In this blog post, John-Paul Swoboda considers the recent decision in Pal v Damen & Anor [2022] EWHC 4697 (QB). This was a cross-border clinical negligence battle following hot on the heels of Clarke v Kalecinski & Ors [2022] EWHC 488 (QB) (which we considered here).
In May 2016 the Claimant, Lisa Pal, underwent elective cosmetic (breast enlargement) surgery at a clinic in Genk, Belgium. The First Defendant was the surgeon and the Second Defendant was the clinic.
It was the Claimant’s case, brought in tort and contract, that the surgery was negligently undertaken. The surgeon and clinic both challenged the jurisdiction of the court to hear the claim.
As this was a claim issued prior to the end of the EU Withdrawal Agreement Implementation Period, Brussels I (Recast) was to be applied to determine the issue of jurisdiction.
Although the claim had been brought in tort as well as contract, it was accepted by the time of the jurisdiction hearing that the “harmful event” had occurred exclusively in Belgium,[1] meaning the requirements to establish jurisdiction for the claim in tort in this country could not be met.
Conversely, as the Defendants accepted that this was a consumer contract, the relevant issue under Brussels I (Recast) was whether it was the surgeon or clinic, or both, who had entered into the contract for the surgery with the Claimant.
Ambiguity as to whether the clinic or clinician (or both) is the correct defendant in matters concerning private healthcare are familiar to clinical negligence practitioners. Indeed, such matters were considered recently by the Court of Appeal in Hughes v Rattan [2022] EWCA Civ 107. The determination in that case (concerning alleged dental negligence) of whether the correct defendant was clinic or clinician required consideration of issues such as non-delegable duties and vicarious liability.
But such considerations apply where the applicable law is English law and in Pal the applicable pursuant to Rome I (contract) and Rome II (tort) was Belgian law.
Master Cook had the benefit of three Belgian lawyers to determine the contractual relations in this case: whether there was a contract for medical services with the clinic (which would cover the surgery); a ‘doctor out’ contract (which would not cover the surgery); a direct contract with the surgeon for the surgery; or something else.
Master Cook had “no hesitation” in concluding that there was ‘a good arguable case’ that the Claimant entered into a contract with the surgeon.
But, in respect of the clinic, the only side to adduce direct evidence as to the contractual arrangements was the clinic and that evidence strongly suggested it was a ‘doctor out’ contract.
There were two Belgian law experts who did suggest there was ‘a good arguable case’ that the clinic contract included the surgery, but one expert’s report fell afoul of “practically every requirement” of the CPR so that Master Cook placed no weight on it and the other proceeded, said Master Cook, on an incorrect factual basis.
On this basis, it was concluded the court did not have jurisdiction over the claim against the clinic as there was no good arguable case that the clinic had a contract with the Claimant which covered the surgery.
Analysis
This case highlights the additional complexities when dealing with a clinical negligence claim where the alleged negligence or breach of contract arises in a different jurisdiction. All clinical negligence claims are expert-led but that is even more true in foreign clinical negligence claims. At the jurisdiction stage, the expert who does most leading is the expert in foreign law. This means that getting an authoritative and reputable foreign law expert is critical.
It might be thought that a decision to exclude the clinic as a Defendant at the jurisdiction stage, on the basis that there was not a good arguable case in contract despite two Belgian law experts suggesting to the contrary, is harsh. The analysis of Master Cook in this case suggests that the decision was reached partly because the clinic engaged and provided exculpatory contractual information but also because their expert was the expert the Master preferred.
The difference between the position in Pal, a claim determined under EU law, and the position post-Brexit is that the tort gateway will be wide enough to accommodate most clinical negligence claims (post FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45). However that would still not resolve the complexity arising from whether the clinic, clinician or both may be held liable as the court may need to consider foreign law doctrines of equivalence of vicarious liability and/or non-delegable duties if such exist.
But even if one can push the clinic (as well as the clinician) past the tort or contract gateway in a post-Brexit case, there will be a further battle to determine whether the courts of England and Wales are the proper forum.
[1] A stark contrast here between the position where EU law applies and the position post Brexit as determined in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45.