Mr. William Ewan died in 2007, at the age of 86, following an operation to insert a trans-aortic valve. His estate (represented by GS) brought proceedings in negligence against the Trust alleging failure to give proper information as to the risks involved in the operation, and claiming that if appropriate warnings had been provided, Mr. Ewan would not have undergone surgery. Liability was accepted, but the case proceeded to trial on quantum.
In October 2015 the High Court awarded damages of £15,592 including £5,500 for pain, suffering and loss of amenity. The estate appealed, claiming that compensation for unlawful invasion of the deceased’s personal rights and loss of personal autonomy should have been awarded. The sum of £50,000 was sought.
This was a very novel claim – even the estate’s lawyers accepted that such an award had never before been made in a personal injury case.
The Court of Appeal noted that damages for negligence are compensatory. It was argued on behalf of the estate that damages for invasion of the deceased’s personal autonomy would fall within that category, but the court disagreed.
The estate’s counsel had sought to derive support for his argument that additional damages should be paid from recent decisions of the House of Lords and Supreme Court, but the Court of Appeal concluded that the rulings relied upon gave no weight to the argument. The celebrated judgment in Montgomery v. Lanarkshire Health Board in 2015 laid emphasis on a patient not being subject to treatment interfering with bodily integrity without informed consent, but it did not indicate that an additional, free-standing award of damages should be made if such consent was not obtained.
The Court of Appeal concluded that the extra award sought was both unnecessary and unjustified. The estate had been vindicated through the Trust’s admission of liability and the award of damages by the High Court. Lord Justice Davis observed that no principled approach to quantifying the type of additional damages sought had been identified. He concluded that were no reasons of policy by which the claim should succeed. On the contrary, there was no need for the award sought. The claim was therefore dismissed.
This was a sad case involving the death through negligence of an elderly patient. However, it included a wholly novel head of claim which we decided to contest because it could have set an adverse precedent and caused additional pressure on scarce NHS resources. The Court of Appeal agreed with our arguments. Although personal autonomy features very strongly in several recent rulings of the highest courts, none of those judgments suggested that a separate award of damages should be made to compensate for its loss. That position remains following this ruling.