Wednesday, 20 February 2013

QOWCS and Clinical Negligence

Does QOWCS apply to all clinical negligence claims?

Leafing through the civil procedure rules amendments my eyes rested on the Qualified One Way Costs Shifting section. By s46 LAPSO Claimants on post 1.4.13 funding agreements can no longer recover premiums for costs insurance from a losing defendant (save for insurance in respect of some investigations in clinical negligence cases). The balancing provision for that change is QOWCS - a successful defendant in certain cases can only recover costs from the claimant up to the level of any damages recovered by that claimant. So the claimant who loses the entirety of his or her claim will not be liable in costs to the defendant.

The new rules make it clear to which cases QOWCS applies:


Qualified one-way costs shifting: scope and interpretation
44.13.—(1) This Section applies to proceedings which include a claim for damages—
(a)   for personal injuries;
(b)   under the Fatal Accidents Act 1976; or
(c)   which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934
but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.
(2) In this Section, “claimant” means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.

What is a claim for personal injury?

CPR 2.1 provides that  in the CPR a "claim for personal injuries" means "proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person's death and "personal injuries" includes any disease and any impairment of a person's physical or mental condition."

Clearly QOWCS applies to all clinical negligence claims which concern injury or death attributable to the defendant's negligence acts or omissions.

Also, a Human Rights Act claim for damages for non-pecuniary loss by bereaved relatives arising from a contravention of article 2 of the European Convention on Human Rights, should be regarded as bringing a claim for personal injury, because it is a claim for damages in respect of a person's death.

But a claim for damages which is purely for breach of article 8 or article 5 would, without more, not be a claim for which QOWCS applies. Claimants beware.

Claims for declarations, for example in relation to end of life treatment or do not resuscitate orders are not included.

What about a so-called "wrongful birth" claims? Are they claims for damages for personal injuries? The mother's claim might obviously "include" a claim for damages for injury by reason of the fact that she had to carry and deliver the baby. What about the father's claim?

Under s. 11(1) Limitation Act 1980 a three year limitation period is applied, "to any action for damages for negligence .... where the damages claimed by the plaintiff for the negligence ... consist of or include damages in respect of personal injuries to the plaintiff or any other person."

 S11(1) Limitation Act has been the subject of appellate judgment. In Walkin-v-South Manchester HA [1995] 1WLR 1543 the Court of Appeal held that in a wrongful birth claim "claims ... for pre-natal pain and suffering and post-natal economic costs arise out of the same cause of action." The Court held that the negligence causing the unwanted pregnancy gave rise to a claim for damages including the costs of rearing the child. The claim was "caused by the personal injury, namely the unwanted pregnancy". Thus the claim had to be brought within three years, being a claim for damages in respect of personal injuries.

 
Walkin preceded the wrongful birth decision in McFarlane-v-Tayside Health Board [2000] 2AC 59  in which the House of Lords considered the nature of wrongful birth claims and held that the claims for child rearing costs constituted claims for economic loss. It appears that in Parkinson-v-St James and Seacroft University Hospital NHS Trust  [2001] EWCA Civ 530 [2002] QB 266, the parties accepted that the action was not for damages in respect of personal injury but in respect of pure economic loss. Thus, the court was not called upon to determine the point.

However, in Godfrey-v-Gloucestershire Royal Infirmary NHS Trust [2003] EWHC (QB) 549 Mr Justice Leveson, as he then was, was asked to determine whether, following McFarlane and Parkinson, Walkin was still binding upon him. He held that it was. In his judgment the entirety of the wrongful birth claim, including the economic loss claims, was in respect of personal injury and thus covered by section 11 of the Limitation Act 1980.

In any event if the father's claim is brought with the mother's claim then his claim is a claim for personal injuries within the meaning of CPR 2.1 because it is a claim for damages for personal injuries to "any other person". Sometimes, however, the father's claim might be brought alone.

It would appear therefore that a wrongful birth claims include claims for personal injuries and that the QWOCS provisions apply. However, the point might be argued by the NHSLA. In FP-v-Taunton & Somerset NHS Trust [2011] EWHC 3380 (QB) the court had to consider an interim payment application in a wrongful birth claim. Whilst the court proceeded on the basis that the trial judge might make a PPO for a wrongful birth claim (available only in respect of claims for damages in respect of personal injuries) the Defendant made it clear that it would be arguing strongly at trial that a PPO could not be made for a wrongful birth claim, i.e. that wrongful birth claims were not claims in respect of personal injuries.

It will be important to know at the outset of any claim whether QOWCS applies or not. It would be reassuring for claimants to know that the NHSLA or other clinical negligence defence organisations will not take the point that it does not apply to wrongful birth claims.






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