Leach v North East Ambulance Service NHS Foundation Trust

In a claim for psychiatric injury caused by cumulative traumatic events, the Bailey approach applies. The claim succeeds where medical science cannot establish that the injury would probably have occurred without the negligent contribution, but can establish that the contribution was more than negligible. It is inappropriate to speculate about a precise point at which an indivisible psychiatric injury became inevitable. Where the injury cannot logically be divided into separate components, a subsequent apportionment exercise is not permissible merely because several contributing events can be identified.

The claimant suffered a subarachnoid haemorrhage while alone at home and waited 109 minutes for an ambulance. The defendant admitted that the ambulance should have arrived 31 minutes earlier. The claimant subsequently developed post-traumatic stress disorder. Liability for breach was admitted, and the parties agreed quantum subject to whether an apportionment exercise was appropriate. The issues were whether the negligent delay caused or materially contributed to the PTSD and, if so, whether damages should be apportioned between the negligent and non-negligent periods.

1. Causation. The court adopted the cumulative-cause guidance in Bailey v The Ministry of Defence & Anor [2009] 1 WLR 1052. The claim fails if the injury would have occurred from the non-tortious cause in any event. It succeeds if the injury would probably not have occurred without the negligent contribution. Where medical science cannot establish that counterfactual but can establish that the negligent contribution was more than negligible, the modified material-contribution approach applies.
2. It was not possible, on the balance of probabilities, to identify a point during the claimant’s illness and waiting period at which PTSD became inevitable. Predicting retrospectively when trauma will lead to PTSD is not scientifically or mathematically possible. The suggestion that PTSD was destined to arise from the haemorrhage alone was therefore speculative.
3. The court adopted the reasoning of Globe J in Ceri Leigh v London Ambulance NHS Trust [2014] EWHC 286 (QB). The 31-minute negligent delay, during which the claimant remained in acute distress and believed that help would not arrive, made a material contribution to the PTSD.
4. PTSD was an indivisible injury, unlike dose-related industrial diseases. Since the court could not identify when the injury was triggered, it would not be logical or legitimate to apportion the injury between the negligent and non-negligent periods.
5. There was judgment for the claimant in the agreed sum of £40,000.