SIMON BARNETT v MEDWAY NHS FOUNDATION TRUST [2017] EWCA Civ 235; justified inability to make a finding of fact.

Co-editor of the 12KBW Clinical Negligence blog Rory Badenoch considers the recent Court of Appeal case of Barnett, one of the rare cases in which a judge’s inability to resolve an issue of fact had been justified (Stephens v Cannon [2005] EWCA Civ 222 and Verlander v Devon Waste Management [2007] EWCA Civ 835 applied). Also of note was the Court of Appeal’s criticism of the brevity of the judgment at first instance. This criticism was held to be of particular importance where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof.

Unsurprisingly the facts of this case were complex. The Court of appeal summarised them briefly as follows: the Claimant suffered from a rare congenital condition, hypophosphatasia. As a result he was prone to stress fractures that required surgical fixation. In March 2009 he underwent surgical revision, or nailing, of his left thigh.

On 6 October 2009, the Claimant was admitted to the Medway Maritime Hospital, Gillingham following a period of acute pain. On admission to the hospital it was noted that the complaint of pain was at the back of his left thigh. His account was that he complained of pain in both buttocks, but the judge found that this was an error and that he had not made that complaint in the hospital. He was given a seven-day course of antibiotics shortly after admission.

He was discharged home on 19 October. On 22 November, he was readmitted to the hospital as an emergency an MRI scan revealed that he had an abscess in his spine at the level of L5/S1. Further investigation revealed that he had an infarction of the lower thoracic spinal cord which, despite surgery, left him with paraplegia at the level of T7.

In very short summary, the Claimant’s case was that blood samples for culture should have been taken before he was administered antibiotics on admission to hospital. If such cultures had been taken, it is likely that infection with staphylococcus aureus would have been found. If so, a longer course of antibiotics would have been administered and his infection effectively treated, preventing the development of the abscess and the infarction of the spinal cord.

He should not have been discharged when he was. Discharge would only have been acceptable if accompanied by a detailed plan for close, frequent, follow-up and monitoring. Such monitoring would have meant discovery of the ongoing infection in sufficient time.

The Respondent’s case as summarised by the Court of Appeal was that even if blood cultures had been obtained on admission and before administration of antibiotics, it was not probable that any infection would have been detected. In such circumstances, it was proper to give antibiotics for seven days, and proper to discontinue them, given the signs and symptoms at the time. It was reasonable to ascribe the Appellant’s condition in October 2009 to the development of renewed stress fractures rather than to infection. It was reasonable to discharge the Appellant from hospital on 19 October. Given the course of events, if it had been the case that infection was found after that discharge, such later intervention would probably not have prevented the consequences. At the least, the Appellant was not in a position to prove such causation to the standard of probability.

The judge at first instance (HHJ Brian Forster QC, sitting as a Deputy High Court Judge) found that the Defendant had breached its duty in:

  1. Failing to obtain blood cultures before prescribing antibiotics;
  2. Failing to monitor inflammatory markers (white blood cell count and CRP) once antibiotics had been stopped.

Turning to causation in respect of the first breach and the question as to whether blood cultures would have disclosed infection Judge Forster QC concluded [para 71] that:

“…both microbiologists stated that the case is difficult and it is clear to me that this is an area of considerable uncertainty. I can find no evidential base to establish to the required standard. This is an unusual situation in which there is a lack of actual evidence to help with a determination of the conflicting opinions…I have not been able to make findings concerning the onset and progression of the infection to the relevant standard of proof

He went on at para 72 to state “I…find that the Claimant has not established on balance of probabilities where the infection was present or that blood cultures would have been positive”.

As regards the second breach and the question as to what would have been the effect of close monitoring following discharge from hospital, the learned judge held that he could find “no reasonable basis to suggest that there would have been any significant change in patient management before the 9th November”.

He also concluded that it had not been established on balance of probabilities that an MRI scan would have been performed or that monitoring would have led to such a scan of the spine.

Going on to consider “what would have been the effect of recommencing antibiotics on 9th November?” [paras 79-83] he again highlighted the difference in the microbiological evidence on this issue, repeating that “[e]ach expert considered this to be complex and difficult case”. He concluded “it has not been established to the required standard that the infarction would have been avoided if antibiotics had been recommenced on the 9th November”.

In his final summary of his conclusions, the learned Judge stated that:

“…the microbiologists expressed very different opinions as to when the spinal infection must have commenced and accordingly as to the latest date at which further antibiotic treatment would have prevented infarction.”

Thus, it had not been established on the balance of probabilities that the failures which were breaches of duty caused the consequences alleged. The judge re-emphasised his findings that “in many respects the treatment received and practices followed were poor” (paragraph 91), but that because of the difficulties of causation there was judgment for the Defendant.

For the purposes of this blog I am only going to consider the Court of Appeal’s decision in respect of the Claimant/Appellant’s first ground of appeal namely:

“The Judge erred in law and/or was wrong by making impermissible resort to the burden of proof. The Judge made no finding on either (a) the nature of any infection present at the time blood cultures were taken and (b) whether the culture would have picked up such an infection; despite the adduction at trial of evidence permitting him to do so and he failed to analyse the evidence.”

The Claimant/Appellant criticised the judge’s absence of analysis of the causation issue, relying on the principles laid down in Stephens v Cannon [2005] EWCA Civ 222, where in the course of his judgment Wilson J (as he then was) said [at 46]:

“…A court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so. The parties must be able to discern the court’s endeavour and to understand its reasons in order to be able to perceive why they have won and lost. An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation of being entitled to resort to the burden of proof.

Lord Justice Irwin, giving the leading judgment in the Court of Appeal commented [para 37] that one of the features of the present case was that the “judgment [was] so compressed that a review of the judge’s conclusions on causation cannot easily be conducted from the judgment”. In the circumstances the matter could “only properly be addressed from the transcript” which he proceeded to review at length.

He went on to state [para 40] that in his judgment “it would have been helpful had the Judge set the parameters for the complicated microbiological evidence in some way, so as to give a context for his consideration of the evidence of” the two experts.

Irwin LJ stated that there was force in the Appellant’s argument that as a result of the lack of analysis in the judgment he was left in doubt as to the judge’s reasoning. Whilst recognising that there is “great virtue in writing judgments concisely” Irwin LJ went on to criticise the judge at first instance in the following terms [at 54]:

“…parties do need to know sufficiently what led to the conclusions reached. In this instance, the judgment gave only the briefest explanation. The obligation is all the clearer in a case of such complexity, and in a case where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof, as the passage from paragraph 46 of Stephens v Cannon quoted above makes clear. The learned judge is to be commended for his brevity, but on this aspect of the case at least, it went too far.”

Notwithstanding this criticism, following his review of the transcript, Irwin LJ (with whom the other members of the Court of Appeal unanimously agreed) upheld the decision of the judge at first instance stating [para 55]:

“… Not only was the medicine particularly difficult, but the evidence of the two microbiology experts was expressed in difficult and shifting terms… Both experts shifted position. The evidence of both experts was somewhat rebarbative…Taken as a whole his evidence fell short of establishing probability…In my view this was indeed one of those rare cases where the judge was justified in his inability to resolve an issue of fact consistent with the approach laid down in Stephens v Cannon and Verlander v Devon Waste Management. I therefore would reject the appeal on Grounds 1 and 2 and the cross-appeal Ground 3.”

Fortunately the rambling and often impenetrable judgments of yesteryear have largely been consigned to the past. The modern judgment is often an exercise in concision and clarity which enables the parties, whether they agree with the decision or not, to see and to understand the reasoning of the judge in reaching that decision. It also has the happy effect of making the lawyer’s search for the ratio decidendi considerably easier.

However in Barnett, in light of the considerable complexity of the medicine involved and the difficult and shifting terms in which the expert evidence had been expressed, the judge at first instance whilst reaching a conclusion which the Court of Appeal both understood and upheld, had taken the modern approach to brevity too far. This was particularly significant in the circumstances in which he had found that the Claimant’s expert evidence fell short of establishing the probability of infection.

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