APPEALS, ISSUES OF FACT AND SAILING IN DIFFERENT OCEANS IN THE COURT OF APPEAL: CLINICAL NEGLIGENCE DECISION TODAY
In Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors  EWCA Civ 1523 the Court of Appeal reiterated the difficulties faced by an appellant attempting to argue that the judge had erred in relation to findings of the trial judge. The warning about “island hopping” in such appeals has now changed to a caution about the parties sailing in different oceans (albeit on parallel courses).
“… the overall impression conveyed to me, from the arguments, of island hopping in the whole sea of evidence caused me at stages also to wonder (changing the geographical allusion) if Mr Booth was sailing in the Pacific Ocean while Mr Antelme and Mr Hutton were sailing a parallel course in the Atlantic Ocean”
“The Claimant therefore has significant obstacles to surmount in this case. It is not enough to persuade the court that a different view of the evidence was possible. The Claimant has to persuade the court that the only possible view was that advocated by the Claimant at first instance.”
The claimant had been unsuccessful in an action for damages for clinical negligence. The claimant appealed to the Court of Appeal.
THE GROUNDS OF APPEAL
The claimant was granted permission to appeal on five grounds.
i. The Judge erred in law and fact in holding that the GP did not breach his duty of care.
ii. She erred in both respects in deciding that the Claimant had not proved factual causation against the GP.
iii. She erred in both respects in not drawing adverse inferences against Trust 1 from the absence of any evidence of a discussion between the orthopaedic and radiology departments about the urgency of an MRI scan for the Claimant, or about the priority to be given to the three patients who were referred to in the witness statement of Ms Devereux.
iv. She erred in both respects in her decision on factual causation as respects Trust 1.
v. She erred in both respects in holding that the Claimant had failed to establish legal causation as against any of the Respondents.
THE COURT’S OBSERVATIONS ON THE BURDEN FACED BY AN APPELLANT IN THESE CIRCUMSTANCES
Lady Justice Elisabeth Laing set out the tests facing the court in these circumstances.
Two preliminary points
The Respondents, rightly, referred the court to many authorities which state the obvious. They are helpfully summarised in paragraphs 4 and 5 of the skeleton argument of Trust 1 and Trust 2. The most significant of those authorities are referred to by Lord Briggs (with whom the other members of the court agreed) in the judgment of the Supreme Court in Perry v Raleys Solicitors  UKSC 19;  AC 352 at paragraphs 49-50). That was a case in which the issue for the Supreme Court was whether the judge at first instance had gone wrong in his decision on the facts to an extent which enabled the Court of Appeal to intervene. At paragraph 52, Lord Briggs said that the test is whether there is no evidence to support a challenged finding of fact, or that the finding was one which no reasonable trial judge could reach.
The trial in this case lasted six days. There were pages of pleadings, witness statements, experts’ reports and academic literature for the Judge to absorb before the trial, and to reflect on after she had reserved judgment. This appeal is not a wholesale opportunity to revisit, in detail, her findings of fact, her evaluative assessments, or her mixed findings of fact and law. To use Lewison LJ’s vivid metaphor in Fage UK Limited v Chobani UK Limited  ETMR 26, at paragraph 114, ‘In making [her] decisions the trial judge will have regard to the whole sea of evidence presented to him, whereas an appellate court will only be island hopping‘.
i. She was able to evaluate the witnesses as they gave their evidence. There are many aspects of a witness’s responses to questions, such as evasiveness (and this can be sometimes be the case with experts), which are not visible from the transcript.
ii. She was entrusted with making findings of primary fact, both where there was a dispute about the evidence, and where there was a gap in the evidence.
iii. Her job was to make findings on the balance of probability, which is not a precise science, and involves an assessment of the relative likelihood of events.
iv. She had to make several evaluative judgments.
v. She was required to make mixed findings of fact and law, not least, the application of the Bolam/Bolitho test.
vi. The premise of the Bolam test on breach of duty is that there may not be one right answer on the facts found, but a range of reasonable answers.
vii. It is obvious from the dispute on causation, which is one of the two significant issues in this case, that there was a sharp difference of view between the experts, all of whom, the Judge found, gave their evidence in good faith. She had to decide which evidence, on that dispute, she preferred.
viii. The Claimant’s case on appeal is that the dispute about causation is a binary dispute, and is to be resolved by assigning his case to one of two mutually exclusive categories (CESI or CESR). However, the distinctions between the two are imprecise in the literature. There are different definitions, which make categorisation difficult. The real question, which the Judge addressed, is what the outward signs, on balance of probability, showed about the progress of the Claimant’s underlying pathology, and at what point in that progress, he had, on the balance of probability, reached the point from which a functional recovery was no longer likely.
Second, it is trite that a first instance judge has to decide the principal issues between the parties and give reasons for her decision which are detailed enough to enable them to know why they have won or lost the case. A judge is not obliged to decide every single disputed issue, or to give reasons for her reasons, as the Judge appreciated (see paragraph 91: ‘…for the following non-exhaustive reasons’). In this case, the Judge decided the issues which, the parties had agreed, after the evidence, she had to decide (see paragraph 37). There were four issues. Some involved sub-issues, but this was not a case in which the parties agreed that there was a complicated sequence of issues, each of which was capable of influencing the overall result. It was not, therefore, a case in which she was required to do more than to explain, in a way which was intelligible to the parties, who were familiar with the interstices of the dispute, why she had decided the agreed issues in the way in which she had. Moreover, it is clear from several passages in the transcript of the hearing to which this court was taken by counsel, that the Judge engaged in a thorough and rigorous way with a range of issues which she did not specifically refer to in the judgment; and the parties know that.
The Judge was given many building blocks for her judgment, that is, all the evidence, lay and expert, and the parties’ submissions. The agreed issues were the framework of the judgment. But they did not dictate its overall structure, or its details. Those were for the Judge to decide, as a result of a cumulative series of assessments which it was for her to make; not for this court. I consider that the Judge is to be commended for having grappled with the details of the evidence and submissions, and for having distilled the essence of those materials into a judgment which deals economically and persuasively with what, the parties had agreed, were the significant issues. The tight structure of the judgment, and its succinctness, are signs that the Judge had carefully navigated the sea of evidence and analysed its essential components into a coherent whole.
THE JUDGMENT OF LORD JUSTICE DAVIS
We were told that, so far as is known, this was the first case directly relating to the treatment of CES which has come before the Court of Appeal. But that does not mean that it raises issues of principle of general application. In fact an appellate court, a court of law, often may need to be careful to avoid making generalised pronouncements on the obligations of doctors in medical situations. What is ordinarily required, in each case, is consideration of whether the responses and procedures actually undertaken in a given medical situation fall outwith the range of reasonable and logically justifiable responses and procedures, applying the Bolam/Bolitho principles, on the facts of the individual case.
The present grounds of appeal are directed at the judge’s primary findings of fact and her evaluation of the facts. Regrettably, they in my view fall foul of virtually all the warnings and prohibitions contained in the various recent authorities, as most recently summarised in Perry. The selected quotations and citations from the evidence and literature advanced in his most careful and thorough submissions by Mr Booth QC, for example, thus in turn were matched – more than matched – by the counter-quotations and citations in their no less careful and thorough submissions by Mr Antelme QC and Mr Hutton QC. In fact the overall impression conveyed to me, from the arguments, of island hopping in the whole sea of evidence caused me at stages also to wonder (changing the geographical allusion) if Mr Booth was sailing in the Pacific Ocean while Mr Antelme and Mr Hutton were sailing a parallel course in the Atlantic Ocean.
As I see it, the judge is to be commended for getting closely to grips with the totality of the evidence and in making, in her careful reserved judgment, a thoroughly rational and cogent appraisal of the evidence. The criticisms of her judgment in the Grounds of Appeal and supporting arguments demonstrably are not made out: indeed some of the criticisms in my view should never have been made in the first place (although in fairness Mr Booth himself, who had not appeared below, wisely moderated at least some of them). It rather troubled me that the appellant’s submissions at stages seemed to come close to advocating an approach in effect requiring a counsel of perfection, bordering on strict liability: a long way away from the yardstick of reasonableness.
I am, speaking for myself, most surprised, given the circumstances, that the claim against the GP was pursued at all. (I say this irrespective of the, in itself conclusive, causation finding of the judge, having regard to the evidence of Mr Langdon.) As to the claim against Trust 1, the judge’s findings both on liability and on causation, on her appraisal and evaluation of the evidence and which appraisal and evaluation were properly and reasonably open to her, are unassailable in the appellate court.