Suing for the Loss of the Right to Sue: Why Wright is Wrong PAPER NO. 4/2012 MARCH Nicholas McBride & Sandy Steel

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1 PAPER NO. 4/2012 MARCH 2012 Suing for the Loss of the Right to Sue: Why Wright is Wrong Nicholas McBride & Sandy Steel Further information about the University of Cambridge Faculty of Law Legal Studies Research Paper Series can be found at Electronic copy available at:

2 Suing For the Loss of a Right to Sue: Why Wright Is Wrong Nicholas J McBride Sandy Steel In this article, we criticise one aspect of the recent decision of the Court of Appeal in Wright v Cambridge Medical Group. 1 In that case, the Court suggested that in a case where Doctor negligently failed to refer Patient to a Hospital for treatment in circumstances where Hospital would have, in turn, negligently failed to treat Patient properly, Patient could sue Doctor in negligence for depriving her of the chance to sue Hospital in negligence for failing to treat her properly. In this article, we argue that, in this kind of situation, the courts should not allow a claimant to sue a defendant in negligence for being deprived of a right to sue a third party. The facts When Clarice Wright ( C ) was eleven months old, she contracted chickenpox. She was admitted to South Cleveland Hospital ( SCH ) on April for treatment and discharged on April 12. Unknown to everyone, while C was in SCH she developed a bacterial super-infection that attacked her hip. By Wednesday April 15, C was lethargic, feverish, anorexic and suffering from diarrhoea. 2 C s mother took her to the defendants general practice. The doctor who saw C should have sent her to SCH to be seen by someone there. Instead, he told C s mother to take her home. C s condition deteriorated, and her mother took her back to the defendants on Friday April 17. A different doctor saw her and immediately referred her to SCH. C was admitted to the paediatrics unit at SCH at about 9 pm on Friday April 17. She was not seen by a consultant until Monday April 20. Over the weekend, her treatment was left to a consultant and a registrar. They failed to diagnose the infection in C s hip, thinking instead that she might be suffering from gastroenteritis. They put her on a course of antibiotics to which, unfortunately, C s infection was resistant. It was only on the Monday that she was put on a more effective course of antiobiotics and only on the Tuesday that the problem with her hip was finally diagnosed and operated on. But by then the infection had done permanent damage to C s hip, leaving her with a permanently unstable hip, restricted movement range, leg length discrepancy, and restricted mobility. 3 C acting through her mother sued the defendants for damages, claiming that she would not have suffered any of this permanent damage to her hip had the defendants not delayed for two days before referring her to hospital. The litigation Fellow, Pembroke College, Cambridge. Lecturer in Law, King s College London. 1 [2011] EWCA Civ 669 (henceforth, Wright ). 2 Wright, at [4]. 3 Wright, at [8]. Electronic copy available at:

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4 of the right to sue the other defendant for damages for destroying her house? If C tried to sue D1, claiming that D1 s negligence deprived her of a right to sue D2 for damages for destroying her house, D1 could reply: My negligence has not deprived you of a right to sue D2. You can bring an LRS claim against D2 for depriving you of the right to sue me for damages for destroying your house. And D2 could make an identical reply to any attempt by C to bring an LRS claim against him. Paradoxically, the fact that C can sue each of D1 and D2 for depriving her of the right to sue the other means that C will have no right to sue either for depriving her of the right to sue the other. Finally, consider another variety of concurrent tort case, like Two Hunters, where it is not possible to say that any particular defendant s tort probably caused the claimant s injury. It is likely that calls to allow LRS claims to be made in such cases will become especially strident in the aftermath of the Wright decision. This is because it could be argued that, in these types of cases, the UK Supreme Court s decision in Sienkiewicz v Greif (UK) Ltd 41 will prevent the claimant from suing for compensation for the injury she has suffered. 42 If this is right, the claimant s lawyers may well be encouraged by Wright to try to work around Sienkiewicz by arguing that their client can bring an LRS claim against one of the defendants who has committed a tort in relation to her. However, such arguments properly understood and handled should prove fruitless. To see why, let us look again at the Two Hunters case: D1 and D2 simultaneously and negligently fire in the direction of C with the result that C is hit by one shot, and it is not possible to establish even on the balance of probabilities whose shot hit C. In such a case, allowing C to bring an LRS claim will not help C. Suppose, for example, that C decides to bring an LRS claim against D1. To bring such a claim, C would have to establish that D1 s negligence in firing his gun deprived C of a right to sue D2. This would be the case if D2 shot C; but it is uncertain whether D2 did shoot C. So C will not be able to make out an LRS claim against D1 in the Two Hunters case: the same problem of uncertainty that makes it impossible for us to tell whether D1 is the right defendant against whom to bring a claim for damages for injuring C will make it impossible for us to tell whether D1 is the right defendant against whom to bring an LRS claim. This identification problem matters because the assessment of damages will be different depending upon whether the claim is an LRS claim or not. If the claim is for the LRS, the damages will be assessed on a chancebasis that is according to the chance that the claim would have been successful, whilst the damages in the claim based upon the negligent infliction of physical injury will be assessed on the balance of probability. 43 Even if this last objection could be overcome, on the ground that it is possible to say that each defendant is clearly liable 41 [2011] UKSC Though we would argue that para [105] of Lord Phillips judgment in Sienkiewicz tends to indicate that the Fairchild exception to the normal rules on determining causation in conditions of uncertainty still applies in any concurrent tort case (including non-mesothelioma cases) where it is uncertain which defendant s tort caused the claimant s injury and it is not possible to say that it is more likely than not that a particular defendant s tort caused that injury. For further discussion of Sienkiewicz, see S. Steel, Sienkiewicz v Greif and Exceptional Doctrines of Natural Causation (2011) 2 Journal of European Tort Law This differentiation follows either by analogy to the chance-based approach applied in the standard LRS cases where a solicitor allows a client s claim to become statute-barred or by application of the rule stated in Allied Maples v Simmons & Simmons [1995] 1 WLR 1602 that the claimant s loss is assessed on a loss of chance basis where it is dependent upon the hypothetical conduct of a third party (i.e. a court, in LRS claims).

5 for some amount of damages, although the precise ground upon which those damages are owed by each defendant is not known, again, the problem that the LRS is a remote consequence of any breach of duty recurs. 44 In sum, allowing LRS claims to be made in concurrent and successive tort cases would cause the law to become a lot more confused and complicated than it is at the moment, with no benefit. It would therefore be highly regrettable if the decision in Wright had the effect of encouraging such claims to be made, thus tempting the courts to venture into woods out of which they may never emerge. Conclusion In their judgments in Wright, Lord Neuberger MR and Elias LJ disinterred and attempted to breathe new life into a corpse of an idea that would have been better left undisturbed. Allowing claimants to bring LRS claims is not the answer to the causal conundra posed by the hypothetical tort cases we present here, let alone concurrent and successive tort cases. 44 The remoteness problem is ignored by Allan Beever, who argues that in Two Hunters each defendant has infringed the claimant s right to bodily integrity. The claimant s right is only infringed, however, if some non-remote consequence has been caused by each defendant s negligence. This is not established. See A. Beever, Rediscovering the Law of Negligence (2007, Hart) pp A further problem is that both defendants could not be liable if one defendant is insolvent. This is because the LRS claim would be valueless. Therefore both defendants could not be said on the balance of probability to owe some damages.