No B2/2000/5979

Neutral Citation Number: [2001] EWCA Civ 325
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL 
APPLICATION FOR PERMISSION TO RELY 
ON FURTHER EVIDENCE
								Royal Courts of Justice
								Strand
								London WC2

							Thursday, 22nd February 2000
B e f o r e:

LORD JUSTICE BROOKE

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JULIA O'BRIEN

- v -

CAMDEN & ISLINGTON HEALTH AUTHORITY

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE BROOKE: In this matter Miss O'Brien seeks permission to appeal against the order of His Honour Judge Mackay, sitting as a High Court judge, on 10th March 2000 when he ordered judgment to be entered for the defendants, the Camden and Islington Health Authority, in a medical negligence action brought against the authority by Miss O'Brien.
2.	The history of the matter goes right back to 28th November 1991. Miss O'Brien was a very busy solicitor conducting a practice almost exclusively involved in defence work in the criminal courts. She had an unpleasant accident when she was standing on the back of a large settee arranging the top of some shelving when she fell into a gap between the settee and the shelves. She sustained a Colles fracture of her left wrist. She was taken by ambulance to University College Hospital. The wrist was manipulated three times and x-rays were taken on each occasion, both before and after the manipulation.
3.	I do not think that I need to go into the subsequent history except to say that it was extremely unhappy. The hospital lost the notes. Miss O'Brien was clearly at times in great pain and great distress. What one can only describe as a disgraceful letter from a locum consultant orthopaedic surgeon was written to the Consultant in Rehabilitation at the Royal National Orthopaedic Hospital on 12th March 1992 in these terms:
“I would be grateful if you would see this woman who calls herself a solicitor and who fell in late November 1991 sustaining a left Colles fracture. It was manipulated under a haematoma block but the position was not satisfactory and we advised re-manipulation and an external fixator. She refused (with a good deal of histrionics) and the position was never really improved.”
4.	The letter continued in an unsympathtic vein. The writer said a ittle later:
“The hand now looks almost neuropathic and the wrist is fixed in flexion. There is also some wasting of the small muscles. Her x-rays show a little patchy osteoporosis and I suspect that this is a Reflex Sympathetic Dystrophy, although not entirely typical.
.....
The main problem at the moment is her rehabilitation ..... “
5.	She then underwent a good deal of treatment for the disease called reflex sympathetic dystrophy.
6.	In due course she issued proceedings against the health authority. She settled her own statement of claim which ran to 16 manuscript pages dated 31st March 1995. The defence was served (and never amended up to the day the trial started) on 18th April 1995. Paragraph 3 contained an admission and averment that the fracture was reduced under local anaesthetic. Paragraph 4 reads:
“It is admitted and averred that -
	(i) the plaintiff attended the fracture clinic at the hospital the 	following morning, as instructed;
	(ii) the plaintiff fainted in the reception area and was admitted 	to the hospital;
	(iii) the plaintiff refused further intervention to her fracture, for 	example, by means of external fixation.”
7.	A broad brush defence of negligence was raised, followed and surrounded by a number of non-admissions.
8.	The case took a long time to prepare for trial and from time to time expert witnesses were consulted. In particular, Mr Winspur, who is a consultant hand surgeon, was first instructed by the defendants in April 1999. Mr Kemp, who is a consultant orthopaedic surgeon and an expert in the field of orthopaedics and traumatology, wrote a report for them on 8th July 1999. By this stage the Woolf reforms had come into effect. In the old days one would have expected two medical witnesses of this expertise to be permitted in a complex medical negligence case like this. The plaintiff's advisers, however, took a very strong line and obtained orders in the days soon after the Woolf reforms came in which required the defendants to excise all areas of duplication between the two reports or, in default, to elect on which report they wished to rely. Because the defendants did not comply with that order a follow up application was made seeking an order, if necessary, to debar the defendants from defending altogether. On 26th November 1999, after hearing counsel on both sides, Master Rose ordered -
“That the defendant do by the 3rd December 1999 by notice in writing elect whom of Mr Kemp and Mr Winspur it proposes to call.”
9.	As a result of this rather aggressive behaviour by the claimant's advisers who had the conduct of this action, the defendants decided to elect to call only Mr Winspur. There is with the papers a final report of Mr Winspur, dated 17th January 2000, in which he sets out the history of the matter. He refers to Miss O'Brien's current complaints, including -
“1 A strange fixed habitus of her left hand and wrist, with inability to properly position or use the hand.
2 Flexion deformity of the wrist.
3 A constant aching in the hand.”
10.	After setting out what he found on examination Mr Winspur said that he had reviewed the x-rays which he detailed - 
“and they confirm a slightly comminuted but otherwise typical Colles fracture with an associated small fracture of the ulnar styloid ..... The original alignment of the fracture was unsatisfactory and closed manipulation was quite clearly indicated. The first and second reductions did not produce complete reduction although the position was not too unsatisfactory. The third manipulation produced excellent reduction with excellent positioning of the fragments. The volar fracture is well reduced. The subsequent follow-up x-rays taken confirm that the fractures have stayed in reasonable alignment, and that bony healing was taking place. X-rays taken at Mr Rupert Eckersley's 5 years later show the fracture to have collapsed and shortened slightly, and to have angled dorsally. The overall position, however, is fair and does not explain her current symptoms. Mr Eckersley himself stated `the alignment appears reasonable.'“
11.	Mr Winspur then set out the summary of the clinical situation and said how in due course Miss O'Brien developed the disabling condition of reflex sympathetic dystrophy and -
“has been left with significant residual functional difficulties in her left hand, particularly digital stiffness and also a fixed flexion deformity of her wrist. The digital stiffness is attributable to the RSD, the fixed flexion deformity is not attributable to the slight malpositioning of the healed Colles fracture.”
12.	He explained what in his opinion was the cause of the flexion deformity in the wrist. It appeared to be due to -
“soft tissue shortening of the flexor muscles and tendons, and not the bony malpositioning of the distal radius or ulna. This would be confirmed by the fact that the radius feels in good alignment to palpation and that there is painless passive movement present without crepitus in both the distal radio-ulnar and the radio-carpal joints.”
13.	In dealing with the frequency of multiple manipulation in the early handling of Colles fractures, Mr Winspur said:
“Often Colles fractures require several attempts at manipulation primarily to obtain adequate reduction. The fractures also can displace, and require re-manipulation during the early healing period. It is therefore not unusual for two to three attempts at manipulation to be required in the casualty department or in subsequent follow-up in the orthopaedic clinic.
A `satisfactory reduction' has been achieved in Casualty.”
14.	He went on to say -
“ ..... the only absolute measure of reduction is an anatomical reduction which is seldom achieved in Colles fractures. `Satisfactory' is a relative evaluation and it takes a specialist with extensive clinical experience to pronounce a fracture acceptable or unacceptable. Additionally, the fracture many times can move in the first week or so between manipulations.”
15.	That was his professional opinion as a hand surgeon. He was describing the nature of certain Colles fractures and the problems that might be encountered in the early treatment of them.
16.	Mr Winspur met the claimant's expert, Dr Hashemi, at a joint conference about a fortnight later on 30th January 2000. Dr Hashemi had seen Mr Winspur's report and knew the points that Mr Winspur was making, and Mr Winspur was now the only expert witness in these matters to be called on behalf of the defendants following the success the claimant's legal advisers had had in shutting out Mr Kemp's evidence.
17.	In my judgment it was lamentable that the defendants did not amend their defence in order to set out with crystal clarity what their defence now was, based on Mr Winspur's evidence. It came about that they arrived at trial with a defence in the form it had been in for the last five years, in essence, simply referring to what appeared to be a single reduction of the fracture under local anaesthetic and an averment that the claimant had only herself to blame for the condition she was in because she had refused further intervention. That was the defence on the face of the pleadings.
18.	It is quite clear to me that Miss Jacqueline Perry, instructed by Beachcroft Wansbroughs, Miss O'Brien's solicitors, knew quite well what was the case her client had to meet at the trial, because when she opened the case to the judge she identified three issues: one on liability, one on causation and one on quantum. So far as liability is concerned, she said:
“MISS PERRY: ..... in very short term the three areas your Lordship will be dealing with are liability - was the fracture manipulated reasonably and satisfactorily, and my Lord it is the usual Bolam test.
JUDGE MACKAY: And they say yes.
MISS PERRY: They say yes, we say no.
JUDGE MACKAY: Right.”
19.	Counsel went on to deal with the issue of causation. It is clear that however much the defendants' legal advisers may have failed in their professional duty in not identifying the issues on the pleadings correctly and on leaving on the pleadings the hurtful allegation - which they did not begin to seek to defend at the hearing - that the claimant was responsible for her own misfortune, the lawyers who were handling the case on Miss O'Brien's behalf and her expert witness Mr Hashemi knew from a comfortable time before the hearing started that this was going to be the main line of the defence.
20.	Miss O'Brien has bespoken the transcript of the discussion between the judge and counsel on both sides on the first day of the trial. Counsel said at page 29:
“ ..... the defendant's case is squarely on the objective question as to whether or not the position of the fracture was acceptable on 29th November and thereafter.”
21.	The judge a little later said:
“The defendant says that further treatment was considered and it was decided that further treatment should not be instituted and that decision was perfectly reasonable.”
22.	It appears to be that this was a guess which the defendants were making because they had no direct evidential material that such a decision had been made, and they had lost the notes relating to this matter which was now more than eight years old. The judge pressed the defendants' counsel about the need to amend his pleadings. Counsel said at one stage:
“My Lord, in relation to the pleadings, rightly or wrongly I think both parties have regarded the pleadings as having been rather superseded by events.”
23.	The judge then pressed him and said:
“JUDGE MACKAY: ..... In respect of the defendants, who are after all a public body instructing experienced solicitors and counsel, you expect to see what the defence is because if the defence isn't available on the pleaded case it is not likely to become available as the result of a judgment. Do you see what I mean?
MR McCULLOUGH: I take your Lordship's point and what I say in relation to that is that the claimant has been in no doubt since receiving Mr Winspur's report of the defendants' position; that the fracture position was satisfactory. Indeed they knew of it at a much earlier stage than that when they received a report from another expert.”
24.	This expert was identified as Mr Kemp. The judge asked if he could have a copy of his report and Mr McCullough said:
“I would be happy to give your Lordship one but I'm sure Miss Perry would object.”
25.	No doubt, Mr McCullough had in mind the claimant's objections, which had been pressed at considerable expense, to cut the defendants out from having more than one expert.
26.	Mr Kemp had said in his report dated 8th July 1999 (at pages 11 and 12), after referring to the statement of claim and the particulars of negligence and so on:
“Further, I have read the statement by the plaintiff's medical advisors. Mr Hashimi suggests that the initial management and the reduction of the fracture was unacceptable. This is difficult to comprehend in that he gives no reasons to support his contention. As I have already indicated, having reviewed the radiographs, I would have to disagree with him. I considered that the position of the reduction to be adequate initially and acceptable ultimately when union had occurred. To reiterate, any imperfection in the position is irrelevant to her present symptomatology and would not have given rise to any significant disability beyond that she would have had in any event.”
27.	That, no doubt, is what counsel had in mind when he referred to Mr Kemp's report.
28.	The judge heard the evidence. He gave a judgment on liability on 10th March. After setting out the history of the pleadings, the judge said that at the centre of the pleading of the case was whether the third manipulation had left the wrist in a satisfactory state in the light of what was seen in x-rays over the following months. He described how Mr McCullough took Dr Hashemi through all the x-rays. The judge was sitting in the body of the hall between them and could see what Mr Hashemi was pointing out:
“Mr Hashemi agreed that there was perfect anatomical reduction in the affected joint in the x-rays after the third manipulation, and the only issue was the reduction in length of the radius which was on the x-ray available to the doctors after the third manipulation, about a millimetre long. It was put to him that this was insignificant; he disagreed. What he did not disagree with was that the x-rays on the 5th December and after the 5th December, and the x-ray of the 12th December in particular, demonstrated that the good anatomical reduction was maintained and that the 1 mm reduction had disappeared completely, and a week later, on the 19th December 1991, the x-ray showed less than half a millimetre shortening, and these differences in precise amounts are not to be the subject of any surprise because they can happen in any x-ray, which is itself 1.15 times the size of the digit being x-rayed.”
29.	The judge continued:
“Mr Hashemi said, with regard to the x-ray of the 19th December 1991: `If this was the x-ray after the third manipulation I would be happy'. He said when I asked him, a few minutes later, had he been there at the time and he had been arguing for further manipulation after the third manipulation”
(in other words, after 29th November)
“and somebody else had been saying, `No, we don't need it', if he had won and they had had the manipulation”
(in other words, a fourth one)
“and they had the x-rays of the 19th December and the 12th December, would he have been happy, he said, yes, of course he would have been, and if the other person had won and there had been no manipulation then he would have been happy just the same.
So it seems clear to me, and that clarity was not taken away when Mr Winspur gave evidence, whose evidence I accept entirely. that there was plainly no negligence.”
30.	In other words, although the notes had disappeared in relation to the treatment the x-rays had not, and the x-rays showed week by week what the situation was with this wrist and how - given that Mr Winspur said in his report that sometimes things go wrong within ten days or so after manipulation- the wrist was kept under radiological examination.
31.	Both experts, before the judge and at trial, were agreed that the final state on 19th December was as good as could be reasonably expected. Accordingly, given the fact that both experts were speaking with one voice, there was nothing the judge had to determine between them because they both said that the third manipulation had been carried out in such a way that it produced as good a result as could be reasonably expected and there was no breach of a duty of care.
32.	On this application - where Miss O'Brien has brought the papers together admirably and addressed me with great moderation and clarity which, considering everything she has suffered since 1991, is something very much to be commended - she has concentrated on what Mr McCullough said to the judge when the judge was pressing him to make an amendment. She says that Mr McCullough misled the judge in his reference to what Mr Kemp was saying. In this context she refers me to an earlier part of Mr Kemp's evidence in which he says:
“There is a slight deformity of the wrist, in that the head of the ulna, the ulna styloid and the radial head are rather more prominent than the opposite side. All these findings can be attributed to the callus formation as a sequel to the Colles fracture that was slightly impacted in terms of the radial element.”
33.	She says that there is a visible downward slope from the head of her ulna to the head of her radius. This part of Mr Kemp's evidence was there and was not drawn to the judge's attention, and she says that Mr McCullough was misleading the judge when he referred to Mr Kemp's evidence.
34.	She referred to the recent decision of this court in Hamilton v Fayed when the Court of Appeal refused to give permission to admit new evidence. She says that this is an entirely different situation where she should be granted permission to argue before the full court that the judge had been misled by counsel, and that if the judge had not been misled by counsel the application for permission to amend the defence would never have been granted and she would inevitably have won the case on the original pleadings. 
35.	The difficulty with this argument is that it was the aggressive stance of her lawyers in 1999 which shut out Mr Kemp's evidence. If her lawyers had not pressed and pressed the court to limit the evidence to be given by the defendants then Mr Kemp's evidence would have been before the court and the judge would have read it at the time he read the papers, which he clearly did before the case was opened. It is quite clear to me that Miss Perry was fully aware of what the issue on liability was, long before there was any question of amendment of the defence. She told the judge what the issue was. She understood it and her witness understood it. Her expert witness had prepared a joint statement with the witness on the other side in wich it was identified as the issue. If the fracture was indeed manipulated with reasonable care and received a reasonably satisfactory result then there was no other allegation of negligence on which counsel relied. She was being advised by Dr Hashemi at that stage before he was cross-examined and taken carefully through all the x-rays (not only the x-rays of 29th November but also the x-rays over the next three weeks). His professional advice was that there was evidence of negligence on which Miss O'Brien could rely.
36.	In my judgment, even if the full court were to see Mr Kemp's full report they would not be persuaded - and it is not reasonably arguable that they would be persuaded - that the judge was wrong in the exercise of his discretion in permitting the amendment.
37.	Counsel for Miss O'Brien made no point at all on the pleadings when she opened the case. It was the judge who took the point, not counsel. Counsel knew what was the issue she had to meet and she identified it to the judge when the case started. I have the greatest possible sympathy for Miss O'Brien, as any one would have if they read these papers. Furthermire, the conduct of this case by the locum consultant at UCH in March 1992, and also the conduct of the defence by the hospital's lawyer's in leaving this hurtful allegation on the pleadings for five years up to the day of trial, although they did not seek to adduce any evidence to support it, was not what one would expect from lawyers acting for a reputable public health authority. I can, however, see no possible means by which Miss O'Brien, in the light of the unanimous evidence of the experts in relation to the success of the third manipulation, might persuade this court to afford her a new trial on issues of liability. Whether to permit the amendment or not was a matter for the discretion of the trial judge. This court has said, and it is set out in G v G by the House of Lords, that an appellate court will only interfere with a decision taken in the exercise of his discretion by a judge in the lower court if it is clearly wrong or if he has misdirected himself as to the legal principles to be applied.
38.	In my judgment there is no real prospect of succeeding in persuading the full court that the way Judge Mackay exercised his discretion was clearly wrong, or, that even if he had been permitted to see Mr Kemp's full report (and Miss O'Brien's lawyers succeeded in 1999 in stopping him from seeing it), it would have made any difference to the way he exercised his discretion. Mr Kemp was an orthopaedic surgeon and Mr Winspur was a hand surgeon. There is no suggestion in Mr Kemp's report that the features on which he commented on examination made any difference to his ultimate professional opinion. I am sorry that I cannot assist Miss O'Brien because she has been, in my judgment, very badly treated. But given the unanimous view of the experts, including her own expert, about the success of the third manipulation which took place on 29th November, this must be the end of the road.
39.	On 5th May 2000 the solicitors acting for the hospital wrote to solicitors acting for Miss O'Brien:
“We write to confirm, on behalf of the Health Authority, the apology made in Court in respect of the inaccurate notes concerning Julia O'Brien's refusal of treatment. The Authority apologises for any distress to your client caused as a result of these inaccuracies or by the attitude of any of the treating clinicians.”
40.	The authority's conduct in leaving the damaging allegation on the pleadings up to the day of the trial was, in my judgment, equally deserving of apology.
41.	For these reasons this application is dismissed.
Order: Application dismissed