Haithwaite v Thomson Snell & Passmore (A Firm)

Introduction

This is a claim brought by Ashley Haithwaite against his former solicitors, Thomson Snell & Passmore, for negligence. The solicitors have admitted that they were negligent. I therefore have to decide what, if any, damage has been suffered by Mr Haithwaite in consequence of that negligence and what, if any, damages the solicitors are obliged to pay him as a result.

Mr Haithwaite consulted the defendants in March 1998 and retained them to advise him and to act on his behalf in connection with proceedings which he wished to bring against the Mid-Sussex National Health Service Trust ("the Trust"). The proceedings against the Trust concerned alleged delays in diagnosing and treating Mr Haithwaite's Subdural Haematoma which had developed in the course of February 1999.

On 12^th December 1998 Mr Haithwaite who was then 27 years old returned home and became very ill. He was suffering severe headache, nausea, vomiting, photophobia and neck stiffness. He was taken by ambulance to the Princess Royal Hospital in Hayward's Heath and arrived there at 4:43 am. A CT scan was performed and identified a subarachnoid haemorrhage ("SAH") with a focal haematoma to the right of the parasellar region. Later that morning an angiogram showed a large right sided posterior communicating artery aneurysm. That same day Mr Haithwaite was transferred to the Hurstwood Park Neurological Centre under the care of a consultant neurosurgeon, Mr Norris. Mr Norris clipped the aneurysm. In the following days it became apparent that Mr Haithwaite was also suffering hydrocephalus. This was originally treated by a series of lumbar punctures, but that was not sufficiently effective and, on 25^th December 1998, an alternative means of addressing Mr Haithwaite's continuing hydrocephalus was considered necessary. In consequence, on 7^th January 1999 a ventriculo-peritoneal shunt ("shunt") was inserted. The purpose of a shunt is to divert excessive cerebrospinal space fluid from the ventricles into the peritoneal cavity.

In the meantime, on 28^th December 1998, another CT scan showed that Mr Haithwaite had suffered further damage to his brain. Because of a vasospasm (spasm of an artery) there had been sub-clinical cortical ischaemia (an inadequate flow of blood) and this in turn caused a large right middle cerebral artery infarct. An infarct is an area of dead tissue resulting from an inadequate supply of blood. On 12^th January 1999 Mr Haithwaite was transferred back from Hurstwood Park to the Princess Royal Hospital. He was discharged from there to his home on 14^th January 1999. Mr Haithwaite was living at the time with his girlfriend, Anne Cattermole, and she has devoted a considerable amount of time to his care.

By this stage, therefore, Mr Haithwaite had suffered a subarachnoid haemorrhage, hydrocephalus and an infarct. There is no doubt that these were all serious insults to Mr Haithwaite's brain. Mr Haithwaite's proceedings against the Trust, however, would have made no complaint about his treatment up to this date. I can explain in outline the allegations of negligence which Mr Haithwaite would have wished to pursue against the Trust by giving a brief sketch of what happened during that period although it will be necessary to elaborate later on the evidence as to Mr Haithwaite’s condition during this period and the responses of the various medical professionals that he saw.

Mr Haithwaite consulted his General Practitioner, Dr Claiden, and her colleagues at the same practice on a number of occasions in January 1999. He was understandably anxious about the long-term prognosis for his condition. In addition, he was experiencing headaches and earaches. He also had visual blurring. Dr Claiden referred Mr Haithwaite to a Community Psychiatric Nurse, Leone Thatcher. She visited Mr Haithwaite in late January 1999. Following his further complaints of headaches, Dr Claiden’s colleague, Dr Usher, referred Mr Haithwaite to the Princess Royal Hospital on 3^rd February 1999. He attended there on 4^th February 1999. He was seen by both a junior doctor (whose identity has not been established) and a registrar, Doctor Qureshi. Both appear to have been physicians (rather than surgeons). These doctors recorded that, since his discharge, Mr Haithwaite had been slurring his words, had poor memory and his blurred vision was deteriorating. He had been vague and vacant the previous day and was repeating himself. He had a pain at the back of his head following sneezing. This was relieved by paracetamol. He had had headaches once a day following the operation. The registrar recorded that, while there were still some headaches and blurred vision and short-term memory loss, there had been no deterioration in those symptoms. He also noted that following paracetamol the headache was almost gone. It was not severe and nothing like the symptoms prior to the SAH (the registrar's emphasis). The registrar reassured Mr Haithwaite that these symptoms did not suggest that there was a recurrence of the SAH.

At one stage it was suggested that the doctors who saw Mr Haithwaite on 4^th February 1999 had been negligent in not conducting further tests but that is not now pursued.

On 8^th February 1999 the Claimant went to see his optician. She considered that he needed to have a neurological review. Her notes record that Mr Haithwaite had reported pain at the back of his head which was worse when lying down and was worse since his operation. Ms Cattermole gave evidence that the optician was also alarmed by her observation of highly unusual characteristics (“big black marks” was Ms Cattermole’s recollection of what the optician had said) at the back of Mr Haithwaite's eyes. There is no reference to this in the optician's contemporary notes. Nonetheless on the same day Mr Haithwaite and Ms Cattermole went without appointment to Hurstwood Park.

At Hurstwood Park they were seen by Dr Wakeham who examined Mr Haithwaite. Dr Wakeham was at the time a Senior House Officer. He concluded that there was "nil acute" and did not order a CT scan. In proceedings against the Trust Mr Haithwaite would have wished to allege that (a) a doctor as junior as an SHO should not have taken the decision that Mr Haithwaite's condition did not require further examination; (b) in any case, on the information available to Dr Wakeham, it was negligent not to have conducted a further CT scan. It will therefore be necessary for me to consider in more detail in due course what information was available to Dr Wakeham, whether it was negligent for him to have taken the decision himself, and/or whether in any case it was negligent not to have conducted a further CT scan.

When Mr Haithwaite had been discharged from Hurstwood Park in January, Mr Norris had told Dr Claiden that he was expecting to see him for an angiogram in March. However, Dr Wakeham recorded in is notes of the meeting of 8 February that Mr Haithwaite was due to be seen as an outpatient in the following week.

Mr Haithwaite did indeed see Mr Norris on 17^th February 1999. Mr Norris's note of that occasion says that Mr Haithwaite was "extremely well. Minor headache." In his letter to Dr Claiden following this appointment Doctor Norris said

"he has made an extremely good recovery ... there are intermittent mild headaches and areas of tenderness on the scalp which are not a cause for concern. He recently found that he was longsighted and prescription lenses have helped reduce the frequency of the headaches presumably due to the corrected refraction error. I was delighted to see that he is keen to try to return to work with the Jordan Formula 1 team. I see no reason to discourage him but he needs to be aware that he should ease himself back into his normal duties due to his mild, short-term memory impairment. Before driving a motor vehicle he will need to obtain clearance from the DVLA. Overall he has made an excellent recovery only 10 weeks following surgery. I would anticipate that he will return to his normal status by summertime."

Mr Haithwaite’s proceedings against the Trust would have alleged that Mr Norris was negligent in not ordering a CT scan as a result of this consultation. The evidence of Ms Cattermole is that, while Mr Haithwaite gave an upbeat account of his condition and did indeed express enthusiasm for returning to work, she interjected to tell Mr Norris that Mr Haithwaite was presenting a distorted picture of his own condition and in reality his behaviour had been very troubling. Again this is a matter which I will need to consider in further detail below.

On 25^th February 1999 Ms Thatcher saw Mr Haithwaite again. Her notes of the meeting records Ms Cattermole reporting “how awful the last couple of weeks have been." She said that Mr Haithwaite had exposed himself in front of her sister, gone to bed in his suit, was confused and was constantly in pain from headaches. Ms Cattermole was at the end of her tether.

Ms Thatcher contacted Dr Claiden who saw Mr Haithwaite the following day (26^th February 1999). She recorded

“Past 4/7 [i.e 4 days] not himself – teabag on floor. No short term memory – tired all day long since op. Bed in suit can’t be left...Anne at end of tether. Has been [seen by] Mr Norris – told about headaches + behaviour – told all well....”

On 1^st March 1999 Mr Haithwaite developed headache, photophobia and nausea. He collapsed and was taken by ambulance to the Accident and Emergency Department of the Princess Royal Hospital. He was diagnosed as possibly suffering from a subdural haematoma and was sent for a CT scan. On 2^nd March 1999 he was transferred to Hurstwood Park and again placed under the care of Mr Norris. He was operated on that day; the subdural haematoma was drained and the shunt was closed off. A further lumbar puncture was performed on 6^th March 1999. The shunt was reopened on 16^th March 1999. On 23^rd March 1999 a further CT scan showed that the hydrocephalus was under control and Mr Haithwaite was discharged home on 24^th March 1999.

The consultant neurosurgeons who gave evidence at the trial disagreed as to when the subdural haematoma had developed, but they agreed that in broad terms what had happened to Mr Haithwaite was as follows. The shunt which had been inserted on 7^th January was intended to regulate the amount of cerebrospinal fluid. However, in his case the shunt had drained too much fluid. This had caused the brain to collapse inwards and this in turn has led to blood being drawn into the resulting cavity. This was the haematoma whose increasing pressure on the brain had led to the symptoms which caused Mr Haithwaite to be admitted to the A & E Department.

On 29^th March 1999 Ms Cattermole instructed the defendants to investigate a potential claim against the Trust arising out of the delays in the treatment of Mr Haithwaite for the subdural haematoma. Instructions were taken from her and (to the limited extent that his poor ability to recall allowed) from Mr Haithwaite. Again it will be necessary for me to return to the events following Mr Haithwaite’s second discharge from hospital in terms of his condition, the reports prepared on him by various medical professionals and the other investigations carried out by the Defendant solicitors. A limited certificate of public funding was issued in September 2000.

Although their investigations were still continuing, the Defendants took the precaution of issuing a claim form on 1^st February 2002. This was to prevent the Claimant being defeated because of the expiry of the primary three-year limitation period. Once issued a claim form must be served within four months unless the court extends the time of service. Thus this claim form would have had to be served by 1^st June 2002.

However, the Defendants were notified by one of the experts whom they had consulted, Dr Peter Harvey, a consultant neurologist, that he considered the claimant to have been a "patient" ever since his treatment in the Trust's hospitals. This meant that the Claimant could only pursue his proceedings against the Trust with the assistance of a litigation friend. In reliance on Dr Harvey's opinion the Defendants sought and were granted the appointment of a litigation friend (Ms Cattermole) to act on his behalf. That order was made by the Tunbridge Wells County Court on 8^th August 2002.

The other important consequence of Dr Harvey's opinion was that the limitation period would not have begun to run. The Defendants had not served the claim form by 1^st June. If Dr Harvey's opinion was correct, this was of no consequence. If the limitation period had not begun to run they would have been able to issue another claim form notwithstanding the expiry of three years since the alleged negligence. However, in September 2002 Doctor Harvey notified the defendants that in view of a recent judgment (Masterman-Lister v Jewell [2002] EWCA Civ 1889) he no longer considered that the Claimant would be regarded as a patient.

The proper course for the Defendants at that stage would have been to return to court, explain the position and seek the court's permission either for a late extension of the claim form that had already been issued or permission to issue a second claim form notwithstanding the expiry of the primary limitation period. The Defendants did none of these things and it is that failure which has led them to admit liability in the present proceedings.

The Court’s approach to the assessment of damages where solicitors have been negligent in the conduct of an action

The result of the Defendants’ negligence was that the Claimant lost the opportunity to pursue his claim against the Trust. He was compelled to discontinue that claim. Whatever orders may have been made as to the costs of that discontinued action have not featured in the present action. I assumethat the Defendants’ insurers have seen to that matter already.

The Defendants concede that the Claimant would have been financially able to pursue his claim through to trial, should that have been necessary. They concede that the action would either have been publicly funded or that it is likely that he would have been able to enter into a conditional fee agreement. Nor do the Defendants take any issue with the Claimant’s willingness (again if that had been necessary) to have pursued his claim against the Trust. The parties have agreed that a trial of that claim would have been heard on or about 1^st January 2005.

My task in essence is to consider the value of the Claimant’s lost chance of pursuing that claim.

Mount v Baker Austin (a firm) [1998] PNLR 493 was a case where the Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. At p. 510 Simon Brown LJ summarised the following principles:

“1.

The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counterclaim) he has lost something of value i.e. that his claim (or defence) had a real and substantial rather than merely a negligible prospect of success. (I say "negligible" rather than "speculative" -- the word used in a somewhat different context in Allied Maples Group Ltd v Simmons and Simmons [1995] 1WLR 1602 -- lest "speculative" may be thought to include considerations of uncertainty of outcome, considerations which in my judgement ought not to weigh against plaintiff in the present context, that of struck out litigation.)

2.

The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise the client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do so. If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant.

3.

If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim (or defence) than it would have had at the time of the original action, such difficulties should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty and quite possible, indeed, that that is why the original action was struck out in the first place. That, however, is not inevitable: it will not be the case in particular (a) where the original claim (or defence) turned on questions of law or the interpretation of documents, or (b) where the only possible prejudice from the delay can have been to the other side's case.

4.

If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants’ negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delmire (1722) 1 Stra. 505 comes into play.”

In the course of his closing submissions, Mr Picton for the Defendants, conceded that the Claimant had a real or substantial (rather than merely negligible) prospect of success. He did, as I shall explain, submit that those prospects were very slim, but the concession means that I need not be troubled by the first two of Simon Brown LJ’s principles.

The courts have repeatedly emphasised that, when a court is called upon to put a value on a claimant’s lost chance of pursuing litigation against a third party, its task is not normally to determine definitively how that litigation would have been decided - see for instance Hanif v Middleweeks (a firm) [2000] Lloyd’s Rep. P.N. 920 per Mance LJ at paras [13] – [15] and Dixon v Clement Jones solicitors (a firm) [2005] PNLR 6 where Rix LJ said at para 27 “It is the prospects and not the hypothetical decision in the lost trial that have to be investigated.” In Hanif Mance LJ conceived that there might be circumstances where it was overwhelmingly clear that the prospects of success were nil or 100% and Hatswell v Goldbergs (a firm) [2002] Lloyd’s Rep. P.N. 359 was a case (“rare” in the opinion of Rix LJ in Dixon at para [30]) where the trial judge and Court of Appeal were able to decide that the claimant’s action would indeed have been worthless and so the loss of the chance of pursuing it was worth nothing.

There are several reasons for the usual position. In Mount itself the underlying claim had been struck out for want of prosecution. Simon Brown LJ, immediately before the passage quoted above, had noted that almost without exception this would only occur if “the culpable delay has prejudiced the possibility of a fair trial.” Manifestly the court should not allow the negligence action against the solicitors to be used as a vehicle for determining definitively that which could not be fairly determined between the claimant and the person whom he alleged was the original cause of his loss. The action against the Trust in this case was not struck out for want of prosecution, but the events in issue all took place approximately 10 years ago and the difficulty of reaching a definitive decision would have something of the same problem as the “want of prosecution” cases.

A second reason why the Court should normally not seek to “try” the original action is that witnesses who might have been called in that action may not give evidence in the negligence action against the solicitors. In the present case, none of the professionals directly concerned with the treatment of Mr Haithwaite have given evidence. In particular, neither Dr Wakeham nor Mr Norris has done so. In contrast in Hatswell v Goldbergs (above) all the relevant doctors did give evidence at the trial of the action against the solicitors (although it is fair to note that none of them had any significant recollection of the events beyond what they had recorded in their notes - see Sir Murray Stuart-Smith at para [51]).

A third reason is that the action against the original defendant may not have come to trial at all but may have been settled. While the first of Simon Brown LJ’s principles means that the Court does not compensate for a claim which has purely a nuisance value, evaluating the prospects of success does recognise the possibility that a defendant, who at trial is more likely than not to win, may prefer to settle the case and avoid the uncertainties of litigation which is driven to a judicial conclusion.

In this case the Defendants did adduce the written evidence of various medical experts and called a consultant neurosurgeon, Mr Illingworth, to give oral testimony. But as Tuckey LJ said in Sharif v Garrett and Co [2002] 1 WLR 3118 at para [22] the purpose of such evidence is to enable the court to “form a better broad view of the merits of the claim.”

The claim against the Trust: negligence

It is elementary that a Claimant suing in negligence must establish a duty of care, breach of that duty and loss caused by that breach. A duty of care was manifestly owed by Dr Wakeham and Mr Norris, as the Defendants admit. However, the Defendants argue that the Claimant would have had a very difficult task in establishing that either doctor was in breach of that duty or that any breach caused Mr Haithwaite any loss.

I will consider first the position so far as negligence is concerned and then return to the issue of causation.

The decision by Dr Wakeham on 8^th February 1999 not to order a CT scan of Mr Haithwaite

The Claimant’s case is that by 8^th February his condition had deteriorated since his discharge from the Princess Royal Hospital on 14^th January. Dr Wakeham was informed of various aspects of this deterioration when he saw Mr Haithwaite and Ms Cattermole. It is not uncommon for a shunt to malfunction, the adverse change in Mr Haithwaite’s condition ought to have alerted any competent doctor to the possibility that this had occurred in his case. The Claimant argues that the only reasonable course for a competent doctor would have been to order a prompt CT scan.

The decision of a Senior House Officer not to order a scan

It is convenient, though, for me to start with the Claimant’s alternative way of putting his case, namely that Dr Wakeham as a Senior House Officer was too junior to take the decision not to investigate Mr Haithwaite’s condition and that he should, instead, have referred the matter to either a neurosurgical registrar or neurosurgical consultant.

Mr Todd is a consultant neurosurgeon. He was called by the Claimant. He said that, because Dr Wakeham knew that Mr Haithwaite (a) had had a shunt fitted, (b) had attended Hurstwood Park on 8^th February without an appointment complaining of headache and (c) had been recommended by the optician to attend for a neuro-review, the only proper course for Dr Wakeham as an SHO to take was to seek advice from a neurosurgeon. Dr Wakeham should not on his own initiative have taken the decision that no further action was necessary. There was no responsible body of medical opinion which would say otherwise. It was unusual for a patient to turn up on a ward complaining of pain without appointment. Mr Todd, in his 27 years of practice had never heard of an optician recommending an urgent neuro-review. This unusual circumstance should also have caused Dr Wakeham to seek advice from a more senior colleague.

It is fair to say that this point only emerged as part of the Claimant’s case in the course of Mr Todd’s oral evidence. Mr Todd explained that when he prepared his own report (in 2002) and the first draft of his Joint Report with Mr Illingworth in September 2008 he had been under the impression that Dr Wakeham had been a neurosurgical registrar. Mr Illingworth had checked the position with the General Medical Council and had proposed amendments which corrected Dr Wakeham’s status. Mr Todd acknowledged that it was only in preparing for the trial that he reflected on the significance of this. He said that limiting decisions, such as not to investigate further, could put patients lives at risk and this was not something for which an SHO should take responsibility, especially when the SHO’s knowledge of neurosurgery was so recent. Dr Wakeham had been registered as a doctor in 1997 and had begun his period at Hurstwood Park, some 6 months before in August 1998. That was likely to have been the limit of Dr Wakeham’s neurosurgical experience.

In cross examination, Mr Todd explained that he was not saying that there was an express rule limiting the role of SHOs in this way, but it was what he would regard as beyond the limit of acceptable practice. It accorded with his own experience as an SHO in Derby in 1979. He was now responsible for the neurosurgical training of all SHOs and registrars in the North of England. He did not think that the practice had become more restrictive over the last 10 years.

However, Mr Todd had not had any role in training in 1998/1999. By contrast, at that time Mr Illingworth had been Director of Training in his own hospital (the Charing Cross Hospital). He had been a member and later chairman of the North Thames neurosurgical training programme. He had also been a member of a group of neurosurgeons charged with making visits to each neurosurgical department in the country to assess the quality of training being provided to registrars and senior registrars in neurosurgery. In the later role he observed that the philosophy of different neurosurgery departments around the country varied as to the degree of responsibility that they allowed SHOs to shoulder. Some were very prescriptive. Others allowed SHOs a great deal of latitude. There was, of course, a limit in terms of risk management, but an overly restrictive approach could be bad for the training of future neurosurgeons who needed to learn to take responsibility for some decisions. In Mr Illingworth’s opinion, it was significant in this case that Mr Haithwaite was a patient whom Dr Wakeham had seen during his previous admission to Hurstwood Park. Dr Wakeham had seen Mr Haithwaite on a daily basis during that period and had written up many of the notes. On 8^th February, he took an extremely detailed note of Mr Haithwaite’s condition and conducted appropriate tests in the course of that examination. Mr Illingworth did not accept Mr Todd’s view that it was unacceptable for an SHO in this position to take the decision not to refer the matter to a registrar or consultant but to take the decision himself that the matter could wait until Mr Haithwaite was seen in outpatients in the following week.

On the basis of this evidence, it would have been extremely difficult for Mr Haithwaite to succeed in showing that Dr Wakeham was negligent in not seeking the advice of a registrar or consultant. The test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 would have required Mr Haithwaite to show that Dr Wakeham’s decision in this regard was one for which there was no support among any responsible body of medical opinion. Mr Todd could speak only of his personal experience at the relevant time. Mr Illingworth could speak to the position from his role as a national inspector and his evidence was flatly contrary to the proposition.

Mr Illingworth would have agreed with Mr Todd if Mr Haithwaite had been formally admitted to Hurstwood Park on 8^th February. Then the decision to discharge him should not have been taken without consultation with someone else. This matter was explored with Mr Illingworth because Dr Wakeham’s notes for 8^th February begin “Admitted for review”. However, Mr Illingworth observed that there was none of the paperwork which would have been completed if Mr Haithwaite had been formally admitted on that occasion (temperature charts, nursing reports etc and, I would add, nor was there any discharge note). I found these comments persuasive. The far more likely explanation is that in this regard Dr Wakeham had used an inapt expression for a patient who had turned up and was examined on the ward without an appointment.

However, even if Mr Todd was right and the matter should have been referred to an experienced neurosurgeon, that merely begs the question, “what would have happened then?” Even if Mr Todd was right, it would not have assisted Mr Haithwaite in an action against the Trust unless such a person would have commissioned a CT scan. That then takes us back to the different positions of Mr Todd and Mr Illingworth as reflected in their Joint Report and their evidence to the Court. In other words, disregarding Dr Wakeham’s status as an SHO, would any Bolam competent neurosurgeon have ordered a scan? In short, for these various reasons, I do not think that the recent alternative way of putting the Claimant’s case in relation to Dr Wakeham’s status as an SHO would really have assisted him.

The information available to Dr Wakeham: was he aware of the Claimant’s visit to the Princess Royal Hospital on 4^th February?

The Princess Royal Hospital and Hurstwood Park are both hospitals that are run by the Mid-Sussex National Health Service Trust. They are physically extremely close to each other. Ms Cattermole described them as only a corridor apart. However, they are separate institutions with their own staffs and their own records. Mr Haithwaite was “admitted” to Hurstwood Park from Princess Royal on 12^th December 1998 and “discharged” from Hurstwood Park to Princess Royal on 12^th January 1999.

Dr Wakeham’s notes of Mr Haithwaite’s visit on 8^th February 1999 come immediately after the preceding entry, for 12^th January 1999 recording that he was going back to PRH that day. There is no reference in Dr Wakeham’s notes to Mr Haithwaite’s visit on 4^th February 1999 to Princess Royal and no evidence that Dr Wakeham had available on 8^th February, the notes of that earlier visit. In all the circumstances, Mr Todd accepted that Dr Wakeham had probably not had the notes of that visit to PRH when he saw Mr Haithwaite on 4^th February.

In her oral evidence, Ms Cattermole said that she had told Dr Wakeham of the visit to the PRH on 4^th February. This would have been significant. Mr Illingworth accepted in cross examination that, if Dr Wakeham had known about this attendance it should have alerted him to the possibility that something was going on and he should have either organised a scan or referred the matter to a more senior colleague who, in turn, would have been likely to arrange a scan within a day or two. However, Ms Cattermole did not say in any of her previous written statements that she had told Dr Wakeham that she and Mr Haithwaite had been to the Princess Royal a few days previously. There is no mention in Dr Wakeham’s notes that she passed him this piece of information. Inevitably in the circumstances, her oral evidence would have been approached with a degree of caution and there is a fairly high risk that the trial of Mr Haithwaite’s claim against the Trust would have concluded that she was mistaken in her recollection about this.

The information available to Dr Wakeham: did this include the Claimant’s disinhibited sexual behaviour?

Ms Cattermole described Mr Haithwaite’s behaviour during February 1999 as becoming increasingly bizarre and difficult to handle. One manifestation of this was that he became disinhibited in his discussion of sex. More disturbing still, he exposed himself to Ms Cattermole’s sister. Ms Cattermole had been present when this occurred. She said in her oral evidence that she reported this to Dr Wakeham on 8^th February because the incident with her sister had occurred only two days before, on 6^th February. If this was right, Mr Todd and Mr Illingworth agreed that it would have been a significant matter since it would have signalled to any neurosurgeon that there might be a problem with Mr Haithwaite’s shunt. However, there is no mention of anything of this kind in Dr Wakeham’s notes.

The Defendants submit that the Trust would have argued that this omission was because the incident with Ms Cattermole’s sister did not occur until much later in February. They submit that the Trust would have been in a strong position to argue that it did not take place until after the meeting with Dr Wakeham and, indeed, after the meeting on 17^th February with Mr Norris. Ms Cattermole said in her evidence that she also told Mr Norris about what she called “the big one” by which she meant this same incident. The evidence as to when this incident occurred is therefore relevant to the information available to both doctors.

Ms Cattermole telephoned Ms Thatcher, the Community Psychiatric Nurse, on 9^th February. She said that “Ashley seems to be acting strangely very childlike on occasion, not open to being challenged about this and is covering a lot up.” This showed that Ms Cattermole was anxious to raise her concerns about Mr Haithwaite’s condition with Ms Thatcher, but she did not mention his sexually disinhibited behaviour although, on her account it had taken place only 3 days previously. She had another opportunity to raise this matter with Ms Thatcher when she and Mr Haithwaite met her at their home on 11^th February 1999. Ms Thatcher made no mention of the incident in her notes. Ms Cattermole said in evidence that she was not present for the whole of this interview. However, I do not think that that is very much to the point. She was present for at least part of the time and had the opportunity to mention a starkly memorable incident which on her evidence had taken place only 5 days earlier.

The point is all the more striking because Ms Cattermole did mention the incident when Ms Thatcher next visited them on 25^th February 1999. Ms Thatcher then noted “Ann came into session and explained how awful the last couple of weeks had been. Ashley was losing everything, blaming her, going to sleep with his clothes on” and had exposed himself in front of her sister. The phrase “the last couple of weeks” was no doubt, not intended to have a lawyer’s precision. But the fact remains that this incident was reported by Ms Cattermole on 25^th February and not on 9^th or 11^th February . That is a strong indication that it had not taken place by 11^th February and could not then have been reported to Dr Wakeham on 8^th February. It also suggests that it had not happened by 17^th February and so could not have been reported to Mr Norris.

Mr Haithwaite and Ms Cattermole did not visit his GP, Dr Claiden, between 4^th February and 26^th February 1999. I have quoted the material parts of Dr Claiden’s note of the later visit above. There is no express reference to the incident with Ms Cattermole’s sister, but the allusion to “past 4/7 not himself” provides some support for there to have been a marked decline in Mr Haithwaite’s condition since about 22^nd February. Although I am here primarily examining the information available to Dr Wakeham on 8^th February, it is right to observe, as Mr Rivalland for the Claimant would emphasise, that Dr Claiden’s note also says “seen by Mr Norris – told about headaches and behaviour – told all well” (my emphasis). “Behaviour” could have embraced the incident with Ms Cattermole’s sister or it could have referred to Mr Haithwaite’s behaviour more generally.

When Mr Haithwaite was admitted to the A&E Department of the Princess Royal Hospital on 1^st March 1999 notes were taken under the heading “Mechanism of Injury / timing”. Materially these read:

“SAH clipped at HPNC Dec 98. This evening sudden onset frontal headache has taken two paracetamol, Amitryptilene. Has suffered with headaches ever since SAH, according to girl friend (Ann) and ‘muddled’ this last week.”

[then in different handwriting] “Last few days regressed into childhood. On and off over few weeks shorter episodes similar. Tonight loc [loss of consciousness] - few seconds. Then ? fitted several times. Has had periods of sexual inhibition swearing and being ‘odd’ last few days. Has been brought in x2 to A&E last 2/52.”

Mr Picton says that the Trust would have pointed to the reference to “sexual inhibition” taking place over the previous few days and that Ms Cattermole provided at least some of the information here recorded. Mr Rivalland observes that there is at least one mistake (Mr Haithwaite had not been seen in A&E in the previous two weeks), there were at least two authors of this report and Ms Cattermole’s name is not expressly linked with the second where the reference to sexual inhibition is made. He says that it is also possible that one of the informants was Mr Haithwaite’s father (whose telephone number is also recorded on the form). Besides as Ms Cattermole said in evidence, she was facing a situation where her boyfriend had been taken to hospital by ambulance having lost consciousness and fitted. With his history of brain surgery, his life might well have been in danger. She was understandably upset and not in the best state to calmly recollect the precise timing of events over the previous few weeks.

In cross examination, Ms Cattermole said that Mr Haithwaite had exposed himself to her sister during the course of her sister’s visit to their house. Her sister’s visit had lasted a week and coincided with her sister’s birthday on 10^th February. Ms Cattermole’s diary, which was produced in the course of the trial, did show entries (including one on 6^th February) which showed that her sister was with her at this time. However, there were also other entries in the diary which showed that Ms Cattermole’s sister was staying either with her or nearby on 16^th, 18^th and 22^nd February as well. The incident could therefore have taken place during this later period and after Mr Haithwaite had been seen by Dr Wakeham and Mr Norris. The diary has one week on each page. Above the week beginning 22^nd February Ms Cattermole has written “Ashley extremely mental this week”. On 26^th February she has written “Ashley mad and childlike all week”. There are no comparable comments on or around 6^th February. Above the week beginning 8^th February Ms Cattermole has written “headaches all week!”. It is a little ambiguous as to whether it was she or Mr Haitwaite who were suffering from headaches, but assuming it to be him, her expression is notably more muted than for the following week. That is some indication that “the big one”, as Ms Cattermole put it, did not happen until the week beginning 22^nd February. This would also fit with Dr Claiden’s note on 26^th February recording that Ms Cattermole had told her that Ashley had not been himself over the previous 4 days. That in turn is also consistent with Ms Cattermole first mentioning the incident to Ms Thatcher on 25^th February and with the A&E record of 1^st March.

At the end of March 1999, Ms Cattermole prepared a statement of events for the Defendants. She refers to the incident with her sister in the course of describing the visit to Dr Wakeham on 8^th February and it is reasonably clear that she meant in that document to say that the incident had by then already happened. She does not date it precisely. It appears that she did so first in a letter to the Defendants on 13^th October 2001.

In his oral evidence, Mr Haithwaite said that the incident with Ms Cattermole’s sister had taken place in the four days before his visit to Dr Claiden on 22^nd February. Mr Picton, rightly, did not place much weight on this evidence since it is agreed by all that Mr Haithwaite’s ability to remember precise details and sequence of events was impaired over this period. There was no evidence from Ms Cattermole’s sister herself as to when this incident had taken place.

I bear in mind that a trial of the action against the Trust would have taken place in January 2005, some 4 years earlier than the trial of the action against the Defendants before me. However, that would still have been some 6 years after the events themselves. On the material available to me I conclude that the Claimant would have had a very difficult task to persuade the court that on the balance of probabilities the incident with Ms Cattermole’s sister took place before either the visit to Dr Wakeham or the visit to Mr Norris. Accordingly, it would have been equally difficult for him to show that either doctor was at fault in failing to note or act on this particularly florid symptom of deterioration.

The information available to Dr Wakeham: other matters

Dr Wakeham took the following history:

“Admitted for review

Noticed weakness + numbness left arm.

Pain at back of head, worse when lies flat. Feels like pressure, not relieved by analgesia.

Eyesight deteriorated – long sighted.

Dropped cup of tea yesterday, unaware of position because numb in left hand last few days.

headache normally. Occasionally nauseous.

Saw optician today who recommended neuro review.”

I have already noted above that Ms Cattermole (and indeed Mr Haithwaite) gave evidence that the optician had been startled by the unusual appearance of the back of Mr Haithwaite’s eyes and that this was her reason for referring him for an urgent neuro review. If this was so, it is extremely surprising that the optician did not make a note of this observation in her notes of the examination. Ms Cattermole’s original statement in March 1999 makes no mention of this - indeed it makes no mention of the visit to the optician at all. She does say that “Having noticed that one pupil was more dilated than the other, I took him directly to Hurstwood Park”. That is repeated in her supplementary statement of 11^th January 2001 and in the undated statement which the Defendants drafted for her. The optician’s observations about the unusual characteristics of Mr Haithwaite’s eyes are first mentioned in Ms Cattermole’s statement for the present proceedings which she made on 19^th May 2008 some 9 ½ years after the events. It would, in my view, have been very difficult for Mr Haithwaite to persuade a court trying his claim against the Trust, that Ms Cattermole’s recent evidence as to what the optician had said was accurate. Mr Rivalland realistically conceded that she was probably mistaken about this.

Ms Cattermole’s supplementary statement of 11^th January 2001 was made before she had seen the medical notes. She then gave an account of the physical examination which Dr Wakeham conducted. Mr Rivalland drew attention to the remarkable accuracy of Ms Cattermole’s recall when compared with the tests that Dr Wakeham mentioned in his notes. Indeed, in one respect (the checking of Mr Haithwaite’s eyesight, or visual acuity, by asking him to read letters from a distance), Ms Cattermole’s account was fuller than Dr Wakeham’s note. In that statement, Ms Cattermole said that because Mr Haithwaite had been unable to explain his recent behaviour, she

“started to question his increased loss of memory and the fact that he was asking for painkillers and asking what time it was every few minutes. I also talked about the fact that he was calling the same friends, having the same conversation 4 – 5 times each day. In addition, I talked about Ashley’s lack of inhibition and the fact that he was getting very excited around every female (except myself) and had talked about exposing himself when I was with him in Tesco. I also said that I could not leave Ashley alone and had to take him with me if I needed to do any grocery shopping in Tesco, which was extremely difficult because he would be vacant and would stare at shelves for minutes on end, and I would have to drag him physically around the store like a dog on a lead. If I hurried him too much he would panic and start to rock back and forth and then start to shout hysterically. The consultant’s [Ms Cattermole is referring to Dr Wakeham at this point] response to this was that it must be a mental condition, which might be part of his coming to terms with what had happened to him.”.

The statement drafted for her by the Defendants made the same points, though enlarging on Mr Haithwaite’s short term memory loss, his childlike and sexually uninhibited behaviour, and his lack of co-ordination.

I have already said that in my view Mr Haithwaite would have had great difficulties in persuading the court trying his action against the Trust that he had actually exposed himself to Ms Cattermole’s sister by the time of this consultation, but I now need to consider what prospect he would have had of persuading the Court that Ms Cattermole had intervened to tell Dr Wakeham of the other matters to which she referred in these statements.

In part that requires me to go back to consider Mr Haithwaite’s condition on his discharge from the Princess Royal Hospital on 14^th January and what information is available as to any change in his condition between then and the meeting with Dr Wakeham. Ms Cattermole says that he had deteriorated over that period. To what extent is that borne out by the contemporary records?

On 13^th January 1999 a physiotherapist had noted that Mr Haithwaite complained of headache, was swaying and had an unsteady gait but managed to get around. An occupational therapist in a discharge plan commented that no problems were observed with his co-ordination, except for spillage of a coffee jar. He was repetitive at times in his conversation, but his long term memory was OK. He needed to slow down. His eye sight was blurred compared to before, but he was observed to have no difficulties with tasks. He admitted to having difficulty with concentrating for any length of time.

Mr Haithwaite had been a musician and a keen guitarist. He gave evidence that while in Hurstwood Park in January his parents brought him his guitar and he was delighted to find that he could still play it and, indeed, composed a new song with the title “The Man Inside My Head”. The Defendants question whether this can have been correct in view of Ms Thatcher’s notes of her visit to Mr Haithwaite on 28^th January 1999. She recorded “Ashley has many other interests, plays guitar and drum, writes songs, none of which he is able to do at present due to lack of co-ordination ...Ashley’s past ways of coping were to go down the pub with father or friends and have a drink, smoke etc. Now he no longer does this and is no longer able to play music.” I am doubtful as to whether these notes are inconsistent with the evidence of both Mr Haithwaite and Ms Cattermole that he was able to play the guitar two or more weeks earlier. An alternative explanation may be that the difficulty with playing the guitar was a consequence of the development of the subdural haematoma. I shall need to return to this matter later.

Neither Mr Haithwaite nor Ms Cattermole say that Dr Wakeham was told specifically that he had been able to play the guitar in January, but that his ability to do so had since declined. One or other of them did report that Mr Haithwaite had experienced “weakness and numbness of left arm” and that his left hand had become numb in the “last few days”. Dr Wakeham had recorded on 25^th December 1998 when Mr Haithwaite had been an in-patient at Hurstwood Park that he had suffered “transient left side weakness”. On 8^th February he conducted a physical examination of the Claimant which showed that power was normal in both arms but there was a question as to whether there might be voluntary weakness in the left.

On 19^th January 1999 Mr Haithwaite saw an emergency GP about a severe earache. Although he was prescribed painkillers, the problem persisted. He saw Dr Claiden the following day. She recorded that he felt vague and his eyes had been blurred since the operation. She wrote to Mr Norris asking him to see Mr Haithwaite about this and Mr Haithwaite’s many other questions concerning his future prognosis. She also, as I have noted above, arranged for Ms Thatcher to see Mr Haithwaite and seems to have recommended that Mr Haithwaite see an optician about his eyesight. On 21^st January 1999 Mr Haithwaite again saw an emergency doctor about his severe earache. His earache seems to have prompted a further visit to Dr Claiden on 2^nd February 1999.

Ms Thatcher saw Mr Haithwaite on 28^th January 1999. In her letter to Dr Claiden of 5^th February 1999 she referred to this visit (which she wrongly dated as 25^th January 1999). He struck Ms Thatcher as someone who was “a very active positive person” who was “actually coping extremely well under the circumstances.”

On 3^rd February 1999 Mr Haithwaite again saw another GP, Dr Usher. He recorded: “Urgent attendance; increased vagueness over 24 hours. Occasional expressive dysphasia [mixing up of words]. Subjective decrease in vision. Refer medical SHO prh.” Dr Usher wrote a letter of referral to Dr Birla of the Princess Royal Hospital. It appears from this that Mr Haithwaite had gone to the GP’s surgery on that day, not with Ms Cattermole, but with his former girlfriend, Michelle East. Mr Haithwaite did not want to go to Princess Royal Hospital that evening, but returned to Dr Claiden the following day. She said that he should go immediately to the Hospital, which he did.

The first doctor at PRH took a history of slurred words, poor memory and deteriorating blurred vision accompanied by headaches once a day following the operation. The registrar reported “no deterioration” in the symptoms of headaches, blurred vision and short term memory loss and that the headache was “almost gone not severe and nothing like the SAH symptoms.” [emphasis in the original] The discharge summary recorded “There had been no deterioration of symptoms except on the day of admission.”

The fact is therefore that, apart from a report of deteriorating vision, there is little corroboration in the contemporary notes that the symptoms which Mr Haithwaite had at the time of his discharge (headaches, poor memory and some difficulty with concentration) had got worse by the time he was seen by Dr Wakeham on 8^th February. Against that is the undoubted fact that Mr Haithwaite and those close to him were seeking increasingly frequent assistance from health professionals: Dr Usher on 3^rd February, Dr Claiden on 4^th February, the urgent attendance at Princess Royal Hospital on 4^th, the optician on 8^th, her recommendation for an urgent neuro review which then took place without appointment on the same day. This pattern of events does provide some support for the picture which Ms Cattermole paints of her partner’s deteriorating condition.

But if it was the case that Mr Haithwaite’s condition had deteriorated by 8^th February, did Ms Cattermole say anything about this to Dr Wakeham? Ms Cattermole says firmly that she did. The Defendants submit that if she had done, Dr Wakeham would have made a note of it and in other respects (notably the dating of the incident regarding her sister and the diagnosis of the optician) Ms Cattermole is probably shown to be an unreliable historian, particularly in relation to the dating of events over that critical period of February 1999.

These are strong points which the Trust could have made, particularly as the trial of that action would have taken place some 6 years after the events in question. Nonetheless, I could not rule out the possibility that Ms Cattermole might have been able to show on the balance of probabilities that she had intervened to say something more about Mr Haithwaite’s condition over the days leading up to 8^th February. We can see that Dr Wakeham’s note taking was not flawless. He (probably) made a mistake in saying that Mr Haithwaite had been “admitted” as opposed to being seen on the ward without an appointment. He (probably) asked Mr Haithwaite to read letters from a card to test his visual acuity, but made no mention of this in his note. He had been an SHO at Hurstwood Park only for some 6 months when he saw Mr Haithwaite. At the trial of the action against the Trust, Mr Haithwaite might have been able to show that his omission to record further details of Mr Haithwaite’s behaviour provided by Ms Cattermole was due to his inexperience and failure to appreciate that this might be significant in showing a malfunction of the shunt. The evidence of Mr Todd and Mr Illingworth was that the behaviour of Mr Haithwaite with Ms Cattermole’s sister was so florid that it would have caused any doctor to sit up and take notice but if that is excluded (because Mr Haithwaite would have had great difficulty in showing that it had happened before 8^th February) the exact nature of what Ms Cattermole had to say and whether a doctor (particularly an inexperienced SHO) would necessarily have recorded it is much harder to predict.

The nature of Mr Haithwaite’s subdural haematoma

The scan performed on Mr Haithwaite on 2^nd March 1999 was recorded in the hospital records as showing “a massive left-sided extracerebral collection has developed with enormous midline shift. The right lateral ventricle is slightly dilated, although the tip of the shunt system appears to lie close to it. The right temporal horn is also dilated” The operation notes reported that “subdural altered blood on high pressure” was drained through 2 Burr holes in Mr Haithwaite’s skull. For the purpose of his report in 2002 Mr Todd was able to examine the scan that had been conducted on 2^nd March. He noted “There is a very large mixed density left sided hemispheric subdural haematoma. There is very extensive midline shift with contra-lateral dilatation.” Unfortunately the scan itself can no longer be located and it could not be examined by Mr Illingworth.

In his evidence, Mr Todd explained that the blood in a subdural haematoma passes through three stages. At first it is hyperdense. On a CT scan the brain will show up as grey. Hyperdense material will be white (since the scan is like a negative – showing light and shade on a reverse scale – this corresponds to material which is denser than the brain). After about 7 - 10 days hyperdense blood changes to isodense. This shows up as grey on the CT scan since it is about the same density as the brain itself. After about 3 weeks (that is 3 weeks after the blood collects in the haematoma) isodense material changes again to hypodense. This is less dense than isodense (and the brain itself). It shows up on a scan as black.

Mr Todd’s 2002 report had noted that the haematoma was of “mixed density”, but it did not expressly say of what the mixture was composed. In his evidence he said that it was a mixture of isodense and hypodense material. In cross examination he was asked how he could remember that after such a long interval. Mr Todd responded that a chronic subdural haematoma would commonly be hypodense or isodense or mixed isodense and hypodense. A hyperdense component in a mixed dense collection would be unusual and forensically would be very important because it might help to pin down when a problem had occurred. If there had been a hyperdense component in the mixture, Mr Todd said he would have been sure to note it. Mr Todd thought that the note in his report that there had been a mixed density was also consistent with the operation note that “altered blood” had been released during the operation on the haematoma. If the liquid had been exclusively hypodense, it would have been a clear liquid which would not have been described as “altered blood”.

Mr Todd concluded that Mr Haithwaite’s subdural haematoma had not been the consequence of a trauma, but had developed as a result of the shunt overdraining cerebrospinal fluid. This had caused the brain to sag and protonaceous materials and blood cells to be drawn into the cavity. As these products broke down the osmotic pressure increased and more water was drawn in. In Mr Haithwaite’s case this had happened over time. There had not been a single influx of blood, nor a continuous stream, rather a discontinuous ooze. The fact that there was a mixture of isodesne and hypodense blood and the fact that the surgeons who operated on the haematoma found it to be under high pressure meant, in Mr Todd’s view, that the haematoma had been present for some time. The absence of hyperdense material meant that there had not been an acute bleed for 7 – 10 days before the scan on 2^nd March. The presence of hypodense material meant that there had been a subdural haematoma of some kind since no later than the 1^st week of February.

Unfortunately, this evidence does not assist very much in deciding whether Mr Haithwaite would have developed symptoms of a subdural haematoma before he was seen by Dr Wakeham. The reason for this is in the concept of compliance. Broadly speaking the brain can tolerate a degree of extra pressure. Some (particularly elderly) patients develop a subdural haematoma which does little harm and is merely kept under observation. Once the stage of compliance is passed, the consequences of increasing pressure of the haematoma become exponentially more serious. Mr Todd used the evidence of Ms Cattermole to suggest that the compliance stage of Mr Haithwaite’s haematoma had either passed or been nearly exhausted by the time he went to see Dr Wakeham on 8^th February. However, my task at the moment is to assess Mr Haithwaite’s prospects of showing that his condition and behaviour had deteriorated by 8^th February and that Ms Cattermole had mentioned this to Dr Wakeham. It seems to me that Mr Todd’s evidence as to the development of a haematoma is equivocal on this matter. Even if some of the material in the haematoma had entered by no later than the first week in February (and so before the visit to Dr Wakeham) I cannot conclude from this that the stage of compliance had also passed.

The views of Mr Todd and Mr Illingworth as to whether Dr Wakeham had been negligent in not ordering a CT scan

It is fair to say that Mr Todd’s opinions have developed on this issue. Mr Rivalland would say “matured”; Mr Picton would say “vacillated”. Mr Rivalland suggests that I should be cautious in taking account of views expressed by Mr Todd in his draft reports and in his communications with the Defendants when they were acting as Mr Haithwaite’s solicitors and when Mr Todd made comments in conference with the Claimant’s then counsel. All of this was privileged material in the action against the Trust and Mr Todd could not have been cross examined on it. This is true. But Mr Todd was an honest and conscientious witness (as indeed was Mr Illingworth) and if he had been cross examined on the progress of his thinking, as he might well have been, I am entitled to assume that he would have answered consistently with what I see in those earlier documents.

It seems that Mr Todd first provided a report to the Defendants in November 2000. I do not have a copy of that report, but the indirect indication from an internal memo between members of the Defendants’ firm and from their letter to Mr Haithwaite was that Mr Todd thought that there had been negligence in failing to investigate Mr Haithwaite more thoroughly on 8^th and 17^th February 1999. Mr Todd did recognise, though, that there was a discrepancy between the doctors’ perception of how Mr Haithwaite was progressing and Ms Cattermole’s account. Mr Todd reiterated that point in his letter to the Defendants of 6^th June 2001 when he said:

“One difficulty with this litigation is that two independent doctors, the medical registrar and Mr Norris himself have written in the medical notes that there were no problems at the times that Mr Haithwaite was seen. It may be something of an uphill struggle to persuade the judge that the claimant’s view of events is to be preferred.”

In a draft of his report which was sent to the Defendants on 23^rd May 2002, Mr Todd said on p.10 this:

“Mr Wakem [the name is misspelt in the original] (Neurosurgical registrar) reviewed Mr Haithwaite on 8^th February. Mr Wakem appears to have been aware of new neurological features which included weakness and sensory disturbance of the left arm, headache and visual impairment. Mr Wakem appears to have been clear that visual impairment had deteriorated. However, in a detailed neurological examination Mr Wakem found only a suspicion of weakness in the left arm and some sensory impairment. He examined the optic fundi and found no evidence of papilloedema. He found normal visual fields. Mr Wakem’s view was that there was no acute problem i.e. it is clear that he felt that most of these problems were a consequence of the initial subarachnoid haemorrhage and its treatment and its complications. Mr Wakem believed that Mr Haithwaite was going to be followed up in outpatients in about a week’s time and he thought that was sufficient. In retrospect it is my view that Mr Haithwaite had neurological problems which were consequent upon the extra-axial fluid collection which was developing at that time. However I think that Mr Wakem did assess Mr Haithwaite in a thorough fashion. Given the history of deteriorating vision I would have thought that CT imaging would have been wise but given that there are only modest sensory abnormalities on clinical examination in my opinion Mr Wakem’s decision simply to review Mr Haithwaite in outpatients in a weeks time as arranged was reasonable. In my view liability will not be established for the failure of Mr Wakem to obtain CT imaging on or about the 8^th February. [emphasis added]

Those views were plainly adverse to the Claimant’s case. But at page 11 of the same document this is said:

“I very carefully considered Mr Wakem’s conduct and I think it does lie very close to a line which is reasonable and responsible. On the one hand he performed a detailed neurological examination which only showed modest sensory abnormalities. He was also aware that Mr Haithwaite was to be reviewed in outpatients in about a week’s time which would give the opportunity to reconsider the situation. On the other hand Mr Haithwaite had apparently deteriorated postoperatively and Mr Wakem himself had felt that vision had deteriorated (subjectively). Mr Wakem would also be aware that Mr Haithwaite had been backwards and forwards to his general practitioner with problems, that he had been readmitted to hospital only four days earlier with a variety of, apparently new neurological problems and that the optician had referred Mr Haithwaite back on the 8^th February because of concerns about vision. Taking that into account in my opinion Mr Wakem should have performed a CT scan on the 8^th February. If he had done so then in my opinion a left-sided subdural fluid collection, no doubt much smaller than that subsequently demonstrated, would have been found.”[emphasis added]

The final report (dated 20^th May 2002 though apparently actually concluded some time after that) included at paragraphs 10.2 and 10.3 both of these quoted sections with the critical exception of the passage which I emphasised in the first. The net effect was that Mr Todd’s opinion was favourable to the Claimant in relation to the 8^th February.

However, Mr Todd reiterated the fineness of the balance in his letter to the Defendants on 7^th October 2002 when he said:

“As you know my view is that there are at least two strands of evidence. New and or progressive headache and deterioration would normally prompt CT scanning. However Mr Wakem appears to have carried out a detailed neurological examination and felt that there was nothing much wrong. As you know my view is that Mr Wakem’s conduct comes fairly close to a position that I would consider reasonable or unreasonable. I have taken the view that his conduct was unreasonable provided he was aware that there had been repeated visits to the general practitioner with problems, readmission to hospital four days earlier with apparently new neurological problems and concerns from the optician that there was new impairment of vision. Taking all of that into account I think a CT scan should have been performed.”

At a conference on 26^th March 2003 the Defendants (then still Mr Haithwaite’s solicitors) recorded Mr Todd as saying:

“8^th February 1999 – if Ashley had been seen only four days before, it was reasonable not to perform a CT scan. He is sure that a group of competent medics would have continued to monitor. It is quite close, but Mr Todd said that he would be happier to say that it would be irrational not to perform a CT scan at that time. However a Bolam competent doctor would have continued to observe.”

In a letter dated 13^th April 2006 to Mr Haithwaite’s present solicitors, Mr Todd said that the critical aspect of the history that Dr Wakeham had taken was Mr Haithwaite’s deteriorating vision. He said:

“The commonest cause of deteriorating vision in a patient with a shunted hydrocephalus is a blocked shunt. The optic apparatus is particularly sensitive to raised intracranial pressure. Deteriorating vision is a common consequence of raised intracranial pressure and visual deterioration alone, in my opinion, should have prompted a CT scan; the failure to perform a CT scan represents a standard of care that falls below that which is acceptable.”

In his report of 25^th April 2007 Mr Illingworth considered that Dr Wakeham had not been negligent. He said:

“His very detailed history and examination occupies nearly 1 ½ pages and in my opinion is very competent. He might be criticised for failing to contact Mr Norris at that stage but since he had concluded that there was ‘nil acute’, it was, in my opinion, perfectly acceptable to arrange for Mr Haithwaite to be seen again in one week….

I am not convinced that Dr Wakeham’s performance on 08 February fell below an acceptable standard. Mr Todd refers to the multiple attendances with other practitioners but there is no indication from the clinical notes at the time that this information was available to Dr Wakeham. Mr Haithwaite was referred to him by a general physicians at the Princess Margaret Hospital and not by the general practitioner. The clinical history recorded by Dr Wakeham on 08 February refers only to weakness and numbness of the left arm and deteriorating vision. None of the other symptoms described by Ms Cattermole are recorded other than dropping the cup of tea. His examination does not include the visual acuity which perhaps should have been tested. Loss of sensation in the left hand was noted and this would be entirely compatible with the episode of cerebral ischaemia while Mr Haithwaite was in hospital, of which Dr Wakeham would probably have been aware. Given that Mr Haithwaite was due for review one week later I am by no means convinced that Dr Wakeham’s performance on this occasion was not appropriate.”

Mr Todd and Mr Illingworth produced a joint report 5^th January 2009. Mr Illingworth said that Dr Wakeham was unlikely to have had the notes from Princess Royal Hospital. At the trial of the present action, Mr Todd agreed with that. Mr Illingworth observed that Ms Cattermole’s statement said that Dr Wakeham had asked Mr Haithwaite to read letters from a distance and so, although not recorded, visual acuity had apparently been checked and there seemed to be no deterioration. Both experts agreed that it was significant that Dr Wakeham had been involved with Mr Haithwaite while he had been an inpatient at Hurstwood Park and so would have been familiar with his condition at the point of discharge. Both experts agreed that the neurological findings recorded by Dr Wakeham were consistent with the known infarct. They further agreed that if there was progressive visual disturbance in a patient complaining of headache, the most likely diagnosis was a blocked shunt. They were, however, divided on whether a CT scan should have been ordered. Mr Illingworth maintained that Dr Wakeham had come to a reasonable conclusion that there was ‘nil acute’ and, in those circumstances, a review in a little over a week’s time was a reasonable course. Mr Todd felt that the deteriorating vision mandated a CT scan that day. In short they disagreed over whether the decision not order a scan was Bolam negligent on the part of Dr Wakeham. If Ms Cattermole recounted to Dr Wakeham that the Claimant had been very disinhibited, exposed himself to Ms Cattermole’s sister this would have been a symptom of frontal lobe dysfunction. That would not be unexpected following an SAH, but such symptoms would not become progressively more severe following discharge from hospital. Once more their ways then parted. Mr Todd thought that if these symptoms (and progressively more severe headaches) had been reported, a scan should have been conducted immediately. Mr Illingworth thought that a reasonable and responsible neurosurgeon would have had the alternative of arranging for a CT scan in one week.

In his oral evidence Mr Todd maintained his position that Dr Wakeham had been negligent. I have dealt previously with his view that Dr Wakeham should not have taken the decision himself to investigate no further at that stage. He acknowledged that this was not a case of “barn door poor performance” and was close to the line of reasonable / unreasonable performance. This explained the different views which he had expressed in previous drafts. His comments in the letters to solicitors and in conference were to alert the Claimant’s legal team to the litigation risks.

Mr Illingworth agreed in his evidence that the impact of the SAH and ischaemic incident would have been maximal during Mr Haithwaite’s stay in hospital. After that his condition could be expected to remain stable or improve, but not to deteriorate further.

Thus, in an action against the Trust Mr Haithwaite would have been able to rely on the (final) views of Mr Todd. There was some prospect that this view would have been accepted by the trial judge for the reasons that Mr Todd gave. The chance of Mr Haithwaite attaining that outcome was weakened because of the different views which Mr Todd held over the course of the litigation and because, as he candidly accepted, even his final view was that this was not a case of plain and obvious negligence but one which came close to the line.

The decision of Mr Norris not to order a scan on 17^th February 1999

I have already referred to the positive and upbeat record which Mr Norris made during his examination of Mr Haithwaite on 17^th February 1999 and in his letter to Dr Claiden. Ms Cattermole has said that during the course of the examination she intervened to say that Mr Haithwaite was painting far too rosy a picture of his condition. In her statement of March 1999 she said that she told Mr Norris that Ashley had been acting very strangely. In her supplementary statement of January 2001 she said that she mentioned the sexual inhibitions, the deterioration in memory recall and the consistent pain in his head. On 12^th September 2001 she said that she told Mr Norris that Ashley was still having continuous headaches which were as bad as before. In the draft statement prepared for her by the Defendants, Ms Cattermole said that she told Mr Norris of the incident involving her sister. In her oral evidence, as I have mentioned she referred to this as “the big one”. Ms Cattermole said that Mr Norris brushed her comments aside and said that these were psychiatric problems that were not his area of expertise.

In their joint report. Mr Todd and Mr Illingworth agreed that if Mr Norris was aware of Ms Cattermole’s history, then Mr Norris should have referred Mr Haithwaite for a scan on 17^th February 1999. On the other hand, unsurprisingly, they agree that if Mr Norris was told that Mr Haithwaite was extremely well and keen to return to work, his actions were reasonable and responsible.

I have set out above why I consider that Mr Haithwaite would have had very great difficulty in establishing that the incident concerning Ms Cattermole’s sister had preceded either the consultation with Dr Wakeham or that with Mr Norris. It follows that in my judgment he would have had the same difficulties in persuading a court that Ms Cattermole had said anything about “the big one” to Mr Norris.

There are further reasons why a court would have been sceptical about Ms Cattermole’s account of what happened. Mr Norris had told Dr Claiden that he was willing to see Mr Haithwaite earlier than would have been usual for the standard angiogram. The outpatient appointment on 17^th February may have been the result. Mr Norris had addressed and responded to Mr Haithwaite’s concerns as passed on to him by Dr Claiden. He had not been dismissive on that occasion. It is true that Mr Norris was a neurosurgeon rather than a neuropsychiatrist or neuropsychologist, but changes in behaviour can, as Mr Todd and Mr Illingworth agreed, be signs of organic problems. A neuropsychiatrist or neuropsychologist, to whom such behaviour was reported, would have expected a neurosurgeon to have considered whether it had a clinical cause. Mr Illingworth and Mr Todd agreed that the matters which Ms Cattermole claims to have told Mr Norris about were significant. No doubt for this reason, they would have expected a consultant neurosurgeon to have made a note of these symptoms. They would have been surprised if such symptoms were reported to a neurosurgeon but not recorded.

None of this is to say that consultant neurosurgeons never make mistakes. But it does serve to emphasise what a difficult task Mr Haithwaite would have had in establishing as against the Trust that Mr Norris had been negligent. Ms Cattermole struck me as an honest witness. She was prepared to concede matters adverse to Mr Haithwaite’s case when these were plainly supported by the documents. But it is axiomatic that even an honest witness can be mistaken.

It may be that the truth is somewhere in between – that Ms Cattermole did interject but not with reference to the incident with her sister and not as clearly as she now believes. The note made by Dr Claiden on 26^th February 1999 that Ms Cattermole said she had “told [Mr Norris] about the headaches and behaviour – told all well” is consistent with this having been the case. But the view of the experts that Mr Norris should have taken notice depends on the nature of Ms Cattermole’s contribution. It is extremely difficult to know where else on the range of possibilities that intervention might have been or to what conclusion on this aspect the notional trial judge would have come. All I can say is that Mr Haithwaite’s task of persuading that Judge that on a balance of probabilities Ms Cattermole had said enough to make any reasonably competent neurosurgeon sit up and take notice would have been difficult.

Overall conclusion on Mr Haithwaite’s prospects of establishing negligence against the Trust

I have been conscious throughout that it is not my task to decide whether or not Dr Wakeham or Mr Norris was negligent, but instead to try to assess Mr Haithwaite’s prospects of establishing negligence. To make out his cause of action it would have been sufficient for him to show that just one of those doctors had been negligent. I have borne in mind that counsel instructed by the Defendants considered in his written advice on 28^th March 2003 that the prospects of establishing negligence were 50-60% and that most probably in relation to the attendance on Mr Norris on 17^th February. I am also conscious of the principles identified by Simon Brown LJ in the Mount case (seeabove) that in circumstances such as these the court should tend towards a generous assessment of the Claimant’s prospects. It is always possible that Dr Wakeham or Dr Norris would have admitted negligence (as Mr Rivalland suggested), but there is no hint that that was likely to be the case in the way in which Hempsons responded to the claim on 30^th August 2002 or in Mr Norris’ letter of 20^th August 1999 to the Director of Services of the Princess Royal Hospital when he learned that Mr Haithwaite might be contemplating legal action (although it is fair to say that I do not know what knowledge Mr Norris then had of the allegations against him or Dr Wakeham). I also have more information available to me than counsel did (notably, Ms Cattermole’s diary and the opinions of Mr Illingworth and Mr Todd’s agreement that Dr Wakeham probably did not have the notes from the examinations of Mr Haithwaite at Princess Royal Hospital on 4^th February). I have explained the difficulties which I would see in Mr Haithwaite’s path to establishing negligence. This is not an exact science. I estimate his chances of establishing negligence at 40%. This is not the same as his prospects of establishing liability. There is the further question of causation to which I shall now turn.

The claim against the Trust: causation

The Claimant’s argument on causation had the following stages: if either Dr Wakeham or Mr Norris had not been negligent, a scan would have been ordered; the scan would have been conducted within a day or two; it would have shown that a subdural haematoma had developed and needed to be removed; the operation would have been conducted speedily; although the SAH, the infarct, the original hydrocephalus and the subdural haematoma up to the point where it should have been detected caused harm to the Claimant, the delay in removing the haematoma caused additional loss or exacerbated the underlying harm.

At this stage, I am only concerned with identifying what would have been the Claimant’s prospects of establishing a cause of action against the Trust. For that purpose he needed only to show some harm that was more than de minimis or insignificant. As with negligence, at the trial of the action against the Trust the burden of proof would have been on the Claimant to show on the balance of probabilities that each of the propositions in the previous paragraph was correct.

When would a scan and subsequent operation have taken place?

In their Joint Report the neurosurgeons addressed the following question “If Dr Wakeham should have referred the Claimant for a further CT scan on 8^th February 1999, when would that scan have been carried out and what would it have revealed?” They said:

“Mr Illingworth and Mr Todd agreed that when the CT scan would have been carried [out] would have depended upon whether Dr Wakeham’s assessment of the urgency of the problem and what he wrote upon the request card.

Mr Illingworth and Mr Todd agreed that what would have been revealed crucially depends upon what the Court accepts Mr Haithwaite’s neurological position was at the time the CT scan would have been performed. If Dr Wakeham’s assessment that there was ‘nil acute’ was correct then there would have been no new abnormality or a small non-compressive subdural haematoma. If there was new visual deterioration then, on balance, there would have been a significant subdural haematoma.”

In my view, the Claimant would not have had significant difficulty in establishing those links in the causal chain that I am presently addresing. The Court hearing the claim against the Trust would only have needed to consider questions of causation if it had decided that Dr Wakeham had been negligent. It would only have done so if he had been aware that (in one form or another) there had been a deterioration in Mr Haithwaite’s condition. But if that were so, there would have been some urgency to investigating the matter further. Mr Todd explained that a CT scan is neither a difficult nor an expensive operation. Obviously, access to a scanner is a finite resource, but there was no evidence that Hurstwood Park was so hard pressed that it could not have accommodated a reasonably prompt scan in Mr Haithwaite’s case. It may be thought that, if there were deteriorating symptoms, this was because the subdural haematoma had by that stage reached a size and density when it was already beginning to impact on Mr Haithwaite’s brain. That in turn suggests that a scan would have shown the need for an immediate operation. Mr Todd and Mr Illingworth agreed in their Joint Report that, if a scan had shown a significant compressive subdural haematoma, the operation that was performed on 2^nd March 1999 would have been performed at that time. But even if the scan did not show a significant compressive haematoma and instead showed that it was small and non-compressive, it could, as Mr Todd said in evidence, have been monitored to ensure that it was operated on before it got to a critical size.

The Joint Report also addressed the question “If Mr Norris should have referred the Claimants for a further CT scan on 17^th February 1999, when would that scan have taken place and what would it have revealed?” The neurosurgeons answered:

“Mr Illingworth and Mr Todd agreed that Mr Norris should have referred the Claimant for a further CT scan on 17^th February 1999, if he was aware of Ms Cattermole’s history. We refer you to our previous answers but, in summary, if those symptoms were reported to Mr Norris, Mr Todd feels that a CT scan was required within 24 hours. Mr Illingworth feels that the options were either a CT scan within 24 hours or review in outpatients within one week. On the basis of new disinhibition, swearing and progressively more serious headache, the CT scan would have demonstrated a significant compressive extra-axial haematoma.

Mr Illingworth felt that when the scan would have been performed depends upon the degree of urgency that was expressed by Mr Norris and the waiting list for CT imaging.”

In my view a Judge trying the claim against the Trust would have approached this aspect in much the same way as he or she would have approached the consequences of negligence by Dr Wakeham. In other words, an inquiry as to causation would only be necessary if Mr Norris had been negligent in not ordering a scan and that would have depended on a finding that Ms Cattermole had intervened to report symptoms of Mr Haithwaite’s deterioration. In cross examination Mr Illingworth said that there would have been no urgent need for a scan in the absence of further clinical signs. I think a Judge would have been sceptical of Mr Illingworth’s view that it might have been proper to review the position in a week without conducting a scan. It is not uncommon for a shunt to malfunction. If that happens, there must be a real risk of a haematoma developing. Mr Todd’s evidence as to the exponential effects of the increase in size or density of a subdural haematoma was not challenged. I think it far more likely that a Judge would have concluded that, if symptoms of deterioration had been reported to Mr Norris, the only proper course would have been to request a speedy CT scan to investigate what stage this haematoma had reached. As I have said, there was no evidence that Hurstwood Park could not have accommodated such a request.

If Mr Haithwaite’s subdural haematoma had been operated on speedily after either 8^th February or 17^th February (or had been effectively monitored to ensure that it did not get to a critical size) is there any significant harm which he would not have suffered?

Phrasing the question in this way does, I believe, apply the classic “but for” test of causation to the facts of the present case.

There was some discussion at the trial as to whether the Claimant would have been assisted by the “material contribution” principle as set out in Bonnington Castings v Wardlaw [1956] AC 615. I conclude that he probably would not. The Claimant’s case is not that he would have been entitled, as against the Trust, to compensation for all of his deficits and their consequences that he experienced after 2^nd March 1999. The Claimant accepts that he cannot recover for those symptoms or consequences which are attributable solely to insults that would have happened anyway (notably the bouts of epilepsy, the loss of his driving licence and the consequent loss of his employment with Business Seating). He would not have sought to recover even for all of the consequences of those deficits which had a mixed cause, but only for a fair apportionment to reflect the contribution that was made by the delay in diagnosing the subdural haematoma. He relies on evidence, to which I shall come, that that delay contributed to and exacerbated the psychological deficits which he experienced as a result of frontal lobe problems from the other non-tortious causes. I did not understand Mr Picton to argue that the Claimant would not have been entitled to put his case against the Trust in that way. It is just another example of the “but for” causation principle.

Mr Illingworth would answer the question that I have posed at the beginning of this section in the negative. He considered that, set against the effects of the SAH, the infarct and the hydrocephalus, the effects of the subdural haematoma were too small to be significant. Mr Picton submitted that the impact of the delay in treating the subdural haematoma must be even less. That is because, on the Claimant’s case, the subdural haematoma had already begun to produce symptoms before it could have been detected by even non-negligent doctors. Mr Illingworth accepted that he had no qualification as a neuropsychologist, but he said that these disciplines did not occupy watertight compartments. He was not skilled at measuring psychological difficulties, but seeing patients with these problems and properly identifying their cause was part of the practice of neurosurgery

The parties are agreed that some of the problems which Mr Haithwaite encountered after the operation in March cannot be attributed to the delay in diagnosing the subdural haematoma. Notably, the Claimant agrees that the bouts of epilepsy which he has suffered from time to time are probably the result of the infarct and would have occurred even without the subdural haematoma.

Mr Picton submitted that the same was true of the left sided weakness which Mr Haithwaite now reports. That, he submits, could not have been the consequence of a haematoma on the left side of Mr Haithwaite’s brain. Generally speaking, the left side of the body is controlled by the right side of the brain. This deficit was likely to have been the product of the right-sided infarct. However, the medical evidence as to this was less clear-cut. Mr Todd initially answered that if a subdural haematoma was going to cause any focal damage it was likely to be on the right side. But later in his evidence he said that the intracranial pressure, even of a haematoma on one side of the head, could be general.

Mr Todd’s reasoning as to why Mr Haithwaite would not have suffered some significant harm if action was taken earlier in February is as follows. The effects of the SAH, the ischaemia and the hydrocephalus would have been maximal at the time of his discharge from hospital in January 1999. He says that if the court finds as a fact that there was a deterioration in Mr Haithwaite’s condition or the emergence of new neuropsychological deficits these are likely to have been the consequence of a progressively enlarging subdural haematoma and that these would have been relieved or mitigated by a speedier operation to remove the haematoma.

My task is not to make findings of fact on these matters. That would be to assume the task that would have had to be performed by the trial judge if the action against the Trust had come to court. I have to assess Mr Haithwaite’s prospects at that trial of establishing that some significant harm was caused to him by the delay in diagnosing and treating the subdural haematoma. However, that trial would only have been concerned with the present question if it had concluded that Dr Wakeham or Mr Norris had been negligent. To reach that conclusion, the court would have had to decide that Mr Haithwaite’s condition had deteriorated in some way and that this was known to the examining doctor. If that was so, it seems to me that the premise for Mr Todd’s opinion would be likely to have been found to be fulfilled.

But the Claimant’s case in this regard does not rest on the opinion of Mr Todd. Mr Haithwaite has been seen by two consultant neuropsychologists, one instructed by the Claimant (Dr Leng) and one instructed by the Defendants (Dr Walton). Their Joint Report is dated 1^st August 2008. They could not identify any deficit solely attributable to the subdural haematoma. However, they were in agreement that it was probable that the accumulation of the left sided fluid collection would likely have worsened any deficit arising out of the SAH, that it was probable that a delay in identifying and treating the extradural fluid collection would, on the balance of probabilities, have worsened any cognitive defects that were present after the SAH. They considered that Mr Haithwaite had suffered an organically mediated personality change which was attributable to the totality of the brain insults and a reactive psychological problem that was in part due to the nature of the insult.

The neuropsychologists were then asked supplementary questions. Again, they were in broad agreement. They both said that the contribution made by the subdural haematoma to the Claimant’s impairments/damage was, on the balance of probabilities more than minimal. They were asked whether the cumulative effects of the various matters (including the subdural haematoma) was likely to be greater than the sum of the parts. They responded as follows:

“Dr Leng: When more than one event has occurred to cause damage to the brain, the effects would be cumulative, but the effects of a subsequent episode may be disproportionately greater, and subsequent recovery may be slower and less complete because subsequent events are occurring within a brain that is already damaged.

Dr. Walton: I agree and think that this is pertinent to the SDH. Ordinarily these may have a good prognosis but given that this SDH occurred in a brain already damaged by SAH, vasospasm and possibly hydrocephalus it is probable that there would be a greater effect from it than would have been the case had it occurred in a healthy brain. It is also true, though impossible to determine, that the damage caused by the previous events was of sufficient magnitude to render Mr Haithwaite sufficiently impaired as to render any further insult from the SDH of relatively little consequence, though on the balance of probability, given the clinical history, I would say that the former situation is more likely to be the case and thus I agree with Dr Leng.”

Dr Harvey is an Emeritus and Honorary Consultant Neurologist at the Royal Free Hospital. In his report of 18^th July 2007 he said:

“It has to be said that even if he did have frontal lobe cognitive, behavioural and mood disabilities before subdural collection accumulated, there can be no doubt that any damage attributable to his original subarachnoid haemmorage and subsequent middle cerebral stroke will have been exacerbated by prolonged pressure inside the head. The problem is that in such scenarios it is impossible to divide responsibility between the haemorrhage and the effects of the subdural collection when assessing his current disabilities.”

Dr Lipsedge, a consultant psychiatrist, provided a report dated 14^th August 2002 to the Defendants when they were still acting for Mr Haithwaite. He concluded:

“In my opinion, the neuropsychiatric effects of cerebral damage due to these two catastrophic vascular events, combined with the psychological impact of delay in the diagnosis of the subdural haematoma, are the obvious causes of Mr Haithwaite’s persisting symptoms and difficulties. It is extremely difficult to disentangle these three separate causes but I believe that the delayed diagnosis of the subdural haematoma is a significant factor in Mr Haithwaite’s continuing depressive illness and his post-traumatic symptom.”

Dr Jacobson, a consultant neuropsychiatrist was instructed by both Claimant and Defendants to advise on his capacity to be a litigant in this litigation. His report, dated 19^th July 2005 is therefore primarily directed to this question, but it does provide some further support for the Claimant’s contention that the delay in diagnosing the subdural haematoma contributed to his organic personality disorder.

Thus the expert evidence all favours the Claimant on this issue, with the exception of Mr Illingworth. I need to return to the basis for his views.

In the Joint Report, Mr Illingworth referred to, and provided a copy of, a study by Hackett and Anderson in 2000 Health outcomes one year after subarachnoid haemorrhage; an international population-based study. Mr Illingworth said by reference to this report:

“It should be noted that a subarachnoid haemorrhage due to a ruptured aneurysm is a condition from which many patients do not make a good recovery. Ten to fifteen percent will die before reaching hospital. One third of the survivors will die in hospital, one third will be left with persistent disability, particularly, as in this case, after a coma-producing subarachnoid haemorrhage, an episode of cerebral ischaemia due to vasospasm, and the development of hydrocephalus. Only one third will make a good recovery, and many of those will suffer more or less from cognitive problems which, although they may only be apparent to family members, may significantly impair the ability to continue employment as before, and impair quality of life.”

Mr Rivalland submitted that Mr Illingworth had understated the conclusions that could be drawn from this study in terms of chances of full recovery from an SAH. The data showed that, of those who survived, approximately two thirds returned to waged work. Since the mean age of those in this study was 56 (and their median age was about 50), it may be assumed that some survivors who could have chosen to return to work decided instead to adopt a more leisurely lifestyle. Mr Haithwaite was only 27 at the time of his SAH. In addition, his WFNS was 1 which meant that he was more likely to have a good outcome than patients with a higher grade. There is some force in these points, as Mr Illingworth acknowledged (although neither he, nor I, accept the inference that Mr Rivalland sought to draw that he had failed in some way to discharge his duty as an expert to the Court). As against that, the study also noted that over 50% of survivors of SAH reported problems with memory, mood or neuropsychological function in the medium to long term. Mr Haithwaite also had the further (non-negligently caused) complications of the infarct and hydrocephalus and in Mr Illingworth’s opinion any frontal lobe disturbance that Mr Haithwaite suffered was due to the severity of the initial haemorrhage (he noted in re-examination that Dr Wakeham writing on 12^th January 1999 to Dr Hine of the Princess Royal Hospital had observed that a CT scan prior to the operation to clip the aneurysm in December had shown subarachnoid blood over both cortices and in the sylvian fissure) and the development of hydrocephalus.

In their Joint Report, Mr Todd accepted Mr Illingworth’s views as to the outcome in the generality of patients with subarachnoid haemorrhage, but thought that this was only of limited use. It was necessary to focus on the history of this particular patient. In Mr Todd’s view Mr Haithwaite’s neuropsychological problems were largely the consequence of a frontal lobe syndrome and they were more likely to be the consequence of raised intracranial pressure (from, I infer, the subdural haematoma). Mr Todd then alluded to the evidence that Mr Haithwaite could, while at Hurstwood Park, play the guitar and that the ability to do this had since been lost. That suggested that Mr Haithwaite had been functioning at quite a good level and that he then deteriorated.

It may be that the issue of Mr Haithwaite’s guitar playing would not have helped a Judge trying the claim against the Trust to decide whether Dr Wakeham or Mr Norris had been negligent for the reasons that I have previously given. At first sight, Mr Todd’s reasoning might suggest that the issue assumes somewhat more importance in the present context.

In my judgment, Mr Haithwaite would have had a reasonable prospect of persuading such a judge that he had been able to play the guitar while at Hurstwood Park. The judge would have had evidence that Mr Haithwaite’s parents had brought up the guitar when they visited him around 7^th January. Mr Haithwaite had a clear recollection of his relief at being able to play the guitar again (and indeed to compose a song). He recalls the softness of his fingers from not having played the instrument for some time. Ms Cattermole remembers the same. She remembers him playing the guitar on the occasion of his birthday party which, as her diary showed, took place on Mr Haithwaite’s actual birthday – 17^th January. Ms Thatcher’s note that he could not play comes from her visit on 28^th January but this was some 11 days later and so is not necessarily inconsistent with Mr Haitwaite’s recollection. Dr Wakeham was told by Mr Haithwaite on 8^th February 1999 that he had noticed a numbness in his left hand in the “last few days”.

Mr Picton submitted that Mr Haithwaite’s later problems with playing the guitar (that is after his discharge from hospital in March 1999) were associated with numbness in his left hand. That, he argued could not have been because of a subdural haematoma which was also on the left side of Mr Haithwaite’s brain. This is because injury to one side of the brain is likely to cause any focal deficit on the opposite side of the body. Mr Todd disagreed. He considered that a subdural haematoma could result in generalised intracranial pressure. Either that or more general problems with co-ordination or concentration could have impacted on Mr Haithwaite’s ability to play the guitar by the time of Ms Thatcher’s visit on 28^th January. I do not mean to say that these arguments would necessarily have succeeded, but they allowed a reasonable prospect that the Judge would have found that Mr Haithwaite could play the guitar in early or mid-January and that this ability deteriorated thereafter.

But this would not have assisted Mr Haithwaite very much in establishing that any negligence by Dr Wakeham or Mr Norris had caused him loss. The playing of the guitar in hospital in January would have shown that his subsequent disability in this regard was not caused by the subarachnoid haemorrhage or the infarct and may show that it was more likely to have been caused by the subdural haematoma. However, Ms Thatcher’s note of 28^th January 1999 showed that he had begun to experience this disability by that date. As I have noted above, on 8^th February 1999 Dr Wakeham recorded the Claimant’s complaint that his left hand had become numb over the previous few days. It seems reasonably clear therefore, that any problem that Mr Haithwaite had with his left hand or left side was not a consequence of the delay in identifying the subdural haematoma.

A further strand in Mr Illingworth’s reasoning was the assessments of Dr Veronica Bradley, She is also a Consultant neuropsychologist. In March 1999 she found that the Claimant had significant impairment of the frontal lobe which accounted for change in his behaviour. However by June 1999 she had reported that there had been a dramatic improvement in scores on frontal lobe functioning and that there were by then no scores indicative of significant impairment. On 23^rd December 1999 she reported that Mr Haithwaite’s mood had improved and he felt pretty well back to normal. There was by then significant improvement in verbal memory which was satisfactory. There remained mild impairment of visual memory but this had also improved. Impairments of perceptual reasoning and visuoconstructional ability persisted and Mr Haithwaite had some difficulty with a complex conceptual tracking task, but these impairments did not seem to impact significantly on day-today functioning. We have correspondence from Dr Bradley, but no formal report and only a limited amount of her data. When Mr Haithwaite saw Mr Norris on 7^th February 2000 the later reported that Mr Haithwaite was “full of energy and enthusiasm regarding the progress he is making on his new musical career. Essentially he is completely asymptomatic now …”

In their Joint Report, Mr Illingworth said that in his opinion “these objective assessments are relevant in determining [Mr Haithwaite’s] recovery from his illness, and appear to confirm that the subdural haematoma has made little, if any contribution to any disabilities he may have now.”

The other two neuropsychologists, Dr Walton and Dr Leng, did find evidence of frontal lobe disorder when they examined Mr Haithwaite many years later. In their Joint Report, they agreed that Dr Bradley’s findings suggested that he had performed more capably on her assessments than on their later ones and that this made little clinical sense in the absence of any further brain insult. Despite Dr Bradley’s views, Drs Walton and Leng remained of the view which I have already set out above – that in short Mr Haithwaite did continue to have problems and that these had been exacerbated by the subdural haematoma. It was difficult for them to say more without sight of Dr Bradley’s data. Dr Walton thought that the answer could have been the product of Dr Bradley’s use of what he regarded as an inappropriate test (He was referring to the Hayling Brixton tests. Those of Dr Bradley’s notes which were produced do suggest that she made use of this, among other, tests). Both Dr Walton and Dr Leng noted a tendency on the part of the Claimant in the tests that they conducted to exaggerate his deficits. They emphasised that this was not to be interpreted as malingering and, notwithstanding this, they stood by their opinions that he did suffer from frontal lobe problems, but it muddied the picture.

Mr Picton submitted that there was evidence preceding 8^th February 1999 which showed that Mr Haithwaite was already suffering from symptoms consistent with a frontal lobe syndrome. He directs attention to the notes of Dr Wakeham on 25^th December 1998 (referring to transient left sided weakness); the physiotherapist’s report who mentioned headache and unsteadiness on 13^th January 1999; the occupational therapist who, about 13^th January 1999 mentioned blurred vision, repetition and some problems with coordination; the GP who recorded vagueness, dysphasia and subjective decrease in vision on 3^rd February 1999; Dr Claiden’s letter to Mr Norris of 21^st January 1999 which again mentioned feelings of vagueness and blurred vision and the notes from Ms Thatcher of 28^th January 1999 showing that he could not by then play his guitar. Mr Todd accepted in cross examination that all of the frontal lobe difficulties and syndromes which Mr Haithwaite experienced could have been attributable to the original SAH and infarct. He also accepted in cross examination that the outlook for complete recovery from a chronic subdural haematoma are quite good, but added the important qualification, when the patient is in good shape. Mr Haithwaite, of course, had suffered earlier substantial insults to his brain. Mr Todd accepted that consciousness level at the time of admission was a good predictor of recovery and Mr Haithwaite’s score on this measure had been good (14, when 15 was the best), but the haematoma in Mr Haithwaite’s case had been extremely large. There had been no neurological deficits noted by Hurstwood Park in March, but Mr Haithwaite’s continuing problems had in the main been neuropsychological rather than physical.

Overall conclusion on Mr Haithwaite’s prospects of establishing causation

If Mr Haithwaite succeeded in establishing negligence, overall I consider that he would have had a good prospect of showing that that negligence had caused him at least some loss which was more than minimal. For the reasons that I have given above, I think he would have had a very good chance of showing that in those circumstances a scan would have taken place speedily and either an operation to remove the subdural haematoma would have taken place or it would have been closely monitored and it would subsequently have been removed before it reached a critical size.

As for the harm that this would have avoided, Mr Haithwaite would have been in the strong position of having the joint reports of Dr Leng and Dr Walton to support the proposition that delay in treatment of the subdural haematoma caused some exacerbation in his frontal lobe symptoms. Mr Picton accepted that exacerbation of harm which would otherwise be non-tortious would be sufficient to give Mr Haithwaite a cause of action. Mr Picton would limit his concession to cases where the exacerbation was more than minimal, but on the medical evidence which I have seen, Mr Haithwaite would have had a good prospect of showing that it was. I also bear in mind the evidence of Mr Todd as to the exponential effect of a subdural haematoma once the stage of compliance is passed. It may be that there were some symptoms present before Mr Haithwaite saw Dr Wakeham. Indeed, it is his case that there were such symptoms and it was these which led Ms Cattermole to intervene and refer to them when he was seen by Dr Wakeham and Mr Norris. This is not inconsistent with the views of the neuropsychologists that those symptoms or others also indicative of frontal lobe problems were exacerbated as a result of the growth of the subdural haematoma. Dr Walton and Dr Leng were somewhat critical of Dr Bradley and maintained their view that the subdural haematoma had contributed to, and made worse, his neuropsychological deficits

On the other hand, I must make some allowance for the possibility that the views of Dr Bradley and Mr Illingworth would have prevailed. I did not see Dr Bradley and I do not know what impression she would have made on a Judge if she had been called by the Trust. I did see Mr Illingworth give evidence and, despite the criticisms made by Mr Rivalland, I thought that he was generally impressive (although I have given my reasons as to why I thought a Judge might be sceptical of some of his views). In particular, I accept that, despite neuropsychology not being a field in which he has qualifications, he, like Mr Todd needed to have a working knowledge of the possible neuropsychological consequences of malfunctions of the brain in order to make his clinical judgments.

I take into account that, in order to succeed on his claim against the Trust, Mr Haithwaite would have had to prove both negligence and causation. To some extent these tasks are not independent of each other, as I have tried to explain, but neither does it follow that if Mr Haithwaite was successful in establishing negligence he would thereby necessarily succeed in showing causation. I note that counsel instructed by the Defendants considered that there was a 50-60% prospect of establishing a breach of duty and a 50 – 60% prospect of establishing causation. It is not entirely clear to me how counsel saw these two prospects combining to produce an overall chance of success. In any case there is now further evidence both favourable to Mr Haithwaite (notably the neuropsychologists’ reports) and unfavourable (the views of Mr Illingworth). I remind myself again that I should tend towards a generous assessment of the Claimant’s chances of success.

Doing the best that I can, I consider that, even if Mr Haithwaite established that Mr Norris or Dr Wakeham had been negligent, there was a 75% chance that he would be able to prove that their negligence caused him some loss that was more than minimal. This means that Mr Haithwaite’s overall prospects of success against the Trust should be reduced by a further 10 percentage points (40% x 25%) to reflect the litigation risks of not being able to establish that some harm was caused by the negligence which (on this hypothesis) he was able to establish against either Dr Wakeham or Mr Norris.

Mr Haithwaite’s overall prospects of success in establishing liability against the Trust

It follows that I consider that Mr Haithwaite’s overall prospects of successfully establishing that the Trust was liable to him in the tort of negligence were 30%.

The damages which Mr Haithwaite would have been likely to recover against the Trust

Mr Haithwaite’s claim against the Trust would have pleaded a number of different heads of damage. It is necessary to consider each category separately.

General damages for pain and suffering

If the subdural haematoma had been identified by either Dr Wakeham or Mr Norris, Mr Haithwaite would have been spared a period of bizarre behaviour. I have already noted that Ms Cattermole’s diary says of the week beginning 22^nd February “Ashley extremely mental this week…Ashley mad and child like all week”. On 1^st March he lost consciousness briefly, fitted and was taken to hospital as an emergency. Although it seems that there were times during this period when Mr Haithwaite was unaware of his condition, I am prepared to accept that there were others when he was conscious and is likely to have both suffered pain, suffering and distress himself and seen the distress that his state was causing others around him.

The physical problems which Mr Haithwaite continues to experience are a loss of feeling on his left side including in his left hand and a loss of the sense of taste.

I have considered already Mr Haithwaite’s left sided difficulties in the context of his problems with playing the guitar. Because those problems preceded any complaint that could be made about the delay in treatment, I am very doubtful that they would have featured in the loss for which Mr Haithwaite could claim compensation against the Trust.

As for his loss of the sense of taste, Mr Haithwaite says that this only occurred after the operations in March. He says that he recalls being able to taste the cake that had been made for him for his birthday party in January 1999. Mr Haithwaite would have had to persuade the court hearing the claim against the Trust that his memory about this was accurate despite his general problems with powers of recall. When it came to his ability to play the guitar I think that he would have been able to rely on the other matters to which I have referred above to help show that his memory as to this matter was correct. In the context of his recollection of recovering his sense of taste on the occasion of his birthday party, the position is not the same. I think that his chance of showing that this memory was correct would have been modest.

Otherwise, Mr Haithwaite describes psychological problems. He reports sleeping poorly, problems with his memory, difficulty in prioritising decisions and tasks and coping with money.

I have already noted that Dr Leng and Dr Walton in their joint report commented on the difficulty which they faced in assessing the Claimant because of his tendency to exaggerate his deficits. Nonetheless, they did not consider him to be a malingerer and while they did not condone such behaviour, they considered it understandable and not uncommon. They have made allowance for it in their report. They considered that he did have some cognitive deficit. They also agreed that there were behavioural changes of a frontal lobe type and that these had their basis in both organic and reactive psychological factors. The result would be to render Mr Haithwaite more forgetful, prone to disorganisation and prone to over react to stress and frustration. However, Dr Leng and Dr Walton agreed that these problems occurred at only a mild level and that they had not resulted in the failure of his relationship or in an inability to work and live independently. So far as neuropsychological deficits were concerned, there was evidence of subtly reduced fluid intelligence, memory, speed of processing and executive functioning. There was also evidence of altered personality (probably an exacerbation of pre-existing traits) with a degree of emotional lability resulting in some impulsivity. These two neuropsychologists also thought that Mr Haithwaite’s capacity to work had been diminished. They thought that it was improbable that he could work at a level of complexity demanded by his pre-accident roles and they noted that he had a convincing history of attempts to return to work being met with failure. He was currently employed, but dependent on a sympathetic employer who made allowances and adjustments for him. If he needed to find alternative employment he would be at a significant disadvantage.

In supplementary questions Dr Leng and Dr Walton were asked by the Claimant’s solicitors to re-consider their categorisation of Mr Haithwaite’s consequences as “mild”. In summary, they responded that his impairments may have been in the “moderate” category, but the consequences for him were less. As Dr Leng put it “My understanding is that he retains capacity, he retains the ability to hold down a relationship with Ms Cattermole, and he has demonstrated the ability to return to work, albeit at a reduced level on a part-time basis. Thus although his impairments might be moderate, the consequence of these impairments would appear to be less than that.”

Both psychologists commented that it was a positive sign that Mr Haithwaite had managed to hold down his relationship with Ms Cattermole. It is right to note that there was an interruption in this relationship in about 2000. He had begun to assault her physically in December 1999 and in June 2000 she asked him to leave because of his violence to her and generally difficult moods. They saw each other at weekends and gradually they began living together for longer periods. They reunited on a full time basis in 2004. Since there is no evidence that Mr Haithwaite had been violent or prone to such moods before his SAH, it would be right to take this disruption of his relationship into account when considering the consequences of the totality of what happened to him in late 1998 and the first few months of 1999.

Dr Leng had first seen Mr Haithwaite in 2002 when he reported that there was then a significant impairment of attention and working memory and impairment of visual memory. His verbal memory had been extremely poor, but this may have been affected by other difficulties in maintaining attention and concentration. There was evidence of slowness and inefficiency of information. Dr Leng noted that by the time he came to prepare a second report in 2008 there had been considerable improvements and the position recorded in the Joint Report with Dr Walton reflected that. Dr Leng did not expressly refer to the prognosis for further improvement. Dr Walton in his report of 23^rd April 2008 thought that there was not any reason to suppose that there would now be any further resolution of Mr Haithwaite’s organically mediated behavioural problems, though with the passage of time there would be some small further functional gain.

Mr Picton referred me to the 7^th edition of the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases. Although that edition has subsequently been superseded, it was the one that would have been current at the agreed date of the hypothetical trial of the action against the Trust. He submitted that Mr Haithwaite’s loss came either at the very bottom of the scale for “Moderate Severe Brain Injury” or was “Minor Brain Damage”.

The JSB says this of “Moderate Brain Damage”:

“This category is distinguished from (b) [i.e. moderately severe Brain Injury] by the fact that the degree of dependence is markedly lower…..(iii) Cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any other dependence on others is limited: £23,500 - £50,000.”

Of “Minor Brian Damage” the JSB says:

“In these cases the injured person will have made a good recovery and will be able to take part in normal social life and to return to work. There may not have been a restoration of all normal functions so there may still be persisting problems such as poor concentration and memory or disinhibition of mood, which may interfere with lifestyle, leisure activities and future work prospects. At the top of the bracket there may be a small risk of epilepsy.

The level of the award within the bracket will be affected by:

the extent and severity of the initial injury;

the extent of any continuing, and possibly permanent, disability;

the extent of any personality change;

depression.

£8,500 – 23,500”.

The Defendants’ counter-schedule suggested that, bearing mind the contribution from the other insults that Mr Haithwaite’s brain had suffered, he would not have been able to recover more than £10,000 in general damages before the addition of interest.

Mr Rivalland suggested that the Claimant was in the lowest bracket of the JSB’s moderate scale. He referred me as well to further authorities on quantum, but I am afraid that I thought that they were all too distant from the present facts to be useful.

There is not, therefore, a great deal between the parties on this issue. I consider that the totality of Mr Haithwaite’s condition and past pain and suffering would have justified an award of some £22,000. I put this just below the bottom of the “moderate” scale because there is not in his case a risk of epilepsy which can be attributed to tortuous conduct.

The difficult exercise is to decide by how much the Trial Judge in the claim against the Trust would have reduced that figure to take account of the fact that Mr Haithwaite’s condition is a result of a combination of factors, some of which were non-tortious. The neuropsychologists, Dr Leng and Dr Walton, say that it is impossible for them to attribute proportions of responsibility. Dr Bradley thought that the Claimant had pretty much recovered by the end of 1999, but I have already made an allowance for the possibility that the Court would have accepted her conclusions in my assessment of Mr Haithwaite’s prospects of establishing liability. In his letter to Dr Claiden of 18^th February 1999, Mr Norris thought that Mr Haithwaite would return to his normal status by summer time. While, of course, no guarantee, this is some indication of his prediction of the Claimant’s trajectory without the further complication of a subdural haematoma. Mr Todd also made the point that the incremental effect of a subdural haematoma was likely to be the greater because of the injuries that Mr Haithwaite had already suffered. This may have been unfortunate for the Trust, but it is a rather graphic illustration of the “egg-shell skull” principle i.e. that a tortfeasor has to take his claimant as he finds him (absent issues of foreseeability which do not arise in this case). This would not have been the first case in which a Judge had to determine the proportion of a Claimant’s loss was due to tortious as opposed to non-tortious causes in circumstances where expert evidence gave no clear direction. The Judge would have had to do his or her best to reach a common sense decision doing justice to both the Claimant and the Trust. In my view an award of £11,000 would have done that.

It is agreed that the Claimant would have been entitled to interest at 2% on this sum from 1^st June 2002 to 1st January 2005, a period of 2 years and 7 months or £568.26. This would have given Mr Haithwaite total general damages of £11,568.26.

Loss of earnings up to the notional trial date of 1^st January 2005

The evidence of the Claimant’s work history up to December 1998

The Claimant pleaded that his work history had been as follows:

The Defendants took issue with this account. They contrasted it with the curriculum vitae which Mr Haithwaite had provided to them and which was in many respects inconsistent with the pleaded account. A letter to the Claimant’s current solicitors from HM Revenue and Customs dated 18^th September 2006 was inconsistent with both the pleaded work history and the c.v. Although Mr Haithwaite offered some explanations for these various discrepancies, there was some considerable force to the Defendants’ comment that the Claimant’s past work history was difficult to determine. However, I do not consider that it is necessary for me to resolve where the truth lies. What matters is his earning capacity before the series of injuries to his brain.

There was an almost complete dearth of supporting documentary information. There were no pay slips, income tax returns or bank statements from Mr Haithwaite. During the period of self-employment in about 1994-1997, Mr Haithwaite said that he had been managing a band. He had no accounts (prior to 2003 at the earliest) and no written records of receipts or expenses. He did say that the figure of £15,000 for income earned in his own business between 1994 and 1997 was for gross receipts before deduction of expenses or tax. Mr Haithwaite was receiving Job Seekers Allowance from February to August 1997 and so his earnings from managing the group must have ceased by then. At some stage at about this time, Mr Haithwaite started a business called Mafix with a Mr Bunyard. This proved unsuccessful and collapsed owing substantial debts. Mr Haithwaite blamed Mr Bunyard for this.

Mr Haithwaite could not give evidence as to how much he earned at Faraday Rover and so that employment would not have helped him to establish loss in his claim against the Trust. At some stage, either before or after working for Frost Cars, Mr Haithwaite said that he worked for a company called FCC Logistics. Mr Ashley Rowden, a friend of the Claimant, gave evidence. Mr Rowden recalled the Claimant working for both Faraday Rover and FCC Logistics, but neither Mr Rowden nor the Claimant provided evidence as to how much the Claimant earned from either company. There was no written evidence as to how much Mr Haithwaite had earned with Frost Cars.

Business Seating was the company for which Mr Haithwaite had been working from September 1998. His employment with them required him to drive. A consequence of the insults to Mr Haithwaite’s brain was that he lost his driving licence in April 1999. The parties agreed that this would have been the case even in the absence of negligence. It followed that the inevitable loss of Mr Haithwaite’s employment with Business Seating could not have been the responsibility of the Trust. Nonetheless, the Claimant relied on what he had earned with Business Seating as the best indicator of his earning capacity when he was healthy.

I have summarised what Mr Haithwaite said that he could earn in this employment. Ms Cattermole said that she had a clear recollection of Mr Haithwaite’s jubilation at exceeding his sales target figure in his second complete month of work at Business Seating. This had entitled him to the full commission.

At the beginning of the trial, Ms Cattermole discovered two documents relating to this employment. The first was a statement from her own bank which showed a payment from Business Seating on 29^th January 1999 of £1,148.76. The second was a letter dated 22^nd January 1999 from Business Seating to Mr Haithwaite. The material part of this read:

“…I will deduct the 14.45 we overpaid from your January salary, which will make us clear in that respect.

The following is a breakdown of your salary entitlement outlining the sick pay scheme operated by the company. As your first day of sickness was 14^th December, you will be paid one month at full pay to 14^th January. You had 5 days holiday due to you from 1998, plus 3 Bank Holidays, so this will take you to 26^th January at full pay. The last 3 days of January will be paid at half pay. …

….mobile telephone bills …total £112.14 (incl VAT) which will be deducted from the January salary.”

Business Seating was here clearly explaining the calculations which led to the salary component of the payment which Ms Cattermole received about 1 week later (no doubt that was paid to her because of his hospitalisation). It seems that Mr Haithwaite was paid on a monthly basis. Mr Rivalland submitted, and I agree, that Mr Haithwaite would already have received his December pay cheque. This letter was referring to his salary for the month of January. By my calculations (which are materially the same as Mr Rivalland’s), the salary component of the January cheque was £856 which means that some £292 must have represented commission. The annual equivalent of this is £3,504 net of tax or approximately a further £5,000 gross when added to his salary.

I appreciate that this calculation is of limited value. Mr Haithwaite was in hospital for half of December and may not have been at his best for the days immediately preceding his admission to hospital. It does provide some corroborative evidence of Mr Haithwaite’s ability to earn commission above his salary, but at the time of his admission to hospital in December 1998, he had been working for Business Seating less than 3 full months. It was a very modest track record.

It is right that I should also take account of the positive references that have been made regarding Mr Haithwaite’s abilities as a salesman by those who know him. Mr Rowden, who is himself a car sales manager, had a high opinion of Mr Haithwaite’s abilities and described him as a “top salesman”. In a draft statement prepared by the Defendants, Nicholas Hodgkinson who worked as a sales executive at Frost Cars at the same time as Mr Haithwaite described him as a “true salesman”. Philip Dunk, Business Development Director for River Marketing, Mr Haithwaite’s employer for the past 6 years, describes Mr Haithwaite as self-motivated, dedicated and engaging. He thinks highly of Mr Haithwaite’s abilities.

Mr Haithwaite and Ms Cattermole criticised the Defendants for not obtaining evidence of Mr Haithwaite’s earnings from his previous employers. They argued that it was not fair now for the Defendants to rely on the lack of written evidence to substantiate Mr Haithwaite’s earnings, since this was the type of evidence which they ought to have been gathering when they were acting for him. I do not think that there is merit in these criticisms. The Defendants were faced with a difficult case in terms of negligence and causation. It is plain that they did a great deal to investigate these matters. They were constrained by a limited legal aid certificate and understandably gave priority to the medical issues. At the conference on 28^th September 2001 the need to obtain details of past employers was identified. On 9^th October 2001 the Defendants did write to Mr Haithwaite asking for the names and addresses of his employers since 1998. Ms Cattermole responded promptly on 13^th October 2001. On 26^th November 2001 the Defendants explained to Ms Cattermole that they were waiting for the Legal Services Commission to approve an extension of the legal aid limit before they could write to potential witnesses. On 21^st December, the Commission refused the extension. The Defendants pursued the matter which still seems to have been ongoing in March 2002. In June 2002 they did try to contact at least some of the people whose names Ms Cattermole had given. There is no record of any attempt to contact Kevin Goodward (whom Ms Cattermole had identified as Mr Haithwaite’s employer at Business Seating) but they did try, and in some cases, succeeded, in taking witness statements from some of Mr Haithwaite’s former colleagues at Business Seating. In any event, it would have been open to the Claimant’s present solicitors (or Mr Haithwaite himself) to seek to obtain copies of bank statements or other records to corroborate what he had been earning.

The Claimant’s prospective earnings up to the trial of the action against the Trust absent the tortiously caused harm

In addition to his salary and commission at Business Seating, the Claimant was also entitled to a company car and the use of a mobile telephone. It became clear in evidence that the Claimant still had to pay for his personal mobile calls and he has abandoned any claim for the loss of this benefit. He does maintain that his earning potential should reflect the lost opportunity for obtaining a job which carried the same benefit to a car. I do not agree. The Claimant lost his licence in 1999 because of the insults to his brain. He would have lost his licence then even if there had been no subdural haematoma. He re-gained his licence some time in the middle of 2000. He lost his licence for a second period between June 2002 and August 2003 following further seizures. It is agreed that the seizures cannot be attributed to the Trust’s negligence. It seems to me that Mr Haithwaite’s ability to drive (and, for any sustained period, to have the benefit of a company car) would anyway have been compromised for substantial periods of time. I am not convinced that the Judge trying the claim against the Trust would have allowed anything for the loss of the benefit of a company car.

The Defendants’ Counter-Schedule notes that the National Earnings Survey records that the gross average earnings in 2004 for sales occupations was £17,237.00. The Defendants do not suggest that this was all that the Claimant would have been able to demonstrate in his action against the Trust. They submit that allowing for the evidence of his earnings at Business Seating (at the time of the Counter-Schedule the Defendants had not seen the documents produced at the beginning of the trial) Mr Haithwaite could have shown that but for the delay in his diagnosis, he would have earned a gross annualised income of £23,000 in 1999/2000 rising to £25,000 in 2004/2005.

Taking account of the (modest) corroborative evidence produced at the trial, the testimonials to Mr Haithwaite’s abilities and the apparent stabilising impact on his life of Ms Cattermole, I think that this somewhat understates the Claimant’s potential earning capacity. The Claimant would anyway have lost his job with Business Seating. Some period of convalescence and time to find another job would have been necessary anyway. I agree with the Defendants that 5 months of the fiscal year 1999/2000 is appropriate to allow for this. I have commented already on the little assistance I can get from the expert neuropsychological evidence as to the degree of attribution that should be made thereafter to the continuing effects of the non-tortious insults to Mr Haithwaite’s brain. Again I have to do the best that I can to estimate what a trial judge would have decided in 2005 being fair to both the Claimant and the Defendants. I have increased the annual amounts to reflect not only the increase in average earnings index but also the likelihood that Mr Haithwaite would, over time, have been more able to expand into his potential as a salesman. There is necessarily an element of arbitrariness, but that is unavoidable.

The Claimant’s actual earnings up to the date of the notional trial

The Claimant pleads that his actual earnings were as follows:

The Defendants observe that the Claimant has produced no details of how these figures have been computed except for sets of accounts for the years ending 2003, 2004, 2005 and 2006. They take issue in particular with deductions in the accounts for expenses for (a) motoring and travel expenses and (b) studio costs.

As to the motoring and travel and subsistence expenses, they observe that Mr Dunk, the Claimant’s present employer, says that a great deal of Mr Haithwaite’s time is spent on the telephone and “To ensure stress [for Ashley] is kept to an absolute minimum Ashley works at home.” They submit that, if this is the case, there is no justification for including motoring costs as an allowable expense to be set off against his income before expenses. Mr Haithwaite’s explanation in his oral evidence was that in part the need for him to drive had increased with a change of personnel in the senior management of River Marketing. Mr Haithwaite gave the impression that this change had been relatively recent (he used the present tense to describe the increase). If that is so, it could not justify motoring expenses being deducted from his gross income in the years before the notional trial date.

His second explanation was that the accounts covered both his work for River Marketing and the development of his music business and he needed to travel for this aspect of his work. The difficulty for Mr Haithwaite is that this side of his business enterprise has yielded no income up to now, let alone as of the notional trial date. It is not my task to consider whether this is an appropriate deduction for tax purposes.

I do think that the Defendants are entitled to say that in assessing Mr Haithwaite’s loss for the purposes of the notional trial, those expenses should not have been included. Mr Haithwaite is enthusiastic in developing the music enterprise side of his life, but the expenses of doing so would anyway have had to come out of the income that he would have earned had there been no tort. Mr Rivalland argued that the Defendants were really taking a point as to failure to mitigate and this had not been pleaded. I do not think that they are. Their Counter-Schedule took issue with correctness of including the motoring expenses. Mr Haithwaite’s explanations for them only emerged at the trial. This means that motor and travel expenses as follows were not properly deductible for present purposes: 2003: £1,240; 2004: £4218; 2005 (9 months only): £3293.25. The total for these expenses is therefore £8,751.25

As to the studio expenses, Mr Haithwaite explained that these were in part also a function of his music enterprise. However, River Marketing had made some use of his skill in this regard. They had asked him to make a recording of a performance and to distribute the recording to their clients. River Marketing has, it seems, been extremely accommodating to Mr Haithwaite and I could see that he would feel that he should reciprocate. He did not distinguish what part of the studio expenses in 2005 were attributable to this particular activity. Absent such evidence, I have to do the best that I can to decide how the notional trial judge would have treated them. In my view £1,000 of these expenses are properly deductible, but £3,240 are not. Since the notional trial would have been concerned with only 9 months, that means that £2,430 were disallowable expenses.

The total of disallowable expenses is therefore £11,181.25. Assuming (favourably to the Claimant) a tax rate of 40%, a net additional income of £6,708.75 must be allowed by the Claimant.

The Counter-Schedule also includes similar expenses for 2006 but I see no reason why these would have affected damages awarded by the notional trial judge in January 2005.

Employment Tribunal award

In 2001 Mr Haithwaite was unfairly dismissed from his employment with Office Canopy Ltd. His employers were ordered to pay £31,753.00 in compensation by an Employment Tribunal on 16^th January 2003. This was divided by the Tribunal as £7,000 for general damages and £23,313 for loss of earnings. Interest accounted for the remainder. The Respondent in those proceedings appealed. On the advice of counsel, Mr Haithwaite settled the appeal and actually received £17,671. Mr Rivalland submits, and I did not understand Mr Picton to dissent, that the Claimant is entitled to retain the benefit of £7,000 representing his general damages, but should give credit for the balance of £10,671.

Certificate of recoverable benefits

This is for £1,277.75. It is dated 12^th February 2004. The Claimant accepts that he must give credit for this sum.

Conclusion on lost earnings to the notional trial date

In summary then, in my judgment the position would have been as follows:

Damages to reflect care up to notional trial date

The Claimant alleges that since February 1999 he has needed frequent care and support. He has had difficulty in concentrating and sleeping, suffered panic attacks and short term memory loss. His ability to organise and prioritise his activities has suffered. He frequently loses items. He is easily distracted from tasks and cannot undertake his proper share of shopping, cooking or caring for his daughter. All these are said to be the consequences of his frontal lobe syndrome.

For the most part, the care in question was provided by Ms Cattermole. However, during the time that she and Mr Haithwaite separated, he was living with Mr and Mrs Rowden and they then provided the care that he needed. The separation began in about June 2000. It was complete for several months. Thereafter, Mr Haithwaite spent longer and longer periods with Ms Cattermole. They were living together again full time in 2004.

Of course, neither Ms Cattermole nor the Rowdens charged Mr Haithwaite for their help, but the Defendants do not dispute that in principle a sum to represent the cost of gratuitous care is a proper head of damages providing the Claimant needed that care and needed it in consequence of the tort.

The Defendants submit that after a reasonable period of convalescence, Mr Haithwaite had no need for care. Dr Bradley assessed that he was pretty well back to normal in December 1999 and the Trust would have argued that any of his care needs would have come to an end then. Furthermore, they rely on the report of the neuropsychiatrist, Dr Jacobson dated 19^th July 2005. Dr Jacobson thought that Mr Haithwaite was capable of living on his own and that he did not need a care manager or support worker. While Mr Haithwaite might need some degree of support, this might fall within the compass of what a couple would provide each other. On balance it was improbable that he had any care needs.

It seems to me that at a notional trial In January 2005 it is very likely that Mr Haithwaite would have been able to establish that he had had care needs. I have already commented on the views of Dr Bradley and how (in part at least) that has informed my judgment in reducing Mr Haithwaite’s prospects of succeeding on liability. Having done so, I do not think it right to make another (and duplicative allowance) for the possibility that her views might be accepted when it comes to assessing the quantum which Mr Haithwaite would have been likely to recover, assuming that he was successful on liability. Apart from the expert reports from neuropsychologists which point in a different direction, there are extracts from Ms Cattermole’s diaries from 2003 giving details of the assistance which she had to provide for the Claimant even then.

So far as Dr Jacobson is concerned, it seems to me that he was asked by the Claimant and Defendants to report only on the Claimant’s capacity to conduct the present litigation. If that is right, he strayed rather from those instructions in commenting on what, if any, care needs the Claimant still had as of July 2005. He also bases his opinion in part on the views of Dr Bradley.

Nonetheless, across all the various reports on the Claimant there does emerge a picture of someone who has progressively improved, as indeed the Claimant himself accepts. This part of the assessment exercise is made the more complicated by three uncertainties:

Doing the best that I can to make these allowances, it seems to me that the Claimant would have established at a notional trial that the Trust was responsible for the following periods of additional care needs:

The Claimant’s Schedule of loss claims an hourly rate of £5.0. That is taken from the Professional Negligence Bar Association’s tables for gratuitous care. Indeed, it is lower than the aggregate hourly figure suggested by those tables and in these circumstances, I do not think that it is necessary to make a further reduction to reflect the fact such carers would not have had to pay tax or national insurance.

Accordingly, I concluded that the damages which the Claimant would have been likely to recover for care up to the notional trial date would have been: 2,789.5 x £5 = £13,947.50

Claim for lost property

The Claimant alleges that in his action against the Trust he would have been able to claim compensation for property which he has lost due to difficulties with his memory. The property was a laptop, a video camera, 3 pairs of glasses and 4 mobile phones.

The evidence as to what the property was, how it came to be lost and its value was all very sketchy. In my judgment, Mr Haithwaite would not have had any reasonable prospect of recovering for these losses against the Trust.

Travelling expenses

The Claimant argues that he would have been able to recover the costs of additional journeys to his GP and the hospital. I agree with the Defendants that insufficient details of these journeys have been provided to make this a claim which would have been likely to succeed against the Trust.

Gardening

The Schedule of Loss alleges that the Claimant enjoyed gardening before December 1998. He now cuts the grass, but he finds it difficult to plant and weed. His interest in gardening has also diminished. In cross examination, he said that the problem with weeding was one of balance and also one of judgment.

In my judgment, Mr Haithwaite would not have been likely to recover additional damages under this head. It would have been difficult for him to establish that any physical problems were associated with the delay in diagnosing the subdural haematoma. His psychological problems would have been compensated under the heading of general damages. Ms Cattermole might anyway have taken on a bigger role in the gardening.

Summary of Past losses as at the notional trial date

Interest on past losses

It is agreed that interest on accrued losses would have been calculated at half the special investment account rate for the period from February 1999 to January 2005. This means that as of the notional trial date, interest would have been as follows:

Future loss of earnings after the notional trial date

The multiplier

The parties are agreed that 18.69 was the appropriate multiplier which would have been applied in the action against the Trust.

The multiplicand

I have said above that my best estimate of how the Trial Judge would have assessed the Claimant’s earning capacity in 2005 if the Claimant had not suffered a delay in the diagnosis of the his SDH was £35,000 gross and £25,586 net.

The Claimant submits that I should decide that the Trial Judge would not have assessed the Claimant’s actual earning capacity as greater than £14,031 net which was the amount that he in fact earned in 2003/2004.

I have explained above why I consider that the Claimant’s accounts for the year ending April 2004 understate the income that the trial judge would have taken into account. In short, the expenses for motoring and travel ought not to be deducted. If they were added back in for that year the pre-tax earnings would have been £22,097 and the net amount £16,548. This more than justifies the figure of £15,000 for which the Defendants said in their Counter-Schedule the Trust would have argued.

Thus the multiplicand would have been £25,586 - £15,000 = £10,586

Conclusion on future loss of earnings

I conclude that the award at the notional trial for future loss of earning would have been 18.69 x £10,586 = £197,852

Smith v Manchester award

The Claimant argues that in the action against the Trust he would have received compensation for his disadvantage on the labour market in the event that he was made redundant or otherwise lost his employment with River Marketing. Such an award would not be inconsistent with damages for loss of future income. The computation of that head of loss assumes that he will continue to receive earnings at the present level: a Smith v Manchester award is intended to compensate a claimant (amongst other things) for the risk that there might come a time when he does not receive his current income and is handicapped in replacing it because of the tortiously caused harm.

It is well established that for such an award to be made there must be a substantial (as opposed to a fanciful) risk that the claimant will lose his present employment. There is very little evidence in this regard. I know very little about River Marketing. Mr Dunk has, as I have said, spoken extremely highly of the Claimant. Despite the misfortunes that he has suffered, there is no evidence that the Claimant is at any present risk of losing his job. On the contrary, he appears to be undertaking more responsible tasks with the recent departure of the company’s chief executive or senior manager.

Mr Rivalland says, however, that the Claimant would only have been 34 at the time of the notional trial. He ought to have been able to expect another 31 years of working life. Mr Rivalland would no doubt argue that it is very unlikely that River Marketing will continue in business for that length of time.

Mr Rivalland also submits that River Marketing has been extremely tolerant of the Claimant’s difficulties. They have made substantial allowances for him. If the Claimant did lose his job, it would be extremely difficult for him to find alternative work with such a sympathetic employer. The Joint Report of Dr Walton and Dr Leng said that

“We think that were Mr Haithwaite required to find alternative work, he would likely encounter more difficulty than he would have done had he not suffered the index brain injuries, though he has found his current job and so presumably he could do so again. Nonetheless he is, and will remain at significant disadvantage.”

By “the index brain insults” I take these neuropsychologists to be referring to the totality of the insults which Mr Haithwaite suffered rather than specifically the subdural haematoma. Their use of the plural, ‘insults’ and the difficulty, which their Joint Report had previously emphasised, in separating out the effect of the haematoma lead me to that conclusion.

Mr Picton draws attention, though, to the Claimant’s success in finding jobs after the injuries to his brain and after he had lost his employment with Business Seating. They were not as successful as River Marketing, but the problems, so far as they could be identified, were to do with problems unconnected with his condition for which the Trust was responsible. Thus, for instance, he was dismissed by Office Canopy Group after he had suffered a seizure. The seizure was not the consequence of delay in diagnosing the subdural haematoma and, in any case, as the Employment Tribunal found, the dismissal was unlawful. Mr Picton further argues that the Claimant was successful in finding employment with River Marketing after the events that gave rise to his action against the Trust and despite any handicap with which that had left him. I cannot assume, he would submit, that if the Claimant was unfortunate enough to lose his job with River Marketing, he would not be able to deploy the same energy and initiative again and impress another employer with his skills as a salesman. If there was any residual difficulty, the Claimant would be entitled to be compensated only for that part which was attributable to the delay in diagnosing the subdural haematoma.

In my view there is considerable force in Mr Picton’s arguments, but given Mr Haithwaite’s age and the other factors that I have mentioned, I think it more likely than not that a Judge would have considered some Smith v Manchester award to be appropriate. Taking account of the difficulty that the Judge would have faced in attributing the handicap on the labour market to the deficits for which the Trust was responsible in addition to the uncertainties which always attend a Smith v Manchester assessment, I consider that the damages under this head should be treated as 1 year’s income viz £15,000.

Future Care

The Claimant claims 4 hours per week (equivalent to 34 minutes per day) for 25 years at £5.50 per hour, a total of £28,600. The Defendants argue that the Claimant would not have been able at the notional trial to establish that he had the need for any future care.

I have summarised above the views of Dr Walton and Dr Leng. They considered that at the time of their Joint Report the Claimant suffered ‘mild impairment’. Dr Walton’s report of 23^rd April 2008 thought that there was unlikely to be any further resolution of the Claimant’s organically mediated behavioural problems, though with the passage of time there was likely to be some small functional gains.

In view of this, I consider that the Claimant would have been able to persuade the notional trial judge that some compensation for future care was appropriate. I discount the amount claimed to reflect (a) the smaller number of hours of care which I have assessed that the Claimant would have been able to establish at the time of the notional trial; (b) the hourly rate of £5.00 which would have been assessed at that notional trial; (c) the prospect, acknowledged by Dr Walton, that there might be yet further improvement in the Claimant’s ability to function.

I consider that £10,000 is a fair assessment of this head of loss.

General damages (including interest to the notional trial) £11,568.26

The parties are agreed that I should calculate this at the rate of 6% from 19^th January 2005.

Overall conclusion

It follows that the total of principal plus interest amounts to £313,493.10 + £78,843.34 = £392,336.44.

I have assessed the Claimant’s prospects of success in the action against the Trust at 30%. Accordingly, the overall value of what he lost by the Defendants’ negligence was 30% of that figure i.e. = £117,700.93.

Subject to any submissions by counsel as to the terms of the order, judgment will be entered for the Claimant for that sum.