England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12 December 2013

1. LORD JUSTICE LONGMORE: This is an appeal by Hani Hussain, the claimant and appellant, against the judgment of Mr Justice Eady handed down on 30 November 2012. The claim relates to an incident on 5 January 2005. It is alleged that the staff of King Edward VII Hospital, the respondent, negligently handled Mr Hussain whilst he was anaesthetised and undergoing a cystoscopy. It is said that he suffered a severe injury to his shoulder as a result. The judge found in favour of the hospital.
2. The appellant seeks to appeal on the basis of fresh evidence contained in a faxed cover sheet from a Ms Awad dated 10 January 2005 and a statement of Dr Al-Abbasi dated 4 December 2012. If this evidence is admitted it will show, according to Mr Hussain, that the judge came to the wrong decision and/or that the decision was unjust on the grounds of serious irregularity, so that there should be a new trial.

Factual background

3. Mr Hussain was born on 18 February 1972 and was a electronic engineer employed by the Kuwait oil company, whom I will call KOC. In the course of his work he was exposed to noxious gases and when he was medically examined a cancerous growth was found. From April 2004 onwards, Mr Hussain suffered from bladder cancer and required regular inspections, for instance through cystoscopies. Mr Hussain's medical treatment in London was funded by his employer, which also had its own hospital in Kuwait.
4. In December 2004 Mr Hussain was referred to Mr Julian Shah, a consultant neurologist at King Edward VII Hospital. A cystoscopy was undertaken by Mr Shah on 5 January 2005 while Mr Hussain was under general anaesthetic. On waking up from this surgical procedure, Mr Hussain suffered from severe pain in his left shoulder. He was seen on 5 January 2005 by the anaesthetist present during the operation, Dr Hamilton Davies, the senior medical officer, Dr Kojo Ndenencho, a physiotherapist, Ms Bridget Duffy and Mr Shah himself; he also had regular supervision from the general nurse, Ms Sarah Jones. Mr Hussain was kept overnight and discharged on 6 January 2005. On 11 January 2005, Mr Hussain saw Mr Shah again. As he was still suffering from shoulder pain, Mr Hussain was referred to Mr Lambert, a consultant orthopaedic surgeon. Mr Lambert saw Mr Hussain on 28 January, as recorded in a letter of 2 February 2005 to Mr Shah.
5. From a subsequent MRI scan, it became apparent that there was chronic degenerative condition in Mr Hussain's shoulder. The expert witnesses at trial, Dr Al-Hussaini for the appellant, and Dr McCullough for the respondent, agreed that although there was an underlying problem, this had been complicated by an acute impingement syndrome which was the cause of Mr Hussain's pain. The acute impingement syndrome had itself been caused either by relaxation of the musculature under general anaesthetic, triggering the onset of an acute arthropathy, or by some sort of trauma i.e. injury during the operation.
6. Mr Hussain first instructed solicitors in April 2005 after an operation to improve his shoulder failed. From 2005 to January 2010, Mr Hussain suffered from a range of illnesses and he was forced to retire in February 2006. In April 2010 a claim form was issued, the delay being, it is said, largely because Mr Hussain had not recovered sufficiently from his bladder complaints to concentrate on legal recovery for his shoulder injury until January 2010.

The Claim

7. Mr Hussain's case was that on the basis of the res ipsa loquitur doctrine some sort of injury had been inflicted on his shoulder during surgery on 5 January 2005 through the negligence of the staff at King Edward VII Hospital. This had caused his asymptomatic condition to become symptomatic earlier than it would otherwise have done. If there had been some such trauma or injury during the operation there would have been visible bruising. The judge therefore had to consider whether there was any evidence of bruising. Mr Hussain in his witness statement of 1 June 2012 said that he had seen bruising on 5 January 2005, but under cross-examination he said he first saw bruising the next day. The hospital argued that there was no negligence, no bruising had occurred and there was a lawful explanation for the arthropathy, which was that the musculature relaxed as a result of the anaesthetic. The hospital also put forward a positive case that the staff could be shown to have exercised all reasonable care. None of the hospital witnesses recorded or recalled seeing bruising.

The Judgment

8. The trial took place on 15 and 16 November 2012 before Mr Justice Eady. The judge found for the respondent, finding in his judgment of 30 November 2012 that:

1. The appellant needed to show a prima facie case of negligence, which the respondent would then have to rebut;

2. Something occurred during the period of anaesthesia on 5 January 2005 to cause the degenerative joint to become acutely painful;

3. Either the relaxation of the muscle under anaesthetic or careless handling could have caused an acute arthropathy;

4. The issue of visible bruising was important. The judge carefully considered the evidence and found that on the evidence before him he was not satisfied that bruising was present at any material time.

5. The appellant had not discharged the burden of showing the prima facie case of negligence;

6. In any event the respondent's positive case that all reasonable care was taken of the appellant in his handling was made out.

Proposed New Evidence

9. Mr Hussain says that he made a routine visit to the Al-Ahmadi hospital in Kuwait on 25 November 2012 and saw a Dr Kamal. With Dr Kamal's secretary's help he was able to locate a hard copy of his medical file. He claimed that contained in that file was a fax cover sheet, dated 10 January 2005, referring to a visit Mr Hussain had apparently made on 7 January 2005 to the London Health Office of the Kuwait Oil Company, resulting in an urgent appointment being made to see Mr Shah. This cover sheet purported to record traces of blood under the skin.
10. Based upon this evidence Mr Hussain was then able to track down Dr Khalid Al-Abbasi, who had been head of the London Health Office at the time but was, by November 2012, in Kuwait. Dr Al-Abbasi provided a statement indicating that he had seen severe and extensive bruising on the shoulder on 7 January 2005.
11. Permission to appeal was granted as a result of this possibly admissable new evidence by Rimer LJ in an oral hearing on 23 May 2013.
12. Applications to adduce fresh evidence on appeal are governed by CPR 52.11 which provides that evidence not before the lower court will not be received unless the court orders otherwise. For this purpose, the requirements of Ladd v Marshall [1954] 1 WLR 1489 remain relevant namely that,

(i) the evidence could not have been obtained before trial by the exercise of reasonable diligence on the part of Mr Hussain and his advisers;

(ii) it would probably have an important influence on the result;

(iii) it must be apparently credible but not incontrovertible.

13. In my judgment the proposed new evidence fails tests (i) and (iii).

Obtainable by the exercise of due diligence

14. It is relevant that not merely is there no contemporaneous evidence of bruising, but there is, in fact, virtually contemporaneous evidence, as the judge pointed out in his judgment, that there was no bruising. After Mr Hussain woke up from the procedure with severe pain in his shoulder, he was examined by senior medical officer, Dr Ndenencho, who noted absence of "Redness or lumps."
15. Mr Hussain was also seen by a physiotherapist and Mr Shah on the day with no evidence of bruising or trauma being recorded. He was discharged after seeing the physiotherapist on the following day. He return today see Dr Shah on 11 January who referred him to Dr Lambert, as I have already said. Mr Hussain saw Mr Lambert on 28 January, who referred him for a MRI scan. Mr Lambert then reported the result in a letter to Mr Shah of 2 February 2005 saying that he, Mr Lambert, had found no evidence of bleeding or bruising and also that Mr Hussain did not recall any such evidence. The existence of bruising was thus already a matter of discussion between Mr Hussain and his doctors. Mr Hussain instructed his solicitors on 25 April 2005. The first contemporary mention of bruising, as opposed to later evidence and recollection, occurs when the doctor who ultimately gave expert evidence for Mr Hussain first examined Mr Hussain on 14 January 2006. It was in the course of this consultation that Mr Hussain said that he observed bruising at the time of the operation.
16. A letter of claim was then sent to the defendants on 17 May 2007 which prompted a request for Mr Hussain's medical records. At this date therefore the claimant and his advisers should have been discussing the case and trying to obtain more relevant documents. That should have included documents held by his employers, KOC, and their medical office. If Mr Hussain had had any connection with the hospital in Kuwait, any document in that hospital's possession would also be relevant. Instead nothing seems to have happened until 8 February 2011, a year after Mr Hussain had recovered sufficiently to think about legal action, when Ms Green of his solicitors says that Mr Hussain explained -- apparently for the first time -- that he had worked for KOC and that they had their own hospital. Even then neither Ms Green nor Mr Hussain seemed to have asked KOC for their documents at all promptly. There were apparently undocumented requests made to KOC which were said to have been unanswered. It was only when Mr Hussain went to the KOC medical office in London that he was informed that London had sent their documents to Kuwait, which would in any event apparently have destroyed them after five years. Only in September 2012, with the trial fixed for November 2012, did Mr Hussain's solicitors make a written request to KOC for Mr Hussain's medical notes, reports and other material relating to his health condition and treatment for January 2005. For some reason it was made under the Data Protection Act rather than under the CPR31.17, the procedure for third party disclosure. It was made to KOC in London even though Mr Hussain now knew the documents had gone to Kuwait.
17. By this time Mr Hussain had served his witness statement of 1 June 2012 for the purposes of trial, in which he said at paragraph 32 that on 7 January 2005 that the bruising on his shoulder had begun to darken and that he realised something had happened to him when he was sedated.
18. Even if, therefore, Mr Hussain and his solicitors had not realised the significance of possible bruising when he had seen Dr Lambert, he and they appreciated its significance at latest at the time of serving his witness statement.
19. The faxed cover sheet was thus waiting to be discovered for a considerable time before trial. It was in fact only discovered on 25 November 2012 while the judge was considering his judgment. Unfortunately Mr Hussain waited until he had obtained Dr Al-Abbasi's statement before he forwarded both that statement and the faxed cover sheet to his solicitors. By that time Mr Justice Eady had handed down his judgment.
20. A similar dilatoriness occurred in regard to Dr Al-Abbasi, who was the originally referring doctor from KOC to Dr Shah and to whom Mr Shah sent no less than four letters between 5 January and 9 February 2005. Mr Shah had also referred to Dr Al-Abbasi in his witness statement of 28 February 2012. Thus either Mr Hussain or his solicitors could easily have contacted him at any time between April 2005 and the trial, but they did not do so.
21. In these circumstances I am not satisfied that the evidence, now sought to be adduced, could not with reasonable diligence have been available at trial.

The credibility of new evidence

22. The fax cover sheet. It is supposedly signed by Ms Awad, a senior medical administrator of the KOC medical office in London, but no attempt has been made to contact her to confirm her signature or any recollection she might have. We were told this morning that she is in fact in London, and I am therefore surprised that this document is put before the court without any evidence from her. It is addressed to the assistant manager of the Al-Ahmadi hospital in Kuwait, but there is no explanation why anyone at that hospital should be receiving information about Mr Hussain on 10 January 2005. The information is extremely vague: "We saw traces of blood under the skin." No explanation is given of "we". Ms Awad herself? Some doctor? A combination of the two? Mr Jones in his submission on Mr Hussain's behalf, says that "we" means Ms Awad, but without any evidence from her one just does not know. This evidence does not, in my view, pass the credibility test.
23. Dr Al-Abbasi's statement. This is also not credible. A doctor purports to recall an examination, or if not an examination an encounter in a medical context, seven years and 11 months previously, when that doctor apparently made no contemporaneous note of that examination or encounter. He records "severe bruising" and "extensive bruising", which is hardly consistent with Ms Awad's reference to "traces of blood", nor is it consistent with Mr Hussain's own evidence in his statement of 1 June 2012 that on 5 January 2005 he noticed "some bruising on my skin" which on 7 January 2005 "began to darken further". Most worryingly of all, Mr Hussain records in his statement, in support of the application to adduce Dr Al-Abbasi's letter, that he wrote the letter of 4 December 2012:

"On condition that I [Mr Hussain] will not go back to him or request any further reports or statements."

24. Dr Al-Abbasi is evidently unwilling to come to court and give oral evidence on the matter, and in these circumstances it is inconceivable that any judge could give credence to what he has said in his letter. Mr Jones submits that the position might change, but this court can only act on what it now knows. Mr Jones forcefully submitted that if the proposed new evidence had been before the judge it would have had an effect on his judgment, thus the second criteria of Ladd v Marshall was therefore fulfilled. That may or may not be right, but the proposed new evidence comprehensively fails to meet the first and the third criteria. Of course one has considerable sympathy with Mr Hussain, who continues to be unwell, but I regret to say that this proposed new evidence cannot be adduced.
25. The application to adduce it must be refused, and it follows that the appeal will therefore be dismissed.
26. LORD JUSTICE LEWISON: I agree.
27. LORD JUSTICE KITCHIN: I also agree.