Symes v St George's Healthcare NHS Trust [2014] EWHC 2505 (QB)

“… We appreciate that your own investigations are still in their early stages but we have conducted our own investigations and obtained expert evidence and are now in a position to make the following limited admission. We do so out of a desire to resolve this case fairly and promptly for your client and to minimise costs to the NHS. Admission We are now in a position to admit that the report of the FNA sample dated 19 January 2009 was incorrect in reporting a pleomorphic adenoma. This sample indicated an adenoid cystic carcinoma and ought to have been reported as such. Further, it is admitted that there was a delay in an urgent superficial parotidectomy which was recommended on 29 January 2009. It was recommended that this operation should have been carried out within two weeks. In fact, Mr Symes had his parotidectomy on 19 May 2009. No further admissions are made at this stage and, in particular, it is denied that the delay in treatment of approximately 90 days has had any impact on: 1. The nature or extent of the surgery which Mr Symes underwent. Even if the diagnosis had been timeously made and surgery carried out sooner, Mr Symes would always have had to undergo a total parotidectomy, sacrifice of the upper branch of the facial nerve and resection of skin. 2. The postoperative treatment that he underwent. Post-operative radiotherapy could not have been avoided. 3. The subsequent development of pulmonary metastasis. 4. Mr Symes’ life expectancy. The above position is supported by independent expert evidence.”

“24. If the Claimant had been told on 29th January 2009, that the lump on his neck appeared to be malignant, then he would have wanted to ensure that it was removed urgently and would have made contact with the Hospital in the event that his surgery was delayed. 25. It is the Claimant’s case that, on the balance of probabilities, in January/February 2009, the Claimant’s tumour: a. Had not metastasised to his lungs; and b. Had not invaded his facial nerve – which was found to be normal on 14th January and 8th March 2009. 26. Consequently, if the Claimant had undergone surgery by mid-February 2009, then on the balance of probabilities: a. He would not have suffered the pain and discomfort associated with his developing tumour between then and his eventual operation 19th May 2009; b. He would only have required a superficial parotidectomy, without sacrifice of the left facial nerve; and c. He would not have developed metastatic cancer.” a. Had not metastasised to his lungs; and b. Had not invaded his facial nerve – which was found to be normal on 14th January and 8th March 2009. a. He would not have suffered the pain and discomfort associated with his developing tumour between then and his eventual operation 19th May 2009; b. He would only have required a superficial parotidectomy, without sacrifice of the left facial nerve; and c. He would not have developed metastatic cancer.”

“27. As a result of the Defendant’s negligence, the Claimant has suffered personal injury, loss and damage. PARTICULARS OF PERSONAL INJURY The Claimant was born on 25th December 1967. He was aged 41 at the time of the Defendant’s negligence and is now aged 44. The Claimant continues to suffer from paralysis of the left part of his face. This results in a conspicuous cosmetic disfigurement, about which the Claimant is uncomfortable, self-conscious and distressed. At the present time, the Claimant’s pulmonary metastasis is asymptomatic and he remains generally well. However, the Claimant continues to be angry and upset about the delay in his diagnosis and its effect on his life expectancy and his ability to live a normal life with his partner, including having children whom he could see grow up. Further particulars of the Claimant’s injuries, his condition and prognosis are set out in the report of Mr Stuart Quine, Consultant ENT and Head and Neck Surgeon, dated 3.10.2012. PARTICULARS OF SPECIAL DAMAGE Please see the attached Schedule.”

“We are now in a position to respond to the Particulars of Claim dated 25 April 2013. We repeat the admission which was made in our letter of 10 October 2011 and which is recited at paragraph 23 of the Particulars of Claim, namely: ‘We are now in a position to admit that the report of the FNA sample dated 19 January 2009 was incorrect in reporting a pleomorphic adenoma. This sample indicated an adenoid cystic carcinoma and ought to have been reported as such. Further, it is admitted that there was a delay in an urgent superficial parotidectomy which was recommended on 29 January 2009. It was recommended that this operation should have been carried out within two weeks. In fact, Mr Symes had his parotidectomy on 19 May 2009.’ It is admitted that the delay in performing the superficial parotidectomy caused some damage. For the avoidance of doubt, whilst liability is admitted and the Defendant will consent to Judgment with damages to be assessed, the Claimant is put to strict proof on the nature and extent of damage, injury and loss said to arise from the admitted negligence. Paragraphs 25, 26(b) and (c) of the Particulars of Claim are not admitted and nor are the Particulars of Injury, the content of Mr Quine’s report nor the contents of the Schedule of Loss. The Claimant will be required to prove the same and the Defendant expects this to be dealt with under an appropriate quantum directions timetable.”

“No acknowledgment of service having been filed, it is ordered that the defendant must pay the claimant an amount which the court will decide, and costs”

“… 2. There be standard disclosure by list limited to Quantum by 30th September 2013 … 3. There be a Case Management Hearing on 18th October 2013 … …”

“I cannot agree to the requested interim damages payment. There is clearly a very big difference between the parties on quantum in this case and you will know the reasons I say that.”

“… 3) Factual Evidence Evidence of fact will be dealt with as follows: a) By 4pm on 17 January 2014 both parties must serve on each other copies of the signed statements of all witnesses on whom they intend to rely in respect of quantum, condition and prognosis … … 4) Expert Evidence In respect of quantum, condition and prognosis the parties each have permission to rely on the evidence of experts in the fields of: i) Oncology ii) Care Permission being given to call the said experts on matters remaining in issue. The reports of the said experts are to be served by: Claimant: 17 January 2014 Defendant: 14 March 2014 … 7) Schedules of Loss Schedules of Loss must be served as follows: a) By 4pm on 17 January 2014 the Claimant must serve an up to date schedule of loss costed to the date of trial b) By 4pm on 14 March 2014 the Defendant must serve a counter-schedule of loss. …”

“(1) Damages The Claimant claims damages for … three injuries … First, the Claimant suffered over three months of pain, discomfort and anxiety, as the malignant lesion on his face advanced and grew in size. Secondly, he lost all function in his left facial nerve following the operation to remove the cancer on 19th May 2009. This has led to a marked and distressing cosmetic deformity; and to the need for a regime of medication to preserve function in his left eye. Thirdly, the Claimant has developed incurable metastatic cancer in his lungs. At present, his condition is stable, albeit that he suffers from significantly reduced energy, requires a nebulizer to assist his breathing, and needs to sleep in an upright position. In the longer term, it is probable that the cancer will become active again and that the Claimant will die within three to five years. For obvious, reasons this is extremely upsetting for the Claimant who is acutely aware that he and his wife have lost the opportunity to lead a normal life and to have a family.”

“I pointed out that we have judgement in default – our assessment is much higher, he [Mr Morris] said that they have made an offer of £10k and that is there [sic] position, we are very far apart on this and they do not agree with our valuation. They compensated [the Claimant] for the pain and suffering for the delay but do not believe the other symptoms are related.”

“I told him [Mr Morris] that we have judgement in default and my understanding is that we do not have to prove causation he agrees but it does not mean we do not have to prove the nature and extent of damage. It does not mean that we have a blank cheque. The whole point of the hearing is to consider damages.”

“In support of this Counter-Schedule the Defendant relies on the report of Professor Symonds, Professor of Clinical Oncology, dated 5 February 2014. The Defendant’s case is that save for any additional pain and suffering which the Claimant experienced during the period of 90 days that the surgery was delayed (and for which no analgesia was prescribed by the Claimant’s GP), no other loss or damage arises in consequence of the admitted delay. In particular it is the Defendant’s case that if the surgery had been performed in about mid February 2009: a. The same operation would have been carried out as that which was performed on 19 May 2009, namely total parotidectomy, sacrifice of the facial nerve and resection of skin. b. The Claimant would not have avoided metastatic spread of the cancer to his lungs. The Defendant’s case is that the pulmonary metastases that have been clinically apparent since 2010 were probably present in microscopic form in the lungs prior to 2008. c. The Claimant’s treatment for the metastatic disease would have been the same as he has received. d. The Claimant’s ultimate prognosis and life expectancy would have been the same.”

“Their Lordships are satisfied that, where a judgment by default comes in question, it would be wrong to apply the full rigour of any principle as widely formulated as that of Henderson v. Henderson. It may well be doubted whether the Vice-Chancellor had in mind at all the peculiar circumstances of a default judgment and whether such a judgment would not naturally fall into his reservation of ‘special cases’. In any event it is clear from what has been said in other authorities more immediately directed to the point that a much more restricted operation must be given to any estoppel arising from a default judgment.”

“There it was spoken of as being essentially the product of the older system of pleading and as involving no derogation from the true general principle that, for the purposes of estoppel, a judgment stands for every point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision.”

“amounts to saying that default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham L.C. [in New Brunswick] they can estop only for what must ‘necessarily and with complete precision’ have been thereby determined.”

“In my view not all estoppels are ‘odious’; but the adjective might well be applicable if a defendant, particularly if he is sued for a small sum in a country distant from his own, is held to be estopped not merely in respect of the actual judgment obtained against him, but from defending himself against a claim for a much larger sum on the ground that one of the issues in the first action (issues which he never saw, though they were doubtless filed) had decided as a matter of inference his only defence in the second action. My Lords, I think there is much to be urged in favour of the observation made by Willes J. in the case of Howlett v Tarte, though it may have been a little too widely expressed. He said: ‘It is quite right that a defendant should be estopped from setting up in the same action a defence which he might have pleaded but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action.’ In my opinion we are at least justified in holding that an estoppel based on a default judgment must be very carefully limited. The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment; in other words, by the res judicata in the accurate sense.”

“It is, as Mr Holwill's argument points out, trite law to say that to establish a cause of action in negligence, it is essential to prove that the plaintiff suffered some damage. So far so good. It is, however, the critical next step in the argument that seems to me so manifestly impossible. Accordingly, argues Mr Holwill, the liability judgment was, and I quote from his written skeleton which he has adopted in the course of his short oral submissions: ‘. . . a ruling that the Plaintiff had suffered the injuries pleaded in consequence of the Defendant's negligence - if there had been any doubt about that point, judgment could not have been awarded’. I profoundly disagree. As Waller LJ observed, when refusing leave as the single Lord Justice on the documents: ‘What loss and damage was caused by this Defendant's negligence must be part of the exercise of assessing damages.’ That in my judgment is plainly correct. It certainly accords with my own experience in these cases over very many years. No doubt defendants must acknowledge some injury to a plaintiff before judgment could properly be entered against them, otherwise the cause of action is not complete. But, of course, here they were. That is a far cry from saying that they are necessarily liable for each and every aspect of loss and injury which the plaintiff in his pleaded claim asserts he suffered. Indeed, their defence expressly denied it. That has everything to do with quantification and nothing to do with basic liability.”

“The effect of the default judgment By reason of the default judgment entered against them it is not open to the defendants to argue that the plaintiff has not suffered damage as a result of water flowing from a cracked sewer. However, the defendants are entitled to: (1) Dispute that any water flowing from the pipe onto the plaintiff's property was causative of any of the particular heads of damage. (2) Dispute the plaintiff's case as to quantum.”

“Mr Exall (for the defendants) submits firstly that, notwithstanding the default judgment, the defendants are entitled on the damages hearing to raise the issue whether any particular item of damage claimed was caused by water or sewage flowing from the defendants' sewer. He accepts that the default judgment is conclusive in favour of the claimant on the issue whether some water and sewage was leaking from the sewer on to the plaintiff's premises in the sense that it is no longer open to the defendants to dispute that some damage was thereby caused, since the claimant's cause of action would not otherwise be complete.”

“I turn first to the question whether it is open to the defendants, notwithstanding the default judgment, to raise at the damages hearing the issue whether water damage from another source was responsible for damage to the claimant's basement. In my judgment, the position in this respect is as follows. The default judgment is conclusive on the issue of the liability of the defendants as pleaded in the Statement of Claim. The Statement of Claim pleads that an unspecified quantity of effluent escaped from the defendants' sewer into the basement of the claimant's property. In addition it is, Mr Exall accepts, inherent in the default judgment that the defendants must be liable for some damage, resulting therefrom. But that, in my judgment, is the full extent of the issues which were concluded or settled by the default judgment. It follows, in my judgment, that in the instant case all questions going to quantification, including the question of causation in relation to the particular heads of loss claimed by the claimant, remain open to the defendants at the damages hearing. Direct support for this conclusion is, in my judgment, to be derived from the decision of this court in Turner v Toleman. … In my judgment, the underlying principle is that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment. In this case the judgment was a default judgment. I accordingly accept Mr Exall's submissions in relation to the first point.”

“The defendant cannot thereafter contend that his acts or omissions were not causative of any loss to the plaintiff [my emphasis]. But he may still be able to argue, on the assessment, that they were not causative of any particular items of alleged loss.”

“Moreover, he may do so even if the statement of the claim alleges a particular item was caused by the tort.”

“Moreover, insofar as the statement of claim makes any allegations of loss and causation (which it only does to a very limited extent in the particulars at paragraph (6) which have been quoted by Mr Justice Jonathan Parker) it is clear from Turner v Toleman that it is open to the defendants to challenge them on the assessment.”

“For my part, despite the very different context in which that case was decided, I can see no distinction in principle between a case such as Turner, a personal injury case, and the present case. Just as it was open to the defendant in that case to challenge the particular heads of damage which the plaintiff had pleaded as having been caused by the negligence of the defendant, so it is open in the present case for the Defendants to challenge the particular heads of damage claimed to have been caused by the escape of water and sewage into the basement of the plaintiff's premises from the Defendants' cracked sewer. The fact that in Turner there had been summary judgment after the defendant had put in a defence whereas in the present case there was no defence does not seem to me to make a material difference. In my judgment, the true principle is that on an assessment of damages any point which goes to quantification of the damage can be raised by the defendant, provided that it is not inconsistent with any issue settled by the judgment.”

“In the present case all that has been determined by the judgment in default is that the Defendants own a sewer which has cracked, that water and sewage from that cracked sewer has entered into the Claimant's basement, that damage continuing at the date of the statement of claim has thereby been caused to the Claimant's premises and that the Claimant has thereby suffered loss and damage. The judgment does not purport to say how much loss and damage has been caused. That quantification has been left to the assessment.”

“As the Court of Appeal pointed out in Lunnun v Singh, after a default judgment a party can raise an issue (in that case it was both causation and quantum of damages claimed) that might have been raised earlier, just so long as it is consistent with the judgment that has been entered.”

“… where a judgment in default has been granted on the question of liability, that judgment is conclusive on the issue of liability of the Defendant to the Claimant, as pleaded in the Particulars of Claim. Therefore, if a Claimant has alleged that the Defendant was in breach of contract, that cannot be challenged after the default judgment has been entered. Equally, however, a Claimant cannot raise a new claim or a new way of putting the same claim in the proceedings to assess damages. Thirdly, at the trial to assess damages a Defendant is entitled to raise all issues that are not inconsistent with the earlier determination of the issue of liability. Therefore, arguments concerning the causation of the damages alleged and the quantification of the damages alleged can be pursued by a Defendant. These propositions are clear from the Court of Appeal's decision in Lunnin [sic] v Singh. The principles in that case (which was pre – CPR) were held to apply in the post – CPR world by the Court of Appeal in Pugh v Cantor Fitzgerald International.”

“In their Lordships' opinion these questions are easily answered if three points are borne in mind. The first is that, once judgment has been given (whether after a contested hearing or in default) for damages to be assessed, the defendant cannot dispute liability at the assessment hearing: see Pugh v Cantor Fitzgerald International[2001] EWCA Civ 307 citing Lunnon [sic] v Singh (unreported) 1 July 1999, EWCA. If he wishes to do so, he must appeal or apply to set aside the judgment; while it stands the issue of liability is res judicata. The second is that, whether the defendant appears at or plays any part in the hearing to assess damages, the assessment is not made by default; the claimant must prove his loss or damage by evidence. It is because the damages were at large and could not be awarded in default that the court directed that they be assessed at a further hearing at which the plaintiff could prove his loss. The third is that the claimant obtains his right to damages from the judgment on liability; thereafter it is only the amount of such damages which remains to be determined.”

“A default judgment on liability under CPR Pt 12 is a final judgment that is conclusive on liability. The Particulars of Claim are, in effect, a proxy for the judgment, setting out the basis of liability. Once judgment is entered, it is not open to a Defendant to go behind it. Damages of course still have to be proved, and a Defendant can raise any issue which is not inconsistent with the judgment – see the White Book 2013 notes to CPR 12.4.4.”

“Mr Makhlay had a full opportunity to defend the claim on liability. If he disagreed with an aspect of liability that was relevant to quantum, it was for him to challenge the claim at the liability stage. He chose not to do so. He has not sought to set the judgment aside. He cannot now ‘roam freely’ across issues of liability as he wishes to do.”

“40. Mr Makhlay's approach is tantamount to an abuse of process by way of a back-door attempt to challenge the findings in the judgment. It offends not only a natural sense of justice, but also against the general rule that a party should not be allowed to litigate issues which have already been decided by a court of competent jurisdiction. 41. The consequences of Mr Makhlay's position being correct would be startling: a Defendant would benefit from failing to lodge a defence on liability and by simply submitting to a judgment in default, holding his powder dry until the quantum stage. He would then be able to mount, essentially unfettered, all and any arguments on liability at the quantum stage that he wished – probably, as has happened here, without any proper pleading or identification of the issues.”

“I find that the Particulars of Claim set out at paragraphs 24-26 … the claimant’s case as to causation with precision and clarity. I adopt the language of Carr J in New Century Media Limited v Makhay and find that the Particulars of Claim are in effect a proxy for the judgment, setting out the basis of liability.”

“(i) Whether the life expectancy of the claimant would have been the same even if there had not been clinical negligence; (ii) Whether the claimant would have undergone a parotidectomy and sacrificed the upper branch of the facial nerve and undergone resection of the skin even if there had not been clinical negligence; (iii) Whether the claimant would not have avoided the metastatic spread of cancer to his lung even if there had not been clinical negligence; (iv) Whether the claimant would have had to undergo post-operative radiotherapy even if there had not been clinical negligence.”

“I find that the practice in clinical negligence cases, having regard to CPR 16.5 and 16PD12.1, is that the defendant is obliged to address all allegations in the defence. Failure to address an allegation of causation will constitute an admission unless the defence sets out the nature of the defendant’s case in relation to the issue to which that allegation is relevant. Further I find that it is contrary to the overriding objective – dealing with cases justly and a [sic] proportionate cost (r 1.1(1)) and 1.1(2)(f)) – for a defendant to ignore a claimant’s statement of case, allow judgment to be entered and then to serve a counter-schedule which addresses allegations of causation that should properly have been addressed within a defence that should have been served many weeks earlier.”

“25. I find that the defendant had a full opportunity to defend the claim on liability but declined to do so. The defendant’s approach is tantamount to an abuse of process by way of a back door attempt to challenge the judgment. 26. The case of Turner v Tolman [sic] predates the Civil Procedure Rules. These provide in CPR 35.4(1) that no party may call an expert or put in evidence an expert’s report without the court’s permission. I comment that the defendant has never sought the court’s permission to rely upon oncological evidence or life expectancy expert evidence. This is a breach of CPR 35.4(1). If the defendant’s approach were correct, it would drive a proverbial coach and horses through case management. A defendant would be able to side step (as it seeks to here) the need to seek permission to rely on expert evidence and to side step an orderly timetable. The defendant would be able to mount, essentially unfettered, all and any arguments on liability that they wished at the quantum stage, without any proper pleading or identification of the issues. This is contrary to the overriding objective to deal with cases justly and at proportionate cost.”

“12.1 Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should: (1) state in his defence whether he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, the matters contained in the medical report, (2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and (3) where he has obtained his own medical report on which he intends to rely, attach it to his defence. 12.2 Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating: (1) which of those items he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, and (2) where any items are disputed, supplying alternative figures where appropriate.” (1) state in his defence whether he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, the matters contained in the medical report, (2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and (3) where he has obtained his own medical report on which he intends to rely, attach it to his defence. (1) which of those items he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, and (2) where any items are disputed, supplying alternative figures where appropriate.”