Horton v Evans & Anor [2006] EWHC 2808 (QB)

Case No TLQ/05/1166[2006] EWHC 2808 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 November 2006
Before
MR JUSTICE KEITH
Between
Cathy Bosworth HortonClaimant(1) Timothy EvansDefendants(2) Lloyds Pharmacy LimitedDefendant
Mr Jeremy Stuart-Smith QC and Ms Anneliese Day (instructed by Withers) for ClaimantMr Robert Moxon-Browne QC and Mr Andrew Miller (instructed by Watmores) for Second DefendantHearing Hearing dates: 9, 11-13, 16-18, 20 and 24-26 October 2006
Judgment

Introduction

[1]The claimant, Cathy Horton, is a woman of many accomplishments – lawyer, businesswoman, athlete and priest. But things changed dramatically for her in 2001 after she had been misprescribed some medication for a minor ailment. Her life went into a downward spiral, from which she claims she is only now emerging. In this action, she is claiming damages for the deterioration in her health – and the enormous disruption to her life which followed – from the doctor who provided her with the prescription and from the pharmacists who dispensed it.[2]The doctor who provided the prescription was Dr Timothy Evans, the first defendant. Mrs Horton’s claim against him has been settled on terms which have been kept from me. The pharmacists who dispensed the prescription were Lloyds Pharmacy Ltd., the second defendant (“Lloyds”). Lloyds brought contribution proceedings against Dr Evans, which have also been settled. I do not know the terms of this settlement, nor do Mrs Horton and her advisers. The result is that the claim is proceeding against Lloyds alone. The basis of the claim is that Lloyds were negligent in not questioning the prescription and in proceeding to dispense the medication which had been prescribed. Lloyds deny negligence, and claim that in any event further medication was negligently prescribed for Mrs Horton by another doctor a few weeks later, and that had the effect of breaking the chain of causation between any breach of duty on their part and the deterioration in Mrs Horton’s health.[3]As one might expect in a case of this kind, there has been considerable evidence on the issues of breach of duty, causation, remoteness and quantum. But since most of the testimony of the witnesses – to say nothing of the overwhelming majority of the enormous number of documents which constitute the documentary evidence – relate to the issues which arise on quantum, this was a paradigm case for a split trial of the issues of breach of duty, causation and remoteness on the one hand, and of quantum on the other. If Mrs Horton fails either to prove breach of duty on the part of Lloyds or that such breach of duty caused the deterioration in her health or that the deterioration in her health was not too remote a consequence of that breach of duty, the court’s time in investigating unnecessarily the issues of quantum will have been wasted. Mr Robert Moxon-Browne QC for Lloyds told me that such attack as there was going to be on Mrs Horton’s credibility in relation to the issues of quantum might affect the credibility of her evidence on the issues of breach of duty and causation. But in the event I have not regarded that as remotely justifying such decision as there may have been not to hive off the issues of quantum for consideration at a later stage if events proved that to be necessary. When I raised this concern with counsel at the beginning of the case, both of them urged me not to order a split trial since both parties were by then geared up to presenting their evidence on all issues, and I was reluctantly prepared to go along with that. But as we shall see, the need to consider the issues of quantum only if Mrs Horton succeeds on breach of duty, causation and remoteness has shaped the form of this judgment.

The background facts

[4]Mrs Horton’s adrenal deficiency. Mrs Horton was born in February 1962. She is now 44 years old. She was brought up in the United States. During her teenage years, she suffered from persistent acne, and had some dark hair on her chin and chest. These symptoms worsened gradually over time, and in about 1982 when she was at college, she was referred to an endocrinologist. He performed a series of tests on her and discovered that her adrenal glands were not functioning properly. He diagnosed her as suffering from a mild form of a condition known as adrenal hyperplasia, and he prescribed a course of steroids for her to supplement her adrenal deficiency. The medication he prescribed was 0.5 mg. of decadron. Decadron is a proprietary name of a corticosteroid known as dexamethasone. This medication was in the form of tablets, and Mrs Horton continued to take one of these tablets every day over the years, stopping only between 1993 and 1999 while she had her two children. Some doubts have been expressed about the original diagnosis, but that is not relevant to the issues which arise in this action.[5]Mrs Horton’s career. Mrs Horton was a very good swimmer, and while at the University of Michigan she trained with future members of the United States Olympic team. After graduating from college, she studied law at the Ohio State University Law School, and following her graduation from law school, she began to work as an associate for the law firm of Squire, Sanders & Dempsey (“SSD”) in Cleveland, Ohio. In due course, she moved to the United Kingdom. By 1999, she and her husband, Andrew Horton, were living in Selsdon, Surrey, where her husband had been appointed rector, they had two children, and Mrs Horton had recently rejoined SSD, working in their London office as an equity partner in the corporate and technology groups, where she earned $550,000.00 a year. She was responsible for the technology department, which handled the affairs of those of SSD’s clients which operated in the technology field, and advised them on all aspects of corporate transactions. She was ordained as a priest in 2000, and thereafter had her own pulpit at St. Leonard’s Church in Chelsham, Surrey.[6]It is here necessary to say something about Mrs Horton’s qualities. She was regarded by those she came into contact with professionally as an exceptionally gifted lawyer. She had enormous energy, drive and ambition. She was supremely focused, hard-working and committed. Clients were openly impressed at her ability to find solutions to seemingly intractable problems. But it was her appearance and personal skills which really singled her out. She took great care over how she looked, and was described by her assistant as “stunning”. Another future colleague described her as having “the wit, charm, presence, charisma, intelligence and knowledge to give one absolute confidence in her abilities”. She was known as a “rainmaker”, i.e. someone with exceptional skills in attracting business. People spoke of her as “inspirational”. Having observed her in the witness box for almost three days, I did not regard these descriptions of her as exaggerated. She struck me at times as someone who would not suffer fools gladly, and I detected an intensity on her part, but I could see exactly where those who spoke so highly of her were coming from.[7]The creation of Coolcrypt. In addition to giving her clients legal advice, Mrs Horton would often work with them on ways of restructuring their business, entering into collaborative ventures and raising finance. Much of this was work which SSD did not charge for, and Mrs Horton saw an opportunity for both her and SSD to profit from it. Her idea was for a separate company to be formed, whose shares would be owned primarily by her and SSD, which would charge for consultancy services which could be provided to SSD’s clients in the technology field, and to other companies as well. Indeed, in the case of new businesses, the company might be able to invest in them, and in that way share in and profit from their growth.[8]Mrs Horton discussed this idea with Thomas Stanton, the chairman of SSD. He was excited by it, and in due course Coolcrypt Ltd. (“Coolcrypt”) was formed, with Mrs Horton being allotted 60% of its shares and SSD 40%. Although its launch party inauspiciously took place on 11 September 2001, it had opened its doors for business the previous April. Mrs Horton’s case is that by the time she became ill, Coolcrypt was showing every sign of exceptional success. It was already profitable, and was generating billings in the order of £300,000.00 a month.

The issue of the prescription

[9]Dr Evans was a GP with a surgery in Earlsfield. Mrs Horton and her family were his private patients. He was paid a monthly fee for his services. Mrs Horton had consulted him a few times in the past for sinus and chest infections and for pain in her neck. He had given her repeat prescriptions in the past for medication for her sinus problems. Mrs Horton and her family were also registered with an NHS practice in Selsdon.[10]The prescription to which this case relates is dated 4 July 2001. The medication which Dr Evans prescribed for Mrs Horton was 4 mg. tablets of dexamethasone. That was eight times the strength of her previous tablets, and Dr Evans prescribed 28 of them. Until relatively recently, both Dr Evans and Mrs Horton were under the impression that this was the only time that Dr Evans had prescribed dexamethasone for her. There were significant differences between their accounts about the circumstances in which it had been prescribed. In particular, Dr Evans was saying that Mrs Horton had told him that the dose of dexamethasone she was on was 4 mg. a day. But what was common to both accounts was that Mrs Horton had asked for the prescription as a matter of urgency because she was about to go abroad. That led Lloyds to investigate Mrs Horton’s whereabouts during July 2001, and when the documents she disclosed failed to demonstrate that she had left the country within a day or so of 4 July, Lloyds alleged that Mrs Horton had deliberately misled Dr Evans over the reason why she wanted the prescription urgently, and even adopted Dr Evans’ case that she had told him that she was on 4 mg. a day.[11]However, on 22 June 2006, Lloyds disclosed two pages from the private prescriptions book maintained at its Selsdon branch which showed that the prescription of 4 July 2001 was the second prescription of dexamethasone for Mrs Horton which Dr Evans had prescribed. The first had been on 8 June 2001, and it had been for tablets of the correct strength – 0.5 mg. That completely undermined Dr Evans’ case that Mrs Horton had told him that she had been on 4 mg. of dexamethasone a day, and although he was to settle Mrs Horton’s claim a few days before Lloyds’ disclosure of the relevant pages in the private prescriptions book, an awareness of what Lloyds were about to disclose may have been the reason for that. As it was, those pages showed that it was this earlier prescription which had had to be dispensed as an emergency, whereas the later prescription had not. As a result, Lloyds unreservedly withdrew the allegations that Mrs Horton had told Dr Evans that she was on 4 mg. a day, and had deliberately misled him over the reason why she wanted the prescription urgently, and expressly disavowed any residual innuendo in the original allegations.[12]The first prescription. I shall return later to why Mrs Horton may have been misled into thinking that the prescription of 4 July 2001 was the only time Dr Evans had prescribed dexamethasone for her. Since her claim against Dr Evans has been settled, it is no longer necessary for me to investigate in detail the circumstances in which the earlier prescription which had been dispensed on 8 June 2001 came to be issued. But I find that what is likely to have happened is that elements of what Mrs Horton originally said about how she had got the prescription of 4 July 2001 in fact applied to the earlier prescription. The probability is that for one reason or another – perhaps because she was about to run out of her existing supply, perhaps because she was about to do a lot of overseas travel – she wanted a repeat prescription of dexamethasone urgently. But when she telephoned the NHS practice and asked for one, she was told that she would have to attend the surgery herself. She was very busy at work then and did not have the time to visit the surgery during its opening hours. Instead, she spoke to Dr Evans over the telephone, and asked him for a repeat prescription for a month’s supply of dexamethasone, telling him that she was taking it for an adrenal deficiency, but that she did not have the time to go to her NHS surgery for a prescription for it. She must have told him the strength of the tablets she was on, because he prescribed her with 28 x 0.5 mg. tablets of dexamethasone with a dose of one a day.[13]Dr Evans has claimed that he had been uncomfortable about prescribing her with dexamethasone without seeing her, and that he had told her to come and see him at a later date for a full medical check-up. That may be so, but he proceeded to provide her with the prescription nevertheless. It is likely that he telephoned Lloyds’ Selsdon branch and told them to dispense 28 x 0.5 mg. of dexamethasone for Mrs Horton. I say that because the manager of the branch wrote in the private prescriptions book that Dr Evans had requested the pharmacy to provide the dexamethasone as an emergency, and because someone else had written at a later stage that the prescription for it had been received from Dr Evans. And it is likely that the prescription was collected from Dr Evans’ surgery by Natasha Hassell, who was Mrs Horton’s children’s nanny. Certainly, Mrs Horton does not recall ever collecting any prescription for dexamethasone from Dr Evans and taking it to the pharmacy herself or leaving the pharmacy with the dexamethasone herself after the prescription for it had been dispensed. Although that prescription has not survived, there is now no doubt about what it was for or that it was dispensed at Lloyds’ Selsdon branch on 8 June 2001 in view of(a) the entry for that day in the private prescriptions book maintained at the branch and(b) a computerised entry for that day in Lloyds’ patient medication records.[14]I should say something about Lloyds’ patient medication records. Whenever a prescription is dispensed, relevant details of the prescription are entered into a computerised system. The system serves three functions relevant for present purposes. First, it displays for the use of the pharmacist any previous medication dispensed for the patient. Secondly, it produces a label to be attached to the medication which is currently being dispensed. Thirdly, a continuous record of the patient’s medication can subsequently be retrieved. The patient medication record for Mrs Horton which was subsequently retrieved shows that at 4.00 pm on 8 June 2001 the branch dispensed a prescription for Mrs Horton of 28 tablets of dexamethasone at a strength of 0.5 mg., and that the dose was one tablet a day.[15]The second prescription. Against that background, I turn to the prescription to which this case relates, the prescription of 4 July 2001. That has survived unlike the earlier one. It is in Dr Evans’ handwriting, and it differed from the previous one in two critical respects. First, although the prescription was for 28 tablets of dexamethasone, it was silent about the dose, i.e. how many tablets were to be taken at what frequency, as opposed to the previous prescription which had given a dose of one tablet a day. Secondly, the strength of the tablets of dexamethasone being prescribed was 4 mg. as opposed to 0.5 mg.[16]The circumstances in which that prescription came to be provided are less clear than they might have been since Mrs Horton thought until recently that this was the only prescription she had got from Dr Evans for dexamethasone, and the earlier witness statement she made in these proceedings about this prescription may in fact have been describing the circumstances in which she had got the earlier prescription. But it is likely that what happened was that she telephoned Dr Evans on 4 July 2001 and asked him to give her another prescription for a month’s supply of dexamethasone. Although he may have been uncomfortable about prescribing her with dexamethasone for a second time without seeing her, he nevertheless proceeded to prescribe it for her, though in doing so he prescribed her with tablets eight times the strength as those he had prescribed for her a month earlier.[17]The dispensing of the second prescription. This prescription was also dispensed at Lloyds’ Selsdon branch. The pharmacist who dispensed it was N’Guessan Gabla, who was the manager of the branch at the time. We know that it was he who dispensed it because(a) the cost of dispensing the prescription was noted on the prescription in his handwriting, and(b) it was he who wrote the relevant entry in the private prescriptions book. Indeed, we know from the earlier entry in the private prescriptions book that Mr Gabla had dispensed the previous prescription of 8 June 2001 as well. But this time the prescription was not dispensed on the same day that Dr Evans had prescribed it. Instead, it was dispensed at 4.03 pm on the following day, 5 July 2001. That appears from entries in Mrs Horton’s patient medication record and in the private prescriptions book. Since Ms Hassell was due to take the children to see Dr Evans because they had nasal infections at the time, it is likely that this prescription as well was collected from Dr Evans’ surgery by Ms Hassell, to whom at Ms Hassell’s suggestion Mrs Horton had given the bottle containing the tablets previously prescribed by Dr Evans to remind him of what he was to prescribe. Ms Hassell then took the new prescription to the branch to be dispensed. The upshot was that Mrs Horton never actually saw it. But it is not possible to say whether the prescription was collected from Dr Evans’ surgery and taken to the pharmacy on 4 July, only to be dispensed on the following day, or whether it was collected from the surgery and taken to the pharmacy on 5 July where it was dispensed the same day, or whether it was collected on 4 July and only taken to the pharmacy on 5 July. Ms Hassell was not asked to give evidence on the topic, even though she had made a witness statement (albeit unsigned) which is in the possession of Mrs Horton’s solicitors. I shall return later to the relevance of when the prescription was actually taken to the pharmacy.[18]Although the prescription was for 28 tablets of dexamethasone with a strength of 4 mg., dexamethasone was not then available in the United Kingdom in tablets of that strength. It was only available in 0.5 mg. and 2 mg. tablets. So Mr Gabla decided to dispense double the quantity of the tablets prescribed, though at a strength of 2 mg. That made 56 tablets, but he dispensed 55 because the branch had only 55 in stock.[19]When Mr Gabla entered the prescription into the computerised system, he saw that the branch had prescribed medication for Mrs Horton in the past. Dexamethasone had been prescribed for her on seven previous occasions, including the only other occasion – that of 8 June 2001 – when it had been prescribed by Dr Evans. The details which came up on the screen were as follows: Date Medication Strength Quantity Dose 3 March 2000 Dexamethasone 0.5 mg. 60 One tablet once a day 31 May 2000 Dexamethasone 0.5 mg. 60 One tablet twice a day 4 August 2000 Dexamethasone 0.5 mg. 60 One tablet once a day 4 October 2000 Dexamethasone 0.5 mg. 60 One tablet once a day 4 December 2000 Dexamethasone 0.5 mg. 60 One tablet once a day 10 April 2001 Dexamethasone 0.5 mg. 60 One tablet once a day 8 June 2001 Dexamethasone 0.5 mg. 28 One tablet once a day Mr Gabla says that he noticed that the strength of the tablets being prescribed on this occasion was eight times the strength of the dexamethasone prescribed in the past. He therefore looked up dexamethasone in the British National Formulary (“the BNF”), which sets out details of medication which pharmacists can dispense. That referred to the “usual range” for dexamethasone as being “0.5-10 mg. daily”. Since the prescription was for tablets of a strength which came within the usual range, Mr Gabla did not think that he needed to question the accuracy of the prescription. It is true that Mr Gabla did not say in his witness statement that he actually looked dexamethasone up in the BNF. But on a fair reading of his witness statement he is claiming to have been aware of the therapeutic range for dexamethasone at the time, and I think that he is likely to have known that as a result of looking dexamethasone up in the BNF. I find that it was with that knowledge that he proceeded to dispense the prescription in accordance with its terms, except that he substituted double (or at any rate almost double) the number of tablets for the quantity which had been prescribed to reflect the fact that he was dispensing tablets at half the strength of what had been prescribed. As it is, Mr Gabla’s awareness or otherwise at the time of the therapeutic range of dexamethasone in fact made no difference to what he did since he would still have dispensed the prescription according to its terms in any event – either because he knew that the strength of the dexamethasone being prescribed was within its usual therapeutic range or because he thought that he had to dispense the prescription without question.[20]Mr Gabla also says that he noticed that the prescription was silent about the dose. Again, I have no reason to doubt that. He had to identify the dose when entering the details of the prescription in the computerised patient medication record system, and that would inevitably have resulted in him noticing that the prescription did not mention how frequently or in what quantity the tablets had to be taken. He therefore decided that the label should merely record that the dose was to be in accordance with such instructions as Dr Evans had given. So the entry in Mrs Horton’s patient medication record for that day did not merely show that 55 tablets of dexamethasone of a strength of 2 mg. were being prescribed: it also gave the dose the symbol “MDD”. That meant “to be taken as directed by your doctor”. The bottle containing the tablets which Mr Gabla dispensed has not survived, and the disc containing Mrs Horton’s patient medication record has been mislaid since a copy of it was made at the request of Mrs Horton’s solicitors in 2004. But in the light of the entry on the surviving copy of her patient medication record, I find that the label which the system would have generated automatically and which Mr Gabla would have put on the bottle said:
“55 DEXAMETHASONE tablets 2 mg. Take as directed by your doctor Follow the printed instructions given Take with or after food Cathy HORTON 5 July 2001”
Take as directed by your doctor Follow the printed instructions given Take with or after food Cathy HORTON 5 July 2001”

Take with or after food

[21]It was argued that Mr Gabla must have realised that, although the prescription was silent about the dose, Dr Evans had had one tablet a day in mind. That was how Lloyds’ Superintendent Pharmacist and an expert endocrinologist had both read the prescription. And the experts on pharmaceutical practice agreed that a pharmacist “may reasonably [have] infer[red]” that from the language of the prescription and Mrs Horton’s medication history. But I have to say that I am sceptical about that. It is true that a prescription of 28 tablets implied a number of weeks’ supply, since 28 is divisible by the number of days in a week. Yet that could have meant two tablets a day for 14 days (which would at 8 mg. a day still have been within the usual therapeutic range) or half a tablet a day for 56 days (which would have been more consistent with the previous dose, since it would have been only four times the previous dose and not eight times as one tablet a day for 28 days would have been). To the suggestion that Mr Gabla would have thought that Dr Evans could not have had in mind half a tablet a day for 56 days, because otherwise he would have prescribed 56 tablets with a strength of 2 mg., it could be said that Mr Gabla may have thought that Dr Evans had forgotten that dexamethasone came in 2 mg. tablets. In short, these possibilities are no less likely than Dr Evans having intended to prescribe one tablet a day for 28 days. It follows that I can see how a pharmacist might think that Dr Evans had intended to prescribe one tablet a day, but I also think that a pharmacist would have been wrong to assume that to be the case without question. As it is, having seen Mr Gabla give evidence, I do not think that he ever applied his mind to what Dr Evans had intended about the dose. For him, once the dose had not been stated, the only question was whether the strength of the tablets was within the usual therapeutic range.[22]I am sure that Mrs Horton did not notice that she had been provided with twice as many tablets as Dr Evans had previously prescribed for her and twice as many as she had been expecting. That is not particularly surprising: she had no reason to suppose that she had not been prescribed the quantity of tablets she had asked for. She began to take them immediately, because she had forgotten to retrieve from Ms Hassell the bottle containing the remaining tablets previously prescribed by Dr Evans. She continued taking one of them once a day throughout the month of July. I find that she had not bothered to read the label on the bottle, and therefore did not know that she was now taking four times the dose which was appropriate to her condition. After all, she had been taking one 0.5 mg. tablet of dexamethasone once a day for so long that it did not occur to her to read the label for any instructions about its use. There was no evidence whether 2 mg. tablets of dexamethasone look any different from 0.5 mg. tablets. But even if they did, Mrs Horton had taken dexamethasone (or decadron) produced by different manufacturers in the past, and had known there to be small differences between them in size, shape and packaging. In the circumstances, I find that any small difference in appearance between 2 mg. tablets and the previous 0.5 mg. ones would not have alerted her to the possibility that their strength had changed.[23]I return to the relevance of when the prescription of 4 July 2001 was taken to the pharmacy. The suggestion was made that, if there was a day’s delay between when it arrived at the pharmacy and when it was dispensed, that may have been because the pharmacist who first saw it on 4 July had questioned its correctness with Dr Evans, and it was only dispensed once its correctness had been confirmed. I reject that possibility for two reasons. First, if Dr Evans had been told by the pharmacist that Mrs Horton’s prescriptions in the past had all been for tablets of dexamethasone with a strength of 0.5 mg., it is likely that he would have checked with Mrs Horton what the correct strength was, and the inaccuracy in the prescription would have been picked up. Secondly, if the correctness of the prescription had been questioned, there would have been a note to that effect in the private prescriptions book. There was no such note.[24]The prescription provided by Dr Elwell. Towards the end of July 2001, Mrs Horton took a holiday in the United States with her children. She had been experiencing problems with her marriage. They stayed with her mother, Judith Vernon, who was then living in New York State. Although Mrs Horton was not feeling in any way unwell as a result of the four-fold increase in her medication, Mrs Vernon suggested that Mrs Horton had a complete medical check-up, and that she should see Dr Russell Elwell, a general physician with a surgery in Westfield, who was a good friend of Mrs Vernon as well as being her physician. Mrs Horton had known him socially for many years, but she had never been his patient. She saw him at his surgery on 30 July 2001.[25]In the course of this consultation, Mrs Horton asked Dr Elwell for a repeat prescription for the dexamethasone she was taking. He gave her a prescription for 90 tablets of dexamethasone with a strength of 4 mg. a tablet. Dexamethasone was at that time available in the United States in 4 mg. tablets, and so when the prescription was dispensed, they were dispensed in 4 mg. tablets. These were the tablets which Mrs Horton began to take a couple of days later after she returned to the United Kingdom and had mistakenly left the bottle containing what was left of the tablets dispensed on 5 July 2001 in a hotel room. She did not know the strength of the tablets prescribed by Dr Elwell. She thought that they were 0.5 mg. tablets. She only took one a day, but they were eight times the dose which was appropriate to her condition, and her health was eventually to break down as a result of it.[26]How did Dr Elwell come to prescribe dexamethasone tablets with a strength of 4 mg. a tablet? Both he and Mrs Horton say the same thing. During the consultation, she told Dr Elwell about her adrenal deficiency, and that she had been prescribed dexamethasone for it for many years. When she asked him for a repeat prescription, she showed him the bottle she had got on 5 July 2001, and he took the strength of the dexamethasone she was on from its label. Mrs Horton did not know what was on the label at the time: she assumed at that stage that it showed 0.5 mg. tablets – which was why she thought that Dr Elwell was prescribing 0.5 mg. tablets for her – though when she came to make the witness statement in which she dealt with her consultation with Dr Elwell, she knew that the label had referred to 2 mg. tablets. She assumed then that it must have referred to a dose of two tablets a day for Dr Elwell to have prescribed 4 mg. tablets. Dr Elwell says much the same thing, though he relies in addition on the medication worksheet on which the medication he was prescribing was, I find, recorded contemporaneously. Although the part of the entry written by his nurse shows that he was prescribing 90 x 4 mg. tablets of dexamethasone, what he wrote down was 2 mg. of dexamethasone, two to be taken daily. He therefore assumes that the label must have referred to a dose of two tablets a day for him to have recorded what he did in his medication worksheet and to have prescribed 4 mg. tablets for her.[27]I should mention one possibility which was advanced by Mr Jeremy Stuart-Smith QC for Mrs Horton, which was that Mr Gabla must have written something on the label over and above what the computerised system printed to show that Mrs Horton was supposed to be taking 4 mg. a day. The principal plank of that argument was that Mr Gabla would have assumed that although the prescription was silent about the dose, Dr Evans had had a dose of one tablet a day in mind. But that plank falls down in view of my findings in [21] above that(a) any pharmacist who thought that would be jumping to a conclusion which might well not be the right one, and(b) in any event Mr Gabla himself never wondered what Dr Evans had intended should be the dose. I do not for one moment think that even if Mr Gabla had thought that Dr Evans had had in mind a dose of one tablet a day, he would have written anything on the label to supplement or override what was printed on it. That would have resulted in a mismatch between what the patient medication record said the label showed and what the label in fact showed. That is not something which Mr Gabla would have been prepared to sanction. If he had wanted to add something to the label, he would have retyped the label altogether, which was something which the branch procedures manual contemplated. We know that he did not do that: if he had, the patient medication record would have shown that a different label had been printed.[28]I return to the assumption that both Mrs Horton and Dr Evans made that the label must have referred to a dose of two tablets a day for Dr Elwell to have prescribed 4 mg. tablets for her. I have no doubt that this assumption was wrong. In the light of the patient medication record, the label could not have stated what the dose was. It stated only the strength of the tablets (2 mg.) and the quantity (55), but nothing about how frequently they were to be taken. But since I accept the evidence of Mrs Horton and Dr Elwell that she showed him the bottle she had been given on 5 July 2001, it must have been something else which made Dr Elwell think that the prescription which had resulted in the label on the bottle had been for 4 mg. tablets. There is only one possibility, and that is that Dr Elwell thought that the bottle represented four weeks’ supply of dexamethasone. After all, 55 x 2 mg. tablets taken over a four week period would equate, broadly speaking, to one 4 mg. tablet a day. The critical question is why Dr Elwell thought that the bottle represented four weeks’ supply. One possibility is that Dr Elwell had no reason for thinking that, and simply assumed that it did. But much the likelier possibility – and accepted by Mr Moxon-Browne to be the likelier one – is that Mrs Horton had said something to him which made him think that the bottle represented four weeks’ supply. Although she does not think that she told Dr Elwell that, and although Dr Elwell is convinced (in my view, wrongly) that he got the dose from the bottle, I think that the likeliest scenario is that Mrs Horton told him that the bottle represented four weeks’ supply. That would not have been surprising. The prescription which had resulted in the label had been intended by Dr Evans to represent four weeks’ supply, and as I have found, Mrs Horton did not realise that the bottle had contained more tablets than would have been appropriate for a four weeks’ supply of dexamethasone at the strength she thought the tablets were. It would have been entirely natural for her to have told Dr Elwell, at some point in their conversation about a repeat prescription for her, that the bottle represented four weeks’ supply. In that way, Dr Elwell came to think that Mrs Horton was on a daily dose of 4 mg., but since he is unlikely to have known that 2 mg. tablets had been dispensed only because 4 mg. tablets were unavailable in the United Kingdom at the time, he must have thought that she was being required to take one 2 mg. tablet twice a day or two 2 mg. tablets once a day. That is entirely consistent with what he recorded on the medication worksheet.[29]The discovery of the misprescription. By October 2001, Mrs Horton was becoming increasingly conscious that something was not right with her health. She was becoming aggressive and on edge. On one occasion, she experienced a panic attack. She found herself unable to shake off a sense of anxiety which she had not experienced before. She had also begun to notice some physical changes: she would eventually experience a range of symptoms – she began to lose weight, cuts would not heal, small bumps would form bruises, her eyes were protruding, her face appeared rounder and she grew unwanted hair – and some of these had become apparent by then. Her high level of fitness meant that they appeared more gradually than for a person of average fitness. She did not know what the problem was, but had no reason to suppose that it was anything to do with the dexamethasone she was taking.[30]By the end of October, she was running out of the dexamethasone which Dr Elwell had prescribed. So she sent him an e-mail asking for another repeat prescription for 90 tablets which her mother could bring over to the United Kingdom on her next visit. That would make it unnecessary for her to get repeat prescriptions for lesser amounts in the United Kingdom. She mentioned in the e-mail that the prescription should be for 0.5 mg. tablets. Dr Elwell’s immediate response was to tell her that she had been on 4 mg. tablets since the end of July, and that if 0.5 mg. was the correct strength, it was important that she began to reduce the strength immediately. He told her to reduce her dose by 0.5 mg. every three days, and his medication worksheet shows that on 26 October 2001 he prescribed her 90 x 0.5 mg. tablets of dexamethasone, so that she could reduce the dose herself. It was within a day or so of this that her health broke down completely. She went to the Accident and Emergency Department of the Mayday University Hospital in Croydon a number of times in the last week of October, but her paranoia and anxiety attacks increased in their intensity, and on 1 November 2001 she was admitted to the Priory Hospital.[31]What happened the following spring explains why Mrs Horton had been misled into thinking that the prescription of 4 July 2001 had been the first time that Dr Evans had prescribed dexamethasone for her. Three points should be made. The first is that by then she had obtained a copy of the prescription. She sent it to Dr Evans on 29 March 2002, asking him for an explanation for why he had prescribed her 4 mg. tablets. He did not reply until 24 May 2002. When he did, he referred to the occasion on which he had prescribed her with 4 mg. tablets as if that had been the only occasion on which he had prescribed dexamethasone for her. Secondly, Mrs Horton had, in the meantime, gone to the pharmacy where the prescription had been dispensed as part of her search to find out what had gone wrong. That was on 10 May 2002. She was shown her patient medication record, but since that did not identify the doctors who had issued any of the prescriptions, it did not occur to her that Dr Evans might have issued any of the earlier ones. After all, if he had prescribed 0.5 mg. tablets for her in the past, there was no apparent reason for him to have prescribed 4 mg. tablets for her on this occasion. Thirdly, she was also shown by the pharmacy the branch’s private prescriptions book, but she claims that the only entry in it which was drawn to her attention was the entry for the prescription of 4 July 2001: she was not shown the entry for the prescription of 8 June 2001. I have no reason to doubt that.

The aftermath

[32]The condition which the overdose of dexamethasone induced was Cushing’s syndrome. Many of Mrs Horton’s physical symptoms were classic features of the syndrome. Psychiatric disturbance is not uncommon, and Mrs Horton was at different times to experience sleep disturbance and insomnia, paranoia, depression and agitation, as well as the occasional psychotic episode. She had never suffered from psychiatric illness before. Her first admission to the Priory had lasted for no more than a few days, but she could not work effectively for the rest of 2001. Indeed, she was readmitted to the Priory for a week or so later in November. She was being prescribed with an extensive array of drugs, and although her condition fluctuated, her medication appeared to regulate her symptoms. However, by January 2002, her condition had deteriorated significantly, and she was readmitted to the Priory. She was feeling hopeless and talked of killing herself. Her family were anxious to get her to the United States for specialist treatment. Eventually, they managed to get her discharged from the Priory, on condition that she was sedated during the journey and accompanied by members of her family. She spent just over a week at the Maine Medical Centre, where the stabilisation of her condition was achieved, largely through increased doses of lithium.[33]Following her discharge from the Maine Medical Centre in March 2002, Mrs Horton was cared for by her parents at their home. In April 2002, she returned to the United Kingdom, primarily to be with her children, but she remained unable to work and continued to be on extensive medication. In January 2003 she returned to live in Cleveland. That was originally contended by Lloyds to have been a “lifestyle” choice on her part, but that allegation was not pursued, and it was accepted that she went back there in order to be closer to her family while she continued to be unwell. The psychiatrist treating her in the United States was to say that from the onset of her illness until the autumn of 2003 “her level of cognitive impairment rendered her unable to deal responsibly with business and financial affairs”.[34]Mrs Horton returned to work on 9 September 2003. She had resigned from SSD a few months earlier. She became a salaried lawyer with Roetzel and Andress, a firm in Cleveland, where she earned $200,000.00 a year. On 1 May 2005, she moved to another law firm in Cleveland, Thompson Hine, where her career prospects and earning potential were better. She was earning $425,000.00 a year there as a salaried lawyer with a guaranteed bonus of $50,000.00 a year. During this time, she had been engaged in various entrepreneurial ventures in Cleveland investing in new companies operating in the technology field with her new husband, Anthony Panzica, who she had married on 14 May 2005. Unhappily, that marriage was to break down, and the signing of a formal separation agreement between them on 29 September 2006 was one of two important events which occurred in the couple of weeks before the trial of this action commenced. The other was her resignation from Thompson Hine with effect from 30 September 2006. She claims that she did so because she realised that she could not function at the highest level since she was no longer able to trust her ability to recall detail, and it was for that reason that she planned to concentrate on consultancy work where the problems with short-term loss of memory are not so insuperable. Lloyds say that she resigned in order to pursue her entrepreneurial career which she had found immensely rewarding. Apart from assisting me on aspects of the case which depended on Mrs Horton’s reliability as a witness, I did not need to resolve this issue since Mrs Horton expressly declined to amend the schedule of her losses so as to increase her claim on the basis of her reduced earnings as a result of leaving Thompson Hine. She is content for her claim for loss of earnings to be assessed on the basis of what her earnings would have been had she continued to work for Thompson Hine.[35]Following Mrs Horton’s illness, Coolcrypt did not prosper, and it was wound up on 9 August 2002. Mrs Horton’s case is that had she been well enough to take an active part in the running of Coolcrypt’s business, it would have gone from strength to strength, and she would have made a handsome sum from the sale of her shares when Coolcrypt’s business would eventually have been disposed of. Lloyds’ case is that by the time when Mrs Horton would have wanted to sell her shares, Coolcrypt would have failed. That would have happened whether or not she had been well enough to participate in its affairs. That was because of Coolcrypt’s financial fragility, in that it was over-dependent on one client, it had no source of external funding, it lacked financial discipline, and it was extravagant in its expenditure. Most of the evidence related to this issue, and it formed by far the largest head of loss of the losses claimed by Mrs Horton.

The negligence alleged against Lloyds

[36]The absence of the dose. One of the criticisms of Mr Gabla focuses on the fact that the prescription of 4 July 2001 was silent about the dose. Although dexamethasone tablets with a strength of 4 mg. were within the usual therapeutic range, that presupposed that the dose which was being prescribed did not take their strength above 10 mg. daily. So if, for example, Mrs Horton had been told by Dr Evans to take three tablets a day – and Mr Gabla could not have discounted that possibility without enquiring what the dose was supposed to be – she would have been taking 12 mg. a day which would have been outside the daily therapeutic range. Accordingly, the criticism of Mr Gabla is that he should have checked the dose with Dr Evans or Mrs Horton to ensure that Mrs Horton was not being prescribed a dose which took her outside the daily therapeutic range for dexamethasone.[37]This would not be a valid criticism of Mr Gabla if I had concluded that he should have realised that the prescription meant a daily dose of 4 mg. But since I have concluded that it would have been wrong for him to jump to that conclusion without question (assuming that he had applied his mind to the question, which he had not), the criticism of Mr Gabla becomes a potentially valid one. However, it does not advance Mrs Horton’s case. Had Mr Gabla checked with Dr Evans or Mrs Horton what the dose for the tablets prescribed by Dr Evans was, he would have been told one a day. He would then have proceeded to dispense the prescription as he did, because he would have been satisfied that Mrs Horton was being prescribed a dose which was within the daily therapeutic range for dexamethasone. It is just possible that such a conversation might have revealed the mistake which had been made about the strength of the dexamethasone being prescribed. But that assumes that the conversation would have moved away from a simple inquiry about whether Mrs Horton was supposed to take one tablet a day, and I am not prepared to find that on the balance of probabilities that is what would have happened. It follows that any breach of duty on Mr Gabla’s part in not checking what the dose was would not have made any difference to what eventually happened.[38]The unavailability of 4 mg. tablets. Another of the criticisms of Mr Gabla focuses on the fact that 4 mg. tablets of dexamethasone were not available in the United Kingdom at the time. He therefore had to dispense tablets with a strength of 2 mg. But since he was dispensing tablets at half the strength of what had been prescribed, he should have realised that Mrs Horton would have to take twice the dose which Dr Evans had had in mind. She would have had to be told that. She could not get that information from the label, because that simply told her that the dose was to be in accordance with Dr Evans’ instructions to her. She had, in effect, to be told to take twice as many tablets as Dr Evans had directed, and Mr Gabla should have said that to Ms Hassell when he had dispensed the prescription which she had brought to the pharmacy. The allegation is that Mr Gabla did not do that. Had he done so, and had Ms Hassell relayed the information to Mrs Horton, Mrs Horton would have been alerted to the fact that she was not taking her usual tablets. That would inevitably have led to her discovering that she had been provided with 2 mg. tablets, and that would just as inevitably have led to the discovery that Dr Evans had wrongly prescribed 4 mg. tablets.[39]I am not satisfied that Mr Gabla did not relay sufficient information of this kind to Ms Hassell. The probability is that he did. I entirely accept that Ms Hassell did not mention it to Mrs Horton. Mrs Horton says that Ms Hassell did not tell her anything of the kind, and I have no reason to disbelieve her. After all, if Ms Hassell had said something to Mrs Horton about having to take double the usual dose, Mrs Horton would have acted upon it. That leaves two possibilities. Either Mr Gabla did not tell Ms Hassell anything about the difference between the strength of the tablets prescribed and the strength of the tablets dispensed or the need for Mrs Horton to take double the dose, or Mr Gabla did tell Ms Hassell something along those lines, but Ms Hassell forgot to relay the message to Mrs Horton. I think the latter is much the more likely. Ms Horton’s evidence was that Ms Hassell feels very guilty about her role in the affair, and the only thing which I can think of for which she might have been reproaching herself was the failure to pass on to Mrs Horton any message from the pharmacy. And although Mr Gabla understandably has no recollection after all these years of the occasion when he dispensed this prescription, his evidence on this topic – which I have no reason to doubt – is that his practice when he was having to dispense a prescription for tablets which were half the strength of the tablets prescribed would have been to inform the person who was collecting the medication that the tablets were half the strength of those prescribed, and he has therefore had to dispense twice as many. He was adamant that he would not have added that the patient would then have had to take double the dose instructed by the doctor, but what he would have said about having dispensed twice as many tablets as the quantity prescribed because they were half the strength of what had been prescribed comes to the same thing.[40]The appropriateness of the prescription. The most significant criticism of Mr Gabla is that once he saw that the prescription of 4 July 2001 was for tablets of dexamethasone which were eight times the strength of the tablets which had been dispensed on the seven previous occasions on which Lloyds had dispensed prescriptions for dexamethasone for Mrs Horton, it should have occurred to him that this prescription may have been a mistake. It was true that the prescription was for a strength of dexamethasone which could properly be prescribed, but the dramatic increase in strength should have alerted Mr Gabla to the need to go behind the guidance in the BNF, and to question the correctness of the prescription with Dr Evans or Mrs Horton. Unlike the prescription which he had dispensed on 8 June 2001, the prescription of 4 July 2001 did not have to be dispensed urgently, and that meant that Mr Gabla had the time to take that precaution. Had he done that, Dr Evans’ mistake would have been discovered.[41]The accepted wisdom is that whenever pharmacists dispense a prescription, they should consider whether the medication being prescribed is suitable for the patient. That is what the Royal Pharmaceutical Society of Great Britain’s Code of Medicines, Ethics and Practice requires pharmacists to do. Para.

(b) includes the following:

“Every prescription must be professionally assessed by a pharmacist to determine its suitability for the patient.”
That is recognised by Lloyds because its branch procedures manual is to the same effect. Para. 18.8 of the manual requires pharmacists, as an operation separate from the dispensing and labelling process, to carry out a “check to ensure that the drug and dosage on the prescription are safe to be administered to the patient”. The need for the pharmacist to check the appropriateness of the dose is highlighted by para. 11.2(i) of the manual which requires the pharmacist to take responsibility for ensuring that the “dose prescribed is safe for that patient”. These requirements mirror pharmacists’ obligations under the common law. As Stuart-Smith J (as he then was) said in Dwyer v Rodrick (10 February 1982, unreported) at p. 12B of the transcript of the judgment, “pharmacists … have to exercise an independent judgment to ensure that the drug is apt for the patient as well as that it conforms to the physician’s requirements”.[42]If the prescription of 4 July 2001 had been for a patient who had not had previous prescriptions dispensed by the branch, it may have been sufficient for Mr Gabla to check in the BNF whether 4 mg. of dexamethasone was within the usual daily therapeutic range. The endocrinological experts agree that a prescription for 28 days’ supply of 4 mg. of dexamethasone to be taken at the rate of one a day was an appropriate prescription for some disorders, such as raised intercranial pressure and cancer therapy – though since Mr Gabla was not an endocrinologist he would not have known that. And although the BNF said that dexamethasone was a corticosteroid whose side effects should be minimised by using the lowest effective dose for the minimum possible period, that did not mean that it was necessarily dangerous to prescribe four weeks’ supply of 4 mg. tablets of dexamethasone to be taken at the rate of one a day.[43]But the position is different for a patient like Mrs Horton who had had previous prescriptions for dexamethasone dispensed by the pharmacy. Mr Gabla knew that on seven previous occasions in the previous 16 months, the prescription had been for tablets of dexamethasone with a strength of 0.5 mg. – and except for one of the earlier prescriptions, the dose had always been one tablet a day. On any view, the prescription of 4 July 2001 represented a very considerable increase on what had been prescribed before. Such a significant increase raised at the very least the possibility that the prescription might be inaccurate. The question was no longer whether the strength of the dexamethasone being prescribed came within its usual therapeutic range, and could for that reason be said to be suitable for Mrs Horton. The question now was whether the prescription really represented what Dr Evans had intended to prescribe, or whether the dramatic increase in the strength was a mistake. Indeed, Lloyds’ branch procedures manual covered this very situation. Para. 18.2 included the following instruction:
“If the patient already has a patient medication record on the computer, previous medication details on the medication record should be studied in order to check that there has been no change to the strength or dose of the patient’s medication. Any changes should be queried with the patient or the prescriber.”
[44]That instruction chimes with the views of the experts on pharmaceutical practice. They agree that once Mr Gabla knew Mrs Horton’s recent medication history, he should have questioned the strength of the dexamethasone being prescribed with Dr Evans, and failing that with Mrs Horton, before dispensing the prescription. They disagree about whether the prescription should have been dispensed if Mr Gabla had not been able to question its correctness with either Dr Evans or Mrs Horton. One of them, Dr Gordon Applebe, takes the view that it should not have been dispensed. On the other hand, Dr Peter Harrowing thinks that whether it should have been dispensed or not depended on balancing the risk to the patient of not dispensing the prescription against the risk of dispensing it. In his opinion, Mr Gabla would have been justified in regarding the risk of not dispensing the prescription as greater than the risk of dispensing it.[45]I much prefer Dr Applebe’s view – not so much because Dr Applebe was available for cross-examination and Dr Harrowing was not – but rather because the daily dose which Mrs Horton had been on for the last 11 months had been the lowest possible daily dose. Letting Mrs Horton be without that dose for the few days while she sorted out with Dr Evans what the correct daily dose should be was far less risky than prescribing her a daily dose which was so many times in excess of what appeared to have been a low-level maintenance dose in the past. But all this is beside the point, because Mr Gabla did not get in touch with Dr Evans or Mrs Horton – and there is no suggestion that he would have encountered any difficulty if he had tried to do so. The fact of the matter is that no-one (apart, that is, from Mr Gabla himself) asserted that it was unnecessary for him to attempt to confirm the correctness of the prescription.[46]In these circumstances, I have no doubt that what Mr Gabla should have done was to follow the instruction in the branch procedures manual and question the correctness of the prescription with Dr Evans or Mrs Horton. Had he done that, Dr Evans’ mistake would have been discovered. In failing to do that, Mr Gabla fell below the standards which could reasonably have been expected of a reasonably careful and competent pharmacist.

The chain of causation

[47]Dr Elwell’s negligence. Lloyds’ case is that Dr Elwell was negligent when he prescribed a daily dose of 4 mg. tablets of dexamethasone for Mrs Horton at the end of July 2001. It is claimed that this negligence had the effect of breaking the chain of causation between any breach of duty on Mr Gabla’s part for which Lloyds are vicariously responsible and the deterioration in Mrs Horton’s health. The criticism of Dr Elwell is that he provided the prescription to Mrs Horton without any real understanding of adrenal deficiency. He knew nothing of Mrs Horton’s own condition, or the suitability of prescribing dexamethasone for it, or what the appropriate strength and dose should be. He simply provided her with a prescription for medication which she had asked him for, without checking whether the strength and dose of the dexamethasone which he was prescribing for her was suitable.[48]These criticisms of Dr Elwell would be closer to the mark if Dr Elwell had been initiating a course of treatment for Mrs Horton’s adrenal deficiency. I can see how in those circumstances it would have been necessary for him to acquaint himself with the nature of the condition, to investigate the extent to which she suffered from it, to assess the suitability of any particular form of medication for it, and to inform himself of the appropriate strength and dose to be prescribed. But a doctor who is simply asked to provide a repeat prescription is, on the face of it, in a very different position. He is merely replicating what a previous physician has thought to be appropriate. Of course, no hard and fast rules can be laid down. It will always depend on the particular circumstances. But when a doctor is simply asked on a single occasion to provide a repeat prescription for an intelligent patient who claims to have been on a low-level maintenance dose of a corticosteroid for very many years to supplement a particular deficiency, there is at first blush no reason why the doctor should not be able to rely on the expertise of the previous physician who initiated the treatment and who provided the prescription for the medication in the first place. As Dr Elwell was graphically to put it in his evidence, “… there was no need for me to reinvent the wheel here when a patient is not having any problem. We are allowed to rely on another physician’s prescription on long-standing medications.”[49]Having said that, it is difficult for me – a layman when it comes to proper medical practice – to form a definitive view on the topic. That is why expert evidence about what is to be expected of a reasonably competent general physician when asked to provide a repeat prescription would normally be regarded as necessary before a finding of negligence could be made against him. As Butler-Sloss LJ said in Sansom v Metcalfe Hambleton & Co. [1998] PNLR 542 at p. 549A-B, “… a court should be slow to find a professionally qualified man guilty of a breach of his duty of skill and care towards a client (or third party), without evidence from those within the same profession as to the standard expected on the facts of the case and the failure of the professionally qualified man to measure up to that standard.”[50]No such expert evidence has been placed before me by Lloyds. I have simply been provided with a list published by the General Medical Council of answers to some frequently asked questions on prescribing medicines. It is questionable how relevant they are to the standards to be expected of Dr Elwell, because they relate to best practice in the United Kingdom. They do not purport to identify best practice in the United States. But in any event, they tend to support Dr Elwell’s stance. Admittedly, they appear to require the doctor to be familiar with the medication he is prescribing, to satisfy himself that it is suitable for the patient, and to prescribe a dose which is appropriate for the patient’s condition. But I doubt whether that was intended to apply to repeat prescriptions, which are dealt with in question 8. Although the doctor who provides the prescription must be satisfied that it is safe and appropriate to do so, it looks as if any investigation into whether it is safe and appropriate to do so is to ensure that(a) the patient is issued with the correct prescription (which I take to mean with a prescription for the drug which was previously prescribed), and(b) the prescription provides for the correct dose, especially where the dose has varied in the past. Here, Dr Elwell was assured by Mrs Horton that she had been on the same dose for many years, and he was entitled to rely on that assurance, which Mrs Horton had no reason to suppose had been rendered incorrect by Dr Evans’ mistake in prescribing the wrong dose. And as for what that dose was, I have already described in [28] above how Dr Elwell came to think that Mrs Horton was on a daily dose of 4 mg. In my opinion, looking at the label on the bottle (which would have told him that she was taking 2 mg. tablets), and reasoning that she was taking two such tablets a day (because (a) the label showed that there had been 55 tablets in the bottle and (b) Mrs Horton had told him that the bottle represented four weeks’ supply), was an entirely sufficient investigation on his part into what Mrs Horton’s daily dose was. For all these reasons, Lloyds have not established to my satisfaction that Dr Elwell was negligent when he prescribed a daily dose of 4 mg. tablets of dexamethasone for Mrs Horton.[51]The causative link. The dramatic deterioration in Mrs Horton’s health did not occur as a result of her taking one of the 2 mg. tablets dispensed by Mr Gabla once a day throughout the month of July 2001. The endocrinologists agree that had she reverted to one 0.5 mg. tablet a day from the end of July, she was unlikely to have suffered any harm. The deterioration in her health occurred as a result of her taking one of the 4 mg. tablets prescribed by Dr Elwell once a day from August onwards. So even though Dr Elwell was not negligent in doing that, the question remains whether it was Mr Gabla’s breach of duty which caused Dr Elwell to provide Mrs Horton with the prescription which he did. If Mr Gabla’s breach of duty and Dr Elwell’s issue of the prescription to Mrs Horton were independent events, it would have been Dr Elwell prescribing 4 mg. tablets for Mrs Horton which would have been treated in law as causing the deterioration in her health: see Carslogie Steamship Co. Ltd. v Royal Norwegian Government [1952] AC 292 and Jobling v Associated Dairies Ltd. [1982] AC 794, discussed in Clerk & Lindsell on Torts, 19th ed., paras. 2–75-2–77.[52]I have no doubt that Mr Gabla’s breach of duty caused Dr Elwell to provide Mrs Horton with the prescription which he did so that these acts did not constitute independent events. Much of the information which caused Dr Elwell to think that Mrs Horton was on 4 mg. a day was information on the label. The only information which was not on the label was that the contents of the bottle represented four weeks’ supply. Without the information on the bottle, Dr Elwell would not have been led to think that she was on 4 mg. a day. That information was only on the label because Mr Gabla had dispensed the prescription. Had he questioned the prescription with Dr Evans or Mrs Horton, the prescription would not have been dispensed because Dr Evans’ mistake would have become apparent. There was therefore a direct causal link between Mr Gabla’s breach of duty in failing to question the correctness of the prescription and Dr Elwell providing Mrs Horton with a prescription for a daily dose of 4 mg. tablets.[53]Dr Elwell’s intervention. There is one final question to be addressed. Even though Dr Elwell was not negligent in prescribing Mrs Horton with the prescription which he did, could it be said that his intervening act, without which the deterioration in her health would not have occurred, broke the causal connection between Mr Gabla’s breach of duty and her ill-health? The guiding principle is that there is no guiding principle in this area of the law: “No precise or consistent test can be offered to define when the intervening conduct of a third party will constitute a novus actus interveniens sufficient to relieve the defendant of liability for his original wrongdoing. The question of the effect of a novus actus ‘can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event’. Four issues need to be addressed. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? Was the third party’s conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the conduct of the third party wholly independent of the defendant, i.e. does the defendant owe the claimant any responsibility for the conduct of that intervening third party? In practice, in most cases of novus actus more than one of the above issues will have to be considered together.” (Clerk & Lindsell, op.cit., para. 2–82) The four tools which have accordingly been developed to assess the extent to which a defendant may be relieved of liability by the intervening act of someone else produce the following answers in this case. First, I do not believe that it would be right, when looking at the whole sequence of events which culminated in the devastating deterioration in Mrs Horton’s health, to say that Mr Gabla’s failure to question Dr Evans’ prescription was so eclipsed by Dr Elwell’s intervention that Mr Gabla’s conduct could properly be relegated to no more than a mere occurrence in the history of events. Secondly, there was nothing unreasonable in what Dr Elwell was subsequently to do. Thirdly, for the reasons which I shall come to later, I think that Mr Gabla should reasonably have foreseen the reliance which might be placed by a physician other than Dr Elwell on the label on the bottle. And fourthly, most important of all, for the reasons in [52] above, I think that Mr Gabla must bear a real responsibility for why Dr Elwell thought that Mrs Horton had been prescribed 4 mg. tablets a day.[54]In the final analysis, as Laws LJ concluded in his powerful judgment in Rahman v Arearose Ltd. [2001] QB 351, the real question has to be: what is the damage for which the defendant under consideration should be responsible? For the reasons given when dealing in [53] above with the various mechanisms which are employed to point the way to the correct answer, I have concluded that the true responsibility for the deterioration in Mrs Horton’s health lies with Lloyds rather than with Dr Elwell’s intervention.

Remoteness of damage

[55]Although it was Mr Gabla’s breach of duty which caused Dr Elwell to provide Mrs Horton with the prescription which he did, the final question which arises is whether the eventual deterioration in her health was so far removed from what Mr Gabla did that it should be regarded as too remote a consequence for Lloyds to be saddled with the responsibility for compensating Mrs Horton for it. Since the consequence of Mr Gabla’s failure to question the correctness of the prescription was that he dispensed the prescription, and since his dispensing of the prescription resulted in the label being attached to the bottle, the issue is whether it is reasonable to expect a reasonably careful and competent pharmacist in Mr Gabla’s position to have foreseen that the label might be used by a physician other than Dr Evans to identify what Dr Evans’ prescription had been for.[56]On this topic, the evidence is all one way. Mr Gabla himself acknowledged that he knows that it is not just the patient who might read the label produced by the pharmacist when the medication is dispensed. Doctors other than the one who issued the prescription being dispensed might read and rely upon the label as well. Mr Gabla was not asked what he thinks those doctors might rely on the label for. But since such a doctor would assume that the prescription had been dispensed in accordance with its terms, and that the label accurately identified what had been dispensed, it can safely be assumed that Mr Gabla was accepting that he knows that doctors other than the prescribing doctor would rely on the label to identify what had previously been prescribed. The questions which resulted in Mr Gabla giving these answers were in the present tense, but Mr Gabla did not suggest that his current thinking was any different from what he would have thought in July 2001.[57]This evidence mirrored Dr Applebe’s own view. After acknowledging that the primary purpose of the label on a bottle of tablets is to let the patient know the medication he or she is taking and what the dose is, he added that the label has a secondary purpose, namely “to facilitate what the dosage was to any other health professional e.g. a doctor who may wish to rely upon such information”.[58]The only consideration which might have caused me to doubt this view was the answer which Dr Applebe and Dr Harrowing jointly gave to one of the questions they were asked prior to the trial. The question was:
“In the context confronting Lloyds in July 2001 would a reasonably careful pharmacist be likely to foresee that the dispensation of 55 x 2 mg. tablets in a bottle labelled ‘take as directed by doctor’ might lead another doctor who was shown the bottle to prescribe 4 mg. tablets to be taken once a day?”
The answer they gave was:
“No. Such information could only have come from the claimant or the prescribing doctor unless an additional label or an addition to the existing label with dosage instructions, i.e. two tablets daily, had been applied.”
But that was an answer to how Mr Gabla might think a doctor other than the one who issued the prescription was likely to interpret the label. It did not address the antecedent question whether Mr Gabla would expect such a doctor to read the label at all and rely on it. As it was, there is nothing inconsistent between the answer given by Dr Applebe and Dr Harrowing and my finding about what made Dr Elwell think that the prescription which had resulted in the label on the bottle had been for 4 mg. tablets – namely, that Dr Elwell got additional information from Mrs Horton, and that information was that the bottle represented four weeks’ supply. For all these reasons, it was, in my opinion, reasonable to expect Mr Gabla to have foreseen that the label might be read by someone other than Dr Evans to identify what Dr Evans’ prescription had been for.

Conclusion

[59]It follows that Mrs Horton has succeeded on all the issues which this judgment has addressed, and that simply leaves the issues which arise on quantum. As I told counsel at the end of the evidence, I do not propose to proceed to address those issues now. There are two reasons for that. First, I did not want the parties to have to wait too long before they knew what my decision was on the issues of breach of duty, causation and remoteness. Had I had to address the issues of quantum now, it would, in view of my other judicial commitments, have been some time before I could hand down a judgment covering all the issues in the case. Secondly, I do not, of course, know on what the mediation of this claim foundered. If the stumbling block related to breach of duty, causation or remoteness, this judgment will have settled that issue. And if it foundered on an issue relating to quantum, the court’s decision on the issues of liability – as well, of course, as the evidence and submissions on the issues of quantum – may nevertheless have created a better climate for the issues of quantum to be compromised. I direct that the parties’ solicitors let my clerk know within 21 days of the handing down of this judgment whether the issues arising on quantum have been settled, and if not whether there remains a chance of settlement. If not, I shall produce my judgment on those issues as soon as I can thereafter.[60]I wanted to spare the parties the expense of having to attend court when this judgment was handed down. Accordingly, when a draft of this judgment was sent to the parties, it said that if Lloyds wished to apply for permission to appeal, my clerk should be notified of that within 7 days of the handing down of the judgment, and I would consider that question on the basis of any written representations without a hearing. Since then, Lloyds have informed me through my clerk of a problem which that poses for them in view of the absence of a judgment on the issues of quantum. If Mrs Horton is eventually awarded less than she has already obtained from Dr Evans, she will not be entitled to any additional sums from Lloyds, and Lloyds may then choose not to pursue any appeal against this judgment. In any event, a decision whether to appeal against this judgment is bound up very much with what sum Mrs Horton will eventually be awarded. Accordingly, in the event that a compromise of the issues of quantum is not achieved, I was asked to delay the handing down of this judgment while I prepared a judgment on the issues of quantum, and to give judgment at the same time on all issues. Alternatively, if I thought that this judgment should be handed down now, I was asked to order that the time for filing any notice of appeal against this judgment should not begin to run until I had handed down judgment on the issues of quantum.[61]Problems of this kind can arise whenever there is a split trial of liability and quantum, and it is not usually regarded as appropriate for the filing of a notice of appeal against the judgment on the issue of liability to be deferred until after judgment on the issue of quantum has been handed down. But the fact that Mrs Horton has settled with Dr Evans is a significant factor, and although I think that I should hand down this judgment now, I am prepared to order that Lloyds’ time for filing any notice of appeal from today’s judgment should start to run from(a) when the court is notified that the issues of quantum are agreed, or(b) failing that, when judgment on the issues of quantum is handed down. Mrs Horton’s advisers are content with such a course.