Shaw v Kovac & Ors [2017] EWCA Civ 1028

Case No B3/2015/3806[2017] EWCA Civ 1028
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION
HIS HONOUR JUDGE PLATTS (SITTING AS A JUDGE OF THE HIGH COURT)
HQ10X03608
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/07/2017
Before
LORD JUSTICE DAVISLORD JUSTICE UNDERHILLLORD JUSTICE BURNETT
Between
MRS GABRIELE SHAW (THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM EWAN (DECEASED))Appellant/ ClaimantDR JAN KOVACRespondents/UNIVERSITY HOSPITALS OF LEICESTER NHS TRUSTDefendants
David Berkley QC and Matthew Mawdsley (instructed by Pearson Solicitors and Financial Advisors) for AppellantAlexander Hutton QC and Nicholas Pilsbury (instructed by Browne Jacobson LLP) for RespondentsHearing Hearing date: 22 June 2017
Judgment

Introduction

[1]On 26 September 2007 Mr William Ewan, aged 86, died following an operation for a trans-aortic valve implant conducted that day. In due course his daughter, Mrs Gabriele Shaw, acting as personal representative of his estate, brought proceedings in negligence against the first defendant, a surgeon supervising the conduct of the operation. The first defendant was at that time a consultant interventional cardiologist working at the Glenfield Hospital in Leicester, which was managed and administered by the second defendant.[2]The core of the claim in negligence advanced was that neither the deceased nor his family was given proper information as to the true nature of, and risks inherent in, the actual surgical procedure deployed; and that in consequence no properly informed consent was given by the deceased to such an operation. It was said that the defendants were negligent in failing to give the requisite information and that, had it been given, Mr Ewan would have refused the operation altogether. In the event, liability was eventually conceded by the defendants. Judgment for damages to be assessed was entered against the defendants, on 2 July 2015 and 24 October 2015 respectively. It was for this purpose accepted that Mr Ewan would never have undergone the operation (from which he in fact died) had he been given proper information as to its risks.[3]At the trial fixed for the assessment of damages HHJ Platts, sitting as a Judge of the High Court, on 28 October 2015 at the conclusion of a three day hearing assessed damages at £15,591.83 (inclusive of interest). The award included an amount of £5,500 for pain, suffering and loss of amenity.[4]On this appeal it is argued that the judge should in addition have awarded a sum representing a further and distinct head of loss: that is to say, as compensation for what was described as “the unlawful invasion of the personal rights” of Mr Ewan and his “loss of personal autonomy.” It was accepted before us that such an award would be novel, in the sense that a right to recover under such a head of loss has never before been acknowledged in an action framed in negligence ostensibly in respect of personal injuries. It is said, however, that recent developments in the law and the increasing emphasis given in modern times to the right to personal autonomy of an individual both justify and require that modern courts should acknowledge such an actionable head of loss. The appropriate figure suggested in this case is £50,000.[5]The appellant claimant was represented before us by Mr David Berkley QC and Mr Matthew Mawdsley. The respondent defendants were represented before us by Mr Alexander Hutton QC and Mr Nicholas Pilsbury.

Recusal

[6]An initial point arose at the appeal hearing. The appeal had been listed for hearing before us on 23 June 2017, together with an application on behalf of the appellant to adduce further evidence (which, in the event, was withdrawn at the hearing). On the morning of the appeal hearing itself Mr Berkley sent an e-mail indicating that his client objected to two of the members of the court – myself and Burnett LJ – hearing the appeal and would be asking us to recuse ourselves. He told us at the hearing, when asked, that it had not been possible to indicate the objection earlier as his client, Mrs Shaw, had only very recently returned from a holiday.[7]The basis of the recusal application was apparent bias. It was made clear that actual bias was not being asserted.[8]The application was made in the following circumstances.[9]After the death of Mr Ewan there was an inquest. Mrs Shaw (who is a qualified, though non-practising, barrister) involved herself very closely indeed in the inquest proceedings. Those proceedings were very complex and very protracted. Numerous parties, including the estate of Mr Ewan, were legally represented. The inquest itself eventually took place over some two weeks in January 2011. By his summing-up the deputy assistant coroner left a series of questions to the jury. The answers to some of those questions showed that the jury, on the evidence deployed before it, had among other things concluded that Mr Ewan had been suitable for the trans-aortic valve implantation procedure adopted; that he was aware of the nature of the procedure; and that he had given his informed consent to the operation. The jury concluded that death was “the unintended outcome of a therapeutic medical procedure.”[10]Mrs Shaw was most dissatisfied with the conduct and outcome of the inquest. She felt strongly that, among other things, not all the relevant information had been obtained or placed before the jury. She considered that unlawful killing and neglect should have been left as possible verdicts. She also considered that no reasonable jury could come to the conclusion that this one did on the issue of consent: her perception being that Mr Ewan had, in effect, been cynically used as an unwitting participant in a high-risk trial of a new and untested kind of aortic valve surgical procedure. She further, among other things, complained that there was apparent bias on the part of the deputy assistant coroner.[11]At all events she in due course commenced Judicial Review proceedings in 2011. During them she – as Mr Berkley frankly put it – took every point. She throughout those proceedings acted in person.[12]The matter came on for hearing in the Administrative Court on 21 and 22 January 2013 before my Lord (then Burnett J) and HHJ Peter Thornton QC, the Chief Coroner. All of the many grounds advanced by Mrs Shaw were rejected. Burnett J gave the lead judgment, comprising 99 paragraphs, in dismissing the claim.[13]Mrs Shaw sought to appeal. All of her proposed grounds were rejected, on the papers, by Sir Richard Buxton. However, amended grounds were then advanced and at an oral hearing of the renewed application for permission to appeal Aikens LJ referred two of the grounds to the Full Court. The matter then came before the Full Court on 11 February 2014. The members of the court were Hallett LJ, me and Floyd LJ. Mrs Shaw was still acting in person. The principal judgment, comprising 29 paragraphs, was delivered ex tempore by Hallett LJ. She refused the renewed application. I (as did Floyd LJ) shortly stated that I also would refuse the renewed application for the reasons given by Hallett LJ. If it be relevant – and it doubtless is not – I had no recollection of the matter until it was drawn to my attention by Mr Berkley and even then minimal recollection of it.[14]The legal test for apparent bias is well settled by authority at the highest level. Shortly put, it is whether a fair minded and informed observer would conclude, on the facts, that there existed a real possibility of bias: see Porter v Magill [2002] UKHL 67, [2002] 2 AC 513; Helow v Secretary of State for the Home Department [2008[ UKHL 62, [2008] 1 WLR 2416.[15]What then, in the present case, gives rise to apparent bias?[16]Mr Berkley acknowledged that he could not argue for apparent bias simply by reason of the fact that Burnett LJ and I had (separately) been involved as judges in decisions adverse to Mrs Shaw in the previous judicial review proceedings relating to the inquest. But he said that there was more.[17]So far as my Lord was concerned, Mr Berkley said that an appearance of bias would arise from a statement made by him at paragraph 68 of his judgment in the Administrative Court. In dealing with a certain schedule put forward by Mrs Shaw purporting to advance details of deaths of patients in the course of trials relating to the new trans-aortic valve in question Burnett J there had said: “I regret to say that the schedule was misleading” – going on to explain why. Mr Berkley saw fit to assert that such a finding impugned Mrs Shaw’s integrity: hence there was, he said, apparent bias for the purpose of the present appeal.[18]That is an untenable argument. Burnett J was expressing himself, as he was entitled to, by reference to the schedule put before him. That this might be seen to be in some way by way of a reproof of Mrs Shaw is for present purposes nothing to the point. To the extent that this statement was a criticism of Mrs Shaw it plainly comes within paragraph 28 of the judgment of the court (delivered by an exceptionally strong Court of Appeal) in the case of Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, where it was said:
“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.”
[19]Likewise, in the case of Otkritie International Investment Management Limited v Urumov [2014] EWCA Civ 1315 it was stated that the fact that a judge has made adverse findings against a party does not preclude him or her sitting in judgment in subsequent proceedings. It is striking that in that case the trial judge was held by the Court of Appeal to have been positively wrong to recuse himself on the application of the defendant in circumstances where, in the same complex commercial proceedings, the judge previously had made findings of actual fraud on the part of the defendant. The present case is a fortiori to the position arising in that case.[20]Mr Berkley endeavoured, however, to find more in what he said was the conclusion of Burnett J in the Administrative Court: to the effect that, in relation to the core issue in this present case – which, put shortly, is the extent to which damages are payable for failure to obtain Mr Ewan’s informed consent – Burnett J had already there found that there was informed consent and thus, by implication, no right to damages in that regard. That was an extraordinary submission. It completely distorts both the judgment of Burnett J and the function of the Administrative Court in a judicial review case of this kind. The court was not concerned with making primary findings of fact. Rather it was concerned with whether the jury was (on the evidence before the jury) entitled to make its findings of fact. That inevitably would also be the perception of a fair minded and informed observer.[21]It is crystal clear from the judgment, properly and fairly read, that that was indeed what Burnett J was – rightly – focusing upon.[22]That of itself disposes of this point. But there is in my view another, no less fundamental, objection to this point. That is that, quite simply, there is now no issue about the lack of informed consent. It has been conceded in these civil proceedings. Judgment has been entered for damages accordingly, in respect of the negligent failure properly to inform Mr Ewan. Thus the position taken by the inquest jury on the evidence then made available – and of course the jury was statutorily precluded from pronouncing on civil liability – has been overtaken by subsequent events. When this (rather obvious) point was put to Mr Berkley he had no answer to it.[23]Thus there was and is, in my opinion, no proper basis for Burnett LJ to recuse himself. Apparent bias does not arise in his case.[24]As for myself, Mr Berkley referred to paragraph 24 of the judgment of Hallett LJ (with which judgment I had agreed) where she referred to Mrs Shaw “trying to run a totally different argument from that pursued before the Coroner and unfortunately it is based solely on her speculation and assertion”. He also referred to paragraph 27 of her judgment, where Hallett LJ referred to findings of fact which the jury had been entitled to make. But those remarks cannot, for the like reasons as given above, ground a case of apparent bias. I should perhaps also point out that in paragraph 29 of her judgment Hallett LJ in very sympathetic terms stated that:
“…Mrs Shaw can comfort herself with the knowledge that no daughter could have done more or fought harder to ensure that the circumstances of her father’s death were brought to light. I truly hope that she can now complete the grieving process.”
[25]I would like to add this. It is not difficult to infer that Mrs Shaw has had – and perhaps she still has, I do not know – a burning sense of grievance at the circumstances of her father’s death and at the failure of what she sees to be the truth to have emerged. That is understandable. Indeed it can be said that her persistence has received a form of vindication: in that the defendants have now, by submitting to judgment, not disputed that there is a liability for damages for negligent failure to provide proper information to her father. She clearly, and again very understandably, remains very close to this whole case. But that she personally would not wish to have sitting on this appeal two judges who have previously been involved in decisions adverse to her cannot of itself procure a recusal. The law is clear. The test is objective. The outcome cannot be determined by the subjective views or wishes of the objecting party. This was, as I have said, conceded by Mr Berkley: albeit it was in truth difficult not to gain the impression from some of the remarks which he made in the course of oral argument that in reality that was the real basis of the objection. But any inclination to defer to the individual sensibilities of individual parties cannot of itself justify, let alone require, a judge in recusing himself or herself. As stated by Chadwick LJ in Triodos Bank NV v Dobbs [2005] EWCA Civ 486 (and cited in Otkritie at paragraph 27):
“7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If the judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases…”
[26]At the end of hearing the arguments in the recusal application, the court announced its conclusion that neither I nor Burnett LJ would or should recuse ourselves and that we considered that it was our judicial obligation to carry on hearing the appeal as the court was currently constituted. These are my reasons for being party to that decision.

The background facts

[27]I turn to the substantive appeal, for which leave was previously granted on the papers by Gross LJ. The background facts need be but shortly recounted for present purposes.[28]In 2007 Mr Ewan, aged 86 was diagnosed with aortic valve stenosis which was in due course assessed by the first defendant as severe (there may be some dispute as to whether it was in fact severe aortic stenosis but no pleaded complaint was made in that regard). At the time, Mr Ewan was otherwise fit for his age. He was mentally alert: he was also graphically described by Mrs Shaw in one of her witness statements as having the cautious and conservative nature of someone who had been born in the Scottish Highlands. Mr Ewan was referred to Glenfield Hospital in Leicester. In June 2007 an echocardiogram, followed some days later by a coronary angiogram undertaken by the first defendant under local anaesthetic, was performed. In due course Mr Ewan was advised that he was suitable for a particular form of trans-aortic valve implant procedure, described by the judge as a relatively new treatment in 2007 with a trial of that procedure being conducted at the time at Glenfield Hospital. There were a number of discussions with Mr Ewan and his family.[29]On 4 September 2007 the family were told that a new, larger size, valve had become available. Mr Ewan was admitted to hospital on 25 September 2007 with a view to being operated on, using the new procedure, on the following day. He had signed a written form of consent. The operation was performed under general anaesthetic. Very unfortunately, after the valve had been inserted a major aortal bleed was detected. His chest was opened to detect the source; attempts to stem the flow did not succeed and he was transferred to the Intensive Care Unit. He died shortly after arrival in that unit, never having regained consciousness.

Procedural history of the claim

[30]I have already referred to the protracted inquest proceedings. The claim form in these civil proceedings had been issued on 23 September 2010. The claim was brought pursuant both to the Law Reform (Miscellaneous Provisions) Act 1934 and to the Fatal Accidents Act 1976: although it seems that there was in fact no dependency as such.[31]At all times the proceedings were framed in orthodox terms by reference to the duty of the defendants to treat and advise on and manage the medical care of Mr Ewan with reasonable skill and care.[32]The claim was at various stages amended. In the final re-amended Particulars of Claim dated 9 July 2015 the pleaded Particulars of Negligence and Breach of Duty, by sixteen of the seventeen numbered particulars contained in paragraph 30 of the re-amended Particulars of Claim, were directed solely at the alleged failure to obtain the properly informed consent of Mr Ewan and to advise as to the risks involved in the particular new trans-aortic valve implantation procedure proposed to be adopted. The one remaining particularised breach related to an alleged want of care following the damage to the aorta that occurred during the operation. The overall pleaded case on causation, however, was that had Mr Ewan been properly warned and advised of the risks said to be involved in the use of the new trans-aortic valve implantation procedure then he would not at any time have undergone either the angiogram or the operation; and had he not undergone the operation he would not have died on 26 September 2007. In such circumstances, whilst the aortic stenosis would have persisted and probably worsened, Mr Ewan would (as pleaded in paragraph 37) “have enjoyed a number of additional years of life.”[33]Pleaded injury included inconvenience, anxiety and loss of amenity arising from the angiogram and operation, as well as pain and discomfort arising from the angiogram. Particulars of loss were set out in a detailed schedule of loss. The principal claim, set out in the concluding prayer to the Re-amended Particulars of Claim, was:
“Damages (as detailed in the Schedule of Loss dated 24 June 2015).”
[34]During the course of the litigation the claimant had succeeded in obtaining orders for disclosure of documents significantly more extensive than had been produced at the inquest. In the result, at all events, there was a consent order dated 2 July 2015 (sealed on 6 July 2015) giving judgment in favour of the claimant against the second defendant, with damages to be assessed. There was some debate whether, in such circumstances, there also need be a judgment against the first defendant. But that was agreed on 22 October 2015.[35]The claimant’s Schedule of Loss dated 24 June 2015, as referred to in the Re-amended Particulars of Claim, included an (unquantified) claim for general damages, comprising damages for pain, suffering and loss of amenity and “damages for loss of life of William Ewan without having given informed consent…” It also included, among other things, a claim for “restitutionary damages… and punitive damages (exemplary and/or aggravated damages).” These last claims were struck out as part of a Case Management Order of Master Roberts dated 6 July 2015.[36]A counter-schedule of loss as at 4 August 2015 put in by the defendants proposed a figure of £1,000 for pain, suffering and loss of amenity. As to the claim for “damages for loss of life of William Ewan without having given informed consent”, that was disputed. It was among other things said on behalf of the defendants that damages for loss of expectation of life were barred by s. 1 of the Administration of Justice Act 1982 and that there was no legally recognisable claim for loss of amenity in the lost years.[37]Those claims were, however, maintained in an updated Schedule of Loss put in on behalf of the claimant on 8 October 2015. In relation to pain, suffering and loss of amenity it was stated that Mr Ewan would have lived for an estimated further 5 years. In relation to the claimed damages for loss of life without having given informed consent it was said:
“The court may grant any remedy or amount to which it finds the claimant is entitled even if that remedy or amount is not specified in the claim form”
. It was also said that Mr Ewan’s death “arose in very special circumstances whereby his informed consent was not obtained to a very high risk procedure still at clinical trial stage…” Reference was also made to the recent decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 – a case which has loomed large in argument before us.[38]There matters stood, in formal terms, when the assessment of damages came on for hearing before HHJ Platts in October 2015.

The judgment of HHJ Platts

[39]The judgment of this very experienced judge, albeit delivered ex tempore, was detailed, careful and thorough. He reviewed the whole background. He noted the prolonged litigation history, saying:
“That is partly due to the family’s understandable desire to know what happened to their much-loved father.”
[40]The judge set out the heads of loss being advanced. So far as pain, suffering and loss of amenity was concerned, the judge held that the claim advanced and to which the defendants had submitted to judgment was that the deceased should have been told of the true risk position regarding the trans-aortic valve implantation procedure from the outset (in June 2007) and that, had he been so informed, he would not have proceeded any further. The judge found three identifiable aspects of pain, suffering and loss of amenity: first, the events of 25 and 26 September 2007 (that is, the preparations for the operation, the operation itself, and its aftermath); second, the medical procedures beforehand, in particular the angiogram of 28 June 2007 which would not otherwise have occurred; third, the awareness of Mr Ewan of his requiring an operation and the anxiety occasioned thereby. Having referred to the relevant Judicial College Guidelines the judge held that, taking all matters into account, the proper award to the estate for pain, suffering and loss of amenity was £5,500. Mr Hutton suggested that that was a generous award given the circumstances. I express no view on that. It is sufficient to say that it was an award which the judge was entitled to make. Mr Berkley did not himself seek to say that it was unreasonably low.[41]The judge then went on to deal with the next head of damage, which he described as “Damages for loss of life” (which was consistent with the claimant’s own Schedule of Loss). He rejected an argument that the asserted gravity of the negligence was relevant to an award of damages under this head. That seems to me in principle to be entirely right (there being no extant claim for punitive or aggravated damages) and in any event I did not understand it to be challenged by Mr Berkley on this appeal.[42]In so far as the claim was as put forward in the Schedule of Loss, the judge held that it was barred by s. 1 of the Administration of Justice Act 1982. Section 1 provides in the relevant respects as follows:
“(1) In an action under the law of England and Wales or the law of Northern Ireland for damages for personal injuries – (a) no damages shall be recoverable in respect of any loss of expectation of life caused to the injured person by the injuries; but (b) if the injured person’s expectation of life has been reduced by the injuries, the court, in assessing damages in respect of pain and suffering caused by the injuries, shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced.”
[43]However, in argument before the judge Mr Berkley had sought to put the claimed loss rather differently from that outlined in the pleaded case and Schedule of Loss. He placed reliance on Montgomery (cited above) and also on Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134. As recorded by the judge, he had argued that a patient had an autonomous right to choose what treatment to accept; and that a denial of that right, occasioned by negligent failure to provide relevant information and leading to the loss of the opportunity to give or refuse informed consent, in itself created a right to damages independent of other loss being claimed or proved; and that therefore sounded separately in damages. As such, so it had been argued (as it was before us), this was neither a claim for damages for personal injuries nor a claim for loss of expectation of life: and so was not precluded by s. 1 of the 1982 Act. The judge entertained this argument (though not pleaded). He reviewed at length the submissions and the authorities of Montgomery and Chester. He concluded that neither of those authorities, properly analysed, had the effect for which the claimant was arguing. He held that there was no free-standing actionable claim for damages arising from the failure to obtain informed consent. Overall, the reality was, he concluded, that this was a claim for personal injuries and a claim for loss of expectation of life which had been removed by s. 1 of the 1982 Act. Nor did such a conclusion leave the estate without remedy: on the contrary, compensation had been provided in the substantive award of damages which he had made.[44]The treatment by the judge of the various other heads of damages claimed does not need to be considered.[45]On this appeal it is said that the judge should have acceded to the claimant's arguments and should have made an additional award of damages to reflect the wrongful invasion of Mr Ewan's personal autonomy, as it was put.

Disposition

[46]In my view the judge was quite right in the conclusion which he reached.[47]I found, with respect, the arguments advanced on behalf of the appellant to be somewhat unfocused. Certainly - rather as in the court below - they shifted during the course of argument. (1). Distinct cause of action?[48]The first point to note is that in paragraph 4 of the Grounds of Appeal and in the written argument, and on occasion in the oral argument of Mr Berkley before us (as below), it was at some stages said that the wrongful invasion of Mr Ewan’s personal autonomy represented a separate and free-standing cause of action. Conceptually one can see that, if that were so, that would be capable of giving rise to a head of damages independent of a claim for damages for negligently caused personal injuries. But such an argument is not available to the appellant. Indeed it would bristle with difficulties.(1) First, and in itself fatal, such a cause of action has never been pleaded. It cannot be raised now. The judge below was perhaps benevolent in permitting heads of loss to be argued in a way not previously pleaded. But such benevolence cannot - even leaving aside any potential limitation points - be extended to formulating a new cause of action. That of itself disposes of the point.(2) In any event, the failure to give proper advice so as to obtain informed consent to what would otherwise be an unauthorised invasion of Mr Ewan's body is properly formulated – as here it was - as an action in negligence/breach of duty. That is quite clear on the authorities. For example in the case of Chester itself it was affirmed (citing, among other authorities, Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53) that a surgeon's duty to warn a patient of relevant risks comprehends a single cause of action, that is to say negligence: see paragraph 15 of the speech of Lord Steyn. In the joint judgment of Lord Kerr and Lord Reed in Montgomery at paragraph 82, they said that the duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks inherent in the proposed treatment was to be understood “within the traditional framework of negligence” as the counterpart of the patient’s entitlement to decide whether or not to incur that risk. At paragraph 87 they further stated:
“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…”
[49]In the event, I need say nothing further about this point: because when Mr Berkley was asked by the court about this he ultimately disclaimed an argument based on there being a cause of action distinct from tortious negligence. He confirmed that his argument related solely to the asserted existence of an additional head of loss arising from the pleaded negligence. (2). Vindicatory damages?[50]Damages may be recoverable in various forms, including nominal, punitive, aggravated or restitutionary damages. In the ordinary way in actions based on the tort of negligence damages are, in principle, recoverable as compensatory damages. The court seeks, as best it can, to award an amount which will put the person who has suffered the wrong in the position he would have been had he not suffered the wrong.[51]In advance of the hearing it had occurred to this court that the appellant's argument, at all events as formulated in the skeleton argument, might in reality be seeking to claim a "vindicatory" award of damages over and above the compensatory award ordinarily to be expected in tort cases of the present kind. That being so, the court, prior to the hearing, drew the attention of the parties to the decision of the Supreme Court in the case of R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245.[52]Lumba concerned facts wholly different from the present - alleged wrongful detention by the executive, purportedly pursuant to an unpublished policy, of foreign nationals convicted of criminal offences and subject to deportation orders. One of the many issues which arose was the issue of damages. The majority held that nominal damages were recoverable. A minority held that substantial damages (in the sum of £1,000) should be awarded. A further minority held that no damages at all should be awarded.[53]There is indeed authority at high level that an award of what may be called "vindicatory damages" may sometimes be awarded for egregious violation of constitutional rights: see for example AGofTrinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328. (It also may be debated whether actions framed in breach of privacy have - possibly - something of a special status in this regard.) But the majority in Lumba held that vindicatory damages of this sort were not capable of being awarded in the circumstances of that case: a view with which the minority who would have refused to award even nominal damages can at any rate be taken as having approved: see paragraph 361 of the judgment of Lord Brown, with whom Lord Rodger agreed.[54]Of particular potential relevance for present purposes, however, are the remarks of Lord Dyson at paragraphs 100 and 101 of his judgment. He noted that it is one thing to say that an award of compensatory damages, whether substantial or nominal, serve a vindicatory purpose (that is to say, vindicating the right that has been infringed). It is another to award a claimant an additional amount to reflect the special nature of the wrong. Having so stated, he said this at paragraph 101:
“The implications of awarding vindicatory damages in the present case would be far reaching. Undesirable uncertainty would result. If they were awarded here, then they could in principle be awarded in any case involving a battery or false imprisonment by an arm of the state. Indeed, why limit it to such torts? And why limit it to torts committed by the state? I see no justification for letting such an unruly horse loose on our law. In my view, the purpose of vindicating a claimant’s common law rights is sufficiently met by (i) an award of compensatory damages, including (in the case of strict liability torts) nominal damages where no substantial loss is proved; (ii) where appropriate, a declaration in suitable terms; and (iii) again where appropriate, an award of exemplary damages.”
[55]In oral argument, when asked whether he was in fact seeking a vindicatory award of this kind, Mr Berkley disclaimed such a proposition. He stated that he was not. I will come on to explain at the end of this judgment why, in the light of this concession, I nevertheless have thought it appropriate to cite as I have from the decision in Lumba. (3). Nominal damages?[56]Mr Berkley made clear that his principal way of formulating the claim in respect of the asserted wrongful invasion of Mr Ewan’s personal autonomy was by way of a substantial compensatory award – which would at all events be consistent with ordinary principle. But he did briefly advance, as a back up, an alternative argument for nominal damages for the wrongful invasion of Mr Ewan’s personal autonomy.[57]I cannot follow this. A claim in negligence of this kind requires proof of damage as a necessary part of the cause of action: it is not one of those torts which is actionable per se. In the present case, damage has been pleaded and proved and an award of substantial damages made. In those circumstances I can see no room for a further award of nominal damages, as such, at all. (4). Compensatory damages?[58]So I turn then to the main way in which the appellant formulates her claim: a free-standing award of substantial compensatory damages in respect of the invasion of Mr Ewan’s personal autonomy by reason of the surgical procedures being performed in circumstances where his informed consent had not been obtained. It was accepted that, according to the researches of counsel, such a head of loss, in negligence cases of this kind, has never before been expressly awarded or acknowledged in any previous reported authority.[59]Mr Berkley sought to found himself on the decisions in Chester and Montgomery. But as HHJ Platts held, in my view correctly, those decisions do not, on analysis, advance this argument.[60]Chester was a decision on causation. Miss Chester could not prove that she would have refused altogether the operation had Dr Afshar given her proper information about the risks of cauda equina syndrome. On conventional principles relating to causation in tort the claim should, on one view, have failed: as, indeed, the minority (Lord Bingham and Lord Hoffmann) held. The majority however (effectively changing the previous understanding of the law in this respect) held that the scope of the doctor’s duty to give proper information as to the risks was closely connected with the need for the patient’s consent and with her right to an informed choice as to when or whether to receive treatment; and accordingly, since Dr Afshar should as part of his duty have warned of the risk of cauda equina syndrome, and since that was the very damage she in the event suffered, a departure from traditional causation principles was justified in order to vindicate Miss Chester’s right of choice and to provide a remedy for the breach.[61]It will straightaway be appreciated that the present case is quite different. Here, there simply was no issue on causation of the kind that arose in Chester: for it was accepted in the present case that Mr Ewan would not have undergone the operation at all had he been properly informed of the risks. Moreover, there is nothing in the actual majority decision in Chester which indicates the availability of a further, free-standing, award of the kind proposed in the present case. On the contrary, the damages awarded were (by reason of the majority conclusion on causation) of what I might call the conventional kind. In the present case the estate of Mr Ewan has likewise received an award of the conventional kind. Nothing further is mandated by reason of the decision in Chester.[62]Mr Berkley referred, among other passages, to paragraphs 14 and 18 of Lord Steyn’s speech. In paragraph 18, Lord Steyn emphasised that a rule requiring a surgeon to abstain from performing an operation without obtaining informed consent serves two purposes. First, it tends to avoid the occurrence of the particular injury the risk of which a patient is not prepared to accept. Second, “It also ensures that due respect is given to the autonomy and dignity of each patient.” Mr Berkley latched on to this second stated purpose. But that identified purpose is not stated by Lord Steyn to give rise in itself to a head of loss: rather, it provides one of the reasons for requiring a doctor to obtain the informed consent of the patient in the first place.[63]At paragraph 87 of his speech in Chester, Lord Hope said this:
“To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.”
[64]Likewise Montgomery, in my view, on analysis lends no real support to the appellant’s argument: indeed reliance on it became more and more muted as the argument before us wore on. In Montgomery, Mrs Montgomery – suing, it appears, solely on behalf of her child and not also on her own behalf – successfully recovered damages for the negligent failure of a doctor to advise as to the risks for her and the baby of a vaginal delivery: in circumstances where, as it was ultimately held, she would have chosen a caesarean section had she been properly advised and thus the damage to the baby would not have occurred. The true importance and significance of that decision is that, putting it shortly, it removes (contrary to the previous general understanding) the application of the principles of Bolam v FriernHospital Management Committee [1957] 1 WLR 582 from the assessment of the standard to be expected from a doctor in obtaining a patient’s consent to a recommended medical procedure. But that too simply was not an issue in the present case: for it was conceded that there had indeed been a want of due care in this respect with regard to Mr Ewan.[65]It is quite true that in the judgments delivered in Montgomery there is emphasis on the right of the patient not to be subject to treatment “interfering with her bodily integrity” without her informed consent and emphasis on the proposition that due protection should be given to the patient’s right of autonomy: see, for example, at paragraph 87 of the joint judgment of Lord Kerr and Lord Reed and at paragraph 108 of the judgment of Lady Hale. But those observations – which are in this respect entirely consistent with those in Chester – are there to explain just why the Bolam principles could no longer apply in assessing the standard of care that was apposite. The duty and standard of care in providing proper information thus was not to be governed by a generalised view held by the medical profession as to a generalised norm of what was acceptable as to the provision of information in certain kinds of case. Rather, the standard required as to the proper provision of information had to be geared to the individual patient and the individual case: precisely because of the right of autonomy involved (see also the arguments of Mr James Badenoch QC advanced before the Supreme Court on behalf of Mrs Montgomery, at pages 1434-1438 of the report). But nowhere does such decision suggest or provide support for the proposition that an additional, free standing, award of damages is available for the infringement of the patient’s right of autonomy or interference with the patient’s bodily integrity.[66]It follows in my view (and as the judge below held) that the appellant can derive no real assistance from the decisions in Chester or in Montgomery in order to justify the additional head of loss now being proposed.[67]Furthermore, in my view – and reflecting perhaps the lack of any legal authority available from the decided cases which lends any support to the appellant – the appellant can derive no assistance from legal principle either. On the contrary, I consider that the present claimed head of loss is contrary to principle.[68]It has long been the law that where a doctor has failed to provide proper information as to risk prior to a medical procedure and that failure leads to consent being given which otherwise would have been withheld, and loss results, then that is actionable in negligence. The consent so given is not regarded as a nullity; and accordingly in the usual case the claim is not to be pleaded as one of trespass to the person (in the absence of fraud or bad faith, which has never been pleaded in the present case); see, for example, Chatterton v Gerson [1981] 1 QB 432 at p. 443 (per Bristow J). That being so - and it is an approach which has consistently been applied by the courts – one then has to identify, as Mr Hutton pointed out in the course of his excellent submissions, just what it is that the appellant’s proposed award is required to compensate, over and above what is already comprehended in the award of general damages for pain, suffering and loss of amenity.[69]Shortly put, I can identify no such candidate. Mr Berkley, of course, would say that it is the unlawful invasion of the patient’s personal rights and the loss of personal autonomy involved. It is true that those rights can nowadays perhaps be described, in the climate of a greater appreciation generally of human rights and fundamental rights, in rather more graphic and emphatic terms than would have been used in days gone by. Nevertheless the very existence of such rights – in whatever language one actually describes them - has always been the foundation of and rationale for the existence of a duty of care on doctors to provide proper information. Once that is appreciated then one can see that the claimed additional award of compensatory damage as sought in the present case is in truth unnecessary and unjustified. The appropriate damages to be awarded for the purpose are for pain, suffering and loss of amenity in the usual way, as reflecting the requisite compensation.[70]Moreover, if, in any particular case, an individual’s suffering is increased by his or her knowing that his or her “personal autonomy” has been invaded through want of informed consent (not, I add, the present case, on the facts) then that can itself be reflected in the award of general damages. As noted by Thomas LJ in Richardson v Howie [2004] EWCA Civ 1127, [2005] PIQR Q3 (in the context, in fact, of a case of assault) injury to feelings, including any indignity, mental suffering, distress, humiliation, anger or indignation, can be brought into account as an element of the compensatory damages comprehended by the award of general damages. That, indeed, is also retained as being so in cases of awareness of loss of expectation of life: as s. 1(1) (b) of the 1982 Act spells out.[71]Further, if the claim to an additional award is well-founded it must be the case that an award would also in principle be recoverable, in the context of lack of informed consent, even if the operation performed on a patient was a complete success. Mr Berkley accepted that that was a corollary of his argument, when the point was put to him. Likewise, Mr Berkley maintained that damages would be payable (albeit, rather puzzlingly, he said that they would be “nominal damages”) even if it were established that the patient still would have consented if he had been given the proper information. It is, however, impossible, in my opinion, to see the justification for such an outcome.[72]Yet further, what would be the applicable principles for assessing these novel (compensatory) damages as now claimed? Mr Berkley insisted that the award might vary, depending on the context of each particular case. But he could identify no principled approach which the courts assessing damages might then adopt for this purpose. Indeed, it is very difficult to see why the importance and value of the right to personal autonomy and the right not to have one’s body invaded without informed consent should vary from one context to another, from one individual to another. It is surely the same fundamental right for all adult people of sound mind.[73]Why, then, was it that a sum of £50,000 was being proposed as the appropriate award, under this head, for Mr Ewan? We were given no principled answer: it was simply put forward, without elaboration or explanation, as an appropriate amount “in the context of the present case.” I have to say that I formed the very decided impression, reinforced by it being so stated in the second written ground of appeal, that substantial damages, now claimed in the amount of £50,000, were in reality being sought because Mr Ewan lost, as it was said, some five years of his life. But that could not be so articulated, just because of the provisions of s.1 of the 1982 Act. It is true that it was also sought somehow to be argued that the present claim was not an “action for damages for personal injuries”. But one only has to look at the Re-amended Particulars of Claim to see that this is precisely what it was. HHJ Platts was, in my view, obviously right to see it that way.[74]All these points also dispose of a further plank of the appellant’s argument: that not to make an award under this new head would mean that the estate of Mr Ewan would be left without a remedy. It is true, of course, that that was a situation which played a significant part in the decision of the majority in Chester (albeit the actual decision resulted, as I have said, in a modification of the orthodox approach to causation: not by way of an award of the present asserted kind). But it cannot here be said that the estate has had no remedy. On the contrary, the infringement of Mr Ewan’s right to personal autonomy has led to a concession of breach of duty of care which in turn has led to an award of substantial damages. So there has been a remedy. (5). A conventional award?[75]Towards the end of his oral argument Mr Berkley - perhaps appreciating the problems in arguing for a compensatory award of an amount which would vary from case to case "depending on the context" - suggested that this court should award a conventional sum for the infringement of personal autonomy involved where a doctor negligently undertakes a medical procedure without first obtaining the patient's informed consent. Such an approach had not been put forward in the Grounds of Appeal or written argument.[76]In his (minority) opinion in Chester Lord Hoffmann had in fact considered, at paragraph 34, whether there might be a "modest solatium" in cases where doctors fail to warn patients of risks, with a view to vindicating the patient's right to choose for himself or herself. He rejected that, taking the view that the law of torts would be an "unsuitable vehicle for distributing the modest compensation which might be payable."[77]Even if it were otherwise appropriate for an appellate court at this particular level to consider pronouncing, in the present context, upon the availability of, and then setting the figure for, a conventional award as sought - which I very much doubt - I would in any event unhesitatingly decline to do so. I can see no reasons of policy or otherwise sufficient to justify taking such a step in a case of this kind: on the contrary, I can see strong reasons of policy for not doing so.[78]Conventional awards at common law have had but a relatively limited role to play in the quantification of damages in tort cases (although, interestingly, they did of course feature in loss of expectation of life cases prior to the 1982 Act). We were, however, referred to the case of Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309. (I note that case was further considered by the Supreme Court in Lumba.) In that case, the House of Lords, applying its previous decision in McFarlane v Tayside Health Board [2000] 2 AC 59, held that a disabled claimant could not recover damages in respect of the birth of a healthy child after she had undergone a sterilisation process which had been negligently performed. The costs of bringing up the child were disallowed: essentially on policy grounds. However, the majority approved the making of a conventional award in the sum of £15,000, in addition to an award relating to the actual pregnancy and birth. And that, it was argued on behalf of the appellant before us, should likewise be the outcome here, by parity of approach.[79]I cannot agree. Rees was a very different kind of case from the present. The approach adopted by the majority on this point was striking: indeed three of the seven judges dissented on this point, regarding such an award as wholly contrary to principle; see also the discussion in McGregor on Damages 19th ed. at paragraphs 13.287-289. But be that as it may, the entire context of Rees was a striking one. As Mr Hutton pointed out, the claimant - as in McFarlane - was in effect being deprived on policy grounds of damages to which otherwise, on a conventional "but for" approach, she might well have been entitled. But that is not the present case. Mr Ewan’s estate is not being deprived of damages for invasion of his personal autonomy on policy grounds: rather, his estate is not to be granted an additional award for damages just because appropriate compensation has been available in the award of general damages which has been made.[80]Although the award in the case of Rees was described by Lord Bingham as "not intended to be compensatory" (see paragraph 8 of his speech) the reality seems to be that from his perspective the award was - although otherwise not capable of calculation - designed to compensate the claimant for the loss of the opportunity to live her life in the way she had wished and planned: and so a conventional award would "mark the injury and loss". Lord Nicholls talked in terms of the award recognising that the claimant had suffered a legal wrong “having a far reaching effect on the lives of the parent and any family she may already have" (at paragraph 17). Lord Millett viewed it as reflecting "the denial of an important aspect of [the parents’] personal autonomy, viz. the right to limit the size of their family... this is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law" (paragraph 123): and such award was "to compensate for the very different injury to the parents' autonomy" (paragraph 125). Lord Scott viewed it as putting a "monetary value on the expected benefit of which she was, by the doctor's negligence, deprived” (at paragraph 148).[81]Those circumstances are exceptional and a long way from the present. It is of course the case that Mr Ewan himself lost his expectation of life. But, as I have said, an award for that is not available by reason of s. 1 of the 1982 Act. Moreover, to grant such an additional award as a conventional sum in the present case would give rise to other, disconcerting, implications. If such an award is to be made in this kind of case, is it to be available in other kinds of case of infringement of personal autonomy: for example, assault? Would such awards by extension be available for other torts generally (given that most torts can be said to involve a “loss of autonomy”)? Even if somehow proposed to be confined to the present kind of case – negligent failure on the part of a doctor to give proper information to a patient – then, even there, there are, as Mr Hutton pointed out, very many medical situations where the duty of care to provide proper information (a duty itself based on the patient’s right of choice) arises: it is not, for instance, confined solely to cases of surgeons about to embark upon major operations. Further, reflecting what I have said earlier in this judgment, the logic of this argument would tend to a conclusion that such a conventional award should be available even where the medical procedure was an entire success; or where it was shown that the patient would, if properly informed, still have consented; or where the medical procedure was separately botched with consequences unrelated to the lack of informed consent; and so on.[82]It would be wholly wrong to be dismissive of these floodgates arguments: and Mr Hutton was right, in my view, to draw attention to the potential implications of the appellant’s proposal for this novel kind of award. Indeed, in the current climate of claims farming the risk is very much there for a proliferation of such claims. The fact that any prospective conventional award for the asserted head of loss might be for a relatively modest amount is no answer. On the contrary, the relative modesty of any prospective award of the kind for which the appellant now argues may, as experience teaches, of itself prove a spur to claims: in the hope that defendants will, fearful of costs, seek speedily to settle. In my opinion, this novel conventional award, as proposed, would have very real, even if unquantifiable, financial, practical and other implications.[83]Overall, therefore, I can see no policy or other reason for making a conventional award in a case of this particular sort. On the contrary, there is no need for it. An incremental development of the common law of the kind proposed therefore is not justified.

Conclusion

[84]It does no harm to stand back and review the position. Doing that, I consider that if – as the appellant says – what is being sought is a compensatory award of £50,000 (or some other substantial sum) then the reality is that this is a claim for loss of expectation of life in a personal injuries action: which is precluded by s. 1 of the 1982 Act. If, moreover, what is being sought is not a compensatory award of such a kind then the reality is that this in substance is a claim for vindicatory damages, so called: which, for the reasons given by the majority in Lumba, is also precluded. In any event, in terms of the invasion of Mr Ewan’s right of personal autonomy his position has been vindicated in a very meaningful sense, and just satisfaction conferred, by the public concession (reflected in the consent orders and in the judgment of HHJ Platts) that there was a negligent failure to give proper advice and consequential failure to obtain his informed consent: with a resulting award of substantial damages. Overall, no injustice arises from such an outcome and conclusion.[85]I would for my part dismiss this appeal.[86]I agree that this appeal should be dismissed for the reasons given by Davis LJ. I also wish to say that I regard the application for Davis and Burnett LJJ to recuse themselves as misconceived. One can understand in human terms that a litigant may not like the prospect of a case being heard by a judge in front of whom they have failed on a previous occasion. But the system could not operate if that were recognised as a sufficient reason for requiring recusal. It is necessary to be dispassionate. An impartial observer will generally have no difficulty in accepting that a professional judge will decide the case before him or her on its own merits and will be unaffected by how they may have decided different issues involving the same party or parties. There will of course sometimes be particular circumstances which justify a real doubt about the judge’s impartiality; but nothing relied on by Mr Berkley in this case came even remotely close to doing so.[87]I agree for the comprehensive reasons given by Davis LJ that the claim for damages of £50,000 (or any sum) for the failure to provide proper information to enable Mr Ewan to give informed consent is unsustainable. I also agree that the application seeking my recusal and that of Davis LJ has no foundation.[88]The circumstances in which a judge should recuse himself from hearing a matter have been comprehensively considered in a series of cases in this court and the House of Lords which emphasise that questions of apparent bias are to be judged from the point of view of a fair-minded and informed observer. The party who seeks to bounce a judge from a case may be fair-minded and informed but may very well lack objectivity. There are others (I emphasise not this case) who cynically seek to manipulate the composition of the court for perceived advantage. It was striking that Mr Berkley QC frequently referred to the feelings of his client when developing submissions on apparent bias rather than focussing on the fair-minded and informed observer. One respects those feelings but they do not advance the argument. Furthermore, for the reasons given by Davis LJ, the passages in my judgment in the judicial review claim following the inquest into Mr Ewan’s death to which he referred were not capable of founding an apparent bias argument. Moreover, I am quite unable to understand how such an argument could flow from anything said by Hallett LJ in the application for permission to appeal or my Lord’s agreement with her reasons. The reality is that the appellant before us wished both Davis LJ and I to recuse ourselves because we had previously found against her on arguments advanced in the judicial review claim. Whilst entirely understanding why that should be so, it forms no proper basis for advancing a recusal argument.[89]Accordingly, as Davis LJ has explained in paras 25 and 26 above, our judicial obligation was to hear the appeal.

Cited in 10 later judgments

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