England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ROYAL COURTS OF JUSTICE
HH JUDGE SIMON BROWN QC

		17th June 2010

1. This is judgment upon liability in a claim by a consultant anaesthetist for damages for personal injuries sustained whilst he was working at Theatre 5 in St Bartholomew's Hospital in London 12^th February 2007.
2. There is no dispute that the Claimant fell to the floor unconscious having just prepared his patient with Betadine disinfectant (an Iodine solution) and drapes prior to the next stage of inserting a port for use in chemotherapy.
3. The issues to be determined are (1) what caused the Claimant to fall; and (2) was that the fault of the Defendants?
4. The Claimant has no recollection of the accident and relies upon a contemporaneous incident report form and a subsequent pre action protocol letter as admitting that his accident was caused by his being knocked out by a theatre light being manoeuvred by an unidentified nurse assisting him in the operation.
5. The Defendants accept that if this was how the accident was caused then they are vicariously liable for breach of duty by one of their nurses. However, they aver that the Claimant evidence relied upon by the Claimant does not establish causation upon the balance of probabilities and that there is evidence that the accident was caused by him slipping upon Betadine that he had just splashed onto the floor whilst 'prepping the patient'. The Claimant vehemently denies this – he gave detailed evidence as to his usual careful practices- but accepts that if that was how the accident was caused then no blame can be attached to anyone but himself.
6. Whilst taking into account all the evidence produced – there are 819 pages of largely redundant papers – the evidence on the critical issue of causation can be distilled to analysis of:

a. a DVD of the theatre and how the theatre lights manoeuvre;

b. the genesis of the Claimants belief in the cause of his accident being the theatre light; and

c. the only eye witness called to give evidence as to the causes of the accident, Registered Theatre Nurse Stella Ikea, who simply says that "He slipped due to the Betadine which was on the floor which he refused to be cleaned".

7. (a) DVD: The DVD seen by the Court helpfully depicts the theatre and its equipment. It also shows how the heavy theatre lights can be lightly manoeuvred by theatre staff assisting a surgeon. It also shows how they are suspended from the ceiling and can move in a circular pattern able to travel a little further on their own after being released by the operator. The Claimant therefore contends that it was mechanically possible for the light to be pushed from his right side and the strike him behind his left temple. There is no evidence from any expert engineer about this and no post accident investigative evidence about it to assist the Court. There is also no evidence that the theatre lights were defective or unsuitable. In my judgment, by looking at the DVD alone and the Claimants description of the scenario, I can only find that it may be possible but it is highly unlikely to occur.
8. (b) Genesis of Claimant's belief: The Claimant relies on multiple hearsay that is essentially founded upon the incident report form. This is in ESI produced by the Defendants from their records. It is accepted that it was composed by two authors neither of whom gave evidence to the Court. The first half was composed by Theatre Nurse Nyoni; the second half by the management incident handler Katherine Hine.
9. The part filled in by Mr Nyoni states: "Description: Surgeon bang against theatre light (I did not see the banging) whilst starting operation and I saw him falling onto the floor and was unconscious for at least 30-60 seconds… Action taken: None required Dr was asked how he was feeling by senior members of staff; he said he was feeling better and they asked him to rest and the list was abandoned".
10. The part filled in by Katherine Hine indicates that there was no investigation and her only material comment is "Likelihood of recurrence: cannot believe that this will ever happen again".
11. It is quite understandable why both parties proceeded upon the assumption that the accident involved the theatre light. However, nobody sought to find out the source of Mr Nyoni's assumption – he said he "did not see the banging".
12. This is the great danger of hearsay which then feeds on itself until it becomes a firm, but fundamentally mistaken and embellished, belief.
13. The Claimant even began to understand from rumours circulating in the hospital over the ensuing years that it was the fault of a nurse called Melinda MacMillan. He held on to this "belief" yet it turned out to be erroneous . If a court were fixated by the sincerity of the belief in a rumour, then it would be in danger of falling into the trap of "thinking makes it so" and holding an innocent professional person to be negligent.
14. The theatre records were checked. They revealed that Ms MacMillan was booked in Theatre 3, not 5. Theatre 5 was staffed by Mr Nyoni and also Stella Ikea amongst others.
15. Stella Ikea then produced her statement dated 4^th March 2010. She said she was not asked about the incident at the time when the incident report form was filled in by Mr Nyoni. Ms Ikea gave evidence that she had disagreed with what had been written by Mr Nyoni at the time, but was not asked about it by line management. If she had and if Katherine Hine had undertaken an investigation, she said she would have said the accident occurred due to slipping on Betadine. Mr Nyoni's assumption would most likely not have been sustained.
16. The Claimant also relies upon a pre-action protocol letter from the NHSLA but in my judgment this was based on the flawed incident report form and Mr Nyoni (most probably)- not eye witness evidence as to the cause of the accident i.e. Stella Ikea.
17. The Claimant also relies on rumours in the hospital about him being struck by the theatre light. This was most probably erroneous labelling of him as the surgeon struck by a theatre light and a convenient way of explaining his collapse that had not seemed to have caused any lasting injury at the time – it is common ground that the Claimant continued later on to interview some students. Otherwise, if she had believed it had actually happened, Katherine Hine would surely have ordered an examination of the lights and undertaken a major H&S investigation, including disciplinary action of the nurse involved in such a potentially serious incident – she described the "consequences" of such an event if accurate as "major".
18. (c) Stella Ikea: I found Stella Ikea to be an impressive witness. She and her team leader Shirley Achaibar were quite clear in their evidence that the Claimant quite rightly used a lot of Betadine as a disinfectant before operating but this did involve it spilling on the floor where inco pads would have to be used to mop up the spillage. Stella Ikea said that the left handed Claimant would move the instrument trolley and that he himself would move it. She said that he was finishing his preparation having tipped out the remnants on the bowl of Betadine onto his patient when he slipped pulling over the trolley as he went down flat on his back knocking himself out leaving her and Mr Nyoni to pick him up. It is possible that they may not have actually lifted him up as Shirley Achaibar saw him on the floor when she was probably first into the room from next door but nothing now turns upon that as there is no evidence of any door striking him and injuring him. At this stage it is common ground that there was no need for the theatre lights to be moved as the operating stage 2 had not yet been reached and that anyone doing so would be doing so too soon.
19. The Claimant gave detailed evidence about his normal careful procedures and where he would normally be standing therefore contending that the accident would not have occurred through spillage and slipping.
20. Whilst I have no doubt that the Claimant believes everything he said in evidence, in the witness box he displayed a rather contemptuous attitude to those to those working 'beneath him' under persistent but fair cross examination. He was argumentative and opinionated when it came to the area of expertise where he felt he was exemplary in his cleanliness.
21. In evaluating the Claimant and Stella' Ikea's credibility as witnesses, I bear in mind some of the helpful the guidance provided in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:

''Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. …And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process.".'

22. In my judgment, the Claimant lacks real self awareness and is someone who resents his beliefs and opinions being questioned. A burning sense of grievance against the Defendants surfaced in the giving of his evidence and he was, in my judgment, in the category of "witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist".
23. Correspondingly, I have no doubt that the two professional nurses called gave calm dispassionate accurate evidence of his working practices with Betadine and that it did routinely spill on the floor to be mopped up by inco pads.
24. Stella Ikea did not appear to have any axe to grind against the Claimant so as to motivate her to give what would be grossly false evidence against him (this was the first time she had given evidence in any court). I can see no reason to doubt Stella Ikea's evidence that "he slipped due to Betadine which was on the floor which he refused to be cleaned."
25. The Claimant's contrary belief that he was struck on the head is in my judgment wholly implausible. If he had been so struck by such a heavy object somehow 'boomeranging' around him knocking him out, one would have expected him to be very severely head injured with bleeding both external and internal. It is far more likely he was knocked out when he fell flat on his back. Indeed, it is common ground that he did not seek medical attention for head injury and indeed continued interviewing.
26. In my judgment, this accident was caused by the Claimant slipping upon his own spillage of Betadine on the floor of the theatre he was operating in.
27. Accordingly, the Claim must be dismissed.

His Honour Judge Simon Brown QC

17^th June 2010

.