Gow v Harker [2003] EWCA Civ 1160

Case No B3/2002/2508 CCRTF[2003] EWCA Civ 1160
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
Judge Overend
Venue Royal Courts of JusticeDate 31 st July 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE BROOKELORD JUSTICE WALLERMR JUSTICE HOLMAN
Between
NINA NAICKER GOWClaimant/Dr ROSEMARY HARKERDefendant/Appellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Kate Gollop (instructed by the Solicitor for Medical Protection Society) for the AppellantJane Mishcon (instructed by Preston Goldburn) for Respondent
JudgmentAs Approved by the Court

Crown Copyright ©

[1]Introductory This is an appeal by the defendant Dr Rosemary Harker, who formerly practised as a general practitioner in Penzance, from an order made by Judge Overend on 13th November 2002 at the end of a two-day trial at the Exeter County Court whereby he directed that judgment should be entered for the claimant Nina Naicker Gow on a preliminary issue as to liability in this clinical negligence action. In short, the judge found that Dr Harker adopted an unacceptable technique when she extracted blood from Miss Gow in the course of a routine blood test on 2nd June 1995, and that because she inserted a needle into her patient’s wrist at too steep an angle, she thereby pierced her wrist and its underlying structures.[2]A trial on liability but not causation: the difficulties This is a worrying case. The incident in Dr Harker’s surgery occurred eight years ago. Miss Gow contends that she has suffered radial nerve damage as a result of what happened. Proceedings were commenced three years later, and the parties’ expert witnesses on liability, Professor Grob and Dr Hicks, prepared their reports in 1999. For reasons which were not explored before us, the trial before Judge Overend did not begin until November 2002, and even then it was limited to issues of liability. Issues of causation were deliberately not included in the directions for trial.[3]As things turned out the judge did not realise until the evidence was nearly complete that the defendant did not accept that any damage had been caused to the radial nerve at all. His immediate reaction to this news, in which he then persisted during a long exchange with counsel, was that it was quite inappropriate for him to try issues of liability without also trying issues of causation. This attitude is clear from the following passages in the transcript:
“I am getting rather concerned about this because it seems to me that it may well be relevant to know whether or not there was a radial nerve injury on the issue as to what actually happened … The question as to whether the nerve was damaged I understood to be the subject of agreement, and if the position is that it is not, then I do not think it is appropriate to deal with this preliminary issue unless it is heard at the same time as the question of the causation. I am minded to adjourn the matter so that the question of causation can be dealt with at the same time … in the near future. I do not think justice will be served unless [causation] is addressed at the same time as the question of breach of duty.”
[4]Miss Mishcon, who had only recently been instructed on the claimant’s side, was inclined to agree with the judge once she realised that the defendant was contending that no damage to the radial nerve had in fact occurred. It was Miss Gollop, who had represented the defendant ever since she settled the defence in the action, and who alone knew directly of certain problems relating to the causation issue, who pressed and pressed the judge to complete the trial on liability on which he had embarked.[5]Her reasons were threefold. First, there were five expert witnesses on causation, an issue which would clearly be costly to try. She said that there was no objective evidence of nerve damage, and that all the nerve conduction studies had been normal, so that the claimant’s case on causation was based on a diagnosis which depended wholly on whether what she told doctors from time to time was true. All the defendant was willing to accept was that the claimant had reported pain “to all sorts of people at all sorts of times”, and that the first record of symptoms of pain made by a doctor was dated 5th June 1995, three days after the blood sample was taken at the surgery.[6]Miss Gollop’s second reason was that if the claimant was not going to rely on the proposition of law that the matter spoke for itself, the question whether damage had in fact been caused to the nerve was less important. The judge had to determine as a fact the angle at which the needle was inserted, “… and you have to say who you think are reliable witnesses. You have got two witnesses … …You are … going to come back to the question as to whose evidence about what happened on 2nd June 1995 you accept, and I do not think the fact that symptoms, some of which are consistent with a radial nerve [injury], have been reported since the 2nd or alternatively the 5th of June 1995, are going to assist with the issue of breach of duty.”[7]Miss Gollop’s third reason was that her client had been so distressed by the allegation which had been made against her that she initially gave up taking blood samples and then gave up practising as a doctor altogether. She told the judge:
“…[M]y concern is that if we put this off to another day for causation to be dealt with Dr Harker is going to have to give evidence all over again, and you have seen the effect that that has had on her career and on her personally, and I am very, very unhappy about the thought of that having to be done.”
[8]After listening to these submissions, the judge acceded to Miss Mishcon’s request that counsel should discuss the matter for a few minutes. When they returned, they invited the judge to proceed “on the basis that some of the symptoms of which the claimant complains are consistent with a radial nerve injury”.[9]After considering this suggestion the judge said that he thought it probably met the problem, and he agreed to continue the trial on this basis. With the benefit of hindsight it would obviously have been better if he had not allowed himself to be deflected from the course he originally proposed to take. Our present task is rendered the more invidious because it was the defendant’s own counsel who encouraged the judge to continue without the benefit of all the insights into the claimant’s character that the trial on causation might have afforded him. After the judge accepted this invitation and decided that he believed the claimant, she is now asking us to reverse his decision on fact without the benefit of seeing any of the witnesses in the witness-box.[10]I have said that this is a worrying case. It is also a very strange case, because Miss Gow’s account of what happened in Dr Harker’s surgery that day was inherently improbable. I will therefore structure this judgment by describing first the evidence that was before the judge on the salient issues and his findings (such as they were) on that evidence, before going on to set out my conclusions on this appeal.[3]Miss Gow’s evidence and the contemporary notes[11]Miss Gow was just over 30 years of age when she visited Dr Harker’s surgery on Friday 2nd June 1995 to give a blood sample for a routine blood test. At the age of 11 she had been diagnosed as having a thyroid condition which necessitated her having her blood regularly tested. Miss Gow gave the judge a graphic account of what happened on this occasion. (Dr Harker, for her part, had virtually no memory of Miss Gow’s attendance and had only made a brief note in her GP’s notes, so that she was largely dependent on telling the judge about her regular practice when taking blood tests.)[12]It was common ground that Dr Harker experienced difficulty in obtaining blood from either of her preferred sites (on the inside of each of Miss Gow’s elbows). It was also common ground that Dr Harker inserted the needle on each of these occasions in a normal, low angle parallel with the skin. Having failed to extract blood at either site Dr Harker set about taking blood from what is called the houseman’s vein on Miss Gow’s right wrist. This vein runs along the top of the forearm on the side nearest the body and into the hand. She succeeded in extracting a sample of blood which was then sent off for analysis. Dr Harker’s note reads:
“2.6.95 A[Attendance]. 114/80. Sweats easily. TFT/S [Thyroid function test] - to ring for results. Urine.”
[13]Miss Gow said that she had held her arm and her hand out from her body at a 40º angle in a sitting position, with the doctor standing in front of her to take the blood sample. The doctor then inserted the needle at an angle of 90º or so to the skin. Miss Gow felt as if it was being inserted with some force, and she said she immediately felt a severe pain in her fingers and hand. She cried out with the pain, slumped forward in a cold sweat from her sitting position, and almost blacked out, while Dr Harker jumped back and let go the syringe she had been using.[14]Miss Gow said she saw the needle and syringe sticking out from her wrist at an angle “like a dart stuck in a dartboard”. Dr Harker then came back and pulled the needle out. Miss Gow said that at the moment the needle went into her wrist she immediately saw a small amount of blood in the container, and that it was subsequently found to have about a millilitre of blood in it. Miss Gow told Dr Harker that she was faint and nauseous and in pain. The doctor loosened the tourniquet and then told her to go and sit with her head between her knees in reception, which she did for a short time before going home.

The judge asked her at the end of her evidence:

“Well, they are saying you are inventing all this stuff.”
She replied:
“I am not inventing it.”
[15]Miss Gow said she suffered intense pain over the weekend. She complained of numbness in the first and second fingers of her right hand, and she could not move her right arm. On the Monday she went back to the surgery. She knew that Dr Harker was off-duty then, but she happened to meet her on the stairs. She asked her what had happened to her right wrist, and what had she done, but Dr Harker did not answer. Instead she turned bright red and walked away into the reception area. Miss Gow did not understand this reaction from such a caring person who had been her doctor for so long.[16]She then went in and saw Dr Senior. Although he looked at her hand, Miss Gow would not let him touch her. She said that all her fingers had swollen up, the back of her hand between her first and second finger was also visibly swollen, and she could not turn or bend her wrist. According to her account, Dr Senior said that there was a form of inflammation or infection, and he gave her some painkillers. He mentioned the possibility that the needle might have gone through a nerve and into the bone in the wrist and might have damaged it. He told her to come back in a few days after she had taken the tablets. Dr Senior’s contemporary note, however, reads:
“Complains of pain in right lateral wrist and thumb and index since blood taken 2nd June ’95. Appears exquisitely tender and does not move wrist/fingers. No swelling or inflammation. Not radial cutaneous nerve distribution. More median, but unlikely damaged, I guess … query see again.” (Emphasis added)
[17]Dr Senior said in a witness statement that he had no personal recollection of this consultation. He added that the records showed that Miss Gow returned on 13th June when she saw one of his partners, Dr Armstrong, whom she has consulted subsequently. Dr Armstrong, for his part, said in a witness statement that the allegations being made against Dr Harker surprised him since they were sharply at variance with what Miss Gow had told him shortly after the incident. At that time she felt that Dr Harker had done nothing wrong and she did not wish to pursue any personal case for negligence. Miss Gow explained this by saying that her mother wanted her to see a solicitor, but that all she wanted was the use of her hand and arm back. Dr Harker, for her part, said that she was first aware that something amiss had happened when she returned from a three-month sabbatical. That Friday had been the last day on which she saw patients before going on leave, although she was on holiday at home during the following week.[4]Dr Harker’s evidence[18]Dr Harker told the judge that she had qualified as a doctor in Capetown in 1972. She came to this country in 1975. She joined the GPs’ practice in Penzance in 1984 and became a partner in 1987. Although Miss Gow had registered as her patient in 1988, she did not see her at all between September 1992 and June 1995, and she had only taken blood from her once before.[19]She said that she had had plenty of experience of venepunctures. At one time she worked as an anaesthetist for 15 months, and she was then probably performing about ten venepunctures a day. At the material time she was performing about 20 venepunctures a week for her patients. She had never experienced any problems before. When she heard there was a claim against her she lost confidence in taking blood from patients and referred them to the practice nurse. She resigned from the practice altogether and gave up doctoring when she heard in 2001 that this claim was coming to court. She said she could not cope with someone feeling that she had been negligent.[20]In her statement Dr Harker described her normal practice when taking blood from the houseman’s vein. After applying a tourniquet she would have looked for the vein, and then used an alcohol swab to wipe down the arm. She would have positioned the patient’s arm away from her body and supported her right wrist with her left hand while operating the needle with her right hand. She would have inserted a needle carefully into the patient’s arm at a very shallow angle, almost parallel to the wrist. She knew that it was not possible to take blood if the needle is inserted at what she described as an acute angle, and she had never inserted a needle at such an angle. She said she always put the needle in horizontally. She could not do it any other way. There was no question that the needle was inserted too far on this occasion. The vein is a superficial organ, and she was able to see it.[21]The judge found as a fact that she had been using a syringe. Her evidence was that in that case she would have loosened or removed the tourniquet after taking the blood. She would not have removed the tip of the needle with a tourniquet still in place. She would then have placed cotton wool on the puncture site and finally put on a plaster. At the hearing of the appeal two particular questions and answers were drawn to our attention: “Do you accept that the moment the needle goes into the vein that blood will actually flow into the syringe when you are in the vein? You do see blood, yes.” (in cross-examination) “How do you get blood out of the vein and into the syringe? You have to pull on the plunger to get the blood out.” (In re-examination). In my opinion these two answers must be read together.

You do see blood, yes.” (in cross-examination)

[22]She remembered that Miss Gow was sweating somewhat, and Miss Gow told her that she sweated easily, thereby implying that it was a normal reaction for her. She felt sure that her patient was all right, but she may have advised her to sit down in reception for a few minutes before going home if she felt faint. She told her she could ring for the result of her blood test, and she made a note that she should have a urine test on her next visit. She had no recollection of any untoward incident occurring. If it had, she would have made a proper record of it in the medical notes.[23]In particular she had no recollection of Miss Gow crying out or expressing any pain or disquiet when the needle was inserted. Nor did she recollect jumping back and leaving the needle in place. This is something she had never done when taking blood from a patient. It was not true that only a small amount of blood flowed into the syringe. In her witness statement, which stood as her evidence-in-chief, she said that a full blood sample was taken, and the thyroid function tests were successfully performed. (Dr Hicks said the amount of blood required for a thyroid function test would normally be between 3 and 5 millilitres: this evidence was not challenged). If the needle had gone into a nerve rather than the vein Dr Harker said she would not have been able to extract any blood at all. She had no recollection of Miss Gow telling her that she felt faint or nauseated or in a cold sweat.[24]She accepted that it was possible that she had come into the surgery briefly on the following Monday morning after taking her children to school, but she had no recollection of seeing Miss Gow then. (The judge made no finding on this point).[5]Dr Harker’s technique[25]Dr Harker demonstrated in court what she said was her invariable technique when drawing blood from a patient’s forearm. Both the experts, Professor Grob and Dr Hicks, told the judge that her technique was completely standard. Professor Grob’s only reservation was that at one stage she would leave her patient’s hand unsupported as she drew the blood by operating the plunger of the syringe. Dr Hicks, on the other hand, said that it was not common practice to have the patient’s forearm resting on something as blood was taken. He added that he had never encountered any difficulty in getting the needle parallel to the skin at this point.[26]Professor Grob went on to tell the judge that the description Miss Gow had given of the doctor plunging the needle in at a 90º angle was totally outwith any kind of recognised medical procedure. He thought it was possible that if a patient was sitting down and looking downwards at the puncture site it might be quite difficult for her to judge the exact angle of insertion, particularly if she was suffering from slight shock at the time.[6]The correct angle of approach: the expert evidence[27]Professor Grob told the judge that the shallower the angle of approach the less likely it was that the needle would go through the back of the vein. A 10º-15º approach was usual, and anything over 25º would be unacceptable. If the angle was greater than 25º and the doctor continued to advance the needle, she would hit things which were deep to the vein, one of which would be the radial nerve. With a shallow angle approach it was very unlikely that the radial nerve would be hit. The converse was also true. This was why the angle of insertion was the key issue.[28]Dr Hicks gave evidence to similar effect. He added, however, that it was easier in many ways to approach the vein at this site from a very shallow angle because the site was in the forearm, as opposed to the elbow, where a doctor tended to have to go in slightly deeper. As the vein approaches the wrist, it is literally just under the skin and the doctor’s aim is to get the needle as close to horizontal as possible. The less she manages to achieve this, the harder it is to draw blood.[29]In a joint statement the experts agreed that if the venepuncture needle was inserted at an acceptable angle it would be possible for a doctor to damage the radial nerve without being negligent. They also agreed, on the basis of their personal experience and the fact that they could find no recorded reports of such an event in the literature, that the likelihood of this happening was very rare indeed. In his evidence at the trial Professor Grob said that such a non-negligent injury was possible, although he thought it very improbable. Dr Hicks said that there were lots of reasons why it was an extremely unusual injury. This vein was much less commonly used for taking blood, and it was a very small one. The upshot of both these witnesses’ evidence was that non-negligent injury of the radial nerve was possible, although there were virtually no references to such an injury in the literature.[7]The dispute abut the venepuncture site[30]Two months before the date fixed for trial, Dr Harker served a supplemental statement in an effort to clarify the location of the venepuncture site. She produced a photograph of a hand and forearm in which she marked the site with a cross. This site was above the wrist at the top of what Dr Harker described as the “wrist watch line”. She said that the venepuncture at this site was immediately successful, with blood being obtained straightaway and without difficulty.[31]Miss Gow served a statement in response in which she joined issue with this evidence. She drew a cross on Dr Harker’s diagram which was much closer to the base of the thumb just before it meets the wrist. Dr Hicks considered that the two sites were about 3-4 centimetres apart. Miss Gow also produced three new photographs which showed reconstructions of the angle of the needle and the point of entry. These showed a knitting needle pointing at the site identified by Miss Gow at an angle of about 90º.[32]This dispute about the point of entry continued at the trial. I will describe the rival sites as Miss Gow’s site and Dr Harker’s site. When Dr Harker described her technique to the judge she said that this was the normal way in which she took blood, and she had taken blood from the houseman’s vein a reasonable number of times. She said it was not difficult to insert the needle horizontally, and there was no reason why she should have done anything different to her normal practice.[33]Professor Grob showed the judge two photographs of what is known as the anatomical snuff box from a text-book on surface anatomy. He said that the credibility of Miss Gow’s evidence about the needle sticking out like a dart really depended on the thickness of the subcutaneous tissue on her wrist, which would be thicker than usual if she was overweight. He described how at Miss Gow’s site there would be skin over the top, then the vein, then the radial nerve underneath, with the bone below. There might be a varying amount of fat in between. It was possible that the needle went through as far as the bone. He could certainly conceive the needle sticking out of the wrist like a dart. He thought that Miss Gow’s evidence that the needle was inserted at her site was reasonable: the doctor would go for the most prominent part of the vein.[34]In his report, which Professor Grob described as erudite and comprehensive, Dr Hicks explained that the radial nerve represented the largest branch of the brachial plexus. It supplied both muscle and sensory branches to the skin and numerous branches were given off in its course. At the very end of its course it produced the posterior subcutaneous nerve which supplies sensory distribution to the back of the hand over the thumb side, extending as far as the ring finger. At the wrist the nerve travels immediately beneath the tendon of the brachioradialis muscle. At this point the course of the nerve becomes very superficial. In Gray’s Anatomy (1995 edition) it is described as being “relatively unprotected, easily compressed (and therefore damaged) by tight bracelets, watch straps, handcuffs etc”.[35]Dr Hicks was asked questions about Professor Grob’s photographs when he gave evidence. The first of these photographs identified the tendons in this location. If the thumb is extended, the anatomical snuff box appears as a depression on the lateral aspect of the wrist between the tendons shown in the photograph. Dr Hicks said that Miss Gow’s site was at the very end of the radius. The radial styloid was below that. If the site was slightly further down the thumb it would be possible to insert a needle in the space between the radius and one of the carpal bones of the wrist. He said it was extremely difficult to do this because “if you go in more than a few millimetres you basically hit bone”. He said that Miss Gow’s site was probably in the area immediately above the radial styloid, whereas the radial nerve crossed underneath the vein somewhere in the area several centimetres proximal to that site towards the elbow. (Professor Grob had agreed that if the needle had been inserted at a 90º angle in the anatomical snuff-box it could not have hit the radial nerve).[36]Dr Hicks said that if the needle had been inserted at a 90º angle at Dr Harker’s site, there was some muscle bulk there for the needle to stick into, although not a great deal. The radial bone lies immediately below the muscle bulk. There was not likely to be a great deal of fat accumulating over the radial bone at that point. (In his report he had said that the vein was invariably visible when a tourniquet is used because the vein itself is extremely superficial since it lies directly beneath the skin surface with no overlying subcutaneous fat.)[37]He did not think it credible that the needle could have stuck out like a dart at Miss Gow’s site. There was very, very minimal subcutaneous tissue there, even in an obese person. (In this context Miss Gow had said in her third witness statement that she weighed about 15 stone in mid-1995, and that her wrist was not particularly fat even in a photograph taken in 1998 when she had weighed a stone and a half more).[8]Piercing a radial nerve: the experts’ views[38]Professor Grob said that if a radial nerve was pierced, the patient would be literally shocked. She would feel nauseated, sweating and pallid. She might vomit. Alternatively she might feel giddy or faint. When the needle hit the nerve there would be a sharp shooting pain, which would probably radiate up the arm. He said that what Miss Gow had described was consistent with the nerve having been penetrated in some way. Cries of exquisite pain certainly pointed to damage to the radial nerve.[39]Dr Hicks agreed with this evidence, He said that he had had personal experience of giving injections when either a nerve had been touched, or the needle had come into very close proximity to a nerve, and his patients had told him of the pain they had experienced.[9]Problematic features of Miss Gow’s story[40]Dr Hicks thought on Miss Gow’s story that the most likely scenario would have been that the needle would have fallen out, especially if it had been inserted at a 90º angle. He said that if the needle had really stuck out of Miss Gow’s wrist like a dart from a dartboard, the application of first principles would suggest two conclusions, although he confessed that his evidence was based on pure speculation since he had never experienced such a thing himself. The first was that a doctor would have to use a considerable amount of force to insert the needle to any depth at Miss Gow’s site. The second was that the needle would have had to be inserted to a depth of half an inch or more if it was to stay standing upright as Miss Gow had described. If it had really stuck out like a dart it would have had to be inserted at a very great angle, much greater than 25º.[41]There was another feature of Miss Gow’s evidence which Dr Hicks did not understand. She had said that she had cried out when she felt pain the moment Dr Harker pierced the skin, and that the doctor had jumped back. In those circumstances Dr Hicks failed to see how any blood could have found its way into the syringe. (For Dr Harker’s similar evidence on this point, see para 23 above). Professor Grob, for his part, had agreed that the plunger would have to be extracted manually in order for a millilitre of blood to flow into the syringes. He also said it would be very difficult to pull back the plunger if the needle was inserted at a 90º angle. On the other hand he would have thought it would be possible to draw blood if the needle was inserted “somewhere below 90º”.[10]A credible scenario: the evidence of Dr Hicks[42]Dr Hicks told the judge that it was entirely feasible that blood might have been taken in an acceptable fashion at the site at which Dr Harker said she started to draw blood, and for the needle to have pierced the back of the vein and inadvertently struck the radial nerve. He explained that as the doctor inserted the needle she would pull back to a certain extent on the plunger, and a certain amount of blood would come into the needle. When the needle goes in at a shallow angle it is advanced forwards, and if it is advanced slightly too far it will come through the back of the vein, which is only a few millimetres in width even in an adult. He said it was possible to envisage this kind of scenario as one in which radial nerve damage might possibly be caused while a certain amount of blood was also found to have been drawn into the syringe. He could not, however, see how this could have happened if the needle had been plunged in at a 90-degree angle.[11]The judgment of Judge Overend[43]The judge delivered his oral judgment at the end of the hearing. He started by describing Miss Gow’s version of events (transcript pp 1-3). He then noted that it was her case that the angle of insertion of the needle was too great, and that the two experts agreed that to insert a needle at an angle greater than 25º would not have been acceptable practice (pp 3-4). He next described Dr Harker’s technique and how she had no recollection of these events (pp 4-7). After finding that Dr Harker had probably used a syringe (pp 7-8), he said that there was an issue relating to the location of the insertion of the needle. He recited some of the evidence given by the experts about the anatomy of the body at Miss Gow’s site and said that Miss Gow’s photographs showed the insertion of a needle “at or near the anatomical snuff-box” (pp 8-9).[44]He next rejected (pp 9-10) Miss Gow’s evidence on three different points:(i) She was probably wrong when she said that Dr Harker removed the needle before she untied the tourniquet;(ii) She was probably wrong when she said she was experiencing swelling and inflammation when she saw Dr Senior the following Monday;(iii) (By implication) she was wrong when she said she noticed bleeding from both inside elbows when Dr Harker withdrew the needle from her wrist.[45]He then said that the angle of the needle was the matter which was definitive in this case. He recited (pp 10-13) a long extract from Miss Gow’s witness statement, and recorded the evidence she had given at the trial about what happened when Dr Harker inserted the needle.[46]Next he made two findings of fact (at p 13):(i) That something went wrong that day. Miss Gow suffered pain in excess of anything she had previously experienced when giving blood, and this pain was probably caused by the needle inserted by Dr Harker penetrating through the houseman’s vein into structures behind it; and(ii) That about one millilitre of blood was extracted, and “blood would have been possible to have been extracted before the needle went through into the other structures”.[47]He then noted (at pp 13-14) that although the symptoms complained of by Miss Gow were agreed as being consistent with damage to her radial nerve, it was common ground between the experts that it would have been possible to damage that nerve without there being negligence, although this would have been a very rare occurrence.[48]He expressed his central findings (at pp 14-15) in the following terms:
“I turn to the issue of the angle of entry. Clearly, if Miss Gow’s evidence is taken at face value, she saying that the angle of entry was 90 degrees or thereabouts, there would be a breach of duty by Dr Harker. The reality, however, appears to be that the closer to 90 degrees the less the chance of getting any blood in the syringe, let alone sufficient for a sample. I think that Miss Gow is for that reason probably wrong in saying that the angle of insertion was as much as 90 degrees. Her description, however, was, not to put too fine a point on it, extremely graphic. She said that the needle and syringe were sticking out of her like a dart stuck in a dartboard. She again said, ‘The most frightening part was the needle sticking out like a dart. That was the most memorable part’. Those descriptions are quite plainly inconsistent with an angle of entry of less than or equal to 25 degrees. The simple issue in this case is: is Miss Gow mistaken in that evidence? It is not suggested – indeed, it is expressly disavowed – by Miss Gollop on behalf of the defendant that she was lying. It is said on behalf of the defendant that this was a claimant who is a poor historian, who genuinely but mistakenly believes in what she has said about the way in which the needle was inserted, about crying out with pain and about Dr Harker jumping back. For my part, I am quite satisfied that Miss Gow is not mistaken. It is right that she may be a poor historian in some respects, but I find that she was not mistaken in relation either to the location of the entry point of the needle or in seeing the needle sticking out like a dart from her wrist, or about Dr Harker jumping back. That is all evidence which I accept.”
[49]He ended his judgment (at pp 15-17) by saying that Dr Harker probably misjudged the angle of the needle she had inserted. She probably inserted the needle at an angle between 25º and 90º “which made it possible to collect a small blood sample” before the procedure was adopted in the manner Miss Gow described. He said it was difficult to say why a general practitioner of very many years’ experience should have behaved in this way. Possibly she may have been flustered after failing to extract blood from her first two selected sites. Possibly the inherent difficulties caused by the angle of Miss Gow’s arm and hand made it a job to get the correct angle. Possibly it was because these events took place on Dr Harker’s last day at work, when her appointments were running late. The judge did not criticise Dr Harker for not recollecting any passing confrontation with Miss Gow the following Monday, if indeed it took place.[50]He finally observed that he was not called upon to and did not make any finding that there had been any damage to the radial nerve. There probably was damage to structures outside the vein caused by the negligent insertion of the needle, but questions of what they were and the extent of them and the question of causation were still at large.[12]The appropriate judicial technique in a case like this[51]Miss Gollop’s central complaint on this appeal is that the judge’s technique was to decide that he believed Miss Gow and that he fashioned his findings around that belief without addressing in his judgment many of the difficulties and inherent improbabilities that arose out of her evidence. If he had done so, she maintains, he could not have possibly reached the conclusion at which he arrived in his judgment.[52]I have said that this is a worrying case. It is particularly worrying because the judge thought that it would be possible to give an oral judgment at the end of the hearing without taking time to consider the evidence, both oral and written, at leisure, to dwell on the importance of the contemporary notes, and to reflect on the overall probabilities in a structured way.[53]This is not a case in which anybody on the defendant’s side suggested that Miss Gow was deliberately inventing evidence which she knew not to be true. But the human mind has its peculiarities, and there are plenty of cases, well known to experienced judges, when the only possible explanation is that an apparently truthful witness has gone over an incident in her mind so often that she has come to believe that events occurred which demonstrably could not have occurred. Judge Overend had the great advantage of having watched Miss Gow give evidence about what happened in Dr Harker’s surgery seven and a half years before. He also saw Dr Harker. This court, on the other hand, has the advantage which the judge denied himself, of being able to consider the whole of the evidence in detail, with the benefit of a transcript, too.[54]Trial judges would always do well to model their fact-finding technique, in a case as difficult as this, on the approach advocated by Robert Goff LJ in The Ocean Frost [1985] 1 Lloyd’s Rep 1, 57 which was adopted by the Privy Council in Grace Shipping v CF Sharp [1987] 1 Lloyd’s Rep 207, 215. In The Ocean Frost Robert Goff LJ said:
“Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay particular regard to their motives and to the overall probabilities.”
[55]While spoken in the context of a fraud case, these words are equally apposite in a case like the present where the claimant’s case is inherently improbable, where there is little or no objective evidence supporting her account of a radial nerve injury, and where they may be a risk that she may have persuaded herself over the months that followed the incident in the doctor’s surgery of a history of that incident which materially departed from what actually occurred.[56]A judge who adopted conventional judicial techniques in a case as difficult as this would begin by considering the contemporary written evidence. This consisted of Dr Harker’s note on the Friday and Dr Senior’s note on the following Monday. Two matters in particular would have been of note:(i) Although it was Dr Harker’s last day at work, her note contains no information to the doctor who would have taken over Miss Gow’s case of anything resembling the dramatic incident to which Miss Gow testified. It was a completely routine note about a thyroid function test and the need for a urine test.(ii) Miss Gow’s vivid description of how her fingers and the back of her hand all swelled up over the weekend was belied by Dr Senior’s note. The judge considered the second of these matters but not the first.[57]Conventional judicial techniques would then have led the judge to consider the inherent probabilities (or improbabilities) of the case. Such an approach would have led the judge to ask himself the following questions:(i) How could any blood have entered the syringe on Miss Gow’s account of the matter? All three medical witnesses said that Dr Harker would have had to pull back the plunger (see paras 21 and 41 above), and on Miss Gow’s account Dr Harker jumped back and let go the syringe as soon as she shrieked with pain.(ii) Into what would the needle have penetrated if it was inserted at Miss Gow’s site? It could not have entered the anatomical snuff-box because the radial nerve was not in that area. If it entered “near” the snuff-box, where did it enter, and what did it probably stick into (so that it did not fall out)? Bone? Sub-cutaneous fat? How did such a finding square with Dr Hicks’s evidence (at paras 37 and 40)?(iii) Why should Dr Harker have chosen Miss Gow’s site? If the reason was, as Dr Grob opined (see para 33 above), that the vein was more prominent there, how does this square with the dart-board scenario?[58]The judge did not address any of these issues in his judgment. If he had considered the evidence with even greater care he would have noted that Dr Hicks’s evidence that the amount of blood normally required for a thyroid function test would be 3-5 millilitres (see para 23 above) was not challenged by Dr Grob or in cross-examination at the trial, and was supported by Dr Harker (see also para 23). This part of the evidence was not explored at the trial, but it would have been picked up by a judge who considered the whole of the evidence carefully before he gave judgment, and would have given him further cause for concern about Miss Gow’s account.[59]All these points would have been bound to have worried a judge who was otherwise inclined to believe Miss Gow’s evidence. He would then have gone on to conclude, as Judge Overend did, that Miss Gow must be wrong when she:(i) Described the needle as going in at an angle of about 90º;(ii) Said that blood welled up in the other puncture sites when the tourniquet was released;(iii) Said that Dr Harker took out the needle before releasing the tourniquet;(iv) Said that all the fingers of her right hand and the back of her hand swelled up over the weekend.[60]And when he turned to Dr Harker’s evidence any judge weighing the evidence thoroughly would have been bound to consider the inherent improbability of a doctor with as much experience of performing venepunctures, both as a GP and as an anaesthetist, attempting to take blood in the extraordinary way described by Miss Gow.[61]Against all this is the fact that something happened which led Miss Gow to complain of pain to Dr Senior on the Monday, and the additional and very important fact that the judge saw Miss Gow and Dr Harker and we have not. But I do not see how these two facts, important as they are, can properly lead this court to uphold this judgment when on the evidence there were so many improbabilities and at least one apparent impossibility (the presence of a millilitre of blood in the syringe) that the judge simply did not address in his judgment adequately or at all.

Conclusion

[62]I therefore conclude that this judgment cannot be upheld. We cannot simply dismiss the action because justice requires a retrial by a different judge, and I would make a direction accordingly. There should be a stay on the action for two months in order to give the parties the chance of considering whether it would be best to enlist the help of a skilled mediator before any further costs are expended on this litigation. If the matter has to be retried a different judge, to be nominated by one of the presiding judges of the Western Circuit, should try both liability and causation on the same occasion. Lord Justice Waller:[63]I have read the judgments of Brooke LJ and Holman J in draft. I too have found this a worrying case. Something happened on 2nd June 1995 but whatever it was could not have been what Miss Gow described. The issue of whether there ever was damage to radial nerve is a key aspect to reaching a conclusion as to what happened on that day and whether negligence has been established. The judge appreciated that, but was persuaded to continue to try the issue of liability separate from the issue of causation.[64]The judge then seems to have led to an injustice. In particular the judge seems to have been persuaded by Miss Gow’s evidence that the syringe was “sticking out of her like a dart stuck in a dartboard”. From that he concluded that the angle of entry must have been more than 25 degrees, but he does not address the question how if that was so any blood could have entered the syringe and/or the issue as to into what the needle could in fact be sticking.[65]I fear that without a full consideration of Miss Gow’s evidence on all aspects including causation, the Judge may have reached a conclusion simply not open to him and that an injustice may have been done.[66]I agree that a retrial should be ordered. I share the hope that mediation may lead to a speedy resolution of this case. Mr

Justice Holman:

[67]I agree that this appeal should be allowed and with the other orders proposed by Brooke LJ at paragraph 62 of his judgment. I do so with considerable hesitation and reluctance, for this appeal is on pure questions of fact and His Honour Judge Overend is a judge of very great experience. It was he who heard, and importantly in this case saw, the key witnesses, Miss Gow and Dr Harker give evidence. It is clear that Miss Gow’s evidence, which he described as “extremely graphic”, of the needle sticking out like a dart in a dart board made a considerable impression upon him, and he considered that account of Miss Gow to be not only honest but objectively accurate and reliable. If accurate and reliable, it was not consistent with non-negligent insertion of the needle.[68]Three matters trouble me, however. First and foremost, it seems to me that the judge was clearly right in his instinct and initial reaction that liability simply could not safely and reliably be considered in isolation from causation (see the quotations in paragraph 3 of the judgment of Brooke LJ). This is clearly relevant to the second matter, namely the site of entry of the needle. There was an important disagreement between Miss Gow and Dr Harker about the site of entry; but, as I understand it, the needle would be unlikely to have touched and damaged the radial nerve if it had entered her wrist at the point and at the angle indicated by Miss Gow. However this required expert neurological evidence beyond the sphere of Dr Hicks and Professor Grob, namely the neurological evidence which was being kept over until the so-called causation stage. The third matter is that the judge actually rejected important parts of the evidence of Miss Gow as being mistaken (see summary at paragraph 59 of the judgment of Brooke LJ) including her account to the effect that the needle and syringe were at an angle of 90 degrees. It seems to me, with respect to him, that he then selected a compromise (more than 25 degrees, less than 90 degrees) which was not consistent with the evidence of either party, without sufficiently considering whether he could really rely upon Miss Gow’s account at all.[69]In a sentence, the issues of site and angle of entry could not reliably and properly be severed from the so-called “causation” issue of whether the radial nerve was touched and damaged at all. I have much sympathy with the judge, who was faced with a case management decision that he himself had not made and who was very strongly pressed by counsel for Dr Harker, now the appellant, to proceed; but in the result an incorrect finding may have been made and an injustice done.

Order

Appeal allowed. An agreed minute of order lodged with court. (Order does not form part of the approved judgment)

Cited in 2 later judgments