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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Chadwick v Hollingsworth (No. 2) [2010] EWHC 2718 (QB) (02 November 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/2718.html Cite as: [2010] EWHC 2718 (QB) |
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B3/2010/0299 (C) |
QUEEN'S BENCH DIVISION
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE KNIGHT QC
6WT02805
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
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Chadwick |
Appellant / Claimant |
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- and - |
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Hollingsworth |
Respondent / Defendant |
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Ms Katie Gollop (instructed by Brachers Llp) for the Respondent
Hearing dates : Monday 4th October
(No. 2)
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Crown Copyright ©
Lord Justice Rix :
"I disagree for two reasons. I think that the way this case has been repleaded does advance a substantially new case on both the allegations of breach and causation. I also accept the defendant's point that the particulars of claim in so far as the causation evidence is concerned, would have failed. I will not say anything more about the extent to which the amended particulars of claim do or do not give rise to a claim based on Bowman [sc Bailey] and the correct causation test. Those are probably issues to come, but it does seem to me that the inevitable consequence of the amendments you make mean that the defendant now faces a substantially different case with the inevitable result that the trial must go off, but I will give you permission to appeal."
"In conclusion, Mr Chadwick was unfortunate to develop infection following his original knee replacement. His management was unsatisfactory in that once the acute infection was recognised an urgent wash-out was not performed. In addition, when debridement and a wash-out were carried out, this was done in an inadequate way. His management was also unsatisfactory in that the second stage of the revision procedure was performed too early and I believe a wrong decision about the timing was made, though to be fair, it did seem as though his treating surgeon was exercising reasonable care in his decision-making but succumbed to the temptation to move matters forward when further delay would have been wiser. This has resulted in recurrent infection with a substantial increase in Mr Chadwick's ultimate disability."
"Mr Chadwick developed infection following a knee replacement which has resulted in him having suffered substantially for a number of years and being left with major permanent disability. Although no one specific element of his management has caused the infection, there are five aspects of his management which I believe have not been in accordance with good practice, all of which have contributed to increasing the risk of him developing major infective problems. These are:-
1. Failure to provide adequate and timely prophylactic antibiotics at the time of his primary knee operation.
2. Failure to institute aggressive surgical treatment at the time his infection was first recognised on 19.09.03.
3. Failure to react to persistent infection when reviewed on 30.09.03.
4. Undertaking a totally inadequate debridement procedure on 24.10.03.
5. Performing the second stage revision arthroplasty on 22.01.04 which was too short a period after persistent problems with his leg and knee had been noted.
I believe that all these actions have increased the risk of an unsatisfactory outcome."
To some extent Mr Newman was there building on or agreeing with criticisms raised by Professor Eycken.
"(j) The delay in instituting surgery, opening of the old lateral wound [and applying a vacuum suction pump]" – this is new – "all contrived to increase the soft tissue damage around the knee. The damage caused major problems and was in part responsible for the need for a plastic surgical procedure at the time of the second two-stage revision.
(k) It was inappropriate and/or unreasonable to re-implant on 22 January 2004, and the Defendant should have waited longer for the knee to settle further to be sure the recurrent infection was not occurring. Early intervention on 22 January 2004 increased the risk of a recurrent problem. The Defendant failed to recognise the risk, or ignored the risk, or alternatively recognised the risk but went on to take it.
(l) The Defendant performed the second stage revision knee replacement without there being sufficient evidence that the infection had been eradicated. In the light of the history there should have been, shortly before or at the time of the second stage revision an aspiration biopsy and/or debridement and,or tissue sampling."
1) the amendment would substitute a new case for one which would very likely fail. The def's arguments in pars. 11-15 of her skeleton preferred…
4) The new case will require the defence to be reviewed to meet a new case on negligence and causation. Fresh expert evidence required.
5) The def's poor health with a claim hanging over his head going back to July 2003 (claim issued June 2006) were additional factors.
I do not think that it would be appropriate to revisit the reasons that the judge gave at the time of his judgment, albeit that I recognise that he was having to deal with the matter at that time as part of a busy list and in necessarily short order. At the time of his judgment, as distinct from three months later, the judge was not so much exercising a discretion as making a judgment on the unamended case.
"As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. There may, of course, be special reasons why this general rule should not be applied. An example of this is to be found in Kaines (U.K.) Ltd. v. Osterreichische Warrenhandelsgesellschaft (formerly C.G.L. Handelsgesellschaft m.b.H.) [1993] 2 Lloyd's Rep. 1, 9, where the judge was satisfied that, even if the amendment had been made earlier, the action would have been vigorously resisted."