England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
H.H. JUDGE McKENNA
CV2 03165

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 March 2005

Mr Justice Bennett :

1. I am giving judgment at the invitation of Lord Justice Sedley.
2. Leonard Breeze ("the deceased") died on 20 July 1999 aged 56. His dependant, Mrs Breeze, began proceedings in February 2002 against the Defendant, the deceased's general practitioner, claiming damages, on behalf of the deceased's estate, for breach of duty when the deceased attended him on 22 June 1999 complaining of chest pains.
3. The Claimant's case at trial before His Honour Judge McKenna, sitting in the Coventry County Court, was that had the Defendant undertaken a proper examination of the deceased he would have referred the deceased to hospital immediately, investigation of his symptoms would have revealed his cardiac problems and his death a month later would have been prevented.
4. The Defendant denied breach of duty. He asserted he had made a reasonable diagnosis of muscular skeletal pain which did not warrant attendance at hospital. So far as causation was concerned, the Defendant denied that any effective treatment could have been provided so far as to prevent the deceased's death.
5. The Defendant also denied that the Claimant was a dependant of the deceased for the purposes of the Fatal Accidents Act 1976.
6. The evidence and submissions occupied 3 days between 1 – 3 December 2003. The judge reserved judgment. He delivered it in writing on 25 February 2004.
7. The judge found:-

(i) that the Claimant was a dependant of the deceased

(ii) in favour of the Claimant, rejecting the Defendant's evidence as to what had happened on 22 June 1999 when the deceased was examined by the Defendant

(iii) that the Defendant broke his duty of care. The judge said:-

"55. In my Judgment, had the Defendant exercised the reasonable skill and care to be expected of a GP, he would have detected at the very least an unexplained chest pain which was likely to be unstable angina. Had the Defendant examined the Deceased and taken a full history, I conclude on a balance of probabilities that he would have referred the Deceased to hospital; the Deceased was a middle aged male, sedentary and a heavy smoker presenting with central chest pain which could not be explained as being non cardiac.

56. In my Judgment the standard of care provided by Dr Saeed to Mr Breeze fell far below the standard to be expected of a GP and, what is more, he has compounded that failure by maintaining throughout these proceedings that the Deceased presented with other than central chest pain in an attempt to avoid the consequences of his negligent treatment."

(iv) in favour of the Defendant on the issue of causation.

8. Accordingly he dismissed the claim.
9. The Claimant appeals, with the permission of the trial judge, on the issue of causation. The Defendant filed a Respondent's notice asserting that the judge had been wrong to categorise the judge's finding of breach of duty as "gross negligence" and that he had also been wrong to prefer the evidence of the Claimant's expert, Professor Oakley, as to the significance of the finding at post-mortem of fibrotic foci. In June 2004 the Defendant abandoned those points. Thus the sole issue before this court relates to the judge's determination of the issue of causation.
10. I gratefully take the facts from the admirably clear judgment of the judge. In 1978 the Claimant and the deceased married. In 1990 they divorced. In 1992 they resumed living together. They pooled their income. They lived as man and wife.
11. The Claimant gave evidence that the deceased went to see the Defendant on 22 June 1999 because he had been suffering, for four to five days, severe, central chest pain radiating into his lungs, kidneys and around the ribs into the bottom of his back. On 21 June 1999 the Claimant found the deceased leaning up against a cupboard in the kitchen having difficulty breathing. On his return to the Claimant on 22 June 1999 the deceased told her that it had been a waste of time, that the Defendant had not even examined him, and that the Defendant had told him that he was suffering from muscle pain as a result of sitting in a taxi too long. He was prescribed painkillers.
12. The judge said he approached the Defendant's evidence "with considerable caution". The Defendant accepted he had not performed a physical examination. The Defendant professed to have a clear recollection of exactly where the deceased described the location of the pain i.e. either the bottom of the ribs or the loin area. The Defendant further told the judge that the deceased himself had suggested the possible cause of his pain namely excessive driving of his taxi.
13. The judge rejected the Defendant's evidence. He said:-

"41. Finally, there is the evidence which the Defendant gave that the Deceased referred to a non existent accident (at least on the evidence of the Claimant) as a possible cause of the pain. That piece of evidence is simply inconceivable and reinforces the view which I have come to, that his evidence is not to be relied upon and moreover that the account which he has given as to the location of the pain, as identified by the Deceased, has been fabricated.

42. That the Defendant is capable of altering his evidence following complaint is amply demonstrated by a previous finding of serious misconduct against him by the General Medical Council."

14. On 20 July 1999 the deceased was found dead in his bed. The next day a post mortem was performed by Dr Ramsden, a consultant histopathologist. Under "Internal Examination Cardio Vascular System" Dr Ramsden wrote in his report:-

"The pericardium was normal. The heart weighed 425g. Both atria were normal. The right ventricle weighed 235gs and showed hypertrophy with occasional fibrotic foci in keeping with hypertensive and ischaemic heart disease. The coronary arteries showed severe atherosclerosis with around 90% luminal occlusion. The valves had circumferences of tricuspid 12 centimetres, pulmonary 7 centimetres, mitral 10 centimetres and aortic 7 centrimetres (sic). The mitral and aortic valves showed mild degenerative changes. The aorta showed severe complicated atheroma throughout its length. Other arteries showed severe atherosclerosis. The pulmonary trunk was normal with no evidence of an embolus. The vena cavae and other veins appeared unremarkable. "

15. He certified the cause of death as:-

"1A Left ventricular failure due to

1B Hypertension and ischaemic heart disease."

16. At paragraphs 58 and 59 of the judgment the judge set out the parties' respective cases as to causation.

"58. It is the Claimant's case that as a result of the Defendant's negligence, the Deceased's cardiac condition remained undiagnosed and untreated whereas had he been referred immediately to hospital his condition on the balance of probabilities would have been detected and he would have received treatment which would have prevented his untimely death.

59. By contrast the Defendant asserts that by reason of the Deceased's extensive coronary atherosclerosis he was at risk of sudden unexpected death; further that is [it] was improbable that death could have been avoided even if the Deceased had been referred to hospital, as I have found he should have been on 22 June."

17. The judge had the evidence of two experts, Professor Oakley for the Claimant and Dr (now Professor) Channer for the Defendant. Professor Oakley is Emeritus Professor of Clinical Cardiology at London University and Consultant Cardiologist at Hammersmith Hospital. Dr Channer is a Consultant Physician and Cardiologist at the Royal Hallamshire Hospital in Sheffield. Each had made reports and sought to narrow their differences in a telephone meeting on 28 April 2003.
18. A critical finding was made by the judge at paragraph 58. It is not challenged by the Defendant. The judge said:-

"65. Dr Channer's original analysis that the Deceased was not suffering from acute coronary syndrome on 22 June was based on his understanding that the pain was constant for three or four days. However, the evidence of the Claimant, which I have accepted is that the pain was not constant which, of course, is consistent with unstable angina. On the balance of probabilities I conclude that had the Deceased been referred to hospital as he should have been, then he would have been diagnosed with acute coronary syndrome with unstable angina and have been admitted in the way suggested by Professor Oakley. In coming to that conclusion, I accept what Professor Oakley says about troponin levels not being normal and the results of the exercise test being abnormal. Indeed, Dr Channer conceded that if Professor Oakley's analysis was correct then the troponin would have been raised when the Deceased was sent to hospital, and an acute coronary syndrome would have been detected."

19. The judge then correctly stated the next issue under causation that he had to determine, namely:-

"whether, on the balance of probabilities, even if he had been admitted to hospital, the Deceased would have survived and his sudden death [been] prevented." [paragraph 66]

He thereupon analysed the evidence of Professor Oakley and Dr Channer. He preferred the evidence of Dr Channer.

20. He concluded at paragraph 72:-

"It follows from my findings that the Claimant has failed to establish, on the balance of probabilities, that death would have been avoided had the Defendant acted with the reasonable skill and care to be expected of a General Practitioner."

He accordingly dismissed the claim.

21. Before I come to the submissions of Counsel I should state why the judge concluded as he did on this point. Having posed to himself the question at paragraph 66 of the judgment [see paragraph 18 above], the judge immediately referred to the evidence of Dr Channer to the effect that treatments, including interventions, would not, on the balance of probabilities, have prevented sudden cardiac death and that he [Dr Channer] was unaware of any treatments which prevent death, only treatments which reduce the risk but did not reduce the risk by anything approaching 50%.
22. The judge then set out, verbatim, critical answers given by Dr Channer, in cross-examination by Miss Marshall, which are to be found between letters B-D and D-E at page 13 of the transcript. In the course of those answers Dr Channer referred to a study done by the World Health Organisation that "showed a four per cent reduction in mortality from hospital treatments of all causes over ten years." The judge continued at paragraph 67 that Dr Channer supported his evidence by reference to the British trial of management of unstable angina by intervention, published in 2002 – a reference to the answer given by Dr Channer at letter F of page 13 in his cross-examination.
23. At paragraph 68 the judge summarised Professor Oakley's evidence of what treatment the Deceased would have received had he been referred to hospital by the Defendant, which included coronary angiography, angioplasty and by-pass surgery within one month. The judge said:-

"In her view, the combined effect of all the various treatments which she suggested he would have received would have been such that the Deceased would have survived. She pointed out that surgical techniques are much better now than formerly. There is a higher potency rate and surgeons are better able to protect the heart muscle."

24. The judge [at paragraph 69] commented on the inability of Professor Oakley to "produce any evidence from the literature to support her views." She explained that absence of evidence on the basis that all trials are comparisons between best possible treatment and treatment excluding only the treatment under test. It is not possible in such trials to compare no treatment with best possible treatment.
25. The judge then made his finding. At paragraphs 70 and 71 he said:-

"70. I have to say that on this issue I find the evidence of Dr Channer to be compelling supported, as it is, by recent literature. Professor Oakley's suggestion that the Deceased would have undertaken by-pass surgery within a month was contrary to Dr Channer's view and is, in my judgment, overly optimistic but even if he had been so treated, the trial evidence provided by Dr Channer suggests that mortality is actually higher in the intervention group and not lower.

71. Moreover, the conclusion which I have come to as to the optimistic nature of Professor Oakley's evidence in this regard is highlighted in my mind by a paragraph from her first report in which she says as follows:

"Whatever the detail of his management he would, on the balance of probabilities, have been saved from his death on 20 July and with a better blood supply to his heart plus pharmacological treatment he would have returned to work with an improved long-term prognosis." (Paragraph 3.11 at page 59 in the trial bundle)

I find it difficult to see how, with respect to Professor Oakley, she could make such a sweeping statement whatever the detail of the Deceased's management in hospital."

26. The reference to the "recent literature" in paragraph 70 is, as confirmed on behalf of the Defendant subsequent to the delivery of the judgment, to two papers namely:-

(i) Contribution of trends in survival and coronary events to changes in coronary heart disease mortality: 10 year results from 37 WHO MONICA Project populations by Tunstall-Pedoe, Kuulasmaa, Mahonen and others, published in The Lancet 1999, 353: 1547-1557 (to which I will refer as "Monica").

(ii) Interventional versus conservative treatment for patients with unstable angina or non-ST-elevation myocardial infarction: the British Heart Foundation RITA 3 randomised trial, by Fox, Poole-Wilson, Henderson and others, published in The Lancet 2002; 360: 743-750. (to which I will refer as "Rita").

27. In my judgment it is plain from his reasoning a) that the judge accepted that Dr Channer had accurately summarised the contents of the two papers, b) that the papers supported the thrust of Dr Channer's evidence, c) that the support afforded to Dr Channer by the papers materially affected the judge's assessment of the worth of Dr Channer's evidence and d) that the absence of "literature to support her views" undermined the evidence of Professor Oakley. The "recent literature" which Dr Channer cited in his evidence played a material, if not vital, part in persuading the judge to accept the evidence of Dr Channer and reject that of Professor Oakley on this point.
28. A reader of the judge's judgment could be forgiven for assuming that he had the two papers actually in front of him. He would be wrong. The judge was never provided with copies of the papers. Furthermore, Dr Channer did not have them at court when he gave evidence. His evidence about their contents was entirely from memory. As the judge said to Miss Marshall upon her application for permission to appeal, he had to take "on trust" what Dr Channer had said about the contents of the two papers.
29. The submissions of Mr Maskrey Q.C., for the Claimant, can be distilled as follows. Neither Monica nor Rita had been referred to in Dr Channer's report of 5 December 2002 (see page 103 under paragraph number 3). Mr Maskrey did not submit that at the time of his report Dr Channer was relying on either paper. However, at the (telephone) meeting of the experts on 28 April 2002 it became apparent that Dr Channer was relying upon "recent epidemiological data". The experts drew up a document reflecting their discussions. Under "What treatment would the Deceased have received?" was recorded "Disagreed". Professor Oakley's contention was:-

"Although the trials of treatment of unstable angina have shown less than a 50% reduction in mortality ascribable to the new drug or intervention under test this is because for ethical reasons trials have to compare the treatment being tested with best possible treatment excluding only the treatment under test. Over the years the outlook has steadily improved such that the 30 day mortality has fallen from more than 30% 20 or 30 years ago (despite inclusion then of many people with non cardiac pain at a time when diagnosis was clinical and often incorrect) to a less than 10% risk of death or major myocardial infarction today."

Dr Channer's contention was:-

"Even if he did have a diagnosis of acute coronary syndrome, treatments including intervention would not OBOP prevent sudden cardiac death. KSC is unaware of any treatments which prevent sudden cardiac death – treatments may reduce the risk but this reduction does not approach 50%. If there were such treatments then the case fatality of acute myocardial infarction and chronic ischaemic heart disease would have been dramatically reduced and the recent epidemiological data do not support this."

30. Thereafter the "data" upon which Dr Channer relied were not produced. Mr Maskrey said that it ought to have been and prayed in aid paragraph 2.2(2) of the Practice Direction under Part 35 that an expert's report must give details of any literature or other material which the expert has relied on in making the report. On the second day of the trial Dr Channer produced a paper relating to another issue in the case. No objection was taken since it could be and was dealt with by Counsel for the Claimant. However in a note agreed by the parties of the evidence-in-chief of Dr Channer (the tape recording machine in court then being out of order) records:-

"Dr Channer said that treatment for unstable angina would have been aspirin and heparin. Treatment would have reduced the risk of having an MI by 50% but not reduce death by 50%. All the trials show that death is not reduced. The reduction is 1-10% if that. The RITA 3 study which was a trial looking at treatment and surgery. The surgery did not take place at 7 days. In 1999 it would have been inconceivable that this man would have had urgent coronary artery bypass surgery grafts (CABG). The Walsgrave did not provide surgery within a month."

31. This was the first time Rita had been introduced into the case. Monica had not by then been referred to by or on behalf of the Defendant. However during cross-examination Monica was brought up by Dr Channer and he again referred to Rita. I quote from the transcript:-

"Q. And you have heard that she said treatment, certainly by the time we are dealing with, medical and surgical techniques have improved dramatically. That has no effect, does it, on your view?

A. I did not say it had no effect. I argue simply about the size of the effect. Epidemiological data, which I do refer to in my report, not in its detail but in the fact that there is a continuing – there is no epidemiological data of the treatment effects being 50 per cent reduction. But there is clear epidemiological data from across the world that the incidence of coronary artery disease, the prevalence and death from coronary artery disease, is falling and has fallen indeed over the last 20 years. There was a huge study done by the WHO (authors Tunstall & Pedoe) that looked at the cause of that reduction. They showed a four per cent reduction in mortality from hospital treatments of all causes over ten years. I wouldn't be here as a cardiologist if I didn't think what I did had some benefit. Of course, treatments have some benefits. What they don't do -----

Q. Quite. What is the point of having cardiologists -----

A. What they do not do is reduce sudden cardiac death by 51 per cent within a month of presentation on the hypothesis that the presentation was due to acute unstable angina without myocardial infarction.

Q. And you are relying on old trials where there is clearly unrepresentation of high risk patients, ignoring the fact that there have been huge advances in terms of surgical technique and the type of drugs that would have been given to this man had he been admitted to hospital. That is your opinion, is it?

A. No, as I said to my Lord earlier, the British trial of management of unstable angina by intervention showed an increased risk of death in the first six months. This was not an old trial in the '70s, this was published in 2002. It is called the RITA 3 Trial."

32. On the third day of the trial Counsel made submissions, both orally and in writing. It would appear from paragraphs 11 and 12 of Mr Peacock's written submissions (on behalf of the Defendant) that he did not seek to persuade the judge that Dr Channer's evidence was supported by either Monica or Rita. Neither did Miss Marshall (on behalf of the Claimant) make any reference to them in her written submissions. It seems no oral reference was made to either paper by either Counsel.
33. At the conclusion of Counsel's submissions the judge invited further written submissions on receipt of the transcript of Dr Channer's evidence. On 6 January 2004 Mr Peacock made further written submissions which related solely to the cause of fibrotic foci i.e. to an issue outwith causation. On 10 January 2004 Miss Marshall made further written submissions only on the same issue.
34. In the light of the above Mr Maskrey submitted that:-

(i) the judge, in assessing which expert's evidence to accept on this point, was plainly influenced by the lack of "literature" to support Professor Oakley and by the support of "literature" for Dr Channer's views.

(ii) So far as Monica is concerned

(a) Dr Channer made an unwitting but important mistake when he said in cross- examination that Monica showed a 4% reduction over 10 years in mortality from hospital treatments of all causes. Dr Channer now accepts that Monica showed an annual reduction of 4% i.e. 40% over 10 years.

(b) Dr Channer misstated the whole thrust of Monica. Monica did not record an annual 4% reduction in mortality from hospital treatments but that cardiac mortality rates had fallen by 4% per annum. Monica set out to find what had caused such a reduction. If the paper had been to hand at the trial, Dr Channer could have been cross-examined to the effect that Monica suggested that the reality was that medical treatment had caused between one-fifth and one-third of the overall reduction in cardiac fatalities over 10 years.

(c) An American Study ("ARIC") referred to in Monica did not support the findings in Monica, in that it suggested that while the incidence of coronary disease remained stable, overall mortality fell at the same rate as mortality following medical treatment.

(iii) So far as Rita is concerned, although Rita does show an increased risk of death in unstable angina cases within 4 months after surgery as against medical treatment without surgery, nevertheless

(a) Rita inevitably involved trials which compared one form of treatment as against another, not treatment as against no treatment; and thus, in the instant case, because the deceased had had no treatment whatever the paper was irrelevant.

(b) When analysing the cause of such an increase it would be necessary to analyse whether the patients who underwent surgical intervention were high, medium or low risk.

(c) In any event Rita could be said to support the Claimant's case that a patient who is treated would expect to live, since only a relatively small percentage of deaths (or myocardial infarction or refractory angina) occurred in the four months or one year following treatment.

(d) Rita also provided evidence to suggest surgical intervention could probably have taken place within 22 days of hospitalisation.

35. Thus, it was submitted that the judge had placed more weight on the "literature" than he should have done. In the circumstances outlined above the Claimant had no or no proper opportunity to demonstrate to the judge that papers were at least neutral as between the experts and at best supported Professor Oakley's rather than Dr Channer's evidence. Whatever may be said about the failure of the Claimant's advisers to ask for the papers at any time up to judgment that should not prevent this court from allowing the appeal and order a retrial if satisfied that the judge was significantly hampered in the circumstances of the case in arriving at a true and just assessment on the point in issue.
36. Mr Coonan Q.C., for the Defendant, submitted that, in so far as the Claimant sought to extract support from Rita, (i) support could not be found therein and (ii) in any event such a submission could not succeed. This was an attempt to introduce fresh evidence which could not come within CPR 52. 11 (2), and within the scope of Ladd v Marshall [1954] 1 WLR 1489. The Claimant could and should have obtained both papers after 28 April 2004 and before trial and/or even before judgment.
37. So far as Monica is concerned, Mr Coonan submitted that the admitted mistake as to 4% was not material and took the court nowhere. The purpose of citing Monica was to demonstrate that whilst treatments may reduce the risk of sudden cardiac death Table 6 of Monica does not show a reduction greater than 50%, which is not disputed by the Claimant. Thus there is no point in remitting the matter for a retrial.
38. So far as Rita is concerned, what Dr Channer actually said in cross-examination merely mirrored what Table 3 said. Thus, there was nothing misleading or wrong in what he said to the judge.
39. In any event, Mr Coonan submitted, even if an exercise were to be undertaken of excising from the judge's judgment references to "literature", the judge had preferred the evidence of Dr Channer. His evidence was merely "supported" by the "literature".
40. In my judgment this is not a case on whether fresh evidence is to be admitted. It is a case to which CPR 52.11 (3) (b) is very much in point namely whether the judge's decision upon the matter under appeal was

"unjust because of a serious procedural or other irregularity in the proceedings…"

The judge himself was sufficiently troubled about it to give permission to appeal. In my judgment, and with respect, he was right to do so.

41. Neither Monica nor Rita was produced on behalf of the Defendant. The contents, as relayed by Dr Channer in his evidence to the judge, were unwittingly portrayed to the judge inaccurately and/or incompletely. We were taken by both Counsel to the papers. They are highly technical and require careful reading and analysis, particularly so if they were to have the almost decisive effect upon the judge's mind as to which expert's evidence to prefer. However, neither Counsel referred to that part of Dr Channer's evidence-in-chief and cross-examination which raised Rita and Monica. Miss Marshall could be forgiven for letting sleeping dogs lie in the light of Mr Peacock not apparently relying on the supposed support Dr Channer said they gave his evidence. The judge had a most difficult task. He had to choose between two eminent experts, both of whom, he found, had fallen somewhat into the role of advocates. The judge, having obtained the transcript of the cross-examination of Dr Channer, took on trust what Dr Channer said were the important contents of the two papers, which, in turn, persuaded him to a very material extent to prefer his evidence to that of Professor Oakley.
42. I accept Mr Maskrey's submission that the judge placed more weight on the "literature" than he should have done in the unusual circumstances I have described. In the event the Claimant was deprived of the opportunity to show the judge that neither paper supported Dr Channer's evidence, which, it is arguable, the Claimant could have accomplished. In my judgment to leave the matter as it is, would, in the circumstances of this case, be unjust.
43. Mr Maskrey submitted that the matter should be remitted to H.H. Judge McKenna to rehear the following issue:-

"But for the breach of duty would, on a balance of probabilities, Mr Breeze have received medical treatment and/or surgery between 22^nd June and 20^th July 1999, such that he would not have gone into ventricular fibrillation ("VF") outside hospital and therefore died?"

If the answer was in the affirmative, the judge would then decide quantum. Mr Maskrey submitted that it would be proper and cost affective to remit it to the judge who had heard the matter.

44. Mr Coonan submitted that it should be remitted to a different judge. H.H. Judge McKenna may have formed or might form an adverse impression of Dr Channer either from the submissions made to him by Miss Marshall when she sought permission to appeal or as a result of any comments made by this court.
45. For my part I do not accept Mr Coonan's submissions. I am confident that the judge will approach any retrial of the issue set out in paragraph 43 above with an entirely open mind. He has the advantage of having had a very good, working knowledge of the case. It would not be cost-effective to remit the case to a judge who had no knowledge of it.
46. I would propose that the appeal be allowed, and the issue set out in paragraph 42 above (and any consequential issues e.g. quantum) be remitted to H.H. Judge McKenna for retrial. The parties will be free to make to him such applications for directions as to expert evidence as they may be advised. In any event it would be prudent for directions to be given about the production of literature or any other material upon which an expert will rely, in the standard form made by High Court Masters in the Queen's Bench Division, which is conveniently set out at paragraph 23 of the judgment of Brooke L.J. in Wardlaw v Farrar [2004] Lloyd's Rep Med 98.

Lord Justice Rix :

47. I agree.

Lord Justice Sedley :

48. I also agree.
49. I would add only that I am not at all sure that the evidence on causation will be best given by cardiologists. It may be more usefully addressed by an epidemiologist or a medical statistician.
50. I would also hope that a relatively straightforward approach can be found to the question whether hospital treatment would have given Mr Breeze a better than even chance of surviving for longer than the four weeks for which he lived after Dr Ahmad's negligent diagnosis.

ORDER: Appeal allowed. Agreed order that case remitted back to HHJ McKenna for determination of issue identified at paragraph 43 of Bennett J's judgment. Costs of appeal to be paid by defendant to claimant to be assessed on standard basis if not agreed. Costs of trial to be reserved to HHJ McKenna. Legal aid assessment of Claimant's costs.

(Order does not form part of approved Judgment)