Trust liable for brain damage to baby: F E v St George’s University Hospitals NHS Trust (High Court, 18 March 2016 – McGowan J)

from an abnormality of the mind, namely paranoid schizophrenia, such that her mental responsibility should be regarded as ‘‘substantially impaired.’’ The claimant pleaded guilty to the offence of manslaughter on the ground of diminished responsibility, and this plea was accepted by the Crown. Mr Justice Jay held that these facts meant that the conviction was conclusive evidence that EH’s mental functioning was substantially impaired at the time of the offence. He also interpreted the sentencing remarks of the trial judge, Mr Justice Foskett, as supporting the interpretation that this case fell towards the lower end of the spectrum of personal responsibility. In his judgment, it was not open to the claimant to undermine or impugn the findings of Foskett J and he therefore proceeded on the basis that the claimant’s personal responsibility was low and/or less than significant. The judge then turned to relevant case-law. In Clunis v Camden and Islington Health Authority [1998] QB 978 Mr Clunis, a man with a history of mental health problems including schizoaffective disorder, killed a man by stabbing him and pleaded guilty to manslaughter on the ground of diminished responsibility. The Court of Appeal struck out the whole of his claim against the Health Authority, holding that it was barred by public policy. There were no discernible matters or aspects of factual differentiation between the present claim and that of Mr Clunis. In Gray v Thames Trains Limited [2009] 1 AC 1339, the claimant developed post-traumatic stress disorder as a result of the Ladbroke Grove rail disaster in 1999. While suffering from this disorder he killed a man. His plea to the offence of manslaughter on the ground of diminished responsibility was accepted by the Crown. The House of Lords held that his claim for loss of liberty, loss of earnings, etc. failed on the basis that he was seeking to obtain compensation for his own criminal conduct. The claimant’s lawyers endeavoured to argue that subsequent observations of the Supreme Court cast doubt upon these rulings, and that therefore it was appropriate for EH’s claim to continue. Mr Justice Jay disagreed. He held that it was clear that these subsequent Supreme Court rulings made no express criticism of either Clunis or Gray. In particular, Clunis had not been expressly disapproved by the Supreme Court. As a consequence, case-law supported the trust’s position and this claim would therefore be struck out. The Judge refused permission for either a ‘‘leap frog’’ appeal to the Supreme Court or a reference to the Court of Appeal. Nicholas Bowen QC and Katie Scott (instructed by Russell-Cooke) appeared for the claimant. Angus Moon QC, Judith Ayling and Cecily White (instructed by DAC Beachcroft) appeared for the trust.