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Law Bulletin - October 2006

Occupiers’ Liability Act – Letterbox

An occupier was liable under the 1957 Act for the spring-loaded flap on his letterbox, which amputated the finger of someone delivering a letter.

It was no defence the letterbox was a common type. It constituted a dangerous trap to the unwary.

Clapton -v- Cato, Colchester County Court. 20 April 2005.

Thompsons' Cases

VWF – Circular evidence between engineering and medical experts

The doctors agreed that, if the claimant had been exposed to negligent levels of exposure to vibrating equipment, then he had HAVS; if not, then it was Raynaud’s.

The Judge found all the witnesses, including those of the defendant, had overestimated usage / anger time in stating it was one and a half hours per shift. He found a daily value of 2.8 m/s squared had not been reached and the case therefore failed on causation.

Huskings -v- Corus, 22-23 August 2006

Herceptin

Thompsons had a successful order of costs following a judicial review application against the defendant’s refusal to provide the client with the breast cancer drug Herceptin. The policy was not to supply “off licence” drugs unless the patient could show “exceptional circumstances”.

The case followed Rogers -v- Swindon NHS Primary Care Trust, the successful Herceptin case in the Court of Appeal.

Following Rogers, the defendant sought to distinguish, relying on obiter remarks, that “a hard pressed authority” with competing demands on budget would not be irrational in having a policy to refuse treatment except in exceptional circumstances.

NICE guidance was published on 23 August, which meant that the defendant would be under a statutory duty to provide the drug by the end of November.

A week before the permission hearing on 8 September, the defendant agreed to provide the drug in line with the NICE guidelines. The argument was therefore academic save the issue of our costs. The court had jurisdiction to determine pre-permission costs: R -v- (Boxall) -v- the Mayor and Burgesses of Waltham Forest London Borough Council (2001) 4 CCLR 258 at para. 14 where Scott-Baker J. said:

“in the absence of a good reason to make any other order the fall back is to make no order as to costs.” but that an order“will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties”

We therefore had a very high bar to get over and had to convince the court we would have won. We said that only a small identifiable group of patients will benefit from Herceptin and that once a patient comes within that group then there are no clinical circumstances, which a patient could demonstrate that would mean that Herceptin would benefit her more than any other patient within the group.

As such, nobody could demonstrate exceptional circumstances and the policy acted as a blanket refusal and, because the defendant could not envisage any “exceptional circumstances”, then their policy was irrational.

The Judge accepted that there was no evidence that the defendant did not take personal circumstances into account, so the policy was irrational, and costs were awarded.

Elisabeth Cooke -v- North Bristol NHS Primary Care Trust
Private case, RCJ, J Silber. 8 September 2006: Counsel: Jessica Simor – Matrix