Personal injury

The Home Office appealed against a decision ([2007] EWHC 2774 (QB)) that its breach of duty had caused the brain damage sustained by the respondent former prisoner (S).

S cross-appealed against the judge’s finding that his damages should be reduced by 15% for contributory negligence. When S entered prison, aged 29, he had been abusing alcohol and drugs since the age of 16. He informed prison staff that he was a heroin user who drank heavily and had previously had withdrawal seizures. He was allocated a top-bunk bed. A few days later, he suffered a withdrawal seizure and fell from the bed, suffering a head wound. The seizure developed into ‘status epilepticus’, and he sustained severe brain damage. The judge accepted his case on causation, namely that the head injury caused the seizure to develop into status, and that, but for the head injury, the seizure would have been self-limiting and could not have caused the brain damage. The judge then held that S’s damages should be reduced by 15% because his injuries were caused partly by his addiction, which was the result of his lifestyle decisions and, therefore, his ‘fault’ within the meaning of section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

The Home Office argued that the judge had erred in preferring the evidence of S’s expert medical witness. The Home Office submitted that the lack of any support in the relevant medical literature for the theory that the head injury could have triggered the status meant the judge’s conclusion had no support beyond S’s expert’s assertion that he was confident about his conclusion on the theory, and that was not a sufficient way of resolving a difficult technical issue on which two distinguished experts disagreed. On the cross-appeal, S argued that there was no evidential basis for the judge’s finding of fault on his part in becoming addicted to drugs and alcohol in the first place. S further submitted that, even if he was at fault in that respect, the damage suffered by him was not partly the result of his fault; alternatively, it would not be just and equitable to reduce his damages at all having regard to his share in the responsibility for his injuries.

Held: (1) Where there was a difference between experts on a fundamental point, the court had to justify its preference for one over the other by an analysis of the underlying material and of their reasoning. It was not sufficient, in the absence of such, to accept the opinion of one expert on the ground that he had given his evidence confidently. However, it could not be said that the judge had based his conclusion primarily on his preference for the evidence of S’s expert witness because of the confident way he gave it. The medical literature showed that withdrawal seizures on their own did not result in status and that there must be another factor that, taken in conjunction with the withdrawal seizure, would lead to status. The judge had been entitled to accept the evidence of S’s expert witness and his interpretation of the medical literature.

(2) The judge had been entitled to hold that S was at fault in becoming addicted to drugs and alcohol when he was aged 15 or 16, and to infer that S must have known at the time that substance abuse on that scale was dangerous to his health. However, S’s fault in becoming addicted to drugs and alcohol in his mid-teens was not a potent cause of the status and the consequent brain damage that was triggered by his fall. It was too remote in time, place and circumstance, and was not sufficiently connected with the negligence of the prison staff to be properly regarded as a cause of the injury, Admiralty Commissioners (The Radstock) v Owners of the SS Volute [1922] 1 AC 129 HL and Stapley v Gypsum Mines Ltd [1953] AC 663 HL applied and Jones v Livox Quarries Ltd [1952] 2 QB 608 CA considered.

(3) If S’s injury had been partly the result of his fault in becoming addicted to drugs and alcohol, it would not have been just and equitable to reduce his damages having regard to his share in the responsibility for his injuries. He had told prison staff about his addiction and previous seizures. The staff knew or ought to have known that he might suffer from withdrawal seizures, yet they placed him in a top bunk. S’s position was analogous to that of a patient admitted to a rehabilitation clinic for the express purpose of being weaned off his addiction to drugs. If the same thing had happened to such a patient, his damages would not be reduced for contributory negligence.

Appeal dismissed, cross-appeal allowed.

Michael Kent QC, Andrew O’Connor (instructed by the Treasury Solicitor) for the appellant; David Pittaway QC, Jane Tracy Forster (instructed by Hodge, Jones & Allen) for the respondent.