Sophie Tait v Torbay and South Devon NHS Foundation Trust

A judgment for damages to be assessed leaves quantification open, but it does not permit a defendant to dispute facts or causal findings expressly determined by the judgment order. The order must be construed by giving its words their natural and ordinary meaning in historical context. The court’s reasons are admissible context, although the parties’ submissions require caution. Where an order records that particular treatment would have occurred and specified symptoms would have been avoided as a result of admitted negligence, a later defence cannot plead the contrary. It may raise genuinely unresolved issues concerning subsequent conditions or prognosis, provided those issues do not contradict the settled findings.

The claimant brought a clinical negligence claim arising from the delayed diagnosis and treatment of dysfunctional breathing and the prescription of high-dose steroids. Judgment for damages to be assessed was agreed and sealed in 2022, recording thirteen matters which would have occurred or been avoided as a result of the admitted breach.

After a later diagnosis of functional neurological disorder, the defendant served a defence disputing the effectiveness of treatment, the causation of specified symptoms, and the relationship between the functional disorder and the admitted negligence. The claimant contended that those pleas were inconsistent with the judgment order. The issue was the proper construction of the order and the matters it had settled.

1. Construction of the judgment order. A judgment for damages to be assessed assumes that some damage has been caused, but issues going to quantification may ordinarily remain open if they are not inconsistent with the order: Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB). Facts necessary to establish the claim, once determined, are determined in a binary way and cannot be given different factual answers in different parts of the case: Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] 1 WLR 3549.
2. The words of an order must be given their natural and ordinary meaning in their context, including historical context: Banca Generali SPA v CFE (Suisse) SA [2023] EWHC 323 (Ch). The reasons for making the order are always admissible as context, whereas the parties’ submissions must be used cautiously: Sans Souci LTD v VRL Services Ltd (Jamaica) [2012] UKPC 6; Banca Generali SPA v CFE (Suisse) SA [2023] EWHC 323 (Ch).
3. The order determined that dysfunctional breathing was the correct diagnosis from 2008 until its actual diagnosis in 2017, and that appropriate treatment for it would have been provided. It also determined that inactivity due to breathlessness, obesity, proximal myopathy, reduced function and mobility, widespread joint pain, and wheelchair use would have been avoided as a result of the breach. Those findings were not confined to steroid side effects.
4. The defence was therefore inconsistent insofar as it pleaded that treatment for dysfunctional breathing would not have been successful, or that the symptoms specified in paragraphs (x) to (xii) of the order would have existed before judgment in any event or were not caused by the negligence. The defendant could still advance arguments concerning functional neurological disorder, including its diagnosis, causation and prognosis, provided those arguments did not contradict the settled findings.
5. The question of strike out and the defendant’s application to withdraw admissions and vary the order were not determined.