England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (HHJ STEEL DL)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 12th July 2001

LORD JUSTICE HENRY:

1. This is the judgment of the Court, prepared by Henry LJ. This is an appeal by the defendant and cross-appeal by the claimant against the judgment of Her Honour Judge Steel DL who, on 29th June 2000 gave judgment for the claimant in a clinical negligence case in the sum of £4,181, and ordered that the defendant pay two-thirds of her costs.
2. The case was a difficult one. Mrs Glicksman's medical condition was complex. The medical records were not complete. Mr Abbas, the surgeon who conducted the operation, had no independent recollection of it. But he was sure that his actions were prompted by the pre-operative fear that here he was dealing with a dangerous strangulated hernia, and that it was against that background his actions should be judged. Two very experienced hernia experts were called, but there were considerable differences between them. And, on top of the evidential difficulties, there was on the cross-appeal, a difficult question of causation. And the judge did not have the benefit of a verbatim transcript.
3. The facts are these. On 3rd July 1994 the claimant was admitted to hospital with a suspected incisional hernia. For reasons that are not clear from the medical records which survive, that operation was done by Mr Abbas as a matter of urgency at 8.00pm on 5th July 1994. The inference is that her condition suddenly took, or was feared to have taken, a turn for the worse. Mr Abbas operated. The method he used involved entering the abdominal wall, in order to examine and treat the hernia from below. In the event, no hernia was found. This meant that there had been no need to enter the abdominal wall. The claimant alleged that Mr Abbas should not have done so, but should have made his incision of the outer layers of the stomach above the site of the suspected hernia. Mr Abbas was found to have been negligent. The Trust appealed against this finding. All turned on the evidence of Mr Abbas and the two experts.
4. The danger in damaging the abdominal wall is that it increases its weakness. In 1996 the claimant had another painful abdominal swelling which turned out to be due to a hernia, which required a further operation. She alleged that this was one of a number of serious consequences of the negligent manner in which Mr Abbas had conducted her operation in 1994. The judge noted that, because of her medical history, the claimant was already a candidate for further hernias, irrespective of the abdominal incision in 1994, and that that incision had not "... pushed her over the top". She found that:

"... what flowed from the negligence in opening the abdominal wall was the effect of an operation involving the abdominal wall ... which would delay the healing process and an increased weakness in the wall which would add to her general problems and risk of recurrence."

It was this "... slight additional risk which followed the opening of the abdominal wall in 1994 ..." together with "... a rather more extensive operation than was necessary ..." that made up Mrs Glicksman's award for general damages, pain and suffering. The claimant cross-appealed against this finding on causation, and against the amount of damages.

5. We have emphasised the importance of the medically qualified witnesses in this case. Mr Horne for the Trust in his skeleton argument in support of the defendant's appeal took us through ten separate medical issues, in each of which there was a conflict between claimant and defendant. But none of these conflicts were identified or resolved by the judge in her judgment. However, we bear in mind that initially it is for the judge to decide which issues are sufficiently relevant to merit mention in the judgment.
6. The actual findings on contentious issues in the judgment on liability (ie the subject of the Trust's appeal) are as follows:

a) normal practice was not followed in the 1994 operation, though the experts did not agree on what was normal practice;

b) neither expert had ever dealt with a hernia by going in from below, with the reservation that normal practice was not invariable practice;

c) there was concern and urgency over the need for the operation, and that had to be taken into account.

d) Mr Abbas chose to deviate from the norm in making a higher transverse incision, and by deciding to go straight through the abdominal wall and approach the problem from below. No reasonable body of medical opinion would support such an approach. There was no justification in doing the operation in that way. On this basis the judge found for the claimant on liability.

7. The Trust's principal ground of appeal (1.C) against that finding was cast wide: that in so finding the judge had misinterpreted the evidence of Mr Foley, the expert called on behalf of the claimant; she had failed to consider whether his reasons for supporting an intra-abdominal approach were capable of withstanding logical analysis; or if she did consider that they were not, she reached a perverse conclusion on the evidence.
8. The difficulty encountered by Mr Horne was that in the judgment the judge's findings were simply expressed as conclusions, no reasons being given for the implicit rejection of the testimony going the other way, and there were simply no findings as to, or identification of, the subsidiary issues on which counsel (notes of whose closing speeches were before us) relied. And when the Court asked counsel what the judge's findings on a contested evidential issue between the medical witnesses had been, the answer generally was either that no finding had been made, or that no reasons for that finding had been given.
9. The importance of reasoned findings when dealing with expert evidence was emphasised by Bingham LJ in Eckersley -v- Binnie [1988] 18 Construction Law Reports 1 at 77-78:

"In resolving conflicts of expert evidence, the judge remains the judge: he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely) a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons. The advantages enjoyed by the trial judge are great indeed, but they do not absolve the Court of Appeal from weighing, considering and comparing the evidence in the light of his findings, a task made longer but easier by possession of a verbatim transcript usually (as here) denied to the trial judge."

These principles were applied recently in a clinical negligence case by Lord Woolf MR  in Penney, Palmer & Cannon -v- East Kent Health Authority [2000] Lloyd's Rep Med 41 at 52.

10. On the medical issues considered in this case, no reasoned rebuttal of any expert's view was attempted by the judge: her conclusions alone were stated in circumstances which called out for definition of the issues, for marshalling of the evidence, and for reasons to be given.
11. Those matters go to make up the building blocks of the reasoned judicial process, and those safeguards were not present here. Each of us was concerned at the prospect of a finding of professional negligence being made in their absence. Accordingly, we allowed the Trust's appeal on liability.
12. Our concerns were increased by the findings on causation which founded the cross-appeal brought by the claimant. The judge had to decide what injury and loss flowed from the negligent method of conducting the operation, a topic dealt with by both experts called. She accurately summarised the problem on the basis of her findings: the 1994 incision into the abdominal wall was unnecessary, and so whatever flowed from it was a direct result of the negligence. Because of the claimant's vulnerability to hernias, the 1994 incision was not the direct cause of the 1996 operation. It merely caused a delay in the healing process and an increase in the weakness of the wall which would add to her general problems and the risk of recurrence. The judge went on to find that the claimant's employment prospects and all her various financial claims for care and aids were not attributable to the defendant's negligence and must fail. The additional risk of a further operation the judge included in the lump sum, and awarded £4,000 damages with £181 interest.
13. The claimant wished to appeal that finding, and the application for permission to appeal was referred to us, with appeal to follow if permission were granted. Consequently, we were familiar with the papers in the cross-appeal. The attack mounted on the judgment was that the judge had failed to make any or any adequate findings of fact; that she failed to review or analyse the evidence of the experts; and gave no reasons for preferring one to the other on the issues raised. As a result of these shortcomings there was not the "... coherent reasoned rebuttal ..." which Bingham LJ had required. And consequently it was impossible to tell whether the judge's conclusions were reasonable and capable of being supported.

In effect, the respondent Counsel's written submissions on the cross-appeal were almost the mirror image of claimant Counsel's submissions on the appeal. We put it to Counsel that it was almost impossible to accede to the submission of either that the part of the judgment in his favour should be upheld, but the part adverse set aside - the more so as issues of negligence and causation were inextricably interlinked. Each Counsel conceded that he saw the force of this.

14. In these circumstances we reluctantly concluded that the entirety of the judgment should be set aside, without the need to hear argument on the cross-appeal.
15. Accordingly, we allow the Trust's appeal on liability, set aside the judgment, and we order a new trial of the action covering both liability and quantum. We make no order on the cross-appeal, and will hear submissions on costs and directions.
ORDER: Appeal allowed, retrial ordered on liability & quantum costs here and below to be reserved to trial judge. Retrial to be assigned to a judge who has the necessary experience on medical negligence cases. (Order does not form part of approved Judgment)