Willmott v The Rotherham NHS Foundation Trust [2017] EWCA Civ 181; Cement, shaking heads and arthritic knees

 

In this blog Tim Petts of 12 KBW considers the recent Court of Appeal case of Willmott where the judge at first instance was accused of bias.

It is always slightly unnerving to appear in front of a judge who says something to show that they have personal expertise in a topic, particularly when drawn from their own medical history.  Will the judge with a bad back be overly sympathetic to a fellow-sufferer, or take the view that the claimant is making a meal of things?  Will the judge be influenced by their own experience – good or bad – while undergoing treatment, or even perhaps use (even subconsciously) what they have been told by their treating doctors as extra-special expert evidence against which the parties’ experts’ opinions will be evaluated?

In Willmott, the main medical questions for the trial judge were: (a) did C have inflammatory arthritis in her left knee in 2008, when the defendant’s surgeon performed knee replacement surgery? and (b) was it negligent for the surgeon to use a cementless knee implant?  C had osteoarthritis at the time of the knee replacement and was diagnosed as having inflammatory arthritis in 2013, leading to the question of whether it had in fact been there in 2008 but missed.  If C had indeed had inflammatory arthritis, then a cementless knee replacement was more likely to fail. The experts had agreed that there was a body of surgeons who would use cementless implants because of their perceived benefits, even though they themselves were not convinced, so the choice of implant was acceptable on Bolam grounds.

The judge decided that (a) C did not have inflammatory arthritis in 2008 and (b) it was neither negligent to use a cementless knee replacement per se nor negligent in this particular case since C did not in fact have, and was reasonably not thought to have, inflammatory arthritis at the time of surgery.  These were conclusions based on an analysis of the factual and expert evidence that the Court of Appeal upheld, resulting the claim being dismissed.

What makes the case more interesting is the Court of Appeal’s discussion of C’s first ground of appeal, namely that the judge gave an appearance of bias or predetermination of the issues.  On day 1 of the trial, while the case was still being opened, the judge said that he had had a resurfacing procedure on his own knee and was very familiar with the science of knees.  That by itself would not be enough to lead to recusal, said the Court of Appeal, as long as the judge tried the case on the evidence, which he did.  His interventions then were directed to keeping the case focused on the issues that needed to be investigated, rather than on peripheral matters.  However, at one point the judge said that from his experience of treatment and reading on the topic, there was a lot of evidence that cementless implants could be more beneficial than cemented, albeit he conceded that this was “a big generalisation” and that if it became an issue he would hear from the experts about this.  While the Court of Appeal said that it would have been preferable for him simply to have asked C’s counsel where he was going in cross-examination, the allegation of bias was rejected: “He made it clear that he had an open mind on this issue in so far as it was relevant to the case at hand, and gave fair notice that if it was to be treated as a significant issue he would expect the experts on each side to provide him with more assistance on it.”

Later in the court of the surgeon’s evidence, the judge said that cementless implants appeared to be the future with hips and that therefore “it seems logical… that cementless will eventually be the future of knees”.  C’s expert was unimpressed with these views and shook his head to indicate his disagreement.  The judge in his turn was unimpressed with C’s expert’s behaviour, and the Court of Appeal agreed that he had been entitled to say that the expert should wait to express his views during his evidence rather than do so by a “pantomime” of shaking his head.  The expert later apologised and the judge accepted this.

After the surgeon’s evidence and before the experts were called, C applied for the judge to recuse himself because his background knowledge might lead him to decide the case otherwise than on the evidence in court and because of his criticism of the expert for shaking his head.  The application failed and the Court of Appeal agreed with him on this: “A judge is not precluded from hearing a case just because he knows more about the general area than another judge might do, so long as he makes sure that he genuinely tries the case on the evidence heard in the course of the trial and explains his reasons by reference to that evidence”.  And although the Court of Appeal thought that the judge had perhaps spent too long talking about his knees with C’s expert, and asked a lot of questions, he was simply making sure that he understood the expert’s stance – and indeed he asked detailed questions of D’s expert in the same way, showing an even-handed approach.

The Court of Appeal, however, said that the trial judge was “unwise” to have referred “so extensively” to his knee treatment and background knowledge, since it gave rise to a concern that he would base his decision otherwise than on the evidence in the case.  On a proper analysis, though, the judge had not overstepped the mark during the trial or in his judgment, and there was no unfairness.

So judges need to be circumspect about revealing their background knowledge of issues affecting a case; judges need to ensure that they not only say that they will confine their judgment to the evidence in a case but must do so as well; and witnesses must remember that while the judge has the best seat in the house, it is a trial not a pantomime and they must behave accordingly.

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