Leeson v Marsden & Anor, Court of Appeal - Queen's Bench Division, May 13, 2008, [2008] EWHC 1011 (QB)
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Leeson v Marsden & Anor, Court of Appeal - Queen's Bench Division, May 13, 2008, [2008] EWHC 1011 (QB)
Neutral Citation Number: [2008] EWHC 1011 (QB)
Case No: TLQ/07/0828IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 13th May 2008Before :THE HONOURABLE MRS JUSTICE COX DBE- - - - - - - - - - - - - - - - - - - - -BETWEEN:SUSAN LEESONClaimant- and -RACHAEL MARSDENFirst Defendant- and - UNITED BRISTOL HEALTHCARE NHS TRUSTSecond Defendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Robin Oppenheim QC (instructed by Davies & Partners, Solicitors) for the ClaimantAngus Moon QC (instructed by Radcliffes Le Brasseur, Solicitors) for the First DefendantMartin Porter QC (instructed by Bevan Brittan LLP, Solicitors) for the Second DefendantHearing dates: 31 January 2008 to 4 February 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMrs. Justice Cox : Introduction1. Susan Leeson (the Claimant) seeks compensation for serious injuries sustained as a result of clinical negligence during the Defendants' treatment of her in December 2000. She was admitted to the Bristol Royal Infirmary (BRI) in the late afternoon of 13th December 2000 with an undiagnosed spinal epidural abscess, having already been admitted and then discharged earlier on that day. 2. Her case, essentially, is that she should have been referred to hospital before the 13th by the First Defendant, Dr Marsden, who was at the time of these events a trainee GP at the Montpelier Health Centre. She contends, had she been so referred, that she would have made a full recovery. The First Defendant disputes both breach of duty and causation. As against the Second Defendants (the Trust), who are responsible for the BRI, her main allegation is that she should not have been discharged home earlier on the 13th, but should have been admitted, diagnosed and treated appropriately, so that she would have made either a complete recovery or a better recovery than she in fact did. Breach of duty in that respect is admitted, but the Trust disputes causation. Her secondary allegation against the Trust, which is the subject of a bare denial on the pleadings, is that she should have been medically reviewed more quickly than she was when she first arrived at the BRI on the morning of the 13th. 3. The Claimant, who is now aged 56, underwent surgery in the early hours of 14th December and treatment in the Intensive Care Unit. She was in hospital for approximately four months. She has been left with residual spinal cord damage and a residual quadriparesis, with some loss of bladder and bowel function. Her current neurological status is likely to be permanent and the Defendants accept that there is a significant neurological deficit. This is therefore a substantial claim for personal injury damages. 4. The Claimant promptly sought legal advice about these events in January 2001. She issued proceedings within the three-year limitation period, on 24th November 2003, following receipt of supportive expert medical opinion and detailed letters of claim sent to both Defendants, dated 27th August 2002, under the clinical disputes pre-action protocol. However, her former solicitors failed to serve the claim form in time. It was served a day late on 25th March 2004. The Defendants contended that the claims should be struck out and resisted the Claimant's application for an extension of time. Ultimately, in January 2006, the Claimant failed on this issue before the Court of Appeal. She then instructed her current solicitors with a view to bringing a professional negligence claim against her former solicitors.5. On 14th June 2006, the House of Lords gave judgment in the case of Horton v Sadler and Another [2007] 1 AC 307. In this decision the House departed from its previous decision in Walkley v Precision Forgings Limited [1979] 1WLR 606, that where a Claimant issued proceedings within the ordinary limitation period he was not prejudiced by section 11 of the Limitation Act and could not, therefore, invoke section 33 to disapply its application to a second action brought after expiry of the time limit. After seeking leading counsel's opinion the Claimant then issued this second claim against the Defendants, out of time, on 19th December 2006. The claim and detailed Particulars of Claim were served on 25th January 2007 and a deed of indemnity for costs has been agreed with the Claimant's former solicitors. In response both Defendants pleaded limitation and abuse of process. Following Master Yoxall's order that there should be a trial of preliminary issues a hearing took place before me to determine:(i) Whether I should exercise my discretion under section 33 of the Limitation Act 1980 to disapply the limitation period and to permit this claim to proceed; or(ii) Whether this action is an abuse of the process and should be struck out.6. Master Yoxall gave directions for this hearing, including the exchange of witness statements. Dr. Mars...See the full content of this document
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