JENKINSON V HERTFORDSHIRE CC [2023] EWHC 872 (KB)

ISSUE: Whether ‘gross negligence’ is required to break the chain of causation where treatment is provided following an accident.

FACTS:
• C fractured his ankle in an uncovered manhole and the LA admitted negligence for that injury
• D’s orthopaedic expert alleged that the original surgery to treat the injury was undertaken negligently and that ultimately the outcome was significantly worse for C due to that negligence.
• D applied to amend its Defence to plead a novus actus and to join the NHS Trust.
• The application was refused on the basis that D had not shown that the initial surgery had been so grossly negligent that it was an inappropriate response and broke the chain of causation.
• D appealed this refusal

RESULT: Appeal allowed.

KEY POINTS:
• There is no specific rule of law requiring proof that medical treatment was so grossly negligent as to be a completely inappropriate response to the injury inflicted by the Defendant
• This was at the amendment stage so arguable as to the effect but care must be taken where such an issue is raised by a Defendant.

FAWCETT & OTHS V TUI [2023] EWHC 400 (KB)

ISSUE: Whether expert evidence should be excluded

FACTS:
• This was a fatal accident claim where C had died during a snorkelling excursion involving the package holiday regulations.
• Each side had an expert in the field of ‘local standards and Dominican Public Law’
• C applied to exclude D’s expert evidence in the weeks before the trial.
• D’s expert was an engineer, and it was suggested by C that he was trying to fashion himself as a legal and local standards expert.
• It was also suggested that he gave opinions outside his expertise and that he was not impartial.

RESULT: C’s application to exclude D’s expert failed

KEY POINTS
• The issue of expertise is factual. That is not to say that any application would fail at the interim stage, but it would be very difficult for it to succeed where the matter is more properly dealt with as one of weight rather than admissibility.
• Issues which go to weight appear to include the actual level of expertise, expressing opinions outside the area if expertise and an alleged failure to maintain impartiality.

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