England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE WEEKS QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 31st October 2001

Wednesday, 31st October 2001

1. LORD JUSTICE RIX: This is an application by Mrs Saunders for permission to appeal to this court from the order of His Honour Judge Weeks QC, sitting as a High Court Judge in the Bristol District Registry on 29th June 2001. This is a second-tier permission to appeal application, and therefore I am not permitted to grant permission unless an important point of principle or practice is raised or there is some other compelling reason why an appeal should be heard.
2. Mrs Saunders' application arises out of her claim on behalf of herself and her late husband against the Gwent Community Health and NHS Trust. It is a sad case. I fully understand and sympathise with Mrs Saunders concerning the death of her husband in July 1998, some time after the amputation below the knee of both his legs in February 1997. Those amputations took place after a number of years in which Mr Saunders' health, and in particular the state of his legs and feet, had progressively deteriorated in circumstances which I can well imagine must have caused great distress both to him and to his wife.
3. The claim that Mrs Saunders brings against the Trust was founded in negligence. Her essential case was that from late April 1995 for a number of months down to August, or possibly November of that year, Sister Hudd, a community nurse, who had the responsibility for looking after her husband, Mr Saunders, at home and treating his condition, was negligent, in particular by applying compression bandages to his leg which is said not to be an appropriate treatment for Mr Saunders' condition, and also by the use of Inodine or other preparations which it is said caused a reaction to Mr Saunders' legs and affected his condition.
4. The condition that Mr Saunders was suffering from arose from his history of hypotension, diabetes and peripheral vascular disease of both his legs. He had had angioplasty in his left leg which appeared to be of some assistance. But Mrs Saunders complains that the improvement which followed on that angioplasty ended with Sister Hudd's treatment starting on 28th April 1995 and continuing thereafter by which she applied, as I have mentioned, compression bandages to the legs and used substances such as Inodine which it is alleged were inappropriate for Mr Saunders' condition.
5. This litigation in which Mrs Saunders has been acting as a litigant in person, has had an unfortunate history in which her claim was at one time struck out for failure to meet an unless order. But ultimately after a number of appeals, Sir Richard Scott, V-C, granted to Mrs Saunders permission to appeal against the strike out and he did that on 12th July 2000.
6. Following that permission the Trust decided not to fight the appeal and on some date between the order of Sir Richard Scott on 12th July and the Trust's subsequent application for summary judgment on 13th October 2000, Mrs Saunders' claim was reinstated by consent. The Trust's application for summary judgment however was soon followed on 24th October 2000 by Mrs Saunders' application that a joint expert be appointed by the court under CPR 35.7. Both those applications came before District Judge Stuart-Brown on 6th March 2001, and he gave judgment for the defendant essentially on the basis that the five expert medical reports which Mrs Saunders had already obtained over the years in support of her claim in negligence not only failed to support the claim, but actually stated that the treatment that Mr Saunders had received had been appropriate and had not been negligent, and indeed that that treatment had not caused the deterioration which had led ultimately to the amputations and Mr Saunders' death. Mrs Saunders' claim was therefore struck out.
7. However, Mrs Saunders obtained permission to appeal by way of a rehearing and not simply by way of review, from His Honour Judge Bursall. That appeal by way of rehearing came before His Honour Judge Weeks on 29th June 2001, but was dismissed by him. He went through the history of the proceedings and referred to the five medical reports which Mrs Saunders had obtained.
8. As for Mrs Saunders' application that an order should be made for a further expert in the form of a joint expert to be appointed, the judge said this:

"In my judgment, it would be quite wrong for me to direct that a joint expert should be instructed at a stage when the claimant has already had five expert reports with which she is, for one reason or another, dissatisfied. The purpose of a joint expert is not to act as a last resort to save cases in those circumstances; it is primarily designed as an initial course to eliminate the need for each side to instruct it's own expert. In my judgment, it would be wrong for me to require further expert evidence to be obtained on behalf the parties jointly at this stage..."

9. Turning to the strike out question the judge went carefully through the paragraphs in Mrs Saunders' allegations of negligence which he set out fully in his judgment, and then turned to consider the important question of whether those allegations of clinical negligence were supported by expert evidence. He referred to the case of Sansom v Metcalfe [1998] PMLR 542, where Butler-Sloss LJ, with the agreement of other members of this court, explained that because professional negligence is proved by showing that a professional person has acted outside the standard to be expected of the relevant professional, in the absence of an obvious case, a claim cannot be proved in the absence of relevant expert evidence. The judge pointed out that an example of an obvious case might be a claim against an architect who had designed a building without a front door, or in the medical context, a case where the wrong leg had been amputated. This is not such an obvious case.
10. Turning to the reports of Mrs Saunders the position appears to be this. She accepts that the reports do not support her claim in negligence, but she says that that is because they were based on an incorrect factual analysis, and that when the true facts are appreciated, not only can the conclusions of those experts be seen to be at fault so that they can be set aside, but also it becomes clear that Mrs Saunders' own analysis of the treatment and why it was negligent and why it caused the critical deterioration in Mr Saunders' condition can be appreciated to be correct. Mrs Saunders accepts that she is not medically qualified to give expert medical opinion, but, she says (and she is clearly correct about this) she is an intelligent, logically minded person who can understand facts and consequences of facts as well as anyone, and she appeals to the court to exercise their judgment in the same way and not to be misled by expert opinion based upon inadequate facts. That, as I say, is the background to the consideration of the five expert reports and sets out Mrs Saunders' own attitude to the proving of her case in negligence.
11. Let me very briefly mention the five experts, all of whose reports I have read in preparation for this hearing, as indeed I have read Mrs Saunders' detailed skeleton and analysis of those reports. The first report is that of Professor Burton. It is dated 23rd January 1997, shortly before Mr Saunders suffered the amputation of his legs. Professor Burton is a consultant dermatologist. He concluded that on the present evidence he could not sustain an allegation of negligence against Sister Hudd.
12. The second report is of Mr Peter Lamont, a consultant surgeon. That report is dated 19th March 1997, shortly after the amputations. He concluded that it was not his view that Mr Saunders' current condition would have been caused by the dressings that Sister Hudd had applied. But he recommended a report from a consultant dermatologist. (That report had already been obtained from Professor Burton).
13. The third report is that of Mr John Scurr, a consultant surgeon and senior lecturer in surgery. His report is dated 12th November 1997. He concluded that the treatment Mr Saunders had received was appropriate, that Mr Saunders' management was entirely consistent with standard medical practice.
14. The fourth report is that of Mrs Maureen Hamilton, a nursing expert. She again found no negligence.
15. Finally, the report of Professor Leslie dated 9th April 1999. He is a professor of diabetes. His conclusion was that the bandaging complained of had not been compression bandaging, which is contraindicated for a patient suffering from arterial disease, such as Mr Saunders, but was half compression bandaging and was appropriate and not damaging.
16. Mrs Saunders had challenged at least some, if not all, of these reports, and put to the experts concerned the reasons for her concern and the factual basis upon which she felt that they were either misinformed or wrong. Those points were considered by the relevant experts in further correspondence which is in the bundles, and which I have read, but it did not lead any of them to alter their opinions. So the position is that these experts have not only considered the matter from the point of view of the materials and records that were before them, but have also had the opportunity given to them by Mrs Saunders herself to consider specifically the particular points of concern which she has had both about her husband's treatment and about the reports which these experts had written.
17. In these circumstances I regret to say, and I know it will be disappointing to Mrs Saunders, who has argued her case both in her written submissions before me and in her oral submissions today, with conspicuous clarity and helpfulness, that I cannot find here in the allegation of negligence, and in the way in which it has been dealt with by His Honour Judge Weeks, an important point of principle or practice which is fit for further appeal. Indeed, like the judges below, I am driven to the conclusion that there is in any event no realistic prospect of success.
18. The judge was entitled to say, on the basis of the medical evidence which Mrs Saunders had herself put before the court, but also of course in the light of what she had to say about such evidence, that her claim was doomed and that in those circumstances no further joint expert report should be obtained.
19. That is really the substance of Mrs Saunders' application. But let me also mention two other points. One is in relation to points within the Human Rights Act which Mrs Saunders has raised at times below. She has not raised them before me today, expressly, but they are mentioned in her grounds of appeal. However, it is clear from the judgment of His Honour Judge Weeks that already before him Mrs Saunders had abandoned any point under the Human Rights Act. In any event, it seems to me that Mrs Saunders has had a fair and indeed every opportunity to put her case before the courts at a number of stages of this litigation, and that there is no valid complaint under the Human Rights Act.
20. Finally, there is a point about an application to amend the claim in negligence to plead an additional claim in trespass. With Mrs Saunders' help I have looked carefully into this point this morning. It appears to be broadly as follows. One of Mrs Saunders' complaints on the facts is that Sister Hudd had purported to treat Mr Saunders with these bandages and other preparations for dry skin while she was really intending to treat him, but without saying so, for a venous ulcer. Venous ulceration is different from arterial ulceration; whereas the former can be treated properly by compression bandaging, the latter should not be. Mr Saunders was suffering from arterial and not venous ulceration.
21. An application to amend Mrs Saunders' Particulars of Claim to plead trespass based upon the concept that Mr Saunders' treatment had been without his consent since it had been purported to have been for one reason, while it was in fact for another, was the subject of an application to amend originally to District Judge Raskin by way of application on 1st February 2000. It was an application that came before the district judge on 25th February 2000, together with a draft amendment. It was rejected on that day on the basis that the previous month, on 21st January 2000, District Judge Raskin had already struck out the claim on the basis of the unless order. Therefore the application to amend was not dealt with on its merits since the district judge refused it on the basis that there was no claim in existence any longer which could be amended.
22. Now, in the various applications for permission to appeal which thereafter took place following from the strike out order, the matter of this application to amend remained there before the court; but when finally Sir Richard Scott gave permission to appeal against the strike out and when, following that, the claim was reinstated by consent some time in the summer or autumn of 2000 the question of the application to amend was lost sight of.
23. The application was never renewed, no consent was ever given to it, and when on 24th October 2000 Mrs Saunders responded to the Trust's strike out application by her application for a joint expert to be appointed, she did not then renew, as perhaps she might have done, her application to amend. Her case in trespass was briefly mentioned before District Judge Stuart-Brown when he struck out her claim, but Mrs Saunders has frankly accepted before me that there was no formal application to amend before the district judge. Indeed it was in her mind that she would not apply to amend until the strike out application had been resolved one way or the other; and that if it was resolved against her it would then be too late to make the application. Thus, in her application to appeal from District Judge Stuart-Brown, there is no ground stated on the basis of a need for an application to amend. When this matter of the possible amendment to plead trespass was mentioned before His Honour Judge Weeks, he dealt with it in the following way. He said:

"Mrs Saunders claims that that is a trespass. She tells me, however, that she has sought already leave to amend her Particulars of Claim to plead lack of consent to the treatment and has been refused. In those circumstances, it is not right for me to treat that allegation as one before me or to consider giving leave again. That is a matter which is past and I must treat the matter as a claim for damages for clinical negligence only and not for treatment to which the patient did not consent."

24. It may be - and this is why I was concerned to look carefully into this matter of the application to amend - that His Honour Judge Weeks did not realise, when he said that, that her original application to amend to plead trespass made to District Judge Raskin had not been treated on its merits but had been refused because at that time her claim had been struck out.
25. Nevertheless, now that I have considered the matter of her application and its history carefully with Mrs Saunders' help and with the help of this excellently prepared bundle which she has prepared for the court, it is plain to me that this was an application to amend which Mrs Saunders was aware of as one that she wished to make going right back to 25th February 2000; and that when her claim was reinstated by consent following the judgment of Sir Richard Scott, that was the occasion when, if the matter of the amendment was to be advanced, she should have renewed her application, and at latest she should have renewed it on 24th October 2000 when she did make her counter-application for a joint expert to be appointed in response to the application for summary judgment made by the Trust.
26. It seems to me that after all this time the judge was right to say that it was served too late, and that it was inappropriate for him to consider an application to amend which was not formally before him.
27. There is another difficulty about the application to amend. Even if the question of trespass - unlike the question of negligence - does not itself depend upon the expert evidence of medical practitioners, nevertheless the question of causation does. It is clear from the reports which I have read that certainly Mr Lamont, Mr Scurr and Professor Leslie all considered that Mr Saunders' amputations and death were caused not by the treatment of Sister Hudd, whether that was consented to or not, but was caused by Mr Saunders' sad underlying condition.
28. In all these circumstances I am unable to grant Mrs Saunders permission to appeal.
29. I have gone into the matter as this judgment, I hope shows, carefully and in detail in deference to Mrs Saunders' careful submissions. At the end of the day Mrs Saunders made it plain that apart from the difficulties and tragedy which she has had to experience and the misfortunes to her late husband, the matter which so offends her (and it was her way of seeking to put the important point of principle which ought to go to the Court of Appeal) was that she and her husband had never had an explanation for the treatment which Sister Hudd performed during those months in 1995, and that she had had no satisfaction from the complaint procedure which she had gone down, and now in these proceedings she had not even been able to press these proceedings to the point where a defence had had to be served by the Trust.
30. I appreciate those feelings of Mrs Saunders, if I may say so, but if it is any help to her it seems to me that, at any rate through the five expert reports which she has obtained, however much she may think them to be at fault for the reasons which she has expressed, nevertheless she has had from those experts a considerable explanation of both the reason for, and appropriateness of, the treatment of which she complains and also of its consequences, and also of the reasons for her husband's sad decline.
31. For those reasons I am afraid I must dismiss this application.
(Application dismissed; no order for costs).