Symes v St George's Healthcare NHS Trust

A default judgment must be construed with extreme particularity by reference to the pleaded case. In a negligence claim, it establishes only what was necessarily decided to complete the cause of action, including that some damage was caused. It does not necessarily determine that every loss pleaded was caused by the defendant’s breach.

At an assessment of damages, the defendant may contest causation of particular injuries or heads of loss, provided the argument is consistent with the default judgment. This principle applies equally to clinical negligence claims. A defendant is not automatically precluded by the Civil Procedure Rules from advancing such arguments merely because it did not serve a defence, although serving one will generally be the better course.

The claimant brought clinical negligence proceedings concerning the delayed diagnosis and treatment of a malignant tumour. Judgment in default was entered after the defendant failed to acknowledge service or serve a defence, with damages to be assessed.

The claimant alleged that the negligence caused pain and delay, facial nerve injury and metastatic cancer. The defendant accepted that the delay caused some pain and suffering but disputed causation of the other alleged consequences. The defendant appealed an order striking out the relevant parts of its counter-schedule and contended that the default judgment did not prevent it challenging causation at the damages assessment.

1. The appeal was allowed. The defendant was not precluded from advancing the causation arguments set out in its counter-schedule.

2. The Particulars of Claim were to be treated as a proxy for the default judgment. The court had to identify, with extreme particularity and complete precision, the bare essence of what the judgment must necessarily have decided.

3. Following Turner v P.E. Toleman and Lunnun v Singh, the default judgment established that the defendant’s negligence had caused some damage, because damage was necessary to complete the negligence claim. It did not establish that all the damage alleged, or each particular head of loss, had been caused by the negligence. The defendant could therefore challenge causation of the claimant’s facial nerve injury, metastatic cancer and related losses, subject to consistency with the judgment.

4. The same approach applied to clinical negligence claims. The fact that the claim involved medical treatment did not justify a different rule from that applicable to other negligence claims. The post-CPR authorities did not alter the position.

5. The defendant had not breached the CPR or the Overriding Objective by failing to serve a defence setting out its causation case. CPR 12.5(3) and 12.7(2) did not impose such a preclusion, and CPR 16.5 and the relevant Practice Direction did not apply so as to prevent the defendant raising issues properly left open at the damages assessment. Nevertheless, serving a defence would generally have been the better course because it would have clarified the issues and assisted case management.

• High Court (Queen’s Bench Division): allowed the defendant’s appeal against Master Roberts’s order of 21 March 2014 and held that the defendant could advance the causation arguments in its counter-schedule.