Re Toby Jasper-Smith
Opinion
Background of the case:
1. I have been asked to advise Mr Toby Jasper-Smith on the merits of a claim he wishes to make against Mr Roger Dell. In particular, advice on liability, evidence and quantum.
2. On Sunday 16th February 2003, Mr Smith went to stay for a week, in Malden Surrey, with his brother and family, taking with him his dog Dorabella. Immediately after their arrival, Dorabella began to eat less, and by the end of the week, was neither eating nor drinking. Around 6.20 pm on the Friday evening, Mr Smith telephoned a local vet, Mr Dell, for some advice and to make a home visit. By 10.00 am the next day, Mr Dell turned up and took Dorabella into his practice, in order to give her a light anaesthetic and conduct a full examination. Mr Dell telephoned about 3.00 pm on Saturday asking Mr Smith to collect Dorabella around 7.00 pm. He went on to explain that Dorabella had tonsillitis, which would have made eating very painful for her. About 7.30 pm, Dorabella was brought by a neighbour, Mr Mellor and his daughter, in a very large cardboard box. She was completely motionless, barely responding to her name, and unable to raise her head from the bottom of the box. By 3.00pm on Sunday, Dorabella was dead.
3. Mr Smith was shocked to hear from the post mortem report, that the cause of Dorabella‘s death was due to heart failure, aggravated by anaesthesia. Furthermore, Professor Ignatius T Kelly’s letter dated 18th August 2003 raises the possibility that Dorabella would have lived, if there had not been mismanagement of the anaesthesia by Mr Dell.
Summary of the Advice:
4. In my opinion Mr Smith has good prospects of being successful in a claim against Mr Dell, both in the breach of contract and the tort of professional negligence. Therefore, it is my suggestion that Mr Smith should proceed to the issue of proceedings, although there are practical matters, indicated below, that should be considered. Mr Smith is likely to recover the heads of loss referred to in my instructions, with an additional sum for distress, which I would be able to advise upon when detailed medical evidence is available. My preliminary view is that the whole claim is unlikely to exceed £6000, subject to a medical report on distress. Damages in a claim based on breach of contract will be identical to a claim based on negligence.
5. It should be noted from the outset, there is only circumstantial evidence that Dorabella died due to mismanagement of its anaesthesia by Mr Dell. Although he denied this fact, further evidence may be required to prove otherwise. However, apart from medical evidence on distress, other evidence might be obtained from Mr Smith, Professor Kelly, Mr Mellor and Mr Gill. In fact, the evidence I have asked for might be expensive, if Smith wishes to proceed the issue of proceedings; therefore my suggestion would be to make it cost effective where possible.
Advice on Liability of Mr Roger Dell:
6. The civil liability of veterinary surgeons towards the owners of animals is similar in all respects to that of dental and medical practitioners towards their patients: R v. Bateman (1925) 94 L.J.K.B. 791.It is likely that Mr Smith would be able to establish liability concurrently, both in contract and tort. In contract, the liability would arise from their agreement; in tort, it would be independent of agreement and would be imposed upon Mr Dell by law. The liability of both contract and tort is considered separately is as follows:
Liability in Contract:
7. It appears from Mr Smith’s statement that Mr Dell had agreed to treat Dorabella privately in his practice. He further provided his professional service for reward, and there was thus a contractual relationship between him and his client, Mr Smith. If the agreement to perform his duty was written, the express terms should confirm this. If it was an oral agreement, it is important to have a look at any documents, which evidence the agreement, and indeed all correspondence with Mr Dell.
8. In any event, there was an implied term in the contract that Mr Dell would provide proper supervision for Dorabella’s ailment and progress, including any further treatment required until her discharge from care. Moreover, Section 13 of the Supply of Goods and Services Act 1982, embodying the earlier common law principle, implies in every contract of the supply of services, in the course of a business, a term that the supplier will carry out the service with reasonable care and skill.
9. The precise standard of care owed by Mr Dell would depend on the level of skill and expertise claimed by him. Furthermore, as he clearly held himself out as a competent veterinary surgeon, who undertakes the cure or treatment of all domestic pets ailments ‘there is on his part an implied warranty that he is skilled and reasonably competent to the task he undertakes’. In determining whether he had fallen below the required standard of care, the general rule of the standard of care in respect of professional men has already been settled by the definition of Mc Nair J. in Bolam v. Friern Hospital Management Committee (1957 All E R 1 P-78). Therefore, the standard of care and skill would be attained in order to satisfy the duty he owes to Mr Smith, namely that of the ordinary competent veterinary surgeon, exercising an ordinary degree of professional skill.
Duty in Negligence:
10. Mr Dell, who assumed responsibility for Dorabella’s treatment, will in any event owe a duty of care to the owner of dog, Mr Smith, in professional negligence, irrespective of any contract between them, to exercise the reasonable skill and care to be expected of a competent veterinary surgeon, which is an identical duty to that implied in contract, see Para 8 and 9.
Breach in contract and negligence:
11. From what Mr Smith says in his statement and Professor Kelly’s report, there appears to be good evidence that Mr Dell acted negligently and in breach of the implied term in the contract, although this needs to be investigated in more detail. Mr Kelly states that the dog died due to mismanagement of its anaesthesia by Mr Dell (Could Mr Kelly please be asked to identify and provide copies of the literature of the effect of anaesthesia to which he refers?). He further identified a number of things in his statement Para- 9 &10 that Mr Dell could have done to help Dorabella’s recovery, instead of discharging her in the motionless state from the veterinary practice (Could Mr Kelly be asked to provide guidelines on the procedure matters which he mentioned above?). Mr Dell, as someone who considers himself a competent veterinary surgeon, should almost certainly have known this. Moreover, the cause of death established by the report of Mr Stephen Gill, does not make clear whether the aggravated anaesthesia is the main cause of Dorabella’s death. I need to obtain further clear information from Mr Gill on whether the cause of Dorabella’s death was mainly aggravated by anaesthesia.
12. It appears from paragraph 2 of Mr Kelly’s statement that Mr Dell neither offered a consent form to Mr Smith, nor obtained his written consent before proceeding with any operation, nor gave him proper explanation to the nature of the procedure he wished to carry out on the dog. Clearly, there was a failure to give proper information to Mr Smith about the risks; that is a matter of negligence. (Could Mr Kelly be asked to provide a copy of both consent form and their guidelines of proceedings?)
13. Mr Kelly gave a detailed explanation of ‘the rate of recovery following anaesthesia with thiopentone’ in his statement paragraph 4 & 5 and concluded that Dorabella had received two doses of thiopentone within a two-hour period whereas it is generally accepted that one dose of thiopentone should be given within a 24 hour period. It follows on from this, that Mr Dell should have either known or realised that Dorabella received too much thiopentone. I need further information from the current data sheets relating to the dog’s anaesthesia by ‘Small Animal Immobilon’ and thiopentone sodium.
14. Mr Dell re-anaesthetized Dorabella using Thiovet immediately after Mr Smith’s telephone call. Mr Kelly says in his statement paragraph 6 that a second dose of anaesthetic so soon after the first was inappropriate. Mr Dell could have waited until the first anaesthetic had worn off, before injecting a second one in order to take the biopsy. The dog was suspected of suffering from tonsillitis and so this approach was unsatisfactory. It follows, therefore, that he had appreciated the consequences of giving the second dose of anaesthetic, which caused or contributed towards the death of Dorabella. I need further information from Mr Kelly on what the general treatment for tonsillitis is and what the minimum time required is to wait, following the first anaesthetic.
15. He further stated in paragraph 7, what he noted from a letter of the Veterinary Defence Society to Mr Smith’s solicitor, that the dog was subject only to light anaesthesia, but the drugs Mr Dell used, were generally prior to minor operations in dogs. Mr Kelly also commented on how Mr Dell had treated Dorabella, namely that it ‘would have been regarded as pre-medication for thiopentone anaesthesia to achieve the greater degree of anaesthesia required for the surgical intervention being carried out’. Clearly, Mr Dell had intended to use thiopentone anaesthesia knowing the consequences that the dog could die due to his mismanagement of anaesthesia (Could Mr Kelly be asked to provide information on the fact of Dorabella’s treatment, without using thiopentone anaesthesia?).
16. Mr Kelly stated in paragraph-8 that he assumes Mr Dell did not use an endotracheal tube on either occasion, when the dog was anaesthetized with thiopentone, which would be considered mandatory under these circumstances. Therefore, I need further information on the details of the procedures carried out by Mr Dell to undertake Dorabella’s treatment.
17. Furthermore, Mr Smith says in his statement that Mr Dell was very uncaring during Dorabella’s treatment because: a) he neither examined Dorabella nor asked Mr Smith any detailed questions about symptoms, for instance about her ability to tolerate exercise, before he took her into his practice. b) he told Mr Mellor that Dorabella would be fine, at the time of discharge from veterinary practice, without looking at her again, whereas any reasonable veterinary surgeon would be expected to give a final look (Could Mr Mellor be asked to provide details on his conversation with Mr Dell regarding Dorabella’s treatment?). c) he asked Mr Smith why he had telephoned him at home on a Sunday night to give him the news of Dorabella’s death; this seems unreasonable behaviour from a veterinary surgeon. d) He was generally too keen on the financial aspects of his work.
18. Professor Kelly’s report is very helpful, but if the case is to go to litigation, an independent expert report will be required, confirming that Dorabella died due to mismanagement of its anaesthesia. This report can be written by Professor Kelly, provided that he is an experienced Professor of Veterinary Anaesthesia and subject to agreement of a single expert and / or any relevant directions of the court on the expert evidence.
Contributory Negligence:
19. I do not see that there is any evidence of contributory negligence on the part of Mr Smith, who was doing everything possible to make Dorabella well. However, the defence may possibly argue that Mr Smith could either have telephoned Mr Dell or taken advice from any other veterinary surgeons, when there was no improvement on Sunday morning following Dorabella’s discharge. However, it would not be considered a strong defence to reduce the amounts for damages due to contributory negligence.
Causation:
20. Which heads of loss may be recoverable will depend on the chain of causation resulting from each breach. The breaches caused by Mr Dell would have led to Dorabella’s unfortunate death and other losses incurred by Mr Smith. The claim can primarily succeed if it can be shown by Mr Smith that the dog had died due to mismanagement of its anaesthesia by Mr Dell. However, Dorabella might have lived on the balance of probabilities, if she received reasonable care and attention, that should have been available to her at the surgery, from the hands of a competent veterinary surgeon.
Advice on Quantum:
21. Mr Smith has a good claim against Mr Dell for damages for the death of Dorabella; the loss flows naturally from the breach and is reasonably foreseeable. The court will award a sum equal to Dorabella’s financial value prior to her unfortunate death. Up to date evidence of value, will be necessary, to establish this. For the purposes of this opinion I will assume the amount claimable will be its original value of £ 1000.
22. Mr Smith would also be able to claim both the cost of the biopsy sample £30 and the professional services, in the sum of £200.00 plus VAT, which in my view was paid by Mr Smith to Mr Dell.
23. I think that the court would consider the cost Mr Smith incurred due to both the post mortem report by Mr Gill and the report from Professor Kelly be recoverable as he had to spend this money to discover the truth. Although Mr Smith will need to bear in mind the costs rules in CPR, Part 44 and r 35.4 (4), and that experts’ fees will be reduced down to reasonable figures if they are unreasonably high. I need further information from Mr Smith to quantify the exact amount he is claiming, for the payment of post mortem and Kelly’s report. Clearly, there is a direct casual link between the costs and the breaches, and its both natural flow from the breaches and foreseeable too. However, Mr Dell would argue that he did not anticipate the costs for the reports due to the breaches, so it is not within his contemplation.
24. My instructions disclose that Dorabella was both a wonderful specimen, and won a number of awards at Crufts, with breeding potential. Mr Smith has therefore suffered the loss of futuren opportunities to win money / prizes in such shows and breeding prize bulldogs, due to the death of Dorabella. The costs of taking part in such shows should be deducted. In my opinion, prizes are modest, whereas the costs are somewhat greater. Regarding Dorabella’s breeding potential, this is too remote to quantify the damage unless information is available indicating that Mr Smith would certainly gain financially due to Dorabella’s breeding. Therefore, my recommendation is that this should not be included in the claim.
25. There is no realistic prospect of recovering any sum for loss to the business, as Dorabella was used as a mascot to advertise his business. On the information available, it is difficult to conclude whether the business benefited by any quantifiable financial gain from this personalised form of advertising (Need more information from Mr Smith on business turnover before and after Dorabella’s advertisement). This is a very speculative head of loss, and would be considered too remote for claiming damages; therefore it is likely there would be no award. The expert will presumably be able to comment on the financial gain of his business due to Dorabella’s personalised form of advertising, but I cannot imagine that this is a sustainable head of damages.
26. Due to the death of Dorabella, Mr Smith has suffered distress, which amounts to suffering, is a personal injury and is such dealt with under that head. The general rule is that damages for distress are not available in an action for breach of contract and tort in negligence. However, I am not clear from my instruction whether he has suffered distress for a long time, so I would need a medical report to advice on this issue. Therefore, I would like to reserve my opinion on this issue until I have seen the medical report.
Advice on Further Evidence and Next Steps:
27. The damages I have calculated total £ 1,230. I cannot give full advice without a medical report on distress, further information on the cost incurred by Mr Smith in securing the post mortem report and Professor Kelly’s report and expert evidence on Dorabella’s up to date value, but I expect the total award will not be more than about £ 6000.
28. It might assist instructing Solicitors to have a summary of the further information and evidence referred to in this opinion:
a) Whether Professor Kelly is an agreed expert of the parties and the validity of his report today if the proceedings commenced.
b) Further information from Mr Kelly on what is the general treatment for tonsillitis and the minimum time required waiting after the first anaesthetic.
c) Further details of the procedures carried out by Mr Dell for Dorabella’s treatment.
d) Full text on the current data sheets relating to the dog for anaesthesia was ‘Small Animal Immobilon’ and thiopentone sodium.
e) Further expert evidence indicating what Mr Smith would have gained financially due to Dorabella’s breeding.
f) Consultant psychiatrist comment or medical report on whether Mr Smith has suffered distress for a long time.
g) Further information from Mr Smith on the payment of post mortem and Kelly’s report to quantify the exact amount being claimed.
h) Further information from Mr Mellor about his conversation with Mr Dell regarding Dorabella’s treatment.
i) Expert evidence on the up to date financial value of Dorabella, prior to her unfortunate death.
j) Further comment from Mr Gill indicating whether Dorabella’s death was due only to mismanagement of its anaesthesia by Mr Dell.
k) Further details from Mr Smith regarding the conversations with Mr Dell from first to last.
l) Whether Mr Dell has done or said anything to reassure Mr Smith, that gave him implied consent of Dorabella’s treatment.
m) Further information from Mr Kelly to identify and provide copies of the literature of the effect of anaesthesia to which he refers.
n) Expert comment on business turnover before and after Dorabella’s advertisement.
o) Copies of sample consent forms and their guidelines of proceedings from Mr Kelly.
p) Details from Mr Kelly on Dorabella’s treatment with or without using thiopentone anaesthesia.
29. This claim is suitable for the fast track, and the Pre-action Protocol for Professional Negligence claims will apply. It would appear that my instructing solicitors have already corresponded with Mr Dell. Was this letter the letter of response required by the Protocol ? If it is, then this claim should be brought in the County court. If not, then two copies of a letter of claim will need to be sent to Mr Dell before proceedings are issued.
30. Furthermore, the evidence I have asked for might be expensive if he wishes to proceed the issue of proceedings; therefore my suggestion would be to make it as cost effective as possible. Regarding the evidence disclosure, an application should be made to the court by asking to disclose the evidence as early as possible.
X
ICSL Chambers
14 January2004.