Timothy Symes v St George’s Healthcare NHS Trust  EWHC 2505 (QB); (2014) APIL 056
High Court, Queen’s Bench Division, Simon Picken QC 23 July 2014
A master had erred at first instance – a default judgment entered on liability in a clinical negligence claim was not definitive on the issue of causation.
The claimant was pursuing a claim against the defendant for reporting that a lump on his face was benign when the lump was actually a malignant tumour. This caused a delay of four months for appropriate treatment which would have otherwise have been performed after 2 weeks. By the time the claimant underwent treatment he had already developed inoperable lung cancer.
The defendant did not file a defence to the claimant’s proceedings and default judgment was entered. The claimant knew already that the defendant’s position was to deny causation for much of the claim. The defendant’s counter-schedule of loss alleged that the only damage suffered by the claimant as a result of the delay in treatment was additional pain and suffering and that the claimant’s prognosis had not been affected. The claimant successfully applied for the counter-schedule to be struck out on the basis that the default judgment precluded the defendant from contesting the extent of the damage suffered by the claimant.
Simon Picken QC, sitting as Deputy Judge of the High Court, allowed the defendant’s appeal. While the starting point in determining the scope of default judgment is to look at the particulars of claim, default judgment did not establish that all the damage alleged in the particulars of claim was suffered by the claimant as a result of the defendant’s negligence. It was sufficient that the defendant did not take issue with some of the damage alleged by the claimant, as this alone was enough to establish liability. It was therefore open to the defendant to advance a causation objection to the other aspects of damage alleged by the claimant.
The defendant was not obliged by the Civil Procedure Rules to file a defence and had not acted in a way which was contrary to the overall objective. Nonetheless, the better course of action would have been for the defendant to have served a defence and this is what ought generally to happen. If the claimant had not already known the defendant’s stance on causation, the defendant’s conduct would have been more open to criticism.
A default judgment is not necessarily conclusive on the issue of damages. Arguments over causation and contributory negligence can still be raised in the quantification process after a default judgment. It is open to the claimant to make an application asking the court to define what damage was caused by a defendant’s breach of duty in a default judgment. A defendant intending to advance causation arguments ought to file a defence to avoid any criticism of their conduct.