Wilma Agnes Cullen v Dr Ruth Henniker-Major

In a clinical negligence claim, the court assessed damages following admitted liability for a delayed cancer diagnosis and rejected allegations of fundamental dishonesty.

For the purposes of Criminal Justice and Courts Act 2015, section 57, dishonesty must relate to the primary claim. Allegations concerning payments for care which was not claimed, and which did not affect the assessment of past or future care needs, could not support a finding of fundamental dishonesty. Intermittent and unpredictable care needs may reasonably require a carer to be available at all times. The court may select a live-in care model where it provides the most reliable means of meeting those needs. An adverse inference is not ordinarily justified from the failure to call peripheral corroborative witnesses.

The defendant admitted negligent delay in referring the claimant for investigation of symptoms of laryngeal cancer. The delay led to more extensive treatment, including total laryngectomy, and the parties agreed liability.

The trial concerned the quantification of past and future care, psychological treatment and equipment costs, together with six allegations that the claimant had acted dishonestly. The central factual issue was whether she required continuous availability of trained assistance to manage her stoma, airway and voice prosthesis, and whether her evidence about that need was dishonest.

1. Fundamental dishonesty. The allegations concerning the claimant’s supposed independent valve changes, payments to carers during lockdown and holidays, surveillance evidence, a stairlift and loss of amenity were rejected. The claimant was an honest witness. Her voice prosthesis was difficult to visualise and manipulate, and she remained dependent on carers for important aspects of stoma and valve management.
2. Section 57. The allegations concerning payments to carers during lockdown and holidays could not found fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015. The claimant made no claim for the paid care. Those payments did not affect the determination of the gratuitous-care claim or the extent of future care reasonably required.
3. Adverse inference. The court distinguished Wisniewski v Central Manchester Health Authority [1998] PIQR P323. The absence of further peripheral witnesses did not justify an adverse inference. The claimant had called sufficient evidence, and the incomplete surveillance footage did not establish that events not recorded had not occurred.
4. Care needs. The claimant required assistance with unpredictable airway obstruction, secretion clearance, valve cleaning and valve changes. Those needs were intermittent but potentially urgent, so someone had to be available at all times. Her future needs were life-long and reasonably required 24-hour care.
5. Care model and damages. The court preferred an agency-provided live-in carer to the more complicated mid-point model involving a larger directly employed team and case management. Future care was assessed at £1,285,844, with £49,500 for carers’ holiday costs, £6,000 for future psychological therapy and £30,712.58 for future equipment. The court explained the scope of Avon County Council v Hooper [1997] 1 WLR 1605, holding that its local-authority charging context did not apply to NHS-funded care under section 17 of the Health and Social Services and Social Security Adjudications Act 1983. The parties were directed to agree a safeguard against double recovery.