Stephanie Prior, Partner
Medicine, Science and the Law - April 2011
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Stephanie looks at four recent cases...
PENOLOGY AND CRIMINOLOGY
Leslie Malcolm v Ministry of Justice (2010)
[2010] EWHC 3389 (QB)
QBD (Sweeney J) 21 December 2010
In this case the claimant, M, claimed damages from the defendant for misfeasance and breaches of his human rights while he was in prison. M was serving life imprisonment for rape. In April 2007 he was transferred from one prison, where he had been held in segregation for approximately 12 months, to another prison. Upon arrival, he refused to go to the wing and insisted on going into segregation. He remained there for over five months until he was transferred to a third prison. Upon arrival here, he chose to be located on a normal wing.
While he had been in segregation at the second prison he was allowed approximately 30 minutes outside each day and 11 days before he was transferred to the third prison, his complaint that he was not being given enough time outside had been upheld. The Prison Service Order 4275 stated that prisoners in a segregation unit had to be provided with the opportunity to spend a minimum of one hour outside every day. M therefore, claimed for damages for misfeasance in public office and damages for the ministry’s breach of duty under the Human Rights Act 1998 s6.
It was held that M’s argument in regard to misfeasance amounted to an attempt to give legal force to a non-legal policy and in any event there were valid public interest groups for departing from that policy such as security reasons. Furthermore, the claimant had spent around 30 minutes and often longer outside during his time at the second prison. He suffered no detrimental effects at all to his health or wellbeing and further he had chosen himself to be located in segregation rather than a wing where he automatically would have had more access to outside. Judgement was given for the defendant.
PERSONAL INJURY
Morwenna Ganz v Amanda Jillian Childs (1) John Lloyd (2) Kingston Hospital NHS Trust (3) (2011)
[2011] EWHC 12 (QB)
QBD (Foskett J) 11 January 2011
In this case, the claimant, G, claimed that the defendants, C, L and K had been negligent in their treatment of her and were liable for the brain damage she suffered as a result of her developing mycoplasma pneumonia. G had become unwell having developed the illness but the condition was not recognized by the defendants in time. She was first examined by her GP, C, and after the last consultation with C, G’s condition worsened. L, the second defendant was contacted as the body responsible for the G’s out of hours care. L prescribed medication but did not hospitalize G. G was eventually admitted to hospital by the third defendant, K where her condition worsened and she lapsed into a coma. She suffered significant irreversible brain damage leading to permanent disability.
G argued that had suitable treatment been administered in time, her condition would have been avoided. She argued C and L had been negligent in not admitting her to hospital and that K had failed to address her condition promptly such that the opportunity to save her from brain damage had been lost. C, L and K denied that they had been negligent and any delay there may have been would not have made any difference to the outcome.
It was held that the C and L were negligent in that the G’s symptoms were such that she should have been hospitalized earlier and had she been she would have not suffered the brain damage that she did. It was likely that G’s susceptibility to such damage had been increased by an underlying condition. However, the law required that a tortfeasor took the victim as found and so this did not negate responsibility from the defendants. It was held that there had been a breach of duty by K; however, the delays could not be proven to have caused or materially contributed to her brain damage. G was, therefore, given judgement against the C and L and the claim against K was dismissed.
FAMILY LAW
Re L-R (Children)(2011)
CA (Civ Div) (Jacob LJ, Lloyd LJ, Wilson LJ) 8 March 2011
The first appellant child supported by the second appellant local authority appealed against factual findings that cuts to the child’s head and a burn to his leg were self-inflicted. The first and second respondents were the child’s parents. They had entered the UK with the child and the father’s other child, a daughter, who was the third respondent in the case. The appellant child was born in 1999 and was possibly the father’s son although parentage was not clear. They all lived together as a family of four in cramped accommodation. The two children had not previously lived together before they came to the UK. The move to this country along with the change in surroundings and language barrier, as he did not speak English, caused great emotional distress to the appellant child.
In February 2008 the appellant child, aged eight, was admitted to hospital suffering with lesions on his legs, torso and buttocks and three cuts to his head. Four days later he was admitted again suffering with a further six cuts to his head and a burn to his leg from a fire that started in his bed. The local authority issued care proceedings in relation to the appellant child and the third respondent daughter. They were both placed with foster carer and a fact-finding hearing was held to determine who was responsible for the child’s injuries. The local authority argued that either or all of the mother, father and daughter caused the child’s injuries whereas the parents and the daughter argued that they were self-inflicted.
The judge heard extensive medical evidence which included that self-harm was extremely unusual in male children, particularly one so young. The evidence did not however state that it would have been impossible for the child to injure himself. In two interviews the child admitted causing the injuries himself but in a third he denied it and accused the daughter of cutting him and starting the fire.
The judge concluded that the parents were responsible for beating the child but that the cuts and burn were self inflicted. The child argued, however, that the effect of the medical evidence was so powerful that it disentitled the judge to have found that his injuries were self-inflicted. The local authority also submitted that the judge erred in failing to attach sufficient weight to the child’s third interview denying that he had caused the injuries himself and attaching too much weight to the evidence of the parents who had been found to be responsible for the beating of the child.
It was held that the judge had considered the medical opinion contrary to self-harm and had expressed an accurate summary of the medical evidence in his judgement. In these circumstances he had been entitled to find that the child had caused the injuries himself and while legal proceedings could never determine the absolute truth, the best a judge could do in reaching a conclusion was to go by the evidence before him. In this case the judge had weighed the evidence fairly and his conclusion was one he was entitled to reach.
CIVIL PROCEDURE
Attorney General v (1) Associated Newspapers Ltd (2)News Group Newspapers Ltd (2011)
[2011] EWHC 418 (Admin)
QBD (Admin) (Moses LJ, Owen J) 3 March 2011
The Claimant, AG sought the committal of the first and second defendants, A and N for contempt of court. During a trial of an accused for murder, both defendants had published a photograph of the accused holding a pistol on their websites. Due to the publicity surrounding the case, the judge warned the jury not to look online for information about the trial. The published photograph was accompanied with an article about the accused which had been available on the first defendant’s website for five hours on the first evening of the trial. It could, however, only be accessed by a link and so access to the article could only have occurred if a conscious decision was taken to read the article. N published the photograph the next day which was available for 19 hours, and
similarly access could only have occurred if a decision had been made to read the article accompanying it.
Upon learning of the publication, the trial Judge asked the jury if any had read the article and as none had, he declined to discharge them and proceeded with trial. Both defendants submitted that there had been no substantial risk of any juror seeing the photograph, the photograph was so remote from factual issues in the trial that there was no substantial risk of any juror seeing the photograph and finally that there was in any event no substantial risk that it would have seriously impeded or prejudiced the trial.
It was held that there had been a substantial risk of a juror seeing the photograph. The Contempt of Court Act 1981 s2(2) was considered which required the court to assess the risk at the time of publication. The fact that no jurors had seen the publication did not mean that there was a lack of any substantial risk that they might. The photograph of the accused would have made an impact and created an adverse impression had the jurors seen it. It was, therefore, prejudicial to the issues in the case. The question for the court, therefore, was whether the publication created a substantial risk that the course of justice would be substantially impeded or prejudiced. It was held that the photograph in this case created such prejudice that no juror who saw it could reasonably have been expected to put it out of their minds however stringent the injunction to do so. If the judge had learned that a juror had seen the photograph but chosen to continue with the trial without discharging that juror then this would have given rise to a successful ground of appeal. Both defendants were, therefore, guilty of contempt and the AG’s application was granted.
Stephanie Prior is a Partner in Anthony Gold's Personal Injury department. For further information email Stephanie or call 020 7940 4000.
