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Causation arguments not precluded by default judgment

Symes v St George’s Healthcare NHS Trust
High Court (QBD)
23/07/2014

In this recent clinical negligence case, the High Court had to determine whether the defendant was precluded from raising arguments on causation when default judgment had been entered. Andrew Cousins highlights the key points and implications of the judgment which examines in detail the existing case law on the issue.

Background

In this clinical negligence case the claimant had been referred by his GP to an ENT Consultant employed by the defendant NHS Trust because of a lump on his face. The claimant claimed that the defendant had failed to advise him that the lump was “suspicious of malignancy”, and that the delay in treatment resulted in the tumour spreading to his lungs, leaving him with inoperable lung cancer and only a short time to live.

The defendant’s solicitors made a limited admission in correspondence that a report on a sample had been incorrect and that there had been some delay in treatment, but specifically denied that these factors had any effect on the development of the claimant’s condition and his life expectancy. When the Particulars of Claim were served the claimant relied upon the admission. The defendant did not file an Acknowledgment of Service or a Defence and, of his own volition, Master Roberts made an Order granting the claimant judgment for an amount which the court would decide plus costs.

At a CMC the court gave the parties permission to serve witness statements as to quantum and to rely upon expert evidence in the fields of oncology and care and gave directions for the filing of an updated Schedule and Counter Schedule of Loss.

When the defendant served its Counter Schedule it also served a medical report in support of arguments regarding a denial of causation. The claimant issued an application to strike out the Counter Schedule and the defendant applied to set aside the default judgment.

The applications were heard by Master Roberts who held that the default judgment stood as conclusive on the issues of breach of duty and causation, that the Counter Schedule was struck out, and that the defendant was to re-serve a Counter Schedule that complied with the claimant’s pleaded claim on causation.

The defendant appealed the Order of Master Roberts contending that they were not precluded from contesting causation just because a default judgment had been entered. 

Findings

Mr Simon Picken QC, sitting as a Deputy High Court Judge, allowed that the defendant’s appeal. He gave a detailed judgment which examined the existing case law on the point and held that:

  • The determination of what loss and damage was caused by the defendant’s negligence must be part of the exercise of assessing damages. The default judgment precluded the defendant from contesting liability but not causation.

  • The Particulars of Claim are in effect a “proxy” for the default judgment, setting out the basis of liability. Whilst the default judgment meant that the defendant was precluded from alleging that no loss at all had been sustained, as such a position would be inconsistent with the default judgment, it did not preclude the defendant from arguing the causation point.

  • Unless the default judgment represented a decision that all of the damage alleged by the claimant was suffered as a result of the defendant’s negligence then it must be open to the defendant to advance causation arguments on the other aspects of damage alleged by the claimant. There was no justification for the conclusion that the default judgment covered all of the damage alleged by the claimant in the index case.

The defendant had not acted in breach of the CPR by not serving a Defence setting out causation although the situation was regrettable and should be avoided in the future. 

Comment

The court examined the existing case law on the issue of causation arguments being raised when default judgments have been entered, and held that the cases of Lunnun v Singh (1999) CPLR 587 and Pugh v Cantor Fitzgerald International (2001) CP Rep 74, were still good law. A default judgment is capable of giving rise to an estoppel but the issue for the court is what the judgment concludes and what those conclusions stand for. It is established law that default judgments must be scrutinised with extreme particularity to ascertain the essence of what has been decided. They are not a blanket Order granting the claimant his complete cause of action; they merely narrow the issues which need to be determined by the court.

In not applying to set aside a default judgment, a defendant acknowledges that some injury to the claimant has been sustained, but this is a distinct position from a default judgment establishing that the defendant is liable for each and every aspect of loss and injury which a claimant claims. Unless the default judgment represents a decision that all of the damage alleged by the claimant was suffered by him as a result of the defendant’s negligence then it must be open for the defendant to advance arguments on causation.

Whilst the default judgment is conclusive of the issue of the liability of the defendants, all questions of quantification of damages, including that of causation remain open to the defendants at the damages hearing as long as they are not inconsistent with the liability alleged in the Particulars of Claim. The defendant cannot contend that their acts or omissions are not causative of any loss to the claimant but can raise the issue that the acts or omissions did not cause all of the losses claimed. If the defendant wishes to contest liability though the onus is on them to apply to set aside the default judgment.

Here the court held that the defendant’s actions did not constitute a breach of the CPR and were not contrary to the Overriding Objective. Whilst it was regrettable that the defendant did not file a Defence, when the history of the case was examined it was clear that the claimant knew that the defendant took issue with the causative results of its admitted acts and omissions. As such the claimant, whilst not having a fully pleaded Statement of Case, still knew that causation was a factor in the case.

The situation therefore remains that a defendant who has a default judgment entered against them can still raise any issue as long as it is not inconsistent with the judgment and the claimant still bears the burden of proving his case in relation to causation in order to complete his action.

There was however a cautionary note in the judgment. The judge noted that it was open to the claimant to clarify the default judgment and the extent that it applied to the causation issue, and had they done so then the situation may have been more difficult for the defendant. 

As such, whilst in the majority of cases the position remains that causation can still be raised in the face of a default judgment, in higher value cases claimants may start to explore applying to clarify any default judgment in order to narrow the range of arguments open to the defendant.

Clearly the best situation is to enter a Defence setting out what the defendant’s position is, but if this cannot be done then a defendant can still seek to dispute damages through causation arguments, but need to be aware of claimants now seeking to clarify the extent of judgments in order to restrict the defendant’s ability to argue causation. 

Contact

For further information please contact Andrew Cousins, Solicitor Advocate, Insurance on 0161 603 5093.

By Andrew Cousins

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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