate pain S had suffered. The Home Office appealed against the Order, disputing the findings of liability in respect of two periods of time during which S had refused dental treatment. During the first period of time, S had refused to be treated by D, a dentist who had treated her previously. S had complained about the standard of dental care at that particular prison before and as such felt that it would be inappropriate for D to treat her. During the second period of time in question, the prison dentist, P, had refused to treat S and in turn, S had refused to be treated by P and made an official complaint about P on the grounds that he was incompetent.
At the first instance, the court had found that the prison operated a ‘one dentist, take it or leave it approach’ but that in some circumstances, ‘proper consideration should result in the provision of an alternative dentist’. The Home Office submitted that the court had imposed too high a duty on them, and that in addition to this, during periods when S had refused dental treatment, the Home Office could not be in breach of duty. In addition to this, the Home Office argued that the court had over estimated the ‘extent and severity of S's pain and awarded too high a sum’ in damages.
Upon appeal it was held that the judge was entitled to consider the prison's dental policy to be a ‘one dentist, take it or leave it approach’ and that as such, the prison had failed to discharge their duty of care in all cases. The court maintained its position that on occasions, consideration should be given to providing alternative dental practitioners. In addition to this it was held that the prison was in breach of its duty of care in failing to provide S with a willing dentist when P had refused to treat S.
However, with regards to quantum, upon appeal it was held that damages in the region of £45,000 would be ‘substantially out of line with other types of cases’ and that a more appropriate sum for pain and suffering was £25,000.
CIVIL PROCEDURE
[2010] EWCA Civ 726
In an action against a local authority, G had put forward a Part 36 Offer to settle her claim for the sum of £2,500. The local authority had previously put forward offers below this sum, but eventually offered G the full £2,500. However, G rejected this offer without withdrawing her own offer in the same sum and accordingly the local authority formally accepted her offer. At the first instance, and upon appeal, the court held that the local authority was entitled to have accepted G's offer since she had never formally withdrawn it. G had argued that her offer was no longer open for acceptance when the local authority had purportedly accepted it, since their initial rejection of the offer amounted to an implied withdrawal of her offer.
Similar circumstances arose when L, a firm of builders, brought a claim against R, R having put forward a number of Part 36 Offers, and conjoined appeals were brought. The matter to be decided was whether Part 36 of the Civil Procedure Rules ‘embodied a self contained code, or whether it was subject to the general law of offer and acceptance insofar as it failed to provide otherwise’.
Upon appeal it was held that while basic principles of offer and acceptance underpinned the operation of Part 36, ‘Part 36 was a self contained code prescribing the manner in which an offer might be made and the consequences flowing from accepting or failing to accept it’. The court clarified that Part 36 did not incorporate all of the general rules regarding the creation of contracts. The court rejected G's argument that the Defendant's initial rejection of the offer amounted to an implied withdrawal of her offer, since the wording of Part 36 clearly provided that the offer was ‘available for acceptance until withdrawn’. Furthermore, CPR rule 36.3(7) clearly requires express written withdrawal of an offer.