Spearman v Royal United Bath Hospitals NHS Foundation Trust, Court of Appeal - Queen's Bench Division, December 04, 2017, [2017] EWHC 3027 (QB)

Issuing Organization:Queen's Bench Division
Actores:Spearman v Royal United Bath Hospitals NHS Foundation Trust
Resolution Date:December 04, 2017
 
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Case No: HQ16P00462

Neutral Citation Number: [2017] EWHC 3027 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/12/2017

Before :

MR JUSTICE MARTIN SPENCER

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Between :

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Adrian Hopkins QC (instructed by Penningtons Manches LLP) for the Claimant

Lord Faulks QC and Andrew Spencer (instructed by Browne Jacobson LLP) for the Defendant

Hearing dates: 13, 14, 17 and 20 November 2017

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JudgmentMr Justice Martin Spencer:

INTRODUCTION

  1. On 5 May 2011, the Claimant, James Spearman, suffered a hypoglycaemic attack (being Type 1 diabetic) and he was taken by ambulance to the Royal United Hospital, Bath, arriving at 22.00 hours. Within 15 minutes, he had left the emergency department of the hospital, climbed five flights of stairs to a flat roof, climbed over a protective barrier and either fallen or jumped into a courtyard below where he suffered serious injuries.

  2. The issue which I have to decide is whether this accident occurred as a result of the breach of duty of the defendant whether owed to the Claimant under the Occupiers Liability Act 1957 and/or the Occupiers Liability Act 1984 or at Common Law, or whether the Claimant was the author of his own misfortune. If I decide that the defendant is liable for the accident, then there is an issue whether I should find any contributory negligence on the part of the Claimant.

    HISTORY

  3. The Claimant was born on the 5th November 1964. I heard evidence from two of his siblings, his sister Zara Milligan who is 8 years older and his brother Andrew Spearman who is 4 years older. At about the age of 11, the Claimant developed Type 1 diabetes which he would control by injecting himself with insulin. The Claimant did not let his diabetes prevent him from enjoying life to the full. One of his passions was for shotgun shooting. He was also very sociable and would visit friends around the country. He worked as an Insurance Broker after leaving school at the age of 18.

  4. Unfortunately, in about 1987, when the Claimant was 22 or 23 years old, he was driving to Yorkshire from London when an Army truck pulled forward into his path and there was a collision. The Claimant sustained a brain injury and he was an in-patient at York Hospital for 2-3 months before being transferred to the Wellington Hospital in London where he remained for some further months. He was then discharged home to the family home in Hertfordshire where his mother employed full time residential nurses to care for him initially.

  5. The evidence is unanimous that the Claimant's experiences in hospital led him to develop something of a phobia for hospitals. His brother Andrew says in his witness statement that ``James detested hospitals''.

  6. Gradually, it became possible for the Claimant to rehabilitate himself but there seems no doubt that there was a significant change to his personality as a result of the accident in 1987. His life is described by his brother, sister and other witnesses. Andrew Spearman said that whilst, on the one hand, the Claimant was ``a shadow of his former self'', he did not need 24 hour assistance and monitoring and he resented too much attention. He tried to be as independent as possible. Eventually, in early 2003, when their mother, Mrs Spearman senior, developed dementia, they moved to the village of Colerne in Wiltshire, where Andrew Spearman farmed. Initially, a full time nurse was employed to live with James Spearman. Andrew Spearman took over the management of James' life from their mother who was no longer able to do it. Thus, Andrew took James to appointments, liaised with the nurse about his routine and medications and managed his finances. However, James found it very humiliating to have someone living with him: all he wanted was some domestic help and some prompting/assistance with organisation, not a ``nanny'' to look after him and tell him what to do.

  7. Eventually a routine was settled upon. James moved into his mother's old house after her death in about 2004, Diana Beazer was employed as a housekeeper doing domestic chores but also keeping an eye on the Claimant and the nurse would visit once every week or two to ensure that all was well from a medical perspective. Although the Claimant had also developed epilepsy after the road accident in 1987, this became more controlled and the brain injury did not prevent the Claimant from being able to monitor his own diabetes and self-medicate his insulin.

  8. The routine was that the Claimant would travel to London to see friends about once a week. He would use public transport on his own, and upon arrival at Paddington Station in London, he would be able to find his way (walking) to see his friends or visit his private members' club or stay with his sister Zara who lived near Notting Hill Gate. The accident in 1987 had left him with tunnel vision so that there was some risk to him in crossing roads and the like, but generally he appeared to be able to keep himself safe and lead a relatively independent existence, under the watchful and - if I may say so, loving - eye of his brother and sister.

  9. Nevertheless, incidents did occur which illustrate that the Claimant had a significant personality change as a result of the 1987 accident. His brother, Andrew, told me how the Claimant had good and bad days but was much less self aware, or aware of risk or the effects of what he did and what was going on around him. He described how the Claimant became ``totally single minded about issues'' but was unable to learn from his experiences. An example was an occasion in the 1990's when the Claimant had been on a shooting trip to Scotland. He flew back from Edinburgh to Heathrow airport where his mother was due to pick him up but was delayed in traffic. The Claimant then got it into his head that it would be good idea to clean his shotgun whilst waiting in the terminal, and this ended in the police cordoning off Terminal 1 and arresting him. Andrew Spearman says; ``Jamie was oblivious to the fact that the police were surrounding him or that his actions would cause alarm to others. Jamie lacked empathy for his surroundings or an appreciation of the threat that certain activities or environments would pose to him. Jamie would become fixed on the objective he was trying to achieve, and once he had decided to do it he became blinkered by doing that task such that he would not appreciate the whole picture.'' In my judgment, this comment is pivotal in understanding what happened when the Claimant sustained the accident which is the source of this claim.

  10. There were also occasions when, despite his medication, the Claimant would suffer from hypoglycaemic attacks which would make him confused, and the combination of this with his existing brain injury made him vulnerable. Andrew Spearman says that his brother became particularly single minded and stubborn when having a hypoglycaemic attack.

  11. It is relevant to mention the Claimant's demeanour and attitude to life. In this regard, the evidence was all one way. Despite his difficulties, the Claimant was described as a person who had an optimistic and cheerful approach to life. Andrew Spearman said that his brother had a very positive view of life and was as robust as could be expected in the circumstances. Alexandra Asquith, a friend of the family since childhood, said in her witness statement that ``despite all the difficulties Jamie has encountered, it seems to me that he had an admirable zest for life. He was determined to keep coming to London and he obviously enjoyed keeping in touch with his friends. He also managed to keep a remarkable level of independence and a cheerful disposition.'' In her evidence to me she said that ``self harm was not in his nature at all: he was always positive and cheerful and loved coming to London''. On the day before his accident, the Claimant had travelled up to London in the usual way and had stayed overnight with his sister, Zara Milligan. She described him as being ``completely his normal self, and he said and did nothing to make me think that he was any different from his usual self. Jamie was a lively and spirited character. When Jamie came up to London he would be very chirpy and excitable about being in town. This occasion was no exception.'' She described how on the morning of the 5th May 2011 he had been no different from his normal self and had chatted with her normally over breakfast before setting off to walk to Paddington Station and catch the train back to Wiltshire. None of the witnesses who gave evidence could remember an occasion when the Claimant had expressed any thoughts of self harm or suicidal ideation and they made it clear that this was simply not in his nature.

    THE INCIDENT IN QUESTION

  12. On the evening of 5th May 2011, the Claimant suffered a particularly bad hypoglycaemic attack. It appears that this may have been something to do with the fact that his oven was not working and he had been unable to cook himself a proper meal. Mrs Beazer, his housekeeper, received a telephone call from the Claimant. She went to see the Claimant about 6.30-6.40pm and found James sitting in his armchair and although he was able to talk, he seemed quiet and a bit confused, not his normal self. Mrs Beazer was sufficiently concerned to call Andrew Spearman who came round to see his brother. In the time it took Andrew to get there, James had begun to deteriorate and was acting more strangely and seemed dazed and confused. Andrew Spearman told me how this was a particularly bad hypoglycaemic attack such that he wasn't able to make any progress with his brother in persuading him to take sugar and Andrew decided he needed to call an ambulance. An ambulance was called at 20.36 and two paramedics, Mr Richard West and Mr Jason Hall attended the house at 20.48.

  13. It is quite clear that Andrew Spearman had done exactly the right thing in calling an...

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