Liam Dickinson v Newcastle upon Tyne Hospitals NHS Foundation Trust

In a clinical negligence claim, the claimant must prove on the balance of probabilities that the admitted breach caused the injury. Causation may be established by a reasonable inference drawn from contemporaneous records, witness evidence and expert opinion. Where several causes operate cumulatively, the claimant succeeds if the negligent cause probably contributed to the injury or, where conventional but for proof is unavailable, made more than a negligible contribution. A functional disorder may be found to have been triggered by an earlier negligently caused organic condition and the psychological consequences of discovering the negligence. Damages must meet reasonable needs arising from the injuries proved, with proportionality considered in assessing particular heads of loss. In an unusual case, reasonable care needs may justify a 24-hour professional regime where fixed visits would leave material safety, personal-care and autonomy needs unmet.

The claimant developed Wernicke’s encephalopathy after the defendant admitted failing to administer appropriate prophylactic Pabrinex during an August 2016 hospital admission. He subsequently developed severe functional neurological and cognitive disorders, depression and profound disability. The defendant accepted breach but denied that the failure caused either Wernicke’s encephalopathy or the later functional disorder, contending that the symptoms were pre-existing, coincidental or functional from the outset.

The court determined causation and disputed quantum issues. The central questions were whether the claimant developed Wernicke’s encephalopathy, whether the admitted breach caused it, whether that condition and the claimant’s knowledge of the negligent treatment caused the later functional disorder, and what care, equipment and other damages were reasonably required.

1. Liability. Judgment was entered for the claimant on liability. The burden remained on the claimant to prove causation on the balance of probabilities. The court could draw reasonable inferences from the evidence, provided they were deductions from proved facts rather than conjecture. The ordinary but for test applied.
2. The claimant’s heavy alcohol consumption, disrupted nutrition and the metabolic demands of illness and surgery had materially depleted his thiamine stores. The contemporaneous records showed confusion, ataxia and other neurological signs after discharge. The consistent working diagnosis of the treating clinicians was Wernicke’s encephalopathy. The court preferred the claimant’s neurological and neuropsychiatric experts to the defendant’s experts and found that Wernicke’s encephalopathy developed between 31 August and 1 September 2016.
3. The condition responded rapidly to high-dose intravenous Pabrinex. The functional symptoms emerged later, becoming established by 7 or 8 September. The claimant’s discovery that he had developed a serious neurological condition because of the failure to administer Pabrinex was a significant psychological stressor. That stressor caused the functional neurological disorder on the balance of probabilities. The disorder was not pre-existing and would have been avoided by proper administration of Pabrinex.
4. The court declined to draw adverse inferences from the absence of evidence from the claimant or treating clinicians. Whether an inference should be drawn depended on the context and circumstances.
5. Damages were assessed by reference to reasonable needs and proportionality. The claimant was awarded £185,000 for pain, suffering and loss of amenity, £140,000 for past care, £1,000 for bedding, £300 for travel and £1,945.84 for miscellaneous expenses. A 24-hour professional care regime was reasonably required because fixed visits would not safely meet fluctuating personal-care, transfer, catheter, bowel, nutrition, autonomy and self-harm needs. Case-management awards of £20,000 for year 1, £10,000 for year 2 and £7,404 annually thereafter were made. Consequential orders, including the form of future awards, were left for agreement or further written submissions.