Princess Alexandra Hospital NHS Trust v Roger Badcock (following Sutton v Princess Alexandra Hospital NHS Trust) (June 2012)
A contribution claim which arose out of a clinical negligence claim was successfully managed by Kennedys in reducing the clinical claim outlay by 20 per cent.
This case adopts the approach in Webb v Barclays Bank & Portsmouth Hospital NHS Trust  that a contribution claim against the original tortfeasor should succeed if the patient’s initial injury resulted in the need for medical treatment and any subsequent damage caused by the healthcare provider was not as a result of gross negligence. The healthcare provider should consider a contribution claim in circumstances where the eventual outcome is attributable in some way to the original injury.
In Webb, Mrs Webb was employed by Barclays Bank. She suffered a knee injury at work, as a result of which she consulted a doctor employed by Portsmouth Hospital NHS Trust. He advised on the amputation of her leg, which was duly performed. Mrs Webb sued Barclays for her injury. Barclays admitted liability but alleged that the advice to have her leg amputated was negligent and (in effect) that this broke the chain of causation between the original injury and the post-amputation injury suffered by Mrs Webb. In the Court of Appeal, although it was found that the doctor had been negligent in his advice, the Trust (for whom Kennedys acted) succeeded in persuading the Court that the doctor’s negligence did not break the chain of causation between the original accident and the post-amputation damage.
The Court of Appeal said that the chain of causation in such a case would be broken only where the medical treatment was "so grossly negligent as to be an entirely inappropriate response to the injury".
Background to the contribution claim
On 21 October 2003 Mr Sutton was injured in a road traffic accident (RTA) with the Defendant Mr Badcock, whose insurers settled a personal injury claim arising out of the accident.
Mr Sutton was referred to the Claimant Trust in January 2005, having received previous treatment elsewhere. At the time of referral, Mr Sutton had some right foot drop and investigations indicated a disc hernia at L4/5 causing significant canal stenosis and bilateral impingement on the L5 nerve roots together with a degenerate disc at L3/4. Consent for an L4/5 and possible L3/4 spinal decompression was obtained. The procedure was performed at the Trust on 13 September 2005.
Following the operation, Mr Sutton developed severe Cauda Equina Syndrome leading to an exploratory procedure seven days later. This revealed ongoing compression and resulted in additional surgical decompression of L3 and L5 and a discectomy at L4/5. Post-operatively, Mr Sutton’s left leg improved but he remained with significant right foot drop and bowel and bladder incontinence.
The Trust admitted liability in respect of the clinical care and settlement was reached with Mr Sutton. At that time, the Trust reserved the right to seek a contribution from Mr Badcock as the person who caused the RTA and Mr Sutton’s original back injury for which treatment was required.
Having identified Mr Badcock’s insurers, protective proceedings were issued on 31 January 2011 (within the two year limitation period for contribution claims) and served on 13 May 2011.
It was alleged by the Trust that the RTA was a material cause of Mr Sutton’s subsequent Cauda Equina Syndrome and in particular the Trust’s treatment did not break the chain of causation between the original RTA injury and the eventual outcome. The chain of causation would only be broken if the Trust’s treatment was grossly negligent (Webb v Barclays Bank & Portsmouth Hospital NHS Trust ).
The Defendant admitted that his negligence caused the RTA but denied liability for the eventual outcome and Mr Sutton’s Cauda Equina syndrome on the grounds that:
- The RTA did not cause the condition which led to the Trust’s surgical treatment in September 2005
- The Trust’s negligent care was sufficiently gross to break the chain of causation between the RTA and the Cauda Equina syndrome.
The allegation of gross negligence was strongly resisted by the Trust based upon factual and expert evidence.
At a round table meeting in June 2012 (four months before trial), settlement was achieved at 20 per cent of the entire clinical claim outlay, plus the Trust’s contribution costs.