Abstract
CORONERS
[2011] EWHC 142 (Admin)
The claimant coroner, F, sought permission to seek judicial review of a decision of the defendants to remove him from office. F had been the employer of his administrative staff until 2004 when his staff was transferred as a result of a local government re-organization. Following the transfer, F's attitude towards staff management changed and he refused to engage with the local authority and he refused to answer questions about expenditure and annual leave entitlement. It was also alleged that he expressed himself inappropriately. A judicial investigation was conducted and concluded that such was the seriousness of his behaviour that he should be removed from office. An independent review body also agreed with this decision concluding that his behaviour was unjustified. F argued that the review body had wrongly concluded this and that the local authority was unreasonable.
It was held that the behaviour of F could not be justified given the extent of his high-handedness and aggression. The manner in which he behaved was not compatible with his continuing as coroner. Permission for F to seek judicial review was refused.
CLINICAL NEGLIGENCE
[2011] EWHC 38 (QB)
The claimant, M, claimed damages from the defendant for alleged clinical negligence in failing to carry out a further cardiotocograph scan on her mother while pregnant. M suffered from congenital diplegic cerebral palsy affecting her legs, mobility and balance as well as learning difficulties.
At 38 weeks gestation, M's mother had complained of reduced fetal movements and was advised to attend hospital. She attended on 17 March 1993. A cardiotocography (CTG) trace was given for 58 minutes. This was reviewed by a staff grade obstetrician who concluded that it was satisfactory. M's mother was then sent home. Medical experts in the case agreed that the injuries to M were caused by chronic partial hypoxia which in turn was caused by a failure in the placenta. Furthermore, it was likely that the damage to her brain occurred after 17 March 1993 and before her admission to hospital on 21 March 1993. M argued that the obstetrician had negligently interpreted the trace and the scan should have been continued or a further scan undertaken. Furthermore, if a further scan had been carried out it would have led to delivery before hypoxia caused M brain damage.
It was held that the obstetrician had acted negligently. However, M had not established that the trace carried out on 17 March 1993 was suspicious nor had the defendant established that it was normal. The trace should have been continued or repeated to see whether and when the heart rate had returned to normal and whether there were further decelerations and whether the heart rate was satisfactory. The degree of damage suffered by M indicated that hypoxia was not present on 17 March 1993 and it was likely that the damage occurred between 24 and 48 hours of birth on 22 March 1993. On the balance of probabilities, therefore, M had not established that a second or continued CTG trace would have been suspicious so as to lead the obstetrician to deliver the baby before 21 March 1993. M had also not established that the negligence of the obstetrician in failing to carry out a further trace was the cause of the damage. The defendant, E, was found not liable and the claim was dismissed.
FAMILY LAW
CA (Civ Div) (Lloyd LJ, Wilson LJ) 24 March 2011
The appellant mother, M, appealed against the length of her imprisonment which was imposed following her committal for breaching the terms of an order made in the wardship proceedings concerning her son, X, who was the respondent. X was 17 years old and he had lived with M in the UK. He travelled to Nigeria with H on what he thought was a family holiday. He did not return to the UK and was enrolled in a boarding school. Wardship proceedings were initiated in the UK by his litigation friend and an order was made for his return. M later returned to the UK without him. A further order was made for M to sign a letter authorizing X's school in Nigeria to take him to the airport for him to return home. M, however, sent a second letter to the school instructing the school to hand X to her sister and therefore, X was not taken to the airport. At a hearing, a judge held that M had deliberately thwarted efforts to return X to the UK. She was found in contempt and sentenced to eight months imprisonment. M argued that this sentence was excessive.
A court is not to interfere with a sentence unless it is manifestly excessive or disproportionate. M's actions amounted to an active and grave breach and the sentence was a matter for the judge's discretion. Given that the maximum sentence was two years imprisonment, the length of the sentence in this case was proportionate. The appeal was dismissed.
CIVIL EVIDENCE
[2011] UKSC 13
The appellant, J, appealed against a decision striking out his claim for negligence against the respondent psychologist, K. K had been instructed to prepare an expert report for J's claim for damages sustained in a road traffic accident. K's first report suggested a diagnosis of post-traumatic stress disorder. The expert for the defence concluded that J was exaggerating his symptoms. A joint statement was ordered and this was damaging to J's case. K had signed the joint statement without any comment or amendment and, as a result, the claim settled for a much smaller sum. J issued proceedings for negligence and K's defence was a plea of witness immunity in accordance with Stanton v Callaghan (2000) QB 75 CA (Civ Div). J's claim was struck out on the basis that Stanton was binding upon the court. On appeal, the issue was whether public policy continued to justify expert witness immunity from negligence in relation to the performance of their duties as an expert.
Lord Hope and Lady Hale dissented. It was held that the primary case for conferring immunity from liability in negligence on experts was the effect that the risk of claims arising out of their conduct would have. An expert witness would be reluctant to provide services contrary to their client's interests if there was a risk that they would be sued. The effect of the immunity, therefore, was to preclude the client from suing for breach of duty where the expert's negligence was alleged to have adversely affected their case. The court held that the onus was on K to justify the immunity which she sought to rely on. There was no justification for the assumption that if expert witnesses were liable to be sued for breach of duty they would be discouraged from providing services at all. Furthermore, the justification that immunity was necessary to ensure the expert performed his duty to the court and gave his honest opinion even if that proved adverse to his client's case, was not made out. A witness of integrity faced with having to change his view would do so. Removal of the immunity from advocates had not led to any diminution of their readiness to perform their duty to the court and the same could be said for experts. It followed, therefore, that the immunity from suit for breach of duty that expert witnesses enjoyed in relation to their participation in legal proceedings should be abolished and Stanton overruled. J's appeal was allowed.