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
(His Honour Judge Heppel QC)

		Royal Courts of Justice Strand London WC2 Monday, 28th January 2002

1. SIR MURRAY STUART SMITH: This is an application for permission to appeal from a judgment of His Honour Judge Heppel QC given in favour of the claimant against the two defendants on 29th March 2001. Both defendants seek permission to appeal the judgment.
2. The fourth defendant was the general practitioner. It is said that he failed to diagnose signs of vascular compromise on 4th January, and that as a result of that he referred her not to an accident and emergency centre or to a general hospital but referred her to a psychiatric hospital, where they were not perhaps so alerted to the problems which she in fact faced. That is the essence of the negligence against the fourth defendant. It is said that he failed to see signs which were there which were complained of and which he failed to take note of.
3. So far as the first defendant is concerned, he was a consultant physician, not actually at the hospital where she was referred to but he was called to see her. The judge found that the doctor patient relationship existed between her and the defendant from 5th January when he was called in. It is said that he failed to examine the claimant properly, failed to read the hospital notes, and failed also, as did the fourth defendant, to appreciate that this was an emergency situation which eventually gave rise to the amputation of one of her legs, some toes and fingers on both hands, a very unpleasant situation.
4. The grounds of appeal in both cases raise issues of whether or not there was negligence on the part of either of the defendants. They raise difficult questions of novus actus interveniens. As far as the fourth defendant is concerned, it is submitted on his behalf that, having referred the claimant to hospital, albeit a psychiatric hospital where she was seen by an appropriate physician, then any negligence on the part of the first defendant broke the chain of causation so far as any negligence on his part, if there was any, which is disputed. There are also serious issues on causation because the margin of opportunity for treating this lady was a narrow one. If she was not treated with steroids by and including 7th January, it would have been too late to affect her condition. It is a narrow window in which she could have been treated. There was a dispute between the experts on that issue as to whether or not, even if steroids had been applied earlier, this was one of those cases where they would not have had an effect.
5. I have come to the conclusion that the points raised in the grounds of appeal are arguable. It is plain that some may be stronger than others. The force of Miss Edwards' submissions to this court are that the findings of negligence against both defendants are based on primary facts found by the judge, largely from his assessment of seeing and hearing the witnesses, and that those are findings with which this court will be reluctant to interfere. That may be right, but it is impossible in my judgment at this stage to say that the arguments on any of these heads are not properly sustainable. It was a complex case, and I have no doubt that it should be reviewed by this court. Some points may well be much stronger in favour of the respondent than others and vice versa. I am not saying for one moment that in granting permission it means that the claimant will not be successful in the case. But, in my judgment, it is a case which requires the consideration of this court, not least on the question of novus actus interveniens and possibly also the question of causation. I think that all the issues are closely interlocked with each other. It is not therefore a case where we could say that we would give permission only on certain grounds and not on others. The appellants will have to bear in mind that, if they raise grounds of appeal and argue grounds of appeal which this court does not find substantiated, even if they do succeed on others, they are at risk of costs in relation to those that do not succeed. For my part, I think that this is a case which, in respect of both appellants, requires the consideration of the court. I would therefore grant permission.
6. LORD JUSTICE MAY: I agree.
Order: Application for permission to appeal allowed; costs to be costs in the appeal; respondent's notice and further skeleton argument to be submitted by 22nd February; appellants to respond by 22nd March; reading list to be produced by 22nd March; time estimate for hearing two to three days. (Order not part of the judgment of the court)