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 MAYOR'S AND CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE MARR-JOHNSON)

		Royal Courts of Justice Strand London, WC2
		10 December 2003

1. MR JUSTICE WILSON: Mr Yousif, the appellant, appeals against the dismissal of his claim against Mr Jordan, the respondent, by His Honour Judge Marr-Johnson on 29 July 2002 in the Mayor's and City of London County Court.
2. As is the situation today, the appellant appeared in person before the judge and the respondent was represented by Miss Neenan of counsel. At the close of the appellant's case Miss Neenan submitted that there was no case for her client to answer. The judge, who did not put the respondent to his election, i.e. whether to make the submission and, were it rejected, to call no evidence or not to make the submission and to call evidence, upheld the submission and entered judgment for the respondent.
3. The action was one for alleged medical negligence. The respondent is a consultant plastic surgeon with particular expertise in maxillofacial surgery. On 14 January 1998 the respondent performed upon the appellant a cosmetic rhinoplasty, namely an operation to improve the shape of the appellant's nose which had a bony hump and very large alars, which are the arches of cartilage supporting the lowest part of the nose. It was the appellant's contention in the action that, although the respondent substantially improved the appearance of his nose, the operation had had serious ill-effects, in particular in relation to his ability to breathe; that the respondent was negligent in failing to warn him about the risk of such ill-effects; and that, had he been given such a warning, the appellant would not have undergone the operation.
4. The judge held that, if and insofar as the appellant did suffer nasal obstruction impeding his ability to breathe properly, there was no evidence that such could be attributed to the operation performed by the respondent.
5. The appellant was born in Iraq and fled to the United Kingdom in 1994. While in Iraq he had been subject to protracted imprisonment and a variety of tortures in the course of which his nose had been fractured. His claim for asylum was upheld by the Secretary of State; and he lives, and is entitled to continue to live indefinitely, in the United Kingdom.
6. In the light of the history of his treatment in Iraq, it is not surprising that the appellant has suffered severe psychological as well as physical symptoms. He has been diagnosed as suffering severe anxiety, post-traumatic stress disorder and depression and has a history of heavy ingestion of alcohol and of sleeping pills in order, apparently, to address long-standing difficulties in sleeping and, in particular, in breathing while asleep.
7. In 1996 the appellant consulted Mr East, a consultant ENT surgeon attached to the Royal National Throat Nose and Ear Hospital. Mr East considered that the appellant was suffering nasal obstruction as a result of a gross displacement of the septum. In August 1996 a septoplasty was performed upon the appellant by or under his direction in order to correct the displacement. In the course of the operation the inferior turbinates were trimmed. The operation was successful in that it substantially improved the appellant's ability to breathe through his nose. The appellant, however, continued to have a prominent hump on his nose which caused him embarrassment and which ultimately led him, on a fee-paying basis, to consult the respondent at The Cosmetic Surgery Clinic in Harley Street. The initial consultation took place on 6 January 1998 and the upshot was an agreement that the respondent would perform a rhinoplasty upon the appellant.
8. It is agreed that, at the initial consultation, the respondent warned the appellant that following the operation there might well be short-term difficulties, in particular swelling of the nose (inherent in which may have been breathing difficulties), and that their resolution might take up to a year. It is also agreed that the respondent did not say that there was any risk that the proposed operation would cause long-term breathing difficulties; indeed, as I will explain, his defence, as filed, goes rather further than that.
9. Other aspects of what was said or not said between the parties at the initial consultation are, however, in dispute. It appears from the respondent's witness statement that, were he to have given evidence, he would have said that he asked the appellant about any psychiatric history and whether he was taking medication; and that in both cases the appellant's answers were negative. Such was the case put to the appellant in cross-examination and, although there is no need for me to analyse his answers in detail, it seems that he either denied that such questions had been put or asserted that he had given truthful answers to them. It appears that, had he given evidence, the respondent would have relied upon his notes of the consultation in order to support his version of what he said and of what the appellant did not say.
10. On 14 January 1998 the respondent performed the operation upon the appellant and on the following day he was discharged from hospital. On various occasions thereafter the respondent saw the appellant by way of follow-up. The appellant expressed himself pleased with the reformed shape of his nose. Nevertheless from June 1998 onwards he was complaining of airway obstruction and he continued to do so long after a year had elapsed from the date of the operation. The respondent last saw the appellant on 7 December 1999, when he offered to arrange a turbinate out-fracture operation in order to improve his airways. For some reason, however, the further operation did not take place.
11. By his particulars of claim, issued in December 2000 at a time when he was represented under a public funding certificate, the appellant alleged that, as a result of the operation, he had suffered long-term breathing difficulties. He complained that, prior to the operation, the respondent had never warned him of the risk that it would lead to the collapse of his septum and/or to long-term breathing difficulties and that, had such a warning been given, he would not have undergone the operation. The appellant averred that he had specifically enquired of the respondent at the initial consultation whether the operation might cause long-term breathing difficulties.
12. By his defence the respondent denied that the appellant had specifically enquired about the risk of long-term breathing difficulties. Then, however, he made this averment, namely "the defendant advised the claimant in general terms that any effect on breathing through the nose would be short-term." Thus, as it seems to me, the respondent's concessions go further than that he warned the appellant of short-term difficulties and never warned him of long-term difficulties: that sentence seems to me to amount to a concession that he represented that there would not be long-term difficulties. In such circumstances the significance of the issue whether the appellant had enquired about the risk of long-term difficulties may be slight.
13. By his defence, the respondent went on to complain that at the initial consultation the appellant failed to give frank answers to him about his psychological history and his current medication and averred that, had such been communicated to him, he would not have proceeded with the operation, or at any rate would not have done so without further investigation. He also denied that the appellant had suffered septal collapse and averred that, if and insofar as he had suffered any long-term obstruction to his airways following the operation, it had not caused it.
14. With the permission of the court the parties filed reports by consultant plastic surgeons, neither of whom examined the appellant. On the basis of their reports, there seemed to be little disagreement between them; and that was confirmed in a joint report which they made in April 2002 following a telephone conference. In their individual reports the plastic surgeons said that it was "unusual" or "extremely unusual" for a rhinoplasty to give rise to long-term nasal obstruction. The plastic surgeon instructed on behalf of the appellant said that it would not therefore be normal practice to volunteer a warning of long-term airway problems but that, if a patient made a specific enquiry about the risk of them, he should be told that, albeit unusually, they might arise and require secondary surgery. In their joint report they agreed that there was no evidence that the respondent had performed the operation inappropriately or that, in terms of its cosmetic results, it had been other than acceptable. Asked whether the appellant had nasal obstruction and, if so, whether the operation performed by the respondent had caused it, they said that such questions were better answered by consultant ENT surgeons. It seems that, had the submission of no case been rejected, the respondent was intending to cause his expert plastic surgeon to give oral evidence. I might add, by way of parenthesis, that that slightly surprises me. A district judge had permitted the plastic surgeons to give oral evidence only if they had failed to file a joint report; and, in any event, as I have sought to indicate, their views were in agreement.
15. A district judge had also permitted each party to adduce a report from a consultant ENT surgeon; and, importantly, each side made use of that permission. But no permission, even of a conditional character, was given for either of the ENT surgeons to give oral evidence. At the hearing the appellant did not seek to call his expert ENT surgeon; likewise, apparently, the respondent did not intend to seek to call his like expert. Notwithstanding that there were a number of other issues in the case, the evidence of the ENT surgeons was on any view important. Nor, crucially, were they in agreement.
16. The ENT surgeon instructed on behalf of the appellant was Mr Quiney, who wrote a report dated 31 January 2001. He had examined the appellant's nose and recorded:

"... on inspecting the internal aspect of the nose, there is a mild deformity of the nasal septum to the left side and hypertrophy to his inferior turbinates. His nasal airway is reduced bilaterally and this would appear to be principally caused by a degree of bilateral alar collapse which can be alleviated by holding the nostrils open with a thudicum speculum: once this is done, his nasal obstruction completely disappears."

Then Mr Quiney proceeded to record his Opinion:

"I believe this gentleman's main cause of nasal obstruction and hence the return of his snoring is caused by a degree of bilateral alar collapse which has been caused by his reduction rhinoplasty and has been caused most likely by over-excision of tissues from the skeleton of the nose and in particular over-excision of the lower lateral cartilages at the time of the surgery...

During reduction rhinoplasty it is quite common to remove the upper part of each lower lateral cartilage in order to reduce the bulbosity of the nasal tip and to refine and narrow the nasal tip. I have no evidence that there was an over zealous excision of this cartilage ... because the rest of the rim of the nostrils appears normal. It is very unfortunate that this gentleman has developed a degree of nasal obstruction following his rhinoplasty..."

17. The ENT surgeon instructed on behalf of the respondent was Professor Lund. Following her examination of the appellant she wrote:

"Clinical examination and objective assessment of airway does not demonstrate any significant deviation of the nasal septum or soft tissue hypertrophy of the inferior turbinates. Whilst there might be a slight degree of alar collapse on forced inspiration, this is not evident at rest.

The sensation of nasal congestion is unfortunately a common one and often unrelated to genuine mechanical obstruction of the nose. Occasionally oedema resulting from trauma or surgery may alter an individual's perception of airflow but this is usually temporary ...

Whilst over-correction of the alar cartilages can sometimes produce alar collapse, I was not able to demonstrate this in [the appellant] nor am I on present evidence able to demonstrate objectively any significant mechanical obstruction of the nose which could be attributed to the rhinoplasty."

18. Pursuant to court direction, Mr Quiney and Professor Lund discussed their views about the appellant's case and made a joint statement dated 7 December 2001. Were it not for the reliance placed upon it by the judge, I would not have wished to refer to it at length, for I discern no movement in the positions already taken by each expert. They both subscribed to the following:

"4. [The appellant] underwent a cosmetic rhinoplasty in January 1998.

5. Following this surgery, [the appellant] believes that his nasal obstruction has worsened and his snoring has returned.

6. He is happy with the external shape of his nose following this rhinoplasty.

7. His nasal septum is straight. He has no soft- tissue hypertrophy of the inferior turbinates.

8. We disagree on any degree of alar collapse which is contributing to his nasal obstruction.

9. Professor Lund is unable to demonstrate objectively any significant mechanical obstruction to the nose which could be attributed to the rhinoplasty, including any alar collapse based on forced inspiratory nasal peak flow and acoustic rhinometry.

Mr Quiney feels that the nasal airway is reduced bilaterally and his sensation of nasal obstruction can be improved by holding the nostril open with a thudichum speculum. Once this is done, his nasal obstruction completely disappears.

10. The sensation of nasal congestion is unfortunately a common one and often unrelated to general mechanical obstruction of the nose. Occasionally oedema resulting from trauma or surgery may alter an individual's perception of airflow but this is usually temporary."

19. It will be noted that paragraph 10 of the joint statement is a repetition, word for word, of part of the final paragraph of Professor Lund's report. But it is a general proposition and, in my view, it is impossible to conclude that Mr Quiney was accepting that, in the case of the appellant, the nasal congestion was unrelated to mechanical obstruction of the nose. The previous two paragraphs of the joint statement make clear that, without his being critical of the way in which the respondent performed the operation, he was adhering to the view expressed in his report that it had caused a bilateral alar collapse of the appellant's nose, in particular by excision of some of the cartilage in the lowest part of the nose which keeps the airways fully open.
20. In his judgment the judge correctly identified the appellant's essential allegations to be a negligent failure on the part of the respondent to warn him of the risk of collapse of his nasal septum and/or of long-term difficulties with breathing. The judge also correctly concluded that there was no evidence at all that the septum had collapsed so that the only surviving basis of the claim related to long-term breathing difficulties.
21. The first limb of Miss Neenan's submission to the judge that there was no case for the respondent to answer was that the appellant's evidence was so implausible and inconsistent that no court could properly require the respondent to answer it. In rejecting that submission the judge held that it would not be right to dismiss the action at that stage by reference to any aspect of the appellant's creditworthiness.
22. So the judge turned to the second limb of the submission:

"I turn therefore, without more ado, to the matter which I consider raises insuperable problems for the claimant and that is the issue of causation. Miss Neenan submits that, even if the claimant were to be found to be correct in everything he has said in evidence, there is no, or alternatively no satisfactory, evidence which would go to complete the claimant's cause of action by demonstrating satisfactorily that he has suffered damage as a result of the negligence alleged.

...

Miss Neenan submits that there really is no satisfactory evidence that the claimant has suffered any objectively ascertainable worsening of his nasal breathing at all since the time after the operation when the temporary swelling reduced. In other words she submits that there is no satisfactory evidence that the claimant has suffered any significant nasal obstruction since the date of the operation apart from the temporary period after the operation when his nose was bruised and swollen by the very fact of the operation.

In the alternative she submits that there is no satisfactory evidence that any nasal obstruction from which he may now suffer has been caused in any way by the operation which was carried out."

23. Having referred to the evidence of the plastic surgeons, the judge turned to the joint statement of Mr Quiney and Professor Lund. At the beginning of his judgment he had referred to the existence of Mr Quiney's statement dated 31 January 2001 but at no stage did he refer to its content. He confined himself to an analysis of the joint statement. He summarised its early paragraphs and quoted paragraphs 9 and 10 verbatim. The judge went on to construe the positions of the experts to be as follows:

"Professor Lund is unable to find any significant mechanical obstruction of the nose. Mr Quiney, on the other hand, feels that there is a bilateral reduction in the nasal airway. But both of them go on to agree that the sensation of nasal congestion is unfortunately a common one and, I would emphasise, often unrelated to general mechanical obstruction of the nose.

...

It seems to me that at best it may be the case that the claimant does indeed have, as he strongly believes, a bilateral reduction of his nasal airways. That is Mr Quiney's view. It is not Professor Lund's view. I repeat, it is not proposed that either of those experts should be called to ventilate their disagreement further before the court.

...

The most important of their findings seems to me to come essentially at the end of their joint statement, where they say that the sensation of nasal congestion is unfortunately a common one and often unrelated to general mechanical obstruction of the nose. What those experts notably do not say is that there is any evidence which can relate to nasal obstruction which the claimant strongly believes he suffers from to the operation which was performed by the defendant in January 1998.

...

So far as the second allegation is concerned of failure to warn of the risk of long-term breathing difficulties, there is no evidence, as it seems to me, that, if and insofar as the claimant is suffering from any long-term breathing difficulty, that has been caused in any way by the operation which the defendant carried out. (Nor indeed is there any evidence that he should have warned of such a risk). So here once again it seems to me that the claimant is inevitably doomed to fail on the issue of causation, quite apart from any other difficulty in the case."

24. The difficulty for the judge of conducting a hearing of this type of claim where the claimant is unrepresented was very real; but, with great respect to him, I am of the view that he was wrong to conclude that there was no evidence to relate any nasal obstruction to the operation. I consider that he read too much into the final paragraph of the joint statement of the ENT surgeons, namely the repetition of Professor Lund's view that nasal congestion is commonly a matter of sensation, unrelated to mechanical obstruction of the nose. The two prior paragraphs of the joint statement make clear that Mr Quiney was not prepared to apply that general proposition to the appellant's case. I am driven to the view that the judge did not have sufficiently in mind the contents of Mr Quiney's individual report dated 31 January 2001, in which he expressly concluded that there was a physical obstruction of the appellant's nasal airways; and that this had been caused by the operation performed by the respondent and, in particular, by the respondent's excision of the cartilage which forms the structure by which the airways are kept fully open.
25. In her short but firm submissions to this court this morning Miss Neenan has placed strong reliance upon the sentence in Mr Quiney's individual report which I have already quoted, namely "I have no evidence that there was an over zealous excision of this cartilage..." She suggests that Mr Quiney's apparent view that the respondent's operation had led to long-term nasal obstruction is significantly qualified by that sentence. My construction of that sentence is that it is more a comment about the proper conduct of the operation than a detraction from the clearly expressed earlier opinion about causation. At its highest, the sentence presents ambiguity which calls for clarification.
26. It is clear that, not surprisingly, the judge had much in mind the fact that Mr Quiney had not given oral evidence and that Professor Lund would not in any event be giving oral evidence. He may therefore have considered that, were the action to proceed, he might be in difficulty in determining the issue between the experts and that perhaps, in particular, the appellant might be in difficulty in discharging the burden of proof referable to causation which lay upon him. But I am driven to the view that those considerations were irrelevant to his decision to dismiss the action on the basis of no case to answer. In the one identified respect in relation to which he found there to be no evidence, there was evidence; and, with respect, it was his duty to survey Mr Quiney's view, together with Professor Lund's contrary view, in the light of the other evidence, in particular the appellant's evidence about his alleged nasal obstruction and the respondent's evidence about the appellant's subsequent complaints to him thereof and (subject to the fact that there are other issues in the case) to reach a conclusion as to whether on the balance of probabilities the appellant had established that both following and by reason of the operation he suffered long-term nasal obstruction. Thus I would propose that the appeal should be allowed. Were my Lord to agree, the decision would come as a very considerable irritation to the respondent. But in litigation it seldom pays to do too well and, in particular, it is always dangerous to make invalid submissions.
27. I consider therefore that the action should be remitted for it to be heard to a conclusion. It is a matter for the appellant to decide how to present his case and, in particular, whether to apply to a district judge, albeit very belatedly, for permission to call Mr Quiney to give oral evidence. At this stage it is also proper for me to refer to further evidence which, at the outset of today's hearing, this court refused to allow the appellant to adduce. Part of the proposed further evidence was a report dated 10 October 2002 by Mr East, the ENT surgeon who had presided over the septoplasty in 1996 and who examined him again on the date of the report. Mr East's report makes clear that he agrees with Mr Quiney that the appellant is suffering alar insufficiency and obstruction to the nasal valve region which are likely to have been the direct consequence of the operation performed by the respondent. So an alternative or additional application which the appellant might make would be for permission to file that report by Mr East and to call him either instead of, or in addition to, Mr Quiney, to give oral evidence. Whether he will make any such application and, if so, whether a district judge will accede to it are matters which remain to be seen. I have, however, already adverted to the difficulty which would have faced the judge in determining the causation issue without oral evidence on the point. I propose a direction that, unless the appellant were to issue an application for further directions returnable before a district judge within a short specified period, the chief clerk of the Mayor's Court should relist the action for substantive determination.
28. The only remaining question is whether the clerk should relist it before His Honour Judge Marr-Johnson or before another circuit judge. The advantage of listing it before the same judge is that he has already heard the oral evidence of the claimant, given at length; and that a transcript exists which will, without difficulty, bring it back into his mind. The judge is very highly respected and I have no doubt that he would in fact be able fairly to determine the issues raised in the case notwithstanding, in my view, his flawed dismissal of it. But I believe that, were for any reason the action ultimately to be dismissed by the same judge, the appellant would harbour grievance that, in the light of his previous dismissal of it, the judge had not considered the issues with an open mind. And, were I to be in the shoes of the judge, I would feel a sense of relief that the Court of Appeal had spared me such potential accusation of unfairness, however ill-founded. I propose that the action be reheard from the beginning by a different circuit judge.
29. LORD JUSTICE WARD: I agree.

(ORDER: Appeal allowed. The matter to be relisted before a different judge. Application to the District Judge re expert evidence to be made within 42 days. No order as to costs.)