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How does one approach the burden of proof in civil cases which involve an allegation of assault?

  • Legal Development 30 November 2020 30 November 2020
  • UK & Europe

  • Healthcare

Successful NHS Resolution/Clyde & Co trial defence in the County Court at Winchester before HHJ Parkes Q.C. provides a helpful overview of the relevant case law

How does one approach the burden of proof in civil cases which involve an allegation of assault?

Introduction

Clyde & Co LLP were instructed by NHS Resolution to represent the Defendant in the case of TT v Surrey and Borders Partnership NHS Foundation Trust [2020]. The Claimant alleged that he was assaulted by a senior member of staff during a process of restraint and medication otherwise known as rapid tranquilisation.

It was said that excessive force was applied to the right side of the Claimant's face and that repeated blows were administered to the small of his back, by a jumping or kneeing action. In the alternative it was said that the rapid tranquilisation itself was performed negligently and that there was a failure to utilise the process as a last resort.

The Court heard oral evidence from the Claimant, his sister (who was not present during rapid tranquilisation), the senior member of staff who is alleged to have assaulted the Claimant and experts in mental health nursing. There were also statements before the Court from two other members of staff involved in the rapid tranquilisation which were admitted under the Civil Evidence Act.

Legal Framework

In the context of very serious allegations of assault HHJ Parkes Q.C. took account of the following words of Lord Nicholas in Re H (Minors) [1996] AC 563:-

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability... Deliberate physical injury is usually less likely than accidental physical injury…this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."

The Judge also noted similar sentiments by Lord Hoffman in Re B [2009] 1 AC 11 and by Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, approved by Lord Carswell in In Re D [2008] 1 WLR 1499.

It was therefore found that the starting point in this case was an assumption that a senior mental health nurse with an impeccable record would not have used excessive force on a vulnerable patient in his charge.

Findings

The assault claim was dismissed and the Judge took into account the following factors:

  1. The unreliability of the Claimant's evidence. The Claimant was found to be in a highly manic state during the rapid tranquilisation. It was also found that he had no memory of many things he had said and done;
     
  2. The Claimant had made other unfounded allegations about staff including another allegation of assault the day before the index events. This alleged assault did not form part of the claim;
     
  3. The Claimant had an irrational dislike of the senior mental health nurse which was not reciprocated;
     
  4. The Claimant did not report the assault to the doctors who examined his injuries and thereafter did not object to the senior mental health nurse being involved in his continuing treatment;
     
  5. There was no application by the Claimant to cross examine the witnesses who provided evidence under the Civil Evidence Act;
     
  6. This was the first complaint made against the senior mental health nurse and he gave a credible account of the rapid tranquilisation; and
     
  7. The Claimant's nursing expert accepted that mental health patients often experience events which may be real to them but are not to others. It was therefore possible that the Claimant perceived the actions of nurses as an attack when it was just a routine restraint.

The claim for negligence was also dismissed. It was found that the context in which the Claimant's minor injuries occurred (the Claimant was said to be a strong man who resisted the rapid tranquilisation) were the kind to be expected and were consistent with the use of reasonable force by staff. The Judge also found that the nursing staff considered and used other methods of de-escalation and diversion and treated the rapid tranquilisation as a last resort. Ultimately the Judge accepted the factual and expert evidence adduced by the Trust.

Summary

The Claimant suffered from bi-polar affective disorder and had been admitted to hospital under section 3 of the Mental Health Act. He was acutely unwell and required rapid tranquilisation for his own safety and the safety of others. It was likely to be an unpleasant experience and one which the Claimant could have perceived as an assault.

In determining whether an assault actually occurred on the balance of probabilities the starting point was rightly found to be having regard to the inherent probabilities and working on the assumption that excessive force was not used. Clyde & Co LLP and NHS Resolution were confident from the inception of instructions in 2016 that the claim was unmeritorious and doubt that it would have been run to trial if not for qualified one-way costs shifting.

End

Additional authors:

Andrew Hannah

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