England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HHJ ZUCKER)

		Royal Courts of Justice Strand, London WC2 Thursday, 8th November 2001

Thursday, 8th November 2001

1. SIR ANTHONY EVANS: This is an application by Dr Vernon De Maynard for permission to appeal against a judgment given by HHJ Zucker in the Central London County Court on 15th February 2001.
2. Dr De Maynard's claim is for damages which he says were caused by the negligence of the defendants, who are a veterinary practice, the Streatham Hill Veterinary Surgery, where a particular individual vet, Mr Hill, was employed as an assistant.
3. The negligence which is alleged was in relation to the vaccination of the claimant's prize wining dog called Luke, a three-year old male Schnauzer, which the claimant had bought in January 1999 at a cost of £350. Having bought the dog, and incidentally another female dog at the same time, he took Luke to Mr Hill on 22nd January 1999. Mr Hill examined the dog and recommended vaccination because the vaccination history was unclear. Mr Hill's advice was that there should be a course of two vaccinations, two to four weeks apart. Both vaccinations would consist of a combination of Nobivac (that is the trade name) DHPPi, which was in respect of a range of diseases and, secondly, Nobivac L, which is in respect of Leptospirosis.
4. The evidence showed that the course of treatment which Mr Hill advised and in fact carried out consisted of two vaccinations, each of which was a mixture of those two antigens. The first having been done on 27th January, the second became due during the second half of February. The claimant did return with Luke but it was not for seven weeks, that was on 17th March. On that occasion Mr Hill proposed to and did in fact carry out the second vaccination. Because there had been a gap of more than two to four weeks, it is possible that Mr Hill may have regarded that as not the second but the first of a course of vaccination, and on that basis a further visit and a third vaccination would have been necessary. However, there was not in fact a third visit for the purposes of vaccination and no third vaccination was carried out.
5. Dr De Maynard is medically qualified. He clearly has some knowledge of immunology in humans. On the occasion of the second visit, and on subsequent visits, he questioned whether the second vaccination was necessary. He did this, he has told me, because he discovered on the second visit, but after the second vaccination was given, that the second vaccination consisted not only of the L component, but also a second dose of the DHPPi component. He says that including that component in the second vaccination was unnecessary and was in fact positively harmful.
6. Vaccination is of course designed to effect -- and I use a neutral word -- the body's defences against disease. His case is that the second vaccination, in particular the second vaccination containing a DHPPi component, was positively harmful to the dog Luke.
7. Later in May 1999 Luke did develop what I can simply call serious health problems. The symptoms included a lump or swelling on his head. The claimant at that time went to another vet, Mr Cuffe, whose detailed notes were available to and read out by the judge. The health problems were indeed serious. The behaviour of Luke was affected to some extent and Luke was put down on 21st August 1999.
8. The claim in the action is that, first, Mr Hill was negligent in giving the second vaccination including the DHPPi component; secondly, that he, Mr Hill, disregarded a body of expert opinion which is to the effect that over-vaccination can cause health problems of the kind which Luke subsequently developed; and, thirdly, Dr De Maynard submits that that second vaccination was indeed the cause of Luke's subsequent illness and of his being put down.
9. The damages claimed were for the costs which Dr De Maynard had incurred, some £100, the value of the dog or a replacement, say £400, and damages for distress in the sum of £2,500.
10. The defendants denied negligence. They said that Mr Hill had acted in accordance with the surgery's standard instructions, that these represented the standard practice for vets and were in accordance with the recommendations made by the manufacturers of the vaccine. The defendants also denied that Luke's subsequent illnesses were caused by the second vaccination.
11. At this stage I should note that the case originally was assigned to the fasttrack but it was transferred to multitrack at the request of the defendants. The papers show the grounds upon which that request was made. They included suggestions that:

"The case raises important issues of general importance to the veterinary profession as a whole and of the highest importance to the manufacturers of the vaccine concerned and the regulatory authorities."

12. It was also suggested that the case involved complex issues of law and complex issues of veterinary practice.
13. I mention those matters, although Dr De Maynard has not specifically raised them before me, because it is clear that this is not a case where the defendants could suggest that permission to appeal should be refused on grounds that the case was not of sufficient importance to warrant an appeal. Clearly it is, if it is a case where Dr De Maynard can show that he has any realistic chance of success in the appeal. If he does show that, then clearly permission to appeal ought to be granted.
14. The evidence before the judge was, first, that of the claimant himself. He said that he was under the impression that the second vaccination contained different components or antigens from the first. In fact, it was simply a repeat of both components. He said that it was the experts' view, or at least of a substantial body of experts, that whilst a repeat of the Nobivac L vaccination was necessary, a repeat of the DHPPi was not only unnecessary, but positively harmful.
15. In support of the defence, evidence was given by Mr Hill, by Mr Cameron Atwood Smith, a partner in the defendant practice, and by Mr Sutton, a veterinary surgeon himself who is employed by the manufacturers of the vaccines, Intervet UK. He produced data sheets for the vaccinations in question and showed that there was no warning in them against over-vaccination. The earlier of the two, which was the prevailing one at the time of the visits, did not require a second vaccination of the DHPPi component, however a later version of the data sheet did recommend those two vaccinations.
16. There were expert witnesses in the persons of Miss Thompson, who said that there is a body of opinion which is aware of the dangers of over-vaccination. She said that the second vaccination on this occasion was "inappropriate" and "a possible cause" of Luke's subsequent ill health.
17. Mr Locke, the expert for the defendants, said that the advice given and the course of vaccination carried out by Mr Hill was both prudent and correct, and he said that, in any event, there was no evidence to link Luke's subsequent health problems with the second vaccination or with the vaccinations at all.
18. The judgment includes a full review of the evidence. The judge applied the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, which has been established for nearly 50 years as the appropriate test of professional negligence in circumstances such as this. The judge said that whilst he recognised the validity of Miss Thompson's views, he could not make any finding one way or the other as to whether or not those opinions were correct, and he continued:

"It may eventually be accepted, at least to some extent, that the high frequency vaccination of dogs may lead to the development of auto-immune and other immune mediated disorders, but her views have yet to gain general acceptance and the defendants are clearly entitled to act on the accepted view."

19. The judge also held that, in any event, the evidence did not establish that the symptoms which Luke displayed after the second dose and his subsequent death were in fact caused by the vaccinations or either of them.
20. For the purposes of this appeal, Dr De Maynard -- and I would like to echo what the judge said as to the courtesy, and indeed skill, with which he has presented his case -- has set out his arguments in support of the appeal in a three-page document which I have read. It is accompanied by an article from the March 1998 issue of Veterinary Medicine by Professor Ronald Schultz of the United States. A question arose as to whether permission should be given for Dr De Maynard to rely upon that article for the purposes of this application. I indicated to him that I was prepared to take the article into account for the purposes of this application without in fact formally giving leave for the article to be introduced as fresh evidence in the event that an appeal should take place.
21. In summary, Dr De Maynard's arguments in the document to which I have referred to are essentially two things. Firstly, the course of treatment, especially the second vaccination, which Mr Hill adopted, whether or not it was reflective of a significant body of professional opinion, was nevertheless one which did not "withstand logical analysis in the given circumstances". I think that argument is derived from the later House of Lords decision in the case of Bolitho. I am prepared to accept, as a matter of law, that it would not be sufficient for the defendants to avoid a finding of negligence for them to show that they had followed standard practice. The court should hold in a case where the practice was logically indefensible that the practice was nevertheless negligent.
22. Secondly, Dr De Maynard's written argument stresses the fact that there were two schools of thought among veterinary experts. Mr Hill knew this and the submission is that he should have revealed the existence of that difference of opinion to Dr De Maynard so that he, Dr De Maynard, would have been able to form his own view as to whether a second vaccination with the same antigen, DHPPi, was necessary or desirable in this particular case. Instead, Dr De Maynard submits that Mr Hill imposed his own will on him, as the owner of the animal that was the patient, that he was an unsuspecting client and, as he has said in his oral submissions to me today, that he feels that he was abused and violated by not having the situation explained to him so that he was given an opportunity to make a decision on that particular occasion.
23. Taking those two submissions in turn, the first is whether the court might hold that, even if Mr Hill was following a standard practice among some vets at least, nevertheless the court might or should hold that the practice was logically indefensible. The judge, I think, did not deal with this expressly, although it is implicit in his judgment that he felt on the evidence that the practice which Mr Hill was following was a reasonable one.
24. As regards the second argument, that Mr Hill should have told Dr De Maynard about the difference of medical opinion and given him the chance to consider whether or not the vaccination should take place, the judge said this:

"In his closing address, Dr De Maynard laid stress on the absence of his informed consent to the second dose of the vaccine. Quite apart from the fact that English law has rejected the doctrine of informed consent (see Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871), the fact is that in this case there was a discussion between Mr Hill and Dr De Maynard before the second injection was given, following which Dr De Maynard consented to Luke receiving it."

25. I should comment at this point that Dr De Maynard has told me today that the judge misunderstood the evidence in that respect; he says that there was a discussion on the second occasion, but it only came after the second vaccination was given, and it only arose because Dr De Maynard then ascertained that the second vaccination had included a repeat dose of the same antigen as the first.
26. On that basis, which I can accept from Dr De Maynard today, the situation was that there was no discussion at all between them before the second injection was given. It follows that this was a case where Mr Hill was not alerted by any questioning from Dr De Maynard as to any possible need to explain the medical aspects of the situation to him.
27. In summary, Dr De Maynard submits for the purposes of this appeal that there was, and is, a genuine difference of expert opinion, that a growing body of opinion holds the view that over-vaccination presents real dangers to the animal concerned, and that Mr Hill should have told him, Dr De Maynard, about this before the vaccination was given.
28. I have listened with some sympathy to Dr De Maynard's submissions today, but I feel driven to come to the following conclusions as I do. The first is that I readily accept his assertion that there is a difference of expert opinion, but of course the question is whether he, as the claimant, has a realistic chance of proving that the defendant was negligent in pursuing the course of vaccination, and specifically the second vaccination including the same two components, in the circumstances of this case.
29. The negligence alleged is essentially that Mr Hill failed to inform Dr De Maynard that there is that body of expert opinion as to the risks which over-vaccination may involve. There is no doubt that, on the evidence, Mr Hill was, in giving the second vaccination with the same components, doing no more and no less than adopting a practice which is certainly adopted by a substantial body of the profession, perhaps, as the judge said, is generally adopted by vets. It was in accordance with his practice's standard instructions and not contrary with the manufacturers' instructions at that time.
30. I should add, perhaps, that Mr Cameron Atwood Smith said that the reason why there are standard instructions is because different vets might see the same animal on different occasions and it was therefore important that there should be a uniform practice for the surgery as a whole.
31. If the case was put on the basis that Mr Hill was negligent simply because he followed the accepted practice, then that case clearly would have absolutely no chance at all of success. There was ample justification for him doing so.
32. But, thirdly, as regards the failure to inform, the court has to apply the law as stated by the House of Lords in the case of Sidaway v Governors of Bethlem Royal Hospital, to which the judge referred. That means, in short, that the question whether the professional was negligent in failing to explain the risks inherent in the operation or vaccination has to be determined by the application of the Bolam test itself. In other words, the enquiry has to be whether there is a substantial body of veterinary opinion and practice which is to the same effect as the course adopted by Mr Hill on this occasion, that is to say, not explaining the risks at all. Mr Hill could only be said to have been negligent in failing to explain the risks if either Dr De Maynard could show on the evidence that there is no body of reputable veterinary opinion or practice which would have failed to explain the risks, or if, secondly, he can say that the court should hold that it was clearly unreasonable for Mr Hill to fail to do so on this occasion.
33. As regards the first of those ways, it is quite clear on the evidence that there is indeed a substantial body of expert opinion and practice -- it may be the general, indeed the overwhelming, body of opinion and practice -- to the effect that the risks are not explained before vaccinations of this sort are given. That alone means that this allegation of negligence against Mr Hill should fail, and, what is more, is bound to fail.
34. Secondly, insofar as Dr De Maynard says that it was unreasonable or abusive for Dr Hill not to explain the circumstances in the present case, there is no ground, in my view, on which this court could possibly hold that the present case had any unusual features. It was a case where Mr Hill was consulted, where he gave the advice as to what was, on the evidence, clearly the normal and prudent course to adopt, and he carried out that course without explaining the risks to Dr De Maynard, who asked him no questions before the vaccination was given and who gave no other indication that there was something special about this case which should have made Mr Hill realise that some explanation or discussion was necessary.
35. In those circumstances, I really have no alternative but to hold, as I do, that there is absolutely no chance of this appeal succeeding before the court. In those circumstances, the application for permission to appeal must be refused.
36. Thank you very much, Dr De Maynard.
Order: Permission to appeal refused.