Less and Carter v Hussain [06.12.12]

Defendant not liable for failure fully to advise of risks of further pregnancy; Claimants would have tried to conceive in any event.

Comment

It is generally accepted that when breach of duty is established, judges will find, without too much difficulty, that causation flows. However, in this case, having established negligence by omission, His Honour Judge Cotter QC had to decide what the management or outcome would and should have been but for the negligence. In other words, did the negligence cause the harm complained of? This involved the Judge making findings of hypothetical fact, namely what would Ms Less have done "but for" the negligent omission of proper advice.

Ms Less did not establish causation as the Judge held, even though Ms Less said in evidence that given the correct information from the Defendant she did not think she would have carried on and become pregnant, the "powerful influence of hindsight has been at play" and Ms Less would have become pregnant. The Judge was influenced in his decision by the fact that Ms Less sought advice (after suffering a painful pregnancy and stillbirth) from two obstetricians at a later date with a view to pregnancy. She also underwent a surgical procedure to remove fibroids so that she could become pregnant.

Had Ms Less established causation, she would have recovered in full for the losses flowing from the death of the child, including psychiatric injury. However, her partner, Mr Carter did not make out his case on psychiatric injury. This shows that evidence by way of medical records, treatment and therapy are necessary to show that psychiatric injury has occurred.

Background

Ms Less and Mr Carter sought damages arising out of Ms Less’s conception of their son, Luis, who was born without a heartbeat in May 2007. Ms Less had a complicated past medical and obstetric history, including a thomboembolic condition and multiple fibroids, including one very large one. Whilst she already had two children, the pregnancies had not been without problems.

In 2005 Ms Less was referred to the Defendant, a consultant gynaecologist, for advice on whether to try for another child. Ms Less had the understanding, following the consultation, that there was no reason not to conceive. However, the Defendant’s case was that she told her to arrange a further appointment following a scan. A scan was performed on the same day, but no follow up consultation took place.

In November 2006 Luis was conceived. The pregnancy was painful and difficult. On 4 May 2007 Ms Less realised that she could not feel foetal movement. She attended hospital, when death in utero was diagnosed. Labour was induced and on 6 May Luis was delivered stillborn, as a result of hypercoiling of the umbilical cord.

Decision

The Judge held:

  • There were breaches of duty in failing to inform Ms Lees of the need for a second appointment and in failing to remind her of the need for this.
  • Even if there had been a second appointment, the advice the Defendant would have given about the risks would have fallen below a reasonable standard.
  • Causation was central to the determination of liability. If reasonable advice had been given, Ms Lees would still have continued to pregnancy. Accordingly, the claim failed on causation.
  • Had causation been established, Ms Lees would have recovered for all losses flowing from the death of Luis. However, no "Rees" award (to compensate for loss of autonomy following the birth of a child) would have been made, as Luis did not survive. A Rees award is intended to compensate for real, as opposed to theoretical, losses.
  • In relation to Mr Carter, he suffered a bereavement reaction, which did not meet the criteria for a secondary victim of shock. He was not a party to the contract between Ms Lees and the Defendant and so would not have recovered damages for mental distress.