Kadir v Mistry & Ors

In an estate claim for pain, suffering and loss of amenity, damages are assessed by the ordinary causation comparison between the actual course and the course that would have occurred without negligence. Relevant factors may include later suffering that would have occurred in any event and the suffering caused by treatment avoided because of the negligence. Under Administration of Justice Act 1982, section 1(1)(a), awareness that life expectancy has been reduced does not require certain knowledge. A good objective reason for that fear may ordinarily support an inference of subjective anguish.

The appellant, the widower and personal representative of a deceased patient, brought clinical negligence claims under the Fatal Accidents Act 1987 and the Law Reform (Miscellaneous Provisions) Act 1934. The High Court, in a judgment given by HHJ Gregory on 13 June 2013, refused damages to the estate for pain, suffering and loss of amenity and for mental anguish caused by anticipation of an early death. The appeal concerned whether the judge had wrongly taken account of treatment that would have occurred without negligence and whether the evidence established the statutory condition for damages for mental anguish.

The appeal was allowed in part. The appeal on pain, suffering and loss of amenity was dismissed, while the appeal concerning mental anguish caused by apprehension of an early death was allowed. Further disposal of the second issue was left for further submissions.

1. There were no special rules for assessing general damages in a claim by an estate under the Law Reform (Miscellaneous Provisions) Act 1934, apart from the statutory caveat concerning suffering caused by awareness that life expectancy had been reduced.
2. The correct approach was a conventional causation exercise. The court had to assess what pain and suffering had been caused by the negligence between the negligent act and death. The comparison included the position that would have existed without negligence. Accordingly, the deceased’s later symptoms, which would have occurred in any event, and the gruelling treatment she would otherwise have undergone were relevant. On the evidence, the trial judge was entitled to refuse damages for this head.
3. The court interpreted section 1(1)(a) of the Administration of Justice Act 1982 as not requiring strictly certain knowledge that life expectancy had been reduced. A good objective reason to fear that life had been curtailed could ordinarily support an inference of subjective fear and resulting anguish.
4. The evidence supported an inference that the deceased feared, on good objective grounds, that the delayed diagnosis had reduced her chance of survival. It was unnecessary to prove that she knew her life expectancy had been reduced specifically because of the defendants’ negligence.

1. Court of Appeal (Civil Division). The appeal from the High Court was allowed in part: the pain, suffering and loss of amenity issue was dismissed, and the mental anguish issue was allowed under Administration of Justice Act 1982, section 1(1)(a), with further disposal to follow.
2. High Court, Coventry District Registry. HHJ Gregory’s judgment of 13 June 2013 refused both heads of damages claimed on behalf of the estate.