George v The Home Office

On an appeal against factual findings based on conflicting expert evidence, the appellate court must examine the underlying material and reasoning. Confidence of an expert is insufficient, but interference is justified only where the trial judge was clearly wrong. A withdrawal seizure may be found to have progressed to status because a subsequent head injury acted as a trigger.

Under the Law Reform (Contributory Negligence) Act 1945, prior fault must be a sufficiently potent cause of the injury, not merely part of the claimant’s history. Addiction begun in adolescence was too remote from later prison negligence. Alternatively, any causal potency was minimal and a reduction was not just and equitable.

The claimant suffered permanent brain damage after a withdrawal seizure caused him to fall from a top bunk in prison and develop status epilepticus. On a preliminary issue, Mr Justice Mackay found breaches of duty concerning the bunk allocation and the claimant’s treatment after the fall. He accepted the trigger theory that the head injury caused the seizure to progress to status and found causation. He reduced damages by 15% for contributory negligence based on the claimant’s drug and alcohol addiction.

The Home Office appealed on the trigger theory, post-fall treatment and causation. The claimant cross-appealed against the reduction for contributory negligence. The central issues were whether the factual causation finding was clearly wrong and whether the claimant’s earlier addiction constituted causative fault justifying a reduction.

1. Disposition. The Court of Appeal unanimously dismissed the Home Office’s appeal and allowed the claimant’s cross-appeal. Since the trigger theory was upheld, it was unnecessary to decide the alleged failures to protect the claimant’s airway or administer oxygen, or whether those failures caused the hypoxic ischaemia.
2. Expert evidence and appellate review. Where experts disagree on a fundamental issue, the trial judge must justify the preferred opinion by analysing the underlying material and reasoning. Confidence alone is insufficient. An appellate challenge to a factual finding based on conflicting expert evidence should succeed only where the judge was clearly wrong, absent misdirection, misunderstanding of the evidence or inadequate reasons (see paras [30]–[39]).
3. Trigger theory. The judge was entitled to accept the claimant’s expert evidence. The medical literature supported the view that withdrawal seizures did not necessarily lead to status without an additional factor, and that concussion could provide that factor. The claimant’s previous withdrawal seizures without status and the absence of contrary prison evidence provided further support. The judge’s conclusion was not clearly wrong (see paras [31]–[39]).
4. Contributory negligence. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the damage must result partly from the claimant’s fault and partly from the defendant’s fault. The assessment requires a broad common-sense approach, having regard to blameworthiness and causal potency. The claimant’s decision to become addicted in adolescence was too remote in time, place and circumstance from the prison negligence. It was part of his history, not a potent cause of the status and brain injury (see paras [49]–[59]).
5. Alternative conclusion. Even if the addiction had been causative, its causal potency was minimal. Given the prison authorities’ knowledge of the withdrawal risk and their responsibility for the claimant’s welfare, it was not just and equitable to reduce damages. No rational distinction existed between the prison and a rehabilitation clinic for this purpose. The damages were therefore to be assessed without any reduction for contributory negligence (see paras [60]–[63]).

• Court of Appeal (Civil Division): [2008] EWCA Civ 1068. The Home Office’s appeal was dismissed and the claimant’s cross-appeal was allowed.
• Queen’s Bench Division: Mr Justice Mackay determined a preliminary issue, finding breaches of duty, causation on the trigger theory and a 15% reduction for contributory negligence.