COMPENSATION FOR EXACERBATED MENTAL ANGUISH OVER REDUCED LIFE EXPECTANCY – CLINICAL NEGLIGENCE: Kadir (Personal Representative of the Estate of Saleha Begum, Deceased) v Mistry & Ors (2014) CA (Civ Div)

Image Ruwena Khan

In a case decided by the Law Lords yesterday (full Judgment not yet available) the estate of a mother of four small children who had died of cancer at just 32 years of age was awarded damages of £3,500 under the Administration of Justice Act 1982 s1(1)(b) for her mental suffering resulting from her awareness for the last three months of her life that her life expectation had been reduced.

  • “Awareness” in s1(1)(b) of the 1982 Act did not mean strictly certain knowledge.
  • The issue of why she was not diagnosed earlier was a live question during K’s wife’s last months.
  • There was a proper inference that B feared on good objective grounds that her life expectancy had been reduced by the delayed diagnosis.
  • Even where no psychiatric injury, other important elements to be taken into account including B’s age and familial circumstances.
  • B’s mental anguish was proved for a 3 month period from May 2008

The Facts

The appellant, K, appealed against a decision awarding no damages for PSLA for mental anguish arising from the admitted negligent failure of the respondent General Practitioners (M) to diagnose K’s late wife (B) with stomach cancer as early as they should have done.

In March 2008 B was diagnosed with stomach cancer and advised that the cancer was too advanced to treat. She received palliative care until she died in August 2008.

M admitted liability for the delay in B’s diagnosis and the consequent delay in her treatment. K gave evidence that in March 2008 the family was told by doctors that B might have survived if she had been diagnosed sooner and during a home visit in May 2008 B asked M why she was not diagnosed earlier and whether she would have survived if she had been.

The trial judge found that if M had not been negligent B would have been diagnosed in June/July 2007 and would probably have lived until July/August 2010. He found that if B had been diagnosed earlier she would have suffered the same symptoms as she did, albeit later and therefore awarded no damages for PSLA. He also rejected the claim under the 1982 Act for damages in respect of mental anguish caused or likely to be caused by B’s awareness that her life expectation had been reduced.

The Law Reform (Miscellaneous Provisions) Act 1934

  • No special rules for the assessment of damages in cases under the 1934 Act.
  • The Court was required to undertake the conventional exercise: what pain was occasioned by the negligence?
  • In looking at a living C facing an early death – a comparison of facts had to be undertaken as they occurred with the likely facts if here had been no negligence.
  • It was relevant that B would have had the same symptoms including the pain of treatment.
  • Thus no claim for PSLA under the 1934 Act.

The Administration of Justice Act 1982

Section (1):In an action under the law of England and Wales or the law of Northern Ireland for damages for personal injuries—

(a)no damages shall be recoverable in respect of any loss of expectation of life caused to the injured person by the injuries; but

(b)if the injured person’s expectation of life has been reduced by the injuries, the court, in assessing damages in respect of pain and suffering caused by the injuries, shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced.

  • As noted above, “awareness” in s1(1)(b) of the 1982 Act did not mean strictly certain knowledge.
  • As a matter of ordinary humanity, if there was good reason for the anguish, then it could be inferred that the sufferer would have suffered some.
  • The issue of why she was not diagnosed earlier was a live question during K’s wife’s last months – she feared that her life expectancy had been reduced by the delayed diagnosis.
  • It was necessary to prove that she knew that it was reduced.
  • B’s mental anguish was proved for a 3 month period from May 2008.
  • Important to recognise there were other important elements in this case: B was a young woman with four small children.
  • Anguish must have been exacerbated by her knowledge that they would be left without her and she would not see them grow up.
  • It was proper to take those factors into account.
  • Broad-brush approach adopted and £3,500 assessed as doing ‘justice’.

 

RUWENA KHAN

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