CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mai 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF     Application No. 13475/87 by James KAY against the United Kingdom             The European Commission of Human Rights sitting in private on 2 May 1989, the following members being present:                   MM.   J.A. FROWEIN, Acting President                      S. TRECHSEL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 M.    F. MARTINEZ                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 14 October 1987 by James KAY against the United Kingdom and registered on 10 December 1987 under file No. 13475/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of the United Kingdom, born in 1930 and resident in Prestwich, Scotland.   In his application he is also representing his wife and two sons, Andrew and David.           The facts of the case, as submitted by the applicant and which may be deduced from official documents lodged with the application, may be summarised as follows.           The applicant's son, Andrew, was a fairly normal little boy of two years of age when he contracted pneumococcal meningitis and had to be hospitalised in November 1975.   The paediatrician treating the boy instructed a colleague to administer 10,000 units of Penicillin intrathecally.   However instead of injecting the prescribed dose, the colleague injected a massive overdose of 300,000 units of Penicillin. The child fell into a coma, followed by toxic seizures.   Within minutes the doctor realised his error and took remedial action.   The child recovered.   However three or four days later the applicant and his wife noticed that he was deaf.           Andrew suffers from profound bilateral deafness and has lost the ability to speak.   He suffers from other abnormalities such as clumsiness, excessive obesity, and most notably, a failure of normal sexual maturation evinced by a complete retraction of his testicles and the appearance of feminine physical traits.   He also has learning difficulties, is excitable and lacks social restraint.           In March 1976, the applicant filed a claim with the Ayrshire and Arran Health Board, responsible for the hospital in question, alleging that Andrew's deafness was caused by the admitted Penicillin overdose.   The Health Service Central Legal Office, representing the Health Board, responded by letter on 17 February 1977, denying that the deafness was caused by the overdose, attributing it rather to the pneumococcal meningitis.   The applicant filed suit against the Health Board on 20 November 1978 and at the time had legal representation. The Health Board admitted negligence in the administration of the overdose, but contended that the consequences were limited to the convulsions and hemiparesis suffered immediately following the overdose.   It denied that the overdose resulted in any residual disability, in particular, that it had caused the deafness.           In December 1980, the Health Board lodged a tender to settle the case for £6,000.   According to the applicant, an offer by tender is intended to protect a defendant in a civil action against undue harassment.   If the plaintiff rejects the tender and proceeds to trial he must "beat the tender", i.e. prove damages in excess thereof, or be held liable for all of the defendants' legal costs incurred after the tender.           The applicant received discovery of the relevant documents. He noted that certain vital documents were missing and that the report of the doctor concerned had been altered by hand concerning a vital issue in the dispute, giving the impression that the handwritten note had been added to the report at a later date.           The applicant's solicitors advised him to accept the tender, but the applicant felt it was an insult and rejected it.           In November 1981, the Health Board moved to have the applicant declared an adverse influence in his son's case and to appoint a curator ad litem to act in the best interests of the child.   This motion was granted, but later reversed on appeal in January 1982.           In March 1983 the Health Board applied to the court for a caution for expenses which would have required the applicant to lodge a substantial sum of money with the court as an indication of his earnestness in pursuing the suit.   This application was refused.           By spring 1984, the applicant was without legal representation due to conflicts with his solicitors and their reluctance to pursue his case to his satisfaction.           The trial was held in October 1984 before Lord Davidson in the Court of Sessions, Edinburgh.   Amongst the 12 witnesses heard, five were medical experts who generally agreed that deafness is a possible consequence of pneumococcal meningitis.   It was also generally agreed that a massive intrathecal overdose of Penicillin as administered to Andrew could be lethal, but that it is possible to survive such an overdose without residual effects.   Penicillin was not known to have been the cause of loss of hearing, although such results had occurred with related drugs such as Ampicillin.   A neurosurgeon testified on the applicant's behalf that, due to the Penicillin overdose, it was difficult to assess to what extent the disabilities were caused by the meningitis and to what extent by the overdose.   He was of the opinion that Andrew was already showing signs of improvement before the overdose and that, were it not for the overdose, he would have stood a good chance of recovery without disabilities and loss of hearing.   He was also of the opinion that the Penicillin overdose could alone have caused the damage to the auditory nerve that resulted in Andrew's deafness.   Lord Davidson found in the applicant's favour and awarded £116,000 in damages and interest in his judgment of 1 March 1985.           In consultation with the Medical Protection Society, a private professional insurance company, which represented the doctor concerned and had undertaken to meet the final judgment in full, and the Health Service Central Legal Office, the Ayrshire and Arran Health Board appealed against Lord Davidson's judgment.   On 18 December 1985, the Inner House of the Court of Sessions allowed the appeal and reduced the award of damages and interest to £7275.   The appeal court held that Lord Davidson's conclusion had been based on a medical theory which he had apparently devised after the hearing, which had no basis in the medical opinions put to him and which the defendant had had no opportunity to challenge.   It concluded that the only possible cause of Andrew's deafness, on the basis of the whole of the medical evidence in the case, was the pneumococcal meningitis.           The applicant's appeal to the House of Lords was rejected on 14 May 1987 when the Health Board also announced that it would not be seeking its legal costs from the applicant.   The applicant stated that he would have to reimburse the legal aid fund for the appeal costs which he incurred with the £7275 award.   COMPLAINTS           The applicant complains that the Ayrshire and Arran Health Board violated his son's and his family's Convention rights as regards missing or misleadingly amended reports, as regards intimidating procedural tactics such as their attempt to remove the applicant from the case as an adverse influence on his son, or the threat to the applicant of financial ruin when they applied for a caution for their costs, and as regards their secret dealings with the Medical Protection Society and the Health Board Central Office.           The applicant claims that the combined action of these three institutions formed "a gigantic attempt to prevent a fair hearing of the case - a case where one side had all the power and all the information denied to the victim".   In this respect the applicant invokes Articles 3, 5 para. 1, 6 para. 1, 8, 10, 17 and 50 of the Convention.   The applicant also complains that the appeal court failed to take the aforementioned alleged abuses into account and thereby also breached these provisions of the Convention.     THE LAW           The applicant complains of an unfair hearing in his negligence claim against the Ayrshire and Arran Health Board in respect of his son's deafness after treatment in one of the Board's hospitals for pneumococcal meningitis.   In particular he alleges that the Health Board abused its power in the manner in which it defended that claim and that the appeal courts failed to take this abuse of power into account.   He invokes various provisions of the Convention: Article 3 (Art. 3) (the prohibition on inhuman or degrading treatment), Article 5 para. 1 (Art. 5-1) (the right to liberty and security of person), Article 6 para. 1 (the right to a fair hearing in the determination of civil rights and obligations), Article 8 (Art. 8) (the right to respect for family life), Article 10 (Art. 10) (freedom of expression), Article 17 (Art. 17) (the prohibition on interpreting the Convention to authorise acts aimed at the destruction or undue limitation of Convention rights or freedoms) and Article 50 (Art. 50), concerning the powers of the European Court of Human Rights to award just satisfaction.           The Commission finds that only Article 6 (Art. 6) of the Convention may be considered relevant to the applicant's complaints.           Article 6 para. 1 (ARt. 6-1) of the Convention guarantees, inter alia, the right to a fair hearing in the determination of civil rights and obligations.   The Commission observes that the principal guarantors of this right are the domestic courts.   The Commission notes that the procedural tactics of the Ayrshire and Arran Health Board, as defendant to the litigation, were unsuccessful, the domestic courts ultimately refusing to declare the applicant an adverse influence on his son and refusing to order the applicant to pay a caution as eventual security for the Board's legal costs.   It is clear from the case-file that, despite the applicant's difficulties as a litigant in person much of the time, the domestic courts gave full and fair consideration to his claims and were not unduly influenced by the weighty battery of legal expertise used by the Health Board.   In these circumstances the Commission concludes that the applicant was afforded a fair hearing pursuant to Article 6 para. 1 (Art. 6-1) of the Convention. Accordingly the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.           Secretary to the Commission       Acting President of the Commission                    (H.C. KRÜGER)                        (J.A. FROWEIN)