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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Roger Thorn QC
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Thursday 7th February, 2002

1. LORD JUSTICE ALDOUS: I invite Lord Justice Mantell to give the first judgment.
2. LORD JUSTICE MANTELL: Julie Elizabeth Priestley is a married lady in her 40th year. She has one child, a boy, born on 26th November 1992. It was the circumstances surrounding and following upon the birth of that child which have given rise to these proceedings, in which Mrs Priestley has brought an action for damages against the Harrogate Health Care NHS Trust for the admitted negligent manner in which certain birth procedures were carried out and the uncovenanted consequences of those procedures as treated thereafter.
3. Mrs Priestley was a nurse employed at Harrogate District Hospital, and what could have been more natural, therefore, for her to choose to have her first born in that hospital. When her time came, an obstetrician performed an episiotomy which, done negligently (as has been admitted), resulted in a third degree tear stretching from the vagina to the anal canal. Unhappily the first attempts at repairing the damage were also unsatisfactory, with the unfortunate consequence that Mrs Priestley now suffers from (and will continue to suffer from) faecal incontinence and periodic bouts of anal pain, due to a condition known as proctalgia fulgax which has been likened to have having a red hot poker thrust up the anal orifice. For as long as it lasts she is totally incapacitated and needs to lie down.
4. The action proceeded on the basis of admitted liability. Two issues remained for resolution. The first was causation, namely whether or not these most unfortunate symptoms stemmed from the negligence admitted on the part of the doctors, and the second was with regard to quantum of damages.
5. The matter came on for hearing before either His Honour Judge Thorn QC or Mr Recorder Thorn QC (I am not quite sure which) sitting, depending in what capacity, either as an additional or deputy judge of the Queen's Bench Division. That was at the Civil Hearing Centre in Leeds in February 2001.
6. The judge found for the claimant on the causation issue, and in respect of damages found she was and would remain unemployable. The Harrogate Health Care NHS Trust does not much like the first finding, but nevertheless accepts that it should stand. However, it is not so sanguine about the second finding. Hence this appeal.
7. Essentially there are two grounds. The first is that the appellant did not get a fair hearing. The second is that the evidence did not warrant the finding at which the judge eventually arrived. Mr de Navarro QC, who has come late to this matter, has not abandoned the second ground, but neither has he pursued it with any great enthusiasm. It may be convenient if I deal with that ground in advance of the other, albeit somewhat briefly.
8. Though not an easy passage for Mrs Priestley, she had been able to find herself medically retired in 1997 on the basis that she was unfit for continued employment. She was, as a result, thereafter in receipt of a pension. Her claim to be entitled to be retired did not rely entirely on her evidence, but also upon the opinions of a Dr English, an occupational health physician; a Mr Knox, a surgeon in the employ of the defendants; and her general practitioner, Dr Bird.
9. Mrs Priestley herself did give evidence, which the judge accepted, to the effect that she found it impossible by virtue of her condition to follow any kind of appropriate employment. She spoke of the suddenness with which these episodes of incontinence came upon her; how the discharge was frequently liquid; how such a happening left her not only inconvenienced but severely embarrassed. So far as the episodes of pain were concerned, they too came on unpredictably, with varying frequency but sometimes several times a week.
10. Against that there was evidence from a Dr McGuire and a Dr Rimmer, both of whom were occupational health physicians; Dr McGuire being an employee of the defendant and Dr Rimmer of another health authority. Their view, expressed in reports and eventually in an agreed note, was that, given a sympathetic employee, it was possible for Mrs Priestley to follow some kind of employment within the hospital service.
11. Having come to a clear view, expressed at page 35 of the transcript, that Mrs Priestley's evidence was credible, accurate and reliable and to be preferred to any contrary evidence or expression of opinion that might come from another source, the judge came to the conclusion that her claim to be entitled to loss of earnings for the balance of her working life had been made good.
12. For my part, having read the judgment and the material evidence, it would appear that the conclusion reached was properly arrived at and not vulnerable to attack on appeal. This court is always slow to interfere with findings by a judge based on his assessment of witnesses whom he has seen and heard. The fact that very experienced Queen's Counsel has not put this ground in the van of his submissions, merely confirms the impression which I, for one, reached on a first reading of the papers.
13. I turn then to the second ground, which, not to make any bones about it, is that the judge showed partiality from an early stage, demonstrated by an expression of a preliminary view and followed up by interventions in the proceedings which were designed to assist the claimant and disadvantage the defendant.
14. The provisional view (found in the bundle at page 250) was in these terms. After some discussion with counsel as to how the matter was proceeding and whether or not the timetable was being maintained, the judge said:

"Yes. Well, I ought to give you an indication that joint reports do not bind the Bench, and I might, and this is only a provisional view, form the view that this is only a mirror talking to itself. Ultimately the person who can say whether she feels she is fit to work is the patient, unless it is a grossly unreasonable statement. What I suspect both experts are doing is looking at their notes of what they think has been told to them, comparing it with what the medical reports show, and then saying, `Well, objectively this is what we think is probably the case'; but ultimately I am going to be persuaded by a witness, unless they are dishonest."

15. Counsel for the hospital then made the observation, perfectly properly, that he hoped that that approach would apply to the expert witnesses as well, and the judge responded by saying:

"I am presuming they are honest, and competent, but we are talking about very subjective matters here, including what is continence?"

16. Mr de Navarro, I think, accepts that standing alone that observation, made at the stage it was in the proceedings, was not something to which exception could be taken. It very often is the case that judges think it appropriate to mention to counsel what their tentative or preliminary view is, in order to allow counsel the opportunity to adapt their approach to the case accordingly. It seems to me that that intervention was very properly made at the stage at which it was made, so as to allow counsel on both sides to appreciate that the judge would not necessarily consider himself bound by the expressions of opinion contained in the reports either of Dr McGuire or Dr Rimmer or in their agreed note.
17. Standing alone, I, for my part, would not regard that as anything worthy of forming a ground of appeal, and certainly not something upon which an appeal might be allowed.
18. The second intervention, however, perhaps more serious, is at page 267. There - and it is not necessary to read the interchange between counsel for the defendant and the judge - it does appear, to my eyes at any rate, that the judge's intervention was possibly designed to prevent counsel for the claimant making what some might consider to be a tactical mistake. To that extent I would accept that some criticism of the judge is justified. However, it does seem to me that it was not an intervention which could have had any possible bearing on the outcome of this hearing. Whether counsel for the claimant took advantage of the hint (as it seems he did) or not, would hardly in my view have disturbed the eventual finding at which the judge arrived based upon the other evidence in the case to which I have made reference, namely that the claimant had established her claim.
19. The third ground of complaint arises at page 274 and following, where the judge took the opportunity when Dr McGuire, one of the two witnesses to whom he had referred earlier, had, on the face of it, concluded his evidence, in the sense that he had been examined in chief and cross-examined, to ask a number of questions himself.
20. The judge was clearly concerned about one matter. It seemed to his eyes - as I am bound to say it seems to mine - that neither of those two experts, that is Dr McGuire or Dr Rimmer, had considered the impact upon the issue of this lady's employability of the fact that these bouts or attacks came on without any kind of warning. It seemed to the judge, as again it seems to me, that that is or might be a very important question. It might be easy enough to find facilities for a lady in this position if one had some idea when she was likely to suffer an episode. But if there was no warning at all, then of course there was an obvious risk of some such attack taking place when the lady, a nurse, was concerned with her duties and perhaps in the presence not only of other members of the staff, but also possibly members of the public. It was to that end that the judge asked a number of questions - and it is suggested far too many questions - aimed at getting Dr McGuire to grapple with that particular problem. In the end, as it seemed to the judge, Dr McGuire failed to grapple with the question and counsel for the defendant, perhaps feeling slightly uneasy about the direction things were taking, very courteously, if I may be permitted to say so, brought that part of the proceedings to an end. Counsel having protested, the judge desisted from asking any further questions and made some probably rather too fulsome reference to the episode when he came to give his judgment.
21. It ought to be recognised, however, that a judge, particularly in a civil action, is not required to stay out of the arena completely. He is entitled, in his attempt to reach a just solution to the matters which are being litigated in front of him, to intervene if he thinks it necessary.
22. Here - and it is a matter of impression on a reading of the transcript - it does not appear to me that the judge exceeded the boundary or the limits within which he was required to perform his judicial function. Having said that, one recognises, as was suggested in argument, that it is not always possible to get the full flavour of a passage of arms in a trial from a bare reading of the transcript. One accepts that, but at the same time one has to do the best one can on the material presented. Here, as it appears to me, what occurred was not such as could possibly support an appeal on the ground suggested.
23. So in the end I have come to the conclusion that the criticisms which are made of the judge, though not entirely without substance, do not add up to a sufficient basis for allowing this appeal. Accordingly, I would dismiss it.
24. LADY JUSTICE HALE: I agree.
25. It must be remembered that the parties' objective in civil proceedings is to win their case, or at least to achieve the best result they can. The court's objective is to arrive at the right result. An important part of doing that is to allow each side a fair opportunity to put their case, as fully and properly as they wish to put it, before the court. There is nothing to suggest that either party was impeded in putting their case properly before the court here. But if the product of that process is that there is a matter upon which the judge requires further assistance before he can reach a conclusion, then, provided that it is within the bounds of admissibility, he may pursue it. Indeed, he may be under a duty to pursue it. Of course one always hopes that this will be done with proper courtesy to the witnesses and proper restraint. I agree that the judge in this case did not overstep those boundaries. This is quite different from a jury trial in which the judge is not the decision-maker on the facts and must be scrupulous not in any way to influence the jury's view of the facts or the witnesses by the interventions that he makes during the hearing of the evidence. I, too, would dismiss this appeal.
26. LORD JUSTICE ALDOUS: I also agree.
27. Mr de Navarro had the unenviable task of submitting that the appeal should be allowed because of apparent bias by the judge. That he submitted became first apparent, as my Lord has pointed out, when the judge indicated that from his reading of the papers he had come to a preliminary view that the conclusions of the joint report of two experts could not be decisive. I have no doubt that he had come to that conclusion from the terms in which it was set out:

"In our opinion, the implications for employment of these are as follows:

1. Abdominal Discomfort.

Of no significance in employment.

2. Urgency and faecal incontinence.

Requires ready access to a toilet, but the incontinence is not of sufficient frequency or degree to be of significance.

3. Rectal pain.

Occurs infrequently, ie not more often than once a week, and not always during the working day. May require her to have to rest for about half an hour, at short notice, but she is not suddenly totally incapacitated."

28. My Lord has referred to the severe disabilities of the claimant. To suggest that abdominal discomfort is of no significance in employment is, on its face, untenable. To go on to say that urgency and incontinence only requires access to a toilet is also untenable. The incontinence of this lady, which was infrequent and could not be forecast, was said not to be of sufficient frequency or degree to be of significance. That was also on its face untenable. When it came to rectal pain, my Lord has referred to the effect of this pain: like having a red hot poker thrust up one's anus. To suggest that this did not suddenly and totally incapacitate her was again something which on its face could not stand scrutiny. The report went on to state that:

"She is, and has been since August 1994, fit to continue to work in the Outpatient Department."

29. That on its face appeared to be inconsistent with the report of one of the experts, a Dr Rimmer, and therefore indicated that she had changed her mind. But in any case the judge was under a duty to make up his own mind on that issue and could not hide behind or surrender to the experts that decision.
30. In those circumstances, the judge having come to the preliminary view that the report was not one which perhaps could be followed, he was quite right to draw his view to the parties' attention that he believed it was not decisive on the matter. In my view, the judge could not be faulted for doing so. He could have been faulted for not drawing it to the parties' attention.
31. Next Mr de Navarro drew to our attention an exchange with counsel about whether one or both experts should be called. That, Mr de Navarro submitted, contained an indication to the claimant's counsel that he should not call his client's expert, Dr Rimmer, to give evidence. That, it was suggested, gave a tactical advantage to the claimant. I asked Mr de Navarro what tactical advantage it could give to the claimant, and in particular what questions could have been asked of Dr Rimmer which would have improved the defendant's position. He provided no question to me that suggests that cross-examination of Dr Rimmer could not have improved the defendant's case.
32. Finally, Mr de Navarro referred us to the "cross-examination" carried out by the judge. He submitted that the judge had descended into the arena. It went beyond clarification. It was hostile cross-examination and gave the clear impression, particularly to the persons there, that the judge had descended into the arena.
33. In this case the judge's task was to arrive at the correct result and make a decision as to whether this lady was employable. It was a task that he had to shoulder and, as I have said, he could not give that over to the witnesses. Dr McGuire was called as a witness. He was one of the signatories to the joint report. The crucial questions had not been asked and there was nothing wrong in the judge putting them to him. There is nothing inappropriate in a judge seeking to arrive at the correct result, even if to do so he has to put searching questions to a particular witness. Dr McGuire was the essential witness on this point, and for my part I have not found anything wrong in the way that the judge approached his task.
34. For those reasons, and the reasons given by my Lord and my Lady, I agree that this appeal should be dismissed.
ORDER: Appeal dismissed with costs assessed in the sum of £28,160.39. (Order not part of approved judgment)