Shaw v Kovac [2017] EWCA Civ 1028

Mrs Shaw, on behalf of her late father’s estate, claimed additional damages for loss of personal autonomy after a fatal valve implant performed without properly informed consent. The Court of Appeal held that no separate compensatory, vindicatory or conventional damages were available beyond standard personal injury damages.

Facts

Mr William Ewan, aged 86, suffered from aortic valve stenosis and was otherwise fit for his age. In 2007 he was assessed at Glenfield Hospital, Leicester, under the care of the first defendant, a consultant interventional cardiologist employed by the second defendant NHS Trust.

Mr Ewan underwent investigations including an echocardiogram and a coronary angiogram. He was advised that he was suitable for a relatively new trans-aortic valve implantation procedure, then the subject of a clinical trial at Glenfield Hospital. On 4 September 2007 the family were informed that a new, larger valve had become available. Mr Ewan signed a written consent form and was admitted on 25 September 2007 for surgery the following day.

The operation on 26 September 2007 was performed under general anaesthetic. After insertion of the valve, a major aortic bleed occurred. Attempts to control the bleed failed and Mr Ewan died shortly after transfer to intensive care without regaining consciousness.

An inquest jury later concluded that he had been suitable for the procedure, was aware of its nature, had given informed consent and that death was “the unintended outcome of a therapeutic medical procedure”. Mrs Shaw, a non‑practising barrister, unsuccessfully challenged the inquest by judicial review.

In the subsequent civil proceedings for clinical negligence brought as personal representative of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976, the core allegation was that neither Mr Ewan nor his family had been properly informed of the true nature and risks of the specific procedure used, so that no properly informed consent had been obtained. The pleaded case on causation was that, if properly informed, he would not have undergone the angiogram or the operation and would have enjoyed a number of additional years of life.

After extensive disclosure, both defendants conceded liability for negligent failure to obtain properly informed consent. Judgment was entered for damages to be assessed. At the assessment hearing HHJ Platts awarded £15,591.83, including £5,500 for pain, suffering and loss of amenity in respect of (1) the events of the operation and its aftermath, (2) the angiogram and related procedures that would not otherwise have occurred, and (3) the anxiety of knowing an operation was required.

The claimant also advanced a discrete head of loss described as “damages for loss of life of William Ewan without having given informed consent”, quantified on appeal at £50,000, said to reflect the unlawful invasion of his personal rights and loss of personal autonomy.

Issues

1. Recusal

On the morning of the appeal, Mrs Shaw applied for Davis LJ and Burnett LJ to recuse themselves for apparent bias arising from their earlier involvement in her unsuccessful challenges to the inquest (Burnett J in the Administrative Court and Davis LJ on the renewed permission application in the Court of Appeal). Actual bias was not alleged.

The issue was whether a fair‑minded and informed observer would consider there to be a real possibility of bias, having regard to previous adverse decisions and certain passages critical of Mrs Shaw’s conduct of the inquest challenge.

2. Damages for invasion of personal autonomy

The principal substantive issue was whether, in an action framed in negligence for personal injuries, there exists a separate, compensable head of loss for the wrongful invasion of a patient’s personal autonomy where a medical procedure is undertaken without properly informed consent, over and above conventional damages for pain, suffering and loss of amenity.

Within that, the Court considered:

• whether the invasion of autonomy constituted a distinct cause of action;
• whether a separate award of vindicatory damages was available at common law;
• whether nominal damages could be added to the compensatory award already made; and
• whether a conventional, non‑individualised sum (by analogy with Rees v Darlington Memorial Hospital NHS Trust) should be awarded for the denial of autonomy.

The claimant relied heavily on Chester v Afshar and Montgomery v Lanarkshire Health Board, and argued that the denial of Mr Ewan’s right to decide whether to run the risks of the procedure should itself attract a substantial award, said to be outside the scope of section 1 of the Administration of Justice Act 1982.

Judgment

Recusal

Davis LJ, with whom Underhill and Burnett LJJ agreed, rejected the recusal application. The governing test was reaffirmed as that laid down in Porter v Magill and Helow v Secretary of State for the Home Department: whether a fair‑minded and informed observer would conclude that there was a real possibility of bias.

Previous adverse judicial findings or critical comments about a party were held insufficient, without more, to establish apparent bias. Davis LJ cited the established principle that:

“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.”

The Administrative Court in the judicial review had been concerned with whether the inquest jury’s findings were reasonably open to it on the evidence, not with making primary findings binding in later civil proceedings. Any conclusions on consent at the inquest had been overtaken by the defendants’ concession of liability in the civil claim. There was therefore no realistic basis on which a fair‑minded and informed observer could apprehend bias.

Davis LJ also relied on the guidance in Locobail (UK) Ltd v Bayfield Properties Ltd, Otkritie International Investment Management Limited v Urumov and Triodos Bank NV v Dobbs, emphasising that judges should not accede to recusal applications simply because a party is unhappy that they previously ruled against them. He quoted Chadwick LJ’s warning in Triodos Bank that:

“If the judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases…”

Underhill LJ and Burnett LJ each added short concurring observations, describing the recusal application as misconceived and lacking any foundation.

No distinct cause of action for invasion of autonomy

Davis LJ held that the failure to provide proper information so as to obtain informed consent is properly analysed as negligence within the traditional framework of the duty of care. It had been pleaded and conceded as such. No separate cause of action for invasion of autonomy had been pleaded and could not be introduced at the appellate stage.

He noted that in Chester v Afshar the House of Lords treated the surgeon’s duty to warn of material risks as a single cause of action in negligence. He referred to the joint judgment in Montgomery where Lord Kerr and Lord Reed stated that the doctor’s duty to ensure that a patient is aware of material risks is to be understood “within the traditional framework of negligence” and quoted their formulation:

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment…”

On that footing, the claim was and remained an action for damages for personal injuries.

Vindicatory and nominal damages

The Court considered whether the claim was, in substance, one for vindicatory damages – an additional sum to mark the violation of rights irrespective of quantifiable loss. Having drawn counsel’s attention to R (Lumba) v Secretary of State for the Home Department, Davis LJ summarised Lord Dyson’s reasoning that awarding a separate vindicatory sum, over and above compensatory damages (including nominal damages where no substantial loss is proved), would set loose an “unruly horse” across the law of tort.

Lord Dyson had stressed that vindication of common law rights is adequately achieved by:

“(i) an award of compensatory damages, including (in the case of strict liability torts) nominal damages where no substantial loss is proved; (ii) where appropriate, a declaration in suitable terms; and (iii) again where appropriate, an award of exemplary damages.”

Davis LJ considered that reasoning applicable by analogy. Although counsel disclaimed seeking vindicatory damages in terms, Davis LJ concluded that any attempt to obtain a substantial, non‑compensatory award for the bare invasion of autonomy was effectively of that character and was not permissible.

He further held that there was no scope for a separate award of nominal damages where substantial compensatory damages had already been awarded for the proved injury and loss; negligence is not actionable per se and damage is an element of the cause of action. The claim for nominal damages for invasion of autonomy therefore failed.

No additional compensatory head for autonomy

The central submission was that the denial of informed consent gave rise to an additional, free‑standing head of compensatory loss, distinct from pain, suffering and loss of amenity. Davis LJ rejected this. The right to bodily integrity and to decide whether to accept medical risks is the rationale for the doctor’s duty to warn; once that duty is breached and physical injury results, compensation is to be assessed under orthodox personal injury heads.

He noted that, following Chatterton v Gerson, where consent is obtained without full information, the consent is not treated as a nullity and the usual claim lies in negligence rather than trespass to the person, absent fraud or bad faith. The question was what the proposed additional award would compensate beyond the general damages already awarded. Davis LJ held that no such separate, non‑overlapping loss had been identified.

If a patient’s suffering is increased by their awareness that their autonomy has been invaded, that factor can be reflected within general damages. Davis LJ referred to Richardson v Howie in support of the principle that injury to feelings, indignity and distress can be taken into account within compensatory damages for torts such as assault.

He also observed that the logic of the claimant’s argument would require an award for invasion of autonomy even where the medical procedure was wholly successful or where, if properly informed, the patient would have consented anyway. He regarded such results as unjustified.

Section 1 of the Administration of Justice Act 1982 barred recovery for loss of expectation of life in an action for personal injuries. Davis LJ found it difficult to avoid the conclusion that the substantial sum sought (here £50,000) was in substance compensation for lost years of life, impermissibly repackaged as an autonomy claim. The action, as pleaded, was undeniably an “action for damages for personal injuries” within the meaning of section 1.

No conventional award by analogy with Rees

Late in oral argument, counsel suggested that, if a fully compensatory, case‑specific award was problematic, the Court should nevertheless recognise a conventional sum payable in all cases of negligent failure to obtain informed consent, by analogy with the £15,000 conventional award approved in Rees v Darlington Memorial Hospital NHS Trust.

Davis LJ rejected that approach. He noted that in Rees the House of Lords, in an exceptional policy‑driven context, had allowed a conventional award where, applying McFarlane v Tayside Health Board, the claimant could not recover the full cost of bringing up an unplanned but healthy child. That decision was controversial and closely confined to its facts. By contrast, in the present case the estate was not being deprived, on policy grounds, of damages it would otherwise receive; it had already obtained full compensatory damages under the conventional heads.

He analysed the descriptions of the conventional award in Rees – as marking the injury and loss, recognising denial of an important aspect of autonomy, or reflecting the expected benefit of which the claimant was deprived – and concluded that such reasoning did not apply here. Extending conventional awards to the negligence/informed consent context would raise serious floodgates and policy concerns, including the risk of widespread low‑value claims and uncertain boundaries (for example, whether such awards would extend to successful procedures or to other torts where autonomy is affected).

He therefore declined to recognise any such conventional award and held that no incremental development of the common law was justified.

Overall conclusion

Davis LJ emphasised that the estate had not been left without a remedy: the defendants had conceded negligence in failing to obtain informed consent, and the estate had recovered substantial damages for pain, suffering and loss of amenity. He concluded that if the £50,000 claim was truly compensatory it was barred as a disguised claim for loss of expectation of life under section 1 of the 1982 Act; if it was not compensatory, it was in effect a claim for vindicatory damages, precluded by the reasoning in Lumba.

The Court of Appeal accordingly upheld HHJ Platts’ refusal to make any separate award for invasion of personal autonomy and dismissed the appeal.

Implications

The decision confirms that, in English clinical negligence law, a doctor’s failure to obtain informed consent does not generate a distinct cause of action or a free‑standing, additional head of damages for invasion of autonomy. The wrong is actionable in negligence, and compensation is to be assessed within established personal injury heads such as pain, suffering and loss of amenity, including any distress caused by awareness that autonomy has been infringed.

Section 1 of the Administration of Justice Act 1982 prevents parties from re‑characterising claims for loss of expectation of life as autonomy‑based damages. The judgment also signals judicial reluctance to introduce vindicatory or conventional awards into the common law of negligence, particularly where ordinary compensatory principles already provide adequate redress.

On recusal, the case reiterates that prior judicial involvement in related litigation, and even critical findings, will rarely suffice to establish apparent bias. The objective fair‑minded and informed observer test remains decisive, and parties cannot secure a different constitution of the court simply because a judge previously decided against them.

Verdict: The Court of Appeal dismissed the appeal, upholding the trial judge’s refusal to award any additional damages for loss of personal autonomy beyond the conventional award for pain, suffering and loss of amenity, and rejecting the applications for recusal of two members of the court.

Source: Shaw v Kovac [2017] EWCA Civ 1028