Part 20 Defendant Ordered To Pay 1/3rd Of Defendant’s Costs Of Defending The Action

“Both defendants have admitted liability. Therefore, there must be as a matter of logic some proportion of liability attributed to each of them. The court takes into account all the evidence. I found the evidence of Professor Schofield and Mr Cundall particularly persuasive. Mr McGrath has not filed any expert report in response. Indeed, he has not filed any other evidence in response in the Part 20 proceedings.” [23]

He concluded that the prime fault lay with Mr McGrath, who was responsible for more than 50% but not 100% of the fault:

“Mr McGrath’s failures were very serious. Professor Schofield makes it clear that the failure of Mr McGrath to be sufficiently attentive to the signs of Mr Healey’s failure to recover from the surgery and his failure to be sufficiently alert to the risk of an anastomosis leak were the principal failures.

“In the evaluation of relative proportion, these matters must be weighed against the failure of nursing staff to request more frequent reviews and carry out more frequent observations. But the nursing failures are dwarfed in comparison to the failures of the consultant surgeon Mr McGrath. As Professor Schofield states, but for the “delay in diagnosis” (Mr McGrath’s responsibility) death resulted from a condition that was “probably otherwise … salvageable”.” [26-27]

The judge found that Mr McGrath’s failures were the direct cause of Mr Healey’s death and the causative contribution of the nursing failures was limited by comparison:

“Professor Schofield states “I am convinced that [Mr McGrath’s] delay has played a significant part in the sequence of events which followed.” It is important to be clear about the mechanism of death in this case. It was caused by sepsis. The sepsis was caused by the anastomosis leak. Once there was a leak following the surgical intervention, it needed to be repaired and the peritoneum cavity washed out to reduce the poisoning from material that should have been removed or excreted from the body. It was necessary to arrange diagnostic imaging to either confirm or exclude the leak. Mr McGrath failed to do that. This failure was the direct cause of Mr McGrath’s death.

“The causative contribution of the nursing failures was limited by comparison. The nursing staff were constrained to request the diagnostic interventions that ultimately were taken, but too late. When Mr McGrath failed to act appropriately, the nursing staff could have considered, as Mr Weitzman put it, “going around” the recalcitrant Mr McGrath. But ultimately the crucial delay was predominantly attributable to the failures of Mr McGrath. Thus the breach of duty by Mr McGrath was more causative of Mr Healey’s death.” [28-29]

He concluded that the just and equitable apportionment of liability was 75:25 in favour of Ramsay:

“To properly evaluate the overall responsibility, it is necessary to combine the two elements of Hobhouse LJ’s rubric. The court has identified the mechanism that led to Mr Healey’s death. Mr McGrath was very substantially at fault for the failure. His breach of duty significantly exceeds that of D2. The second defendant submits that the just and equitable apportionment is 75:25 in favour of Ramsay. The court agrees. This proportion reflects the very serious and pivotal nature and quality of Mr McGrath’s failures to act and consequence breach of duty.” [30]

The judge found that Mr McGrath, being chiefly responsible for the breaches of duty causatively linked to death, should pay 75% of the claimant’s costs:

“Ramsay has settled and paid the costs of the main claim. It is unarguable but that Mr McGrath as being chiefly responsible for the breaches of duty causatively linked to death should pay the appropriate contribution of 75%.” [31]

He concluded that it was just for Mr McGrath to contribute one third of Ramsay’s costs of defending the main claim, taking into account the overall allocation of liabilities and costs:

“Under the SCA, the court has a necessarily wide discretion. I conclude that for these reasons, it is just for Mr McGrath to contribute to Ramsay’s costs of defending the main claim. On one view, Ramsay is 100% responsible for its own negligence. But I regard that as too simplistic a characterisation in this case, and one that is unfair to Ramsay. Its nursing staff were heavily dependent on Mr McGrath’s expertise, experience and medical leadership. His negligence set in train a sequence of ultimately catastrophic events. I judge that it is just for Mr McGrath in these specific circumstances to make a contribution to Ramsay’s costs. I find that the 75% contribution claimed is excessive and disproportionate. Mr Weitzman in his submissions realistically observes that the court may feel in its discretion appropriate to award a lesser proportion. It does. On what is before the court, I assess that the fair contribution to Ramsay’s own main claim costs that Mr McGrath should pay is one third. That takes into account that Ramsay’s negligence did not occur in a vacuum, but arose as a result of circumstances initially caused by Mr McGrath’s serious and ongoing breaches of duty. Chiefly, Ramsay’s staff members failed to respond to the results of Mr McGrath’s negligence in the ways that Ms Botting has identified.” [37]

The judge ordered that Mr McGrath pay 100% of Ramsay’s Part 20 contribution proceedings costs:

“In the Part 20 contribution claim, Ramsay is the successful party and Mr McGrath is the unsuccessful party. There is no reason not to follow the general rule that costs follow the event. Mr McGrath must pay Ramsay’s costs to be assessed on a standard basis if not agreed.” [39]

In summary, weighing all the factors, the judge concluded it was just for Mr McGrath to make a contribution to Ramsay’s main claim costs. However, the claimed 75% was considered excessive. Taking into account the overall allocation of liabilities and costs, a one-third (33%) contribution to Ramsay’s main claim costs was deemed fair and appropriate.

While Part 20 defendants will not always be required to contribute to the costs a Part 20 claimant incurs defending the main claim, the court retains a discretion to make such an order where justified. On the specific facts of this case, with Mr McGrath bearing primary responsibility, a one-third contribution to Ramsay’s main claim costs was ordered.