Oksuzoglu v Kay & Anor

In a split personal-injury trial, costs should reflect the substantive issue on which the parties essentially won or lost, rather than merely the existence of a successful minor claim. A defendant may be the effective winner where the claimant fails on the principal causation issue and recovers only a small proportion of the damages claimed.

Order 18 rule 12 requires a claimant to serve an appropriate medical report and full particulars of special damages with the statement of claim, unless agreement or a court order provides otherwise. Order 33 rule 4A applies where the proportion of liability is in issue; it does not apply where the dispute concerns whether negligence caused the principal injury. Courts should frame preliminary issues precisely and may consider admissions, payments into court and Calderbank offers when exercising the costs discretion.

Burac Oksuzoglu, a child, brought a medical-negligence claim against two general practitioners. He alleged that their failure to refer him to hospital delayed diagnosis of Ewing’s sarcoma and caused the loss of his right leg.

The liability trial established negligence but found that earlier diagnosis would not have avoided the amputation. Damages were therefore limited to pain, suffering, care and related losses caused by the delay. A later assessment awarded damages including psychiatric injury and treatment costs.

The appeals challenged the permission to re-amend the claim, parts of the damages award, and the order requiring the defendants to pay all costs. The central issues were the recoverability of care costs and the proper approach to costs where the claimant succeeded on a minor claim but failed on the principal causation claim.

1. Disposition. The appeal against permission to re-amend was dismissed. The damages appeal was allowed to the limited extent that the awards for gratuitous care, laundry and related interest were disallowed. The costs appeal was allowed, and a substituted costs order was made.
2. Care costs. The additional care claimed for the period before referral was not recoverable. If the defendants had not been negligent, the child would have undergone the amputation earlier and his mother would have been at least as heavily involved in his care during the same period. The judge had therefore compensated for losses that would have occurred in any event.
3. Pleading and disclosure. Order 18 rule 12(1A) required the claimant to serve a medical report substantiating the injuries alleged and a statement of special damages with the statement of claim. The obligation could be dispensed with only by agreement or court order. Where prognosis was uncertain, the report and pleading should explain the uncertainty, and special damages should include losses already incurred with updated figures supplied later.
4. Split trials and costs. Preliminary issues in a complex medical-negligence action should distinguish negligence, whether negligence caused the principal injury, and whether it caused some lesser loss. The defendants essentially won the liability and causation trial because the claimant failed on the claim that negligence caused the amputation, despite succeeding on the minor delayed-pain claim.
5. Offers and admissions. Order 33 rule 4A was inapplicable because the dispute was not about the proportion of liability or contributory negligence. It concerned causation of the amputation. The court could nevertheless consider the payment into court, Calderbank correspondence and the parties’ failure to make admissions when exercising its discretion under Order 62.
6. Costs order. The defendants were awarded 90 per cent of their costs of the liability and causation trial. The claimant recovered costs up to 20 December 1994 and thereafter, subject to paying the defendants’ costs of the re-amendment application. Set-off was permitted. The court emphasised that the effective winner on a preliminary issue may be identified by asking who essentially won the substantive dispute.

• Court of Appeal (Civil Division): allowed the damages appeal to a limited extent and allowed the costs appeal, substituting a new costs order; dismissed the appeal against permission to re-amend.
• Queen’s Bench Division: Judge Rivlin QC determined liability and causation and later ordered the defendants to pay all costs. Douglas Brown J assessed damages.