NO AWARD FOR DAMAGES FOR “LOSS OF LIFE”: SHAW -v- KOVAC CONSIDERED

In Shaw -v- Kovac [2015] EWHC 3335(QB) Judge Platts considered the question of whether there is a freestanding head of damages for “loss of life” together with some other aspects of the damages where the claim lies solely on behalf of the estate.

“So in my judgment there is no independent free-standing claim of negligently depriving a claimant of the opportunity to give informed consent, so in so far as this claim is a claim for compensation for loss of life or loss of expectation of life it is advanced by section 1. This head of claim therefore must in my judgment fail.”

KEY POINTS

  • There was no independent free-standing claim for “loss of life” based on a failure to obtain informed consent.
  • Damages for pain and suffering were assessed at £5,000.
  • The claim for costs of the inquest were potentially recoverable as costs of the action and were not a head of damages.
  • The claim for costs ordered against the deceased’s daughter in judicial review proceedings were not recoverable in this action.

PRACTICE POINTS

  • There is no claim for “loss of life” or “loss of expectation of life”.
  • Note that inquest proceedings are potentially recoverable as costs of the action.
  • Note the modest overall award in this case (a total of £13,686.17). There may be issues of proportionality in relation to costs.

THE CASE

The action was brought on behalf of the estate of William Ewan who died, aged 86, following an operation for a transaortic valve implant.  Liability was admitted and the court was assessing damages.

THE ISSUES IN RELATION TO DAMAGES

There was no financial dependency and the claim was brought, primarily, under the Law Reform (Miscellaneous) Provisions Act 1934

THE AWARD FOR PAIN AND SUFFERING

Pain suffering and loss of amenity
16. The claim which is advanced and to which the defendants have submitted to judgment is that the deceased should have been told of the true position regarding the TAVI procedure at his first appointment with the first defendant on 12 June 2007. Had he been informed he would have not proceeded any further, he would not have had the angiogram on 12 and 28 June, nor would he have undergone the TAVI procedure which led to his death.
17. In my judgment, therefore, against that background compensation is recoverable for three identifiable aspects of pain and suffering and loss of amenity. First, the events of 25 and 26 September; that is the operation, the preparations for it, the complications which ensued and his subsequent death. Secondly, the medical procedures that preceded that operation after 12 June, in particular the undergoing of an angiogram under local anaesthetic on 28 June which would not have occurred. Thirdly, the awareness of Mr Ewan that he was going to have a surgical procedure possibly under general anaesthetic and the accompanying and understandable anxiety over a period of three months which he (and anyone) must suffer in those circumstances.
18. It is rightly pointed out on behalf of the defendants first, that the evidence is that Mr Ewan seemed relaxed about the procedure, certainly at the time of the angiogram, but it may well be that that was partly because he was not aware wholly what was involved. Secondly that there is no evidence that he was unduly anxious in the time leading up to his admission. Thirdly that after he had had his general anaesthetic on the morning of 26 September he was unconscious and never regained consciousness and therefore was not aware of the events that led to his death or to the attempts to save him.
19. Against that background both parties have referred me to the Judicial College Guidelines for damages for personal injury 13th Edition, the relevant chapter of which is Chapter 1. It is clear that this, like most cases, does not fall with any particular bracket, but the brackets which are given are helpful in order to guide the court as to what the proper level of damages should be in an individual case. Of particular relevance are subparagraphs (d) and (e) of Chapter 1 which I take into account, but those do not take into account the fact of the procedure of 28 June (the angiogram) which is also to be compensated.
20. Given the three aspects of injury which I have identified, it seems to me that when I stand back and take all factors into account that the proper award for damages for pain, suffering and loss of amenity in this case is £5,000 and that is awarded to the estate.

NO CLAIM FOR LOSS OF LIFE WITHOUT HAVING GIVEN INFORMED CONSENT

The judge rejected an argument that there was a freestanding claim for loss of life.

“In reality what the claimant seeks is compensation for the fact that Mr Ewan died in circumstances where he was deprived of the opportunity to make an informed choice as to whether or not to take the risk of undergoing the TAVI procedure.”

Section 1 of the Administration of Justice Act 1982,  provides:

“(1) In an action under the law of England and Wales or the law of Northern Ireland for damages for personal injuries— (

a)no damages shall be recoverable in respect of any loss of expectation of life caused to the injured person by the injuries…”

THE JUDGMENT ON THIS ISSUE

35. In my judgment, the claimant’s argument seems to confuse issues of breach of duty which were dealt with in Montgomery; issues of causation which are dealt with in Chester with the issues of loss of damage with which I am concerned. Here breach of duty and causation are not in issue. It is not in dispute that the defendants were negligent in failing to fully advise the claimant, nor that as a result of that he underwent the surgery from which he died. In argument Mr Berkley QC submitted that there would still be an entitlement to damages even if Mr Ewan had survived. It seems to me that that is probably correct. The loss then would be that Mr Ewan underwent surgery to which he would not have consented and which he would have not have undergone if properly advised, but that is a loss which is more than the mere loss of the right to make an informed choice.
36. Here the issue is one of damages. To what damages is the deceased’s estate entitled? At common law before the Administration of Justice Act 1982 a claim for damages for loss of expectation of life was recognised. However section 1 of that Act removed that right in claims for personal injury. In my judgment it cannot realistically be argued that this is not a claim for personal injuries. The personal injury is the need for investigations leading to and the preparation for surgery and the surgery itself. Compensation is being claimed for and has been awarded for those matters as I have indicated and if the deceased had had dependents they would have been entitled to recover under the Fatal Accidents Act. This is not the case where the deceased’s estate or his dependents if there were any would have been left without remedy.
37. So in my judgment there is no independent free-standing claim of negligently depriving a claimant of the opportunity to give informed consent, so in so far as this claim is a claim for compensation for loss of life or loss of expectation of life it is advanced by section 1. This head of claim therefore must in my judgment fail.
OTHER HEADS OF DAMAGES
Costs of treatment/ pathologist
38. The treatment expenses are now largely agreed save for two matters, the claim for Dr Fitzpatrick’s fees having been rightly abandoned by the claimant during submission. There was a claim for the fees of Dr Tapp, a pathologist instructed by the family after Mr Ewan’s death. In regard to this I accept the defendant’s submission that these are either costs arising from the death and therefore excluded by section 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934 or if they are not they are costs of or incidental to the action and should be pursued and claimed within the cost proceedings. I am not in a position to determine whether they are properly claimed as costs in the proceedings, but I am quite satisfied that they should not form part of the award of damages.
39. Other awards for treatment of costs and funeral expenses are now, it seems, happily agreed. I calculate and I stand to be corrected if I am wrong, but the treatment costs amount to £1,573 and the funeral costs amount to £7,113.17.
Costs of the inquest and Judicial Review proceedings
40. I now turn to briefly consider the other heads which has been claimed, but I do so briefly because they are no longer live issues before me. These are the claims which had been advanced for the cost of the inquest and the cost of the judicial review proceedings which Mrs Shaw was ordered to pay.
41. First of all, the costs of the inquest. In the Schedule of Loss dated 24 June 2015 a claim was made for the damages representing the considerable costs incurred in respect of the inquest. It is now accepted by both sides that those costs should not be recoverable as damages in this claim, but might be recoverable as costs incidental to the claim following the decision of Roach v Home Office [2010] QB 256. They will therefore not form part of the order I make and will have to be considered within the cost proceedings if appropriate.
42. It was in respect of these costs that on 23 October (the Friday before the trial) the claimant made an application to be joined as a party to the proceedings in her own right to enable her to recover as damages the cost of the inquest for which she as opposed to the estate might be held to have been responsible. Her concern was that the defendant had raised an objection that the loss was not the estate’s but was hers personally. In the event I have not had to deal with the substance of that application, it now being conceded that it is not a matter for the award of damages. I therefore propose to dismiss that application as being premature and unnecessary.
43. However, as I indicated during argument, my dismissing the application should not be a bar to the claimant, Mrs Shaw, if so advised, from applying to be a party in the cost proceedings for the same purpose. I stress that I make no comment at all on whether such an application if made would or should succeed.
44. With regard to the costs of the judicial review and the Court of Appeal which Mrs Shaw has been ordered to pay, these claims have caused considerable confusion and debate, but have now been abandoned. The confusion arose because Master Roberts apparently allowed the amendments at paragraphs 38 and 40 of the Re-amended Particulars of Claim, but refused related draft amendments to the pleading which had apparently set out for the basis of those claims claimed in 38 and 40. However in reply, having taken instructions, Mr Berkley QC on behalf of the claimant abandoned the claims and I think quite rightly. It seems to me that these claims were doomed to fail. The claimant’s argument was that the disclosure in this action had led to disclosure of documents which had they been available in the judicial review proceedings, either at first instance or on appeal, would have led to a different result in those proceedings with the result that she would not have had an order for costs made against her in those proceedings. There are so many difficulties with such a claim, not least that it seeks to go behind cost orders made by courts of competent jurisdiction in different proceedings, but also the cause of action is not identified and I am not clear what it is at present. It is not easy to see how the claim is that of the estate, the orders having been made against Mrs Shaw personally; the claim does not appear to be properly or substantively pleaded and there is no evidence before me to support it. It seems clear to me that this claim could not have been made out at trial and in my judgment it was rightly abandoned by Mr Berkley QC

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