Sims v MacLennan

The Claimant is the widow of the late Paul Sims who died of a stroke on 7^th September 2011. The Claimant brings this claim against the Defendant to recover damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and in her own right as a dependent under the Fatal Accidents Act 1976.

The Defendant was a general practitioner but is now retired. On 21^st November 2002 the Defendant, who was not Mr Sims’ regular GP, carried out a medical examination of Mr Sims. Mr Sims had previously been disqualified from driving for 24 months having failed a breath test with 2½ times the permitted level of alcohol. The examination was a pre-condition of the renewal of his driving licence. During that examination the Defendant took his blood pressure which was recorded in the DVLA form DR3 as 182/105. This is regarded as raised, the upper normal limit being 140/90.

The Claimant alleges that the Defendant failed to advise Mr Sims to make an appointment with his regular GP in order to have his blood pressure checked out. The GP experts appointed by each side agree that if such advice was not given then this would have fallen below the necessary standard and the Defendant would be liable for any loss proved to have been caused by it.

The Defendant’s case is that although he has no specific recollection of the examination and there is no relevant note of his having given this advice, he would normally have advised the patient in similar circumstances that he may have hypertension and should make an appointment with his GP.

Quantum has been agreed at £40,000 subject to the issues of liability and causation.

It is agreed between counsel that the following central issues arise:

For the Claimant I heard evidence from the Claimant and from her sister, Katrina Robinson. The Defendant gave evidence and called Dr Fleminger under a witness summons (a gist statement having been served), although this was for various technical reasons and casts no reflection on him or on the parties.

There were 4 experts: a GP and a neurologist for each side. There was nothing relevant in issue between the GP experts but significant differences between the neurologists.

The Claimant was born on 17^th April 1950 and married the Claimant on 20^th April 1974. Between 1985 and 2004 the Claimant and her husband were in partnership together in a hand/processing/printing photographic business.

On 12^th April 2001 Mr Sims was disqualified from driving for 24 months which was reduced to 18 months after attendance at an approved course. The Claimant says that this was out of character and that he felt disappointed with himself. She explained that it had occurred only because of emergency during his daughter’s 16^th birthday party because he did not wish the Claimant and his daughter to drive to an area of Oxford which had a reputation for public order problems.

In order to obtain the re-instatement of his licence, the Claimant was required to undertake a medical examination. The Defendant was a GP at the time. He is now retired but had been in practice as a GP in Oxford since 1973. He retired in 2009 as senior partner in the same practice. In 1974 he had taken over carrying out DVLA assessments from a colleague in the practice and would also do insurance assessments. His evidence was that he would usually do a session each week, seeing three or four patients each session with 30 minutes allocated to each patient.

On 21^st November 2002 the Claimant drove Mr Sims for the independent medical examination by the Defendant although she was not present during it. She appears to have remained in the car while the examination took place. The only direct evidence of what took place at this examination is from the Defendant and he says that he has no specific recollection of it since it occurred 12 years ago. His recollection is based on the contemporary notes which he made at the time and from his “habitual practice”. There is secondary evidence from the Claimant and from Ms Robinson who made statements of what they say Mr Sims said to them following the examination.

The Claimant’s evidence was that she remembered the appointment with the Defendant clearly because Mr Sims “was quite worried [about it] as his licence was important to him and he was keen to drive again”. She drove him to the Defendant’s surgery and waited in the car while he went inside for the examination. She said in her witness statement that when he came out he appeared relaxed and his first words to her when he got into the car were “I’ve got white coat hypertension you know”. They had a quick chat about this in the course of which he said he had a high blood pressure reading because of his “fight and flight” anxiety about the appointment (words which she said were Mr Sims interpretation of what he had been told). The witness statement does not mention any further discussion about the examination but the Claimant says that if Mr Sims had been given any advice to do anything about his blood pressure, then she would have expected him to have mentioned it to her.

There is not dispute about the length of the examination (which was at 9.45 am). The Claimant says she waited in the car for about 30 minutes which ties in with the time allocated to each patient by the Defendant.

In cross-examination the Claimant said that Mr Sims had been worried before the examination and had no idea what it would entail. She was asked why, if he had been anxious about getting his licence back, he had not mentioned this first when he returned to the car. She said he had done, at the same time, but although she was sure that he had mentioned white coat hypertension, she was not that clear in her recollection of the conversation. She was asked why she had any recollection of this and said that it was because the death certificate had stated the cause of death as “stroke caused by hypertension” and this led her to recall the conversation in the car.

The Claimant was also asked about a meeting she had on 11^th November 2011 with Dr Singh and Dr Reckless (treating clinicians who were involved with the treatment of Mr Sims following his stroke in 2011)) after Mr Sims’ death. She wrote a letter to them after the meeting in which she said this: “I don’t remember whether I explained my question i.e. that Paul had never been medicated for hypertension despite the fact that he was told that his BP was “high” but probably due to white coat hypertension (Dr MacLennan, November 2002)”. Mr Peacock for the Defendant, put to her three possibilities as to what Mr Sims had said to her in the car: (1) that “he had white coat hypertension”; (2) that “he probably had white coat hypertension”; or (3) that “he could have white coat hypertension”. He asked her which of these was what Mr Sims had said to her. In particular it was put to her that in the letter to Mr Singh she had used the word “probably”. Her explanation was that this was the grammar she used after Mr Sims’ death but I am not satisfied that her recollection of exactly what was said in the car can be relied on to answer the question put by Mr Peacock with any degree of reliability.

The Defendant explained that for an examination such as this one, the DVLA supplied a printed form which the examiner needs to complete during the examination. It is not the same as a GP’s notes and the contents are not placed on the patient’s medical notes. It is for the purpose of the DVLA alone. The blood pressure is recorded at 182/105. It is not the sort of document which invites any comments and there is no room for individual observations or notes by the examiner – nor is this the place for them. It was not suggested that the Defendant should have made any other notes recording any advice that he gave or any thoughts about the examinee’s health outside the ambit of the DVLA examination. Following the examination, the final outcome was dependent upon the results of a blood test taken at the time.

The Defendant’s witness statement described his normal routine when dealing with this type of examination – which he said was very similar to the examinations he did for MOT or insurers. After completing the questionnaire, he would examine the patient in order to assess his ability to drive. This would include a cognitive assessment.

Having taken the blood pressure, the Defendant said that as it was higher than it should have been, he would have taken it again twice – once with Mr Sims sitting in a chair and then, if it was still raised, a third reading five minutes later with Mr Sims resting on a couch. His note of the blood pressure would be the average of these three readings.

Having established that the readings were not normal, he would have asked the patient about his history of blood pressure readings (there was no evidence of any previous abnormal readings) and family hypertension. He would then have explained that a diagnosis cannot be obtained from blood pressure readings taken on a single occasion and people tend to have a higher reading when attending a medical examination. The Defendant says that he may well have used the expression “white coat hypertension”.

Finally, the Defendant was confident that he would not have made a diagnosis of white coat hypertension following blood pressure readings taken at one examination. He would have advised the patient to consult his GP and explained that if he or she did have hypertension this would need treatment.

The Defendant was cross-examined about his “habitual practice” and conceded that it would change over the years and that he would use different words when explaining the consequences of a high reading. It was then put to him that it would be important that a patient with a high blood pressure reading was left in no doubt that he should see his GP. His answer was revealing and firm: “it is inconceivable that I would not have. It is not possible that I made a mistake [about this]. It is unthinkable”. “You always say that it has to be checked and I’d have said it not once but twice”.

He was also asked whether there might not have been some room for misunderstanding. Here is answer also rung true: “it is very hard to know. Patients don’t take in obvious things that are said to them for all sorts of reasons.”

The Defendant was also challenged as to why he had not made a note of the advice he gave. In final submissions it was suggested that this might act as a check list or reminder. This does not hold water and overlooks the nature of this examination. This was not an examination by a locum GP (where a note in the medical notes would be essential). This was a “one off” examination with no duty to report directly to the GP and the GP would have no access to the report given to the DVLA and no contact with the examiner.

In the end the evidence of Ms Robinson on this issue did not add very much. She said that she had a good recollection of the DVLA medical assessment in 2002 because she knew how important it was to Mr Sims to regain his driving licence. She rang the Claimant and Mr Sims that evening and in her witness statement she says that Mr Sims said that he had something called “white coat hypertension – that his blood pressure was higher than normal, probably because of anxiety triggered by this important appointment”. She then said that the Claimant told her that Mr Sims had said this to her while they were in the car. I find it rather hard to believe that the Claimant relayed where the information had been imparted to her by Mr Sims since it was, at that stage, very unimportant. Ms Robinson clearly felt very strongly that she should support her sister and her apparently detailed recollection of this conversation appears to be her trying a bit too hard to assist her sister’s case rather than to give an accurate evidence of what she actually recollects that she was told in the phone call. The first time that she was asked to remember the events of 2002 was in about 2012, 10 years later. In my judgment she is doing no more than guessing what she was told, influenced by conversations with her sister after Mr Sims’ death. In the end she accepted that her only memory was a mention of white coat hypertension, which Mr Sims may well have mentioned. Ms Robinson said that he appeared not to have heard the expression before and liked quirky phrases.

I am not satisfied that Ms Robinson is able to give reliable evidence of what exactly Mr Sims said to her other than that white coat hypertension was mentioned as an expression. Her evidence does not therefore assist in determining whether Mr Sims was told that he probably had it, might have it or did not have it.

Mr Sims’ medical notes show that he was not a regular attendee at the GP surgery. He attended in November 1998 for a persistent respiratory infection and was prescribed penicillin tablets. In November 2000 he injured himself with a drill and then attended with pain from varicose veins in April 2001. Next, in May 2001 he had bad sore throat and in June 2001 he injured his little finger in a door which was causing him problems with his music and photographic work. He did not return to the surgery until May 2007 when he saw Dr Fleminger complaining of lower back pain radiating to the top of his legs. He was referred to a physiotherapist and for x-ray and then this was followed up in June when he saw Dr Fleminger again, who recorded that the pain in the leg had eased.

In September 2007 Mr Sims saw Dr Fleminger because he was worried about some warts and had been advised by a physiotherapist that he should get them checked out. Photographs were taken and sent for specialist consideration. Dr Fleminger recorded that there was increased swelling in the lower legs. The medical notes for this consultation record “for PN BP rev”. Dr Fleminger explained that this note was made by him during the consultation (but before he saw the next patient) and that it meant that he had advised Mr Sims to see the practice nurse to have his blood pressure checked. Mr Sims never did have his blood pressure checked in accordance with this advice and there is no evidence of the level of his blood pressure between the readings taken by the Defendant in 2002 and his next attendance at the surgery on 26^th August 2011, when Dr Fleminger recorded it at 207/102. The note of that consultation also records: “says he has white coat hypertension”. While Dr Fleminger could not recollect this, nor that there is a reference in a hospital history note dated 5^th October 2011 in similar terms, it is probable that Mr Sims told him that he believed he was suffering from white coat hypertension and Dr Fleminger accepted this. There is no similar reference in the notes of the consultation in 2007 – even though he was advised to have his blood pressure checked – and I accept Dr Fleminger’s evidence that it would have been noted if he had mentioned white coat hypertension.

It was suggested to Dr Fleminger that the reason for advising a blood pressure reading in 2007 would have been connected with targets set by the Government. He said he was not aware of any but Dr McCarthy (the Claimant’s GP expert) referred to targets set in 2004 for taking blood pressure of adult patients and for managing high blood pressure. Dr Fleminger did not give an explanation as to why he suggested the blood pressure be taken, and this may well have been routine.

The starting point is that all the relevant witnesses mention white coat hypertension. Ms Robinson also said that Mr Sims was aware that his blood pressure readings were high but did not know the figures. The Defendant says that he might well have mentioned white coat hypertension. Dr Fleminger’s note in August 2011 also refers. It is therefore probable that the Defendant told Mr Sims that his blood pressure was high and used the expression “white coat hypertension” in some context or other. There is no direct evidence that the Defendant told Mr Sims that he had white coat hypertension (as opposed to the other two options) and I am not satisfied that the evidence of the Claimant or of Ms Robinson supports a case that he was told that this may explain his high blood pressure.

Mr de Bono submits that the court should make a finding that the Defendant told Mr Sims that he had a high blood pressure but did not tell him that he should see his GP to have it checked out. Alternatively, he says that the Defendant did not adequately explain to Mr Sims the importance of having his blood pressure checked and, in particular, the dangers of hypertension and the consequences if it was not treated or managed. The main basis of this submission is that the court should find that it was probable that Mr Sims would have taken the advice and gone to his GP if he had been advised to do so. The fact that he did not leads to the inference that he cannot have been given this advice.

In the context of a medical negligence case, this submission is a bold one. On the one hand the Defendant is adamant that it would be unthinkable for him to find that the blood pressure of a patient was abnormally high and not to give advice to have it checked, and a thoroughly basic error to tell the patient that he had white coat hypertension. On the other it is argued that it is improbable that a patient (and in this case Mr Sims) would ignore a doctor’s advice. If, as I find, there is no direct evidence that the advice was not given or that Mr Sims was told that he did have white coat hypertension (with the implication that no further investigation was necessary) the court should be cautious about reaching a conclusion unless there is some evidential basis for doing so.

I do not agree with Mr de Bono’s submission that the fact that Mr Sims did not go to his GP following the DVLA examination is strong evidence that the Defendant cannot have advised him to do so. Mr de Bono submitted that the starting point was that most patients will follow a doctor’s advice. In many cases that will be an obvious thing to do. If a patient is feeling very unwell and is told to go to bed for a few days the advice coincides with his inclination. If he is advised that he is suffering or might be suffering from cancer (or needs to have this diagnosis eliminated) then most people will follow advice to attend a hospital in order to undergo further tests. There are other examples where a doctor’s advice is regularly ignored. Not everyone responds to advice to give up smoking or drinking or to modify their lifestyle if they feel no symptoms and the prospect of serious consequences are not imminent. Advice that a patient might have a high blood pressure might well fall into this category.

Is there any positive evidence leading the court to conclude that Mr Sims would have followed advice to have his blood pressure checked by his GP? When he was told to see his GP by the physiotherapist (to check whether the warts were malignant) he did but most people would have been very concerned until malignancy was ruled out.

I am satisfied that the Defendant did tell Mr Sims that his blood pressure was raised and probably also mentioned the phenomenon known as white coat hypertension. It is most unlikely that he would have made a diagnosis of white coat hypertension or that he told Mr Sims that the raised blood pressure was due to this condition as he well understood that this was not medically possible on one visit. I am satisfied that he told Mr Sims that the raised blood pressure might be explained by white coat hypertension (with an explanation as to what that amounted to) but that he would need to see his GP to get it checked out.

As Mr Peacock put it, there are all sorts of reasons why a patient might ignore advice when there are no symptoms and no apparent imminent risk, particularly when the diagnosis of hypertension would probably lead to a need for a lifestyle change. There is a major difference between being told on the one hand that if a certain step is not taken there is a high risk of serious injury or death in a few months or even a year on the one hand, and on the other, that there is an increased risk of something happening in 10 or 20 years’ time. Mr Peacock relied on the fact that Mr Sims did not follow Dr Fleminger’s instruction to attend the practice nurse to have his blood pressure taken in September 2007. I agree with Mr de Bono that this is not quite the same thing as being told that there are raised levels which need to be checked out, but it does provide some evidence that Mr Sims was not assiduous in complying with all advice given to him by a doctor.

I therefore find that the Defendant did advise Mr Sims that his blood pressure was higher than it should have been and that he should attend his GP in order to have it checked out.

The pleaded case against the Defendant particularises 4 items of negligence:

It follows from my findings of fact that (i) and (ii) have not been made out on the facts. Nor do I accept that the Defendant gave Mr Sims that the raised blood pressure was probably the result of anxiety or white coat hypertension and that it was not therefore a matter of concern. There is nothing wrong, in my judgment, with a doctor trying to re-assure a patient that there may well be a benign explanation provided he also makes it clear that further investigation is required. The Defendant fulfilled that duty. In my judgment there was no duty upon the Defendant or any other GP in these circumstances to inform the patient’s GP, that was not within the remit of this examination and it was quite sufficient to inform the patient that he should consult his GP. I have also dealt with point (iv) earlier in the this judgment. It was not a breach of duty to fail to make a note that advice to attend the GP had been given, the note would have served no purpose and no loss would flow from this if it was a breach.

The liability experts Drs. Gavin Young and Nicholas McCarthy, both of whom were GPs, made a joint statement in February 2015. In it they agreed that if the Defendant’s account of the advice he would have given Mr Sims in 2001 was correct, then this would be supported by a responsible body of GPs. The only point upon which they differed was that Dr McCarthy considered that there was an overall obligation “to ensure that Mr Sims was aware of the requirement to recheck the blood pressure and also aware of the potential risks”. This was not part of the pleaded case, which disposes of this point. In any case I do not consider that it gets the Claimant anywhere in this case.

The statement was not explained and Dr McCarthy was not cross-examined about it. It was not put to Dr Young. As it stands, it could cover a wide range of duties. In some cases it would be sufficient to inform the patient that he had a high blood pressure and in other cases a much more detailed explanation would be required. It very much depends on the patient and the nature of the matter which he needs to be warned about. In this case Mr Sims was highly intelligent and able. His sister-in-law made it quite plain in her evidence that she well understood high blood pressure issues. She said that in the conversation she had with Mr Sims he had understood that his blood pressure was high but thought it was “benign” because of the reference to “white coat hypertension”.

In my judgment, the Defendant carried out his duties by telling Mr Sims that he had a raised blood pressure and that he should have it checked out by his GP to establish if he had true hypertension. The Defendant’s account of his normal practice, which I accept he would have applied in this case (even if the precise wording cannot be established), was to explain the potential significance of hypertension and that if the GP found that it was still raised he would need treatment. I also accept the Defendant’s evidence that there was nothing to suggest that Mr Sims did not understand what he was being told to do and why it was necessary. It has not been proved that this was an unreasonable approach by the Defendant in this case.

As a result of the above findings, the Claimant’s claim fails. I will nevertheless set out my judgment on a number of the causation issues – largely because I have heard expert evidence in relation to them.

Factual causation does not now arise. Mr Sims was given the advice to attend his GP in order to have his blood pressure checked and did not do so.

The issues which do arise are whether his blood pressure would have been raised if he had attended his GP in 2002, would he have followed advice if he had been prescribed treatment and lifestyle changes in 2002, and would his stroke in 2011 have been prevented. There is a further issue of contributory negligence and the effect of treatment from 2007 onwards.

Counsel disagreed about the legal test of medical causation to be applied (i.e. the degree of proof required in order to show that a delay in treating hypertension caused the strokes and death or made them more severe than they otherwise might have been). In my judgment the claimant doesn’t get into medical causation until she has proved that Mr Sims’ blood pressure would have been raised in 2002 if it had been checked by his GP and that a diagnosis of hypertension would probably have been made. Unless he had hypertension he would not have received any treatment and the issues of whether the delay in treatment does not arise. Similarly, with the issue of whether he would have agreed to the treatment which would have been recommended and the lifestyle changes. All these matters are, in my judgment, subject to the usual standard of proof and the claimant must satisfy them on the standard of probability. It is only once that hurdle has been surmounted that it is necessary to decide whether, medically, earlier treatment would have improved Mr Sims’ position and it is this issue which gives rise to the legal argument.

I can dispose of the first two issues shortly.

Since Mr Sims did not see his GP until 2007 (and his blood pressure was not in fact taken until 2011) there is no direct evidence of his blood pressure in 2002 save for the readings taken by the Defendant during that one examination. If he had gone to see his GP then there are a number of realistic possibilities: (a) the readings would have been normal with Mr Sims blood pressure having returned to normal once the anxiety had reduced; (b) it would have been raised but the necessary further investigations did not lead to a diagnosis of hypertension; or (c) raised blood pressure leading to a diagnosis of hypertension. I am satisfied that if there had been a diagnosis of hypertension then any competent GP would have given advice about lifestyle changes and treatment. Various steps would have been taken to manage Mr Sims’ blood pressure including advice about giving up smoking, reducing alcohol consumption and about diet. He would also have been given treatment to reduce the blood pressure to acceptable levels.

Dr McCarthy (the Claimant's GP expert) gave evidence that Mr Sims’ blood pressure would have been raised in 2002 if he had seen his GP. Dr Young said that it was impossible for him to say whether or not it would have been raised. I prefer Dr Young’s evidence because it makes no sense for any expert to say what the blood pressure readings would have been. There is no evidence or learning from which one could extrapolate a probability that if Mr Sims’ blood pressure was at the level measured in August 2011 it must have been raised in 2002. Dr McCarthy did not consider the possibility of white coat hypertension in reaching his conclusion (even though there are articles suggesting that up to 10% of raised blood pressure readings are caused by it). The neurological experts were unable to say one way or the other whether the blood pressure would have been raised in 2002 as a result of hypertension. In the end Dr McCarthy was driven to stating that “it was his experience” that the pressure readings would not reduce and “hunch” but admitted that there was no scientific basis for his view. I am unable to find that the Claimant has proved that the blood pressure reading would have been raised had Mr Sims followed up the advice to visit his GP or that a diagnosis of hypertension would have followed. I appreciate that it is, superficially, neat to say with the benefit of hindsight that he must have had hypertension in 2002, but this is not sufficient to prove the case. Furthermore, the neurologists were not able to extrapolate back to 2002 and draw any conclusions.

Mr Peacock submitted that there was evidence that Mr Sims would have ignored any advice given to him in 2002 in relation to the management of hypertension. This was based on a number of matters. His failure to attend the surgery in 2007 to have his blood pressure checked was, as I have already said, in a different context and not of much weight. Next, that he had not given up either smoking or alcohol following the first of his strokes in August 2011. He was given advice at this stage about smoking and the medical notes said that he was trying to give up smoking – although the Claimant accepts that he had not yet succeeded. She disputed whether he still drank alcohol.

These were early days after the stroke. Mr Sims had been a heavy drinker and smoker. It is not easy to change your lifestyle overnight and I can’t draw any real inferences from this.

Mr Peacock also relied on references to a meeting after Mr Sims’ death from which it can be inferred that he has been told by the Claimant that Mr Sims was reluctant to see doctors or to take their advice. She disputes this and Dr Singh (who wrote the letter) was not called to give evidence. In these circumstances I cannot find that the statements have been proved to have been made by the Claimant. Although Mr Sims did not attend the GP surgery very often, there is nothing in his medical records to suggest that he was averse to consulting his GP if he had concerns or that he wouldn’t take advice. It would have been difficult for him to change his lifestyle, but if he had been diagnosed with hypertension in 2002 he would have been under the management of his GP. This would have meant regular blood pressure checks and treatment. Unless I were find that he would have ignored his GP’s advice completely and had refused to attend for check-ups, it is likely that he would, gradually, have complied with the advice and accepted the treatment – because that would lead to an improvement in his blood pressure readings and a tangible result.

Having found that Mr Sims ignored the Defendant’s advice in 2002, it might be said that this is consistent with Mr Peacock’s submission that he would have ignored other advice. In the event, this is only of relevance if my finding on liability is wrong, in which case the Defendant would not be able to make this point. There is however a significant difference between being given advice by a doctor in the circumstances which arose in 2002 and being given a diagnosis and advice by one’s regular GP following a proper investigation of the condition.

Mr de Bono submitted that there are two routes to proving causation as a result of a breach of duty in this type of case:

Mr Peacock submitted that this is not a case where it is sufficient for the Claimant to prove that the failure to refer was a “material contribution” towards his injuries. He has to prove, on a balance of probabilities, that the injuries (or some of them) would have been avoided. He referred to Bailey v MOD [2008] EWCA Civ 883 in which the court explained the circumstances in which the “but for” test could be relaxed. One exception arises in the mesothelioma cases, where the Claimant was exposed to the asbestos dust the exposure while working for a particular employer the injury would not have occurred. Cumulative cause cases are similar. In McGhee v The National Coal Board [1973] 1 WLR 1 the House of Lords departed from the “but for” test because medical opinion was not, at that stage, able to say how the dermatitis had begun and therefore it was not possible to prove a causal connection on the expert evidence because there had been little medical research into the issue. The court therefore took a broad view of causation.

Waller LJ (which whom Sedley and Smith LJJ agreed) summarised the position as follows at paragraph 46:

“In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that “but for” the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that “but for” the act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified, and the claimant can succeed”.

Mr de Bono submitted that the exceptions of “modified “material contribution causation” as set out in Bonnington v Wardlow ( [1956] AC 618) and Bailey v MOD applied. Bonnington v Wardlow was a claim by a claimant who had developed pneumoconiosis as a result of inhalation of silica dust in the course of work. The dust came from two sources – from working on hammers and on grinders. It was impossible to prove that the work on the grinders had probably caused the pneumoconiosis but the House of Lords decided that it was possible to infer that this work had made a more than negligible contribution towards it.

In Bonnington, the cause of the lung disease was the build-up of silica dust in the lining of the claimant’s lungs. Although it was not disputed that this occurred while the claimant was employed by the defendant, the breach of duty related to the use of the grinders and it was not possible to prove which source of silica dust caused the disease. The most helpful passage is in Lord Keith of Avonholme’s judgment (p.626):

“Small though the contribution of pollution may be for which the defenders are to blame, it was continuous over a long period. In cumulo it must have been substantial, though it might remain small in proportion. It was the atmosphere inhaled by the pursuer that caused his illness and it is impossible, in my opinion, to resolve the components of that atmosphere into particles caused by the fault of the defenders and the particles not caused by the fault of the defenders, as if they were separate and independent factors in this illness. Prima facie the particles inhaled are acting cumulatively, and I think the natural inference is that had it not been for the cumulative effect the pursuer would not have developed pneumoconiosis when he did and might not have developed pneumoconiosis at all”.

Mr Peacock referred to the dictum of Lord Brown in Sienkiewicz v Greif (UK) Ltd [2011] AC 229 at 294H:

“187 There is a rough justice about the law of personal injury liability as a whole. …..

Save only for mesothelioma cases, claimants should henceforth expect little flexibility from the courts in their approach to causation. Since Fairchild and Barker there has been much academic focus on a supposedly critical distinction between so-called “single agent” and “multiple agent” cases, the suggestion being that the former more readily lend themselves to special rules of causation than the latter. For my part I have difficulty even in recognising the distinction between these categories, at any rate in some cases. But I have greater difficulty still in accepting that the courts should now, whether on this or any other basis, be thinking of creating any further special rules regarding the principles governing compensation for personal injury. The same logic which requires that the claims of those claimants succeed to mind requires also that the courts should in future be wary indeed before adding yet further anomalies in an area of law which benefits perhaps above all from clarity, consistency and certainty in its application”.

In MOD v AB [2010] EWCA Civ Smith LJ explained that the exception in “divisible injury” cases such as Bonnington and Bailey would not arise, for example, in cancer cases. This was because the exposure to the causative agent did not make the condition worse because one either got cancer or did not. In divisible cases an increased dose worsens the disease – the tortious act did not increase the risk of harm but the actual harm and although it was not possible to say how great was the contribution to this which agent had made, each was material.

Mr de Bono submits that a stroke is an “indivisible injury” but that the “material contribution” causation test nevertheless applies. Mr de Bono’s argument is that the principle established from Bonnington applies in this case because:

Mr de Bono said that the cases of Bonnington, Boustead v North West Strategic Health Authority [2008] LS Law Medical 471, and Telles v South West Strategic Health Authority [2008] EWHC 292 were all examples of cases where the exception was applied. The first two cases being indivisible injury cases and the third a divisible injury case where it was impossible to apportion damages between the non-negligent and negligent causative agents.

Bailey was a case where medical opinion could not establish, on a balance of probability, which of two causes was the dominant one.

In my judgment, none of these cases falls within the exceptions contemplated by Smith LJ in MOD v AB. The more recent decisions show that the courts are tending towards giving a narrow interpretation of the principles set out in Fairchild and the mesothelioma cases. As Smith LJ said, there were considerable public policy reasons for those decisions. I agree with the dicta by her and by Lord Brown that the exceptions should be extended sparingly. This exception applies where there are two different agents causing the disease (as opposed to causing an increase in the risk of it occurring) but it is not possible for medical science to apportion the loss between the two causes. If it had been, then an apportionment would have been made.

If it is proved, on a balance of probabilities, that Mr Sims would not have suffered a stroke if he had been treated from 2002 then there isn’t a problem. Medical causation has been satisfied. There was no disagreement between counsel that if it is proved that the breach has at least doubled the risk of the stroke then the Claimant will have proved that it was probably the cause of the injury (Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261).

I now turn to the expert evidence.

Dr Venables and Dr Cockerell disagreed whether the cause of the stroke was “haemorrhagic” or “ischaemic”. Dr Cockerell explained that a haemorrhagic stroke arose when the small arteries and arterioles in the middle of the brain (which have a different wall composition to the larger arteries) got thinner and bled into the brain. He said that it was thought that these small arteries and arterioles were particularly susceptible to diabetes and hypertension. His view was that the most likely cause of Mr Sims’ stroke was a ruptured microaneurysm. This type of stroke, he said, had a very high association with high blood pressure.

Dr Venables’ opinion in his report was that elevated blood pressure was a highly significant factor for both ischaemic and haemorrhagic strokes. He thought that, on balance, Mr Sims suffered from an ischaemic stroke and not a rupture of a Charcot Bouchard aneurysm. The clinicians described Mr Sims’ second stroke as “haemorrhagic” but referred to the MRI scan taken after the first stroke, which was reported on by Professor Byrne as showing an infarct with some haemorrhage. He agreed with Professor Byrne’s conclusions having seen the scan and said that it was inconsistent with a Charcot Bouchard aneurysm. If the first stroke showed an infarct with a mild degree of asymptomatic haemorrhage transformation, then the second stroke would most likely be due to a further catastrophic haemorrhage transformation. In other words – a thromboembolic stroke. I prefer Dr Venables’ view but as explained below, it is not in fact necessary to decide which type of stroke Mr Sims’ suffered.

Mr Peacock conceded that there was a significant chance that Mr Sims would not have suffered a stroke if, having been diagnosed with hypertension in 2003 he had been treated. His case was that the risk of a stroke was not reduced by 50% or more, in which case “but for” causation is not proved.

Mr de Bono submitted that Dr Venables had agreed in the joint statement and in his oral evidence that hypertension doubles the risk of a stroke. He then constructed an argument that this satisfied the test of causation set out by Lord Phillips in Sienkiewicz. He referred to Lord Phillips’ comments on the Novatis case where Smith LJ had said that the “but for” test was satisfied “in terms of risk, if occupational exposure more than doubles the risk due to smoking, it must, as a matter of logic, be probable that the disease was caused by the former”.

With respect, this is an attempt to elide 2 different situations. The comparison in Novartis was between exposure to smoking and non-exposure. Thus the exposure to smoking more than doubled the risk. In the present case, the comparison should be between the risk of untreated hypertension and treated hypertension. Therefore I do not agree with Mr de Bono’s submission that there is evidence here of an increase in risk which exceeds 50%. What he is referring to is the increase in risk between someone not suffering from hypertension and someone who does suffer from it. That in my judgment is irrelevant because the issue of causation simply doesn’t arise unless it is proved that Mr Sims suffered from hypertension in 2003. It should be the increase in risk as a result of untreated hypertension that is the relevant factor here.

In their joint statement, the experts agreed (“broadly”) that it is reasonable at the age of 53 (Mr Sims’ age in 2003) there would be an 11% risk of stroke based on his risk factors. Adequate control of his blood pressure would have reduced this risk by 38% too 7%. Dr Cockerell did not agree that this showed that this led to the conclusion that relative risk reduction was reduced by less than 50%. His view was that the stroke would have been prevented on a balance of probabilities. He was challenged on this view in cross-examination and was quite unable to come up with any logical explanation for this view. He also agreed that his view may have been “mathematically wrong”. He argued that the 38% figure was a minimum, but this holds no water as it is clear that the figure is a mean one.

Dr Cockerell also sought to resile from his agreement of the 38% reduction of risk with Dr Venables by stating in court that his agreement was “qualified”. He had not mentioned anything in the joint statement which appears to be unequivocal. He agreed that there were no papers which concluded that a reduction in risk of 50% would be achieved.

Dr Cockerell had not looked at the papers which Dr Venables referred to until they were produced by the latter for the trial. He based his opinion on his experience and went to the literature just before the meeting with Dr Venables. This is vital for a clinician, but not sufficient for a lawyer unless there is some statistical evidence from his own experience.

Dr Cockerell also said that he had been comparing the risks of untreated hypertension as against someone who did not suffer from hypertension at all and agreed that, for the purpose of the exercise of establishing causation in this case, he had been wrong.

Dr Cockerell’s opinion that there was a 50% reduction in the risk also drew some support from a paper by Daniel Woo and others. This was a paper produced by Dr Venables which dates from 2004. It was a study of 549 cases of haemorrhagic stroke and assessed the increased risk of untreated hypertension. The paper estimated that between 17 and 28% of patients of haemorrhagic stroke amongst hypertension sufferers would have avoided stroke if they had been treated. The paper did not examine the effectiveness of blood pressure reduction treatment but stated “one assumes that greater the control of blood pressure would lead to a greater reduction in risk of stroke”.

The Woo paper cannot be regarded as definitive evidence of the percentage reduction in risk for two reasons. Firstly, it only dealt with cases of stroke which arose within five years and secondly, it dealt the cases of diagnosed hypertension but not blood pressure measurements. It does not support a case that there is a 50% reduction in risk where there is a haemorrhagic stroke.

Dr Venables’ reliance on the papers as showing a mean reduction of 38% was also challenged. He cited R Collins and S MacMahon dating from 1994 about the effects of blood pressure on cardiovascular disease. This paper was an analysis other papers and not original research, although this does not affect it’s legitimacy. The study looked at the relationship between blood pressure reduction and the risk of stroke. The study suggested that there was a 5mmHg lowering of blood pressure was associated with a one third reduction in risk whereas a 10mmHg reduction would give a 50% reduction in risk. This and other points led Dr Venables to agree that it would have been more accurate for him to have concluded that a reduction of diastolic blood pressure by a mean 5mm would reduce the risk of stroke by 5% over five years.

I find that there is no proper basis for finding that it is probable that the stroke was not caused by the failure to treat the hypertension but, equally, it is not possible to find that it was probable that it was caused by the failure to treat.

In these circumstances, Mr de Bono submits that this is a case where there are multiple potential causes of the stroke but it is not possible to say more than that the breach probably contributed to it, along with several other factors. This is not, however, a case like McGhee where the longer the claimant was exposed to the brick dust the greater the risk of dermatitis, so that, as a matter of common sense, one can infer that exposure to the bad dust probably contributed, cumulatively, to the cause of the dermatitis.

In Wilsher v Essex Area Health Authority [1988] 1 AC 1074 the House of Lords approved Browne-Wilkinson VC’s judgment in the Court of Appeal where he says:

“To apply the principle of McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust and there was no doubt that the dermatitis from this he suffered was caused by that brick dust”.

He then distinguished Wilsher by stating that the excess of oxygen (caused by the breach of duty) was only one of the agents which could have caused the injury “but no-one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff”.

You can’t say in this case that the increased blood pressure contributed to the injury, the best that can be said is that it increased the risk of the injury occurring. That is very different from McGhee and Bonnington. AB v MOD is the current state of the law and it would be extending the principle which I am not prepared to make in this type of case for the reasons given earlier.

I therefore conclude that “but for” causation would not have been established even if the Claimant had surmounted the other difficulties in relation to which I have found against her.

I will deal with this very briefly, since it is academic in the light of my finding that the Defendant is not in breach of duty.

Mr Peacock submits that the failure of Mr Sims to follow up his GP’s advice to have his blood pressure checked in 2007 was negligent and broke the chain of causation. It would be difficult to apportion responsibility in the academic circumstances which arise, because I have found that Mr Sims ignored advice in stronger circumstances in 2002 when he had the evidence of a high blood pressure reading and the risks of stroke in his mind.

Clearly, the omission to attend the practice nurse for his blood pressure to be checked was negligent, particularly as Mr Sims knew that his blood pressure had been high in 2002 and might have been concerned to see whether it had remained high. He is not a professional medical practitioner and the premise under which this issue become relevant is that he was not told to go to see his GP in 2002 to have it checked. This is far removed from the situation that arises in cases such as Webb v Barclays Bank plc [2002] PIQR 61.

I would have had no hesitation in finding that there had not been a break in the chain of causation.

As Mr Peacock submits, the neurological experts agree that the causative effect of his omission is the same as the failure to visit his GP in 2007.

There would have been a balance to be struck in assessing the amount of any contributory negligence, between the respective blameworthiness and causative potency of the Defendant and Mr Sims as a medical practitioner who had made a basic error (in the circumstances under which this would arise) the Defendant would be much more to blame than Mr Sims. The causative potency is neutral because of the expert causation advice, although the condition would have been identified and treated earlier which is in medicine always preferable.

I would have made an apportionment by reducing any damages recoverable through Mr Sims by 25%.

I find that the Defendant was not in breach of his duty of care to Mr Sims and therefore that the claim is dismissed.

Had this not been the case, then I would have found that factual and medical causation have not been proved and that the “but for” test was the appropriate test to apply.

If I had found the Defendant liable, then I would have reduced any damages claimed by 25% on account of contributory negligence on the part of Mr Sims in failing to attend in 2007 to have his blood pressure checked.