Default Judgement: Symes v St George’s Healthcare NHS Trust5

An NHS trust was entitled to challenge causation where a default judgment had been entered on liability in a negligence claim against it. The default judgment meant that the defendant trust had to recognise that some damage had been caused by a breach of duty, but did not have to accept that the actual damage alleged by the claimant in his statement of case had been caused by the breach.

The defendant appealed against a master’s decision that, as the claimant had obtained judgment in default in his claim for clinical negligence, the particulars of claim should be conclusive on the issues of breach of duty and causation, and the trust’s pleadings that were inconsistent with those aspects of the claim should be struck out.

The trust submitted that, applying Lunnun v Singh (Hajar)6, the default judgment should be regarded as having established nothing more than that it had acted negligently and that as a result the claimant had suffered some, but not specific, loss and damage; it was inappropriate to regard it as having already been determined, by reason of the default judgment, that the trust was liable to the claimant for the losses claimed since that presupposed a causation determination which the default judgment did not entail.

The appeal was allowed. No authority had been cited that held that a defendant could not challenge causation in the face of a default judgment where damages had been ordered to be assessed. As the claimant recognised, in the assessment of damages phase of proceedings it was open to a defendant to advance arguments that the claimant should not be permitted to recover the extent of the amounts claimed. A defendant had to recognise that “some damage” had been caused, but did not have to accept that the actual damage alleged by the claimant had been caused by the breach of duty. In any event, the trust had accepted that the claimant had suffered at least some of the damage that he had alleged in the particulars of claim. Therefore, the default judgment should be regarded as having determined merely that there was some damage.