On 20 June 2009, C aged 43, was admitted to D hospital as an emergency surgical admission, suffering from epigastric pain. A condition called cholecystitis was suspected, but in fact the cause of C’s symptoms was a developing spinal abscess. It is agreed that various signs, including loss of motor power in the legs, were missed or not acted upon in time. It was this failure which led to litigation. As the liability issue crystallised between the parties, there was a factual dispute as to whether it was likely that a MRI scan would or could have been performed in time to permit successful surgery. Against this background, liability was compromised on the basis that C would receive:
“… 60 per cent of such damages as are assessed by the court … if not agreed. Such damages to be assessed on the basis that but for D’s admitted breach of duty, C would have been neurologically intact after treatment for his spinal abscess.”
This case concerned the assessment of such damages. There was consideration of the principle ex turpi causa non oritur actio.