Thomas v Curley [2013] EWCA Civ 117

[2013] EWCA Civ 117Case No B3/2011/3215
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE GRIFFITH WILLIAMS
HQ09X02106
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/02/2013
Before
LORD JUSTICE SULLIVANLORD JUSTICE LLOYD JONESMR JUSTICE WARREN
Between
PAULA THOMASClaimant/ RespondentPAUL CURLEYDefendant/Appellant
Mr. John Whitting QC (instructed by Clyde & Co.) for AppellantMr. Derek Sweeting QC and Mr. Richard Baker (instructed by Keeble Hawson LLP) for RespondentHearing Hearing date : 30 th January 2013.
Judgment
[1]This is an appeal against the order of Griffiths Williams J. dated 29 July 2011, ordering that there be judgment for the claimant in the sum of £92,391.00, in her action for medical negligence against the defendant.[2]In 2005 the respondent was diagnosed as suffering from a single gall stone within the gall bladder. She was referred to the appellant, a Consultant General and Vascular Surgeon at Pinderfields Hospital, Wakefield, with admitting rights to the Methley Park Hospital, Leeds, who advised her that she would benefit from laparoscopic cholecystectomy. The respondent who had the benefit of private health insurance was admitted to Methley Park Hospital and on 10th October, 2005 the appellant carried out the procedure. He found a non-inflamed gall bladder and a single stone. He noted that the cystic duct came from the right hepatic duct rather than the common bile duct. The appellant isolated the cystic duct by applying two clips, one at the gall bladder end and one at the proximal end. After repeating the process for the cystic artery he disconnected and removed the gall bladder through an umbilical incision.[3]There were no complications following the operation and the respondent was discharged home on 11th October.[4]On 14th October the respondent suffered what she described as tremendous pain and was admitted to Pinderfields Hospital. The assessing doctor made a differential diagnosis of non-specific abdominal bile leak or pancreatitis. The appellant took over her care. He arranged a CT scan and was unable to detect any evidence of a bile leak on the scan. On the 16th October the respondent had abnormal liver function tests and the appellant suspected that she may have a retained stone in the common bile duct. His plan was that an endoscopic retrograde cholangiopancreatography (ERCP) be performed. On 18th October a Consultant Gastroenterologist attempted to perform the ERCP but had to abandon the procedure because of the respondent’s anxiety.[5]The appellant arranged for the respondent’s transfer to Methley Park Hospital where he carried out the ERCP on 20th October. This suggested a possible cystic duct leak. An abdominal ultrasound scan taken that afternoon revealed “intra-peritoneal leak of contrast from the biliary tree in the region of the confluence of the right and left hepatic ducts” with “appearances in keeping of a bilary leak from the region of the stump of the cystic duct”. The appellant’s evidence was that at this stage he was anxious to treat the claimant and so he opted not to do a full sphincerotomy to trawl the common bile duct for stones but to insert a stent. This he did.[6]The appellant saw the respondent at 1800 hours on 21st October when he noted she was afebrile, had managed to eat a bit and was drinking normally. As he was going away on holiday he arranged for a colleague, Mr Hossain, to take over the respondent’s care and left instructions for a repeat liver function test on Sunday 23rd and for the continuation of the monitoring of her condition. He saw her briefly on Saturday 22nd October at about 07.30 hours when he noted that her temperature was normal, she had some nausea and minimal pain. The appellant’s involvement in the care of the respondent ended then.[7]In the days which followed the respondent’s condition deteriorated. She suffered vomiting and abdominal pain. Liver function tests were significantly deranged and she developed acute renal failure. She was transferred first to the High Dependency Unit at Pinderfields Hospital and then to St James’ Hospital, Leeds, under the care of Mr Prasad, a Consultant HeptobiliarySurgeon, who on 26th October carried out a laparoscopy which revealed seven litres of bile in the peritoneal cavity. Mr Prasad converted that procedure into open surgery and inserted multiple drains. Thereafter the respondent was managed in the intensive care unit. She made a slow but satisfactory recovery and was eventually discharged home on 18th November 2005.[8]In February 2006 she was admitted to St. James’ Hospital for the removal of the stent.[9]In these proceedings it has been alleged that the appellant was negligent in two respects. First, it is alleged that he caused an iatrogenic injury to the respondent’s common bile duct during laparoscopic surgery on 10th October 2005. Secondly it is alleged that in his treatment at Methley Park Hospital between 19th and 21st October 2005 he failed to require fluid balance and renal monitoring of her condition. At the trial the judge held that both of these allegations were established and he awarded damages in the sum of £92,391.00. Ground 1.[10]The appellant contends that the judge erred in law in determining the issue of breach of duty in relation to the conduct of the laparoscopic surgery by the application of res ipsa loquitur. The term res ipsa loquitur describes a situation in which it is possible for the court to draw an inference of negligence where a claimant has proved a result without proving any specific act or omission on the part of the defendant which has produced the result. If it is proved on the balance of probabilities that the result could not have happened without negligence and that the situation was under the control of the defendant, then it is open to the court to conclude that it is more likely than not that the result was caused by negligence. However, it is not appropriate to draw such an inference where there is evidence as to why or how the result occurred. (Scott v London and St. Katherine’s Docks (1865) 3 H. & C. 896). Res ipsa loquitur has been applied in the past in medical negligence cases (e.g. Cassidy v Ministry of Health [1951] 2 K.B. 343. However, it has more recently been doubted whether it is of much assistance in such cases. In Ratcliffe v Plymouth and Torbay Health Authority[1998] Lloyd’s L.R. Med. 162 at p. 177 Hobhouse L.J. observed:
“Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted. ”
[11]The appellant submits that the respondent’s case at trial was founded entirely on res ipsa loquitur, that the judge was in error in failing to recognise that and that, because the respondent’s case manifestly failed to meet the requirements of res ipsa loquitur, the judge was wrong to conclude that the injury suffered by the respondent was caused by the appellant’s negligence.[12]The appellant points to the respondent’s pleaded case. The particulars of negligence in the particulars of claim simply assert that the injury was sustained as a consequence of the negligence of the appellant in negligently causing injury to the respondent’s common bile duct during surgery on 10th October 2005. In response to the appellant’s Part 18 request, it is stated that:
“The claimant will aver that the most likely explanation was that it was a diathermy injury; alternatively it was a traction injury. The Claimant will aver that whatever the mechanism, the injury was caused by the negligence of the first defendant. The Claimant will aver that iatrogenic bile duct injury is, in itself, evidence of negligence.”
The appellant further submits that this was the basis on which the respondent’s expert Professor Parks approached this issue.[13]The different positions of the experts are summarised in their Joint Statement. “The experts disagree on these points. Mr McDonald [the appellant’s expert] will state his opinion that he does not believe that all bile duct injuries are negligent and that some bile duct injuries are an unavoidable risk. It is his opinion that there was no evidence that the operation was carried out negligently. Professor Parks [the respondent’s expert] will take the view that this was an avoidable bile duct injury in that the operation record for the laparscopic cholecystectomy indicated that the findings were of a non-inflamed gall bladder and it is therefore his opinion that in these circumstances bile duct injury was avoidable. Professor Parks would state that a normal competent surgeon acting with ordinary care and attention would not have caused an injury to the bile duct in these circumstances.”[14]The appellant draws attention to the following statement in Mr Parks’s letter of 5th September 2008:
“Injury to the common bile duct would not be expected of a normal competent clinician and therefore in my opinion the standard of care during the course of her laparoscopic cholecystectomy was not that expected of a normal competent clinician.”
[15]Mr Whitting QC, on behalf of the appellant, has also referred us to the oral evidence of Professor Parks at the trial where he confirmed that it was his view that if there was an injury to the common bile duct during the course of an operation, there must have been a failure of the standard of care. At this point in his evidence, Professor Parks made clear his position that proof of injury to the common bile duct would itself be sufficient to establish negligence. However, I note that slightly earlier in his evidence Professor Parks was asked if it was his view that, if the court were to conclude that there was an injury to the common bile duct during the course of the operation, that of itself would mean that the standard of care was inadequate. His reply was:
“In this case, that is correct.”
This was an answer to which the judge drew particular attention in his judgment.[16]In his closing submissions at the trial Mr Whitting submitted that the respondent’s case was essentially that if there was a bile duct injury then the appellant must have been negligent - res ipsa loquitur. The judge rejected that submission. In his view that was not the respondent’s pleaded case and he considered that it had been made clear by counsel for the respondent that the case was not advanced on that basis. The judge drew attention to Professor Parks’s response “In this case, that is correct”. The judge went on to point out that, in any event, the Court of Appeal has made it clear that res ipsa loquitur will rarely be relevant in medical negligence cases. In this regard he referred to Ratcliffe. He concluded that it was for the court, having heard the evidence, to assess its weight and to decide whether negligence on the part of the defendant had been proved.[17]To my mind it does appear that the more extreme basis on which Professor Parks rested his opinion did seek to draw a necessary inference of negligence from the mere fact of injury and might therefore be considered an application of res ipsa loquitur. However, that was not the only way in which the case was put on behalf of the respondent. I consider that the judge was correct to decline to apply res ipsa loquitur and to address whether negligence had been proved in the particular circumstances of this case.[18]However, the appellant submits that, notwithstanding this disavowal by the judge, the respondent’s case was essentially one of res ipsa loquitur and the judge erred in concluding that it was not. Here the appellant focuses on paragraph 58 of the judgment where the judge states his conclusion on liability on this head of the claim. “As the defendant was carrying out an uncomplicated procedure some distance removed from the site of the common bile duct injury, and no explanation has been provided as to how such an injury could have been occasioned other than due to a want of care on the defendant’s part, my conclusion is that the defendant negligently caused the injury. As Mr Whitting rightly submitted, the Court in determining these issues cannot deal in certainties. Of the three likely causes, weighing up the evidence, my conclusion is the more probable is diathermy as there would seem to be less risk of traction in an uncomplicated procedure.” In particular it is submitted on behalf of the appellant that:(1) There was no evidence, other than by inference from the fact of injury, that appellant had failed to take appropriate care during the operation.(2) There was an abundance of literature before the court which showed that bile duct injury is an extremely well recognised complication of this procedure and one for which all patients should be consented, as the respondent was here. The judgment had offered no rational basis on which to reject the implication of that literature that the complication could occur even when the surgeon was acting competently and carefully.(3) In the absence of positive evidence of want of care in the performance of the operation, the court should not have concluded from the fact of injury that the defendant had been negligent.(4) The court’s judgment was based on a mistaken reversal of the burden of proof. It is always for the claimant to adduce positive evidence of the defendant’s want of care. That was not done in this case.[19]In addressing these submissions it is necessary to say something about an unusual feature of this case before considering the basis on which the judge approached the issue of liability on this ground.[20]The usual disposition of biliary ducts is that the right and left hepatic ducts converge to form the common hepatic duct which, in turn, is joined at a lower point by the cystic duct which flows from the gall bladder. Below that point the duct is the common bile duct. Variations on this arrangement are sometimes encountered. In this case the appellant, when performing the operation, noticed and recorded that the cystic duct flowed from the gall bladder into the right hepatic duct. However, while the appellant was aware of this and recorded it in the notes of the operation, his expert, Mr McDonald, was not and this had an important bearing on his evidence. Mr McDonald had assumed that the site of the operation was quite close to where the cystic duct normally joins the common bile duct and the judge considered that this undermined his expert evidence.[21]Mr Prasad’s notes of the operation he carried out on 26th October record:
“Stent could be seen - ? Loss of bile duct wall anteriorly ”
The judge was faced with a disagreement between the experts as to the source of the leak. The conflicting positions of the experts were as follows:
“The experts have a difference of opinion with regard to the cause of the bile leak. Mr McDonald will take the view that the two clips of the short cystic duct stump fell off due to mechanical failure. He will argue that they eroded through the cystic duct remnant as a result of ischaemic necrosis. Professor Parks will take the view there was an iatrogenic injury to the common bile duct. This was due to the fact that at the time of the laparotomy performed in St. James’ Hospital, the findings were of loss of tissue of the anterior wall of the common bile duct with the biliary stent being visible in the common bile duct. Secondly, at the time of the laparoscopic cholecystectomy, it was documented by the first defendant that the cystic duct entered the right hepatic duct and not the common bile duct, and this was distant from the site of injury.”
[22]The judge addressed this issue in his judgment in meticulous detail. One feature to which he drew attention was the placing and the positioning of the stent by the appellant on 20th October. The appellant maintained that the position of the stent confirmed his belief that the leak was from the stump where it came from the right hepatic duct. His evidence was that he thought the stent went into the right hepatic duct and that this is what Mr Prasad saw. Mr Prasad was not called as a witness and there was a great deal of evidence as to what he had meant by “bile duct”. The judge referred in his judgment to the fact that when asked in cross examination what he understood Mr Prasad to refer to when he noted “loss of bile duct wall” the appellant had replied that it could relate to the right or left hepatic ducts, a response which the judge considered unimpressive. The judge rejected the appellant’s evidence that the stent reached into the right hepatic duct and set out his detailed reasons for that conclusion. Because that conclusion is not challenged on this appeal, it is not necessary to recite those reasons. I have already referred to the fact in coming to this conclusion the judge considered that Mr McDonald had proceeded on an incorrect anatomical basis.[23]The judge then went on to conclude on the balance of probabilities that there was no leak from the cystic duct stump by reason of the clips failing. On the contrary, his conclusion on the balance of probabilities was that Mr Prasad identified a defect in the common bile duct and not in the cystic duct stump. He set out the evidence from a number of sources which supported that conclusion. Once again, the conclusion is not challenged and it is not necessary for the purposes of this appeal to consider that evidence.[24]Next the judge sought to identify the cause of the common bile duct injury. He observed that the appellant’s evidence was that he found a non-inflamed gall bladder with a single stone and encountered no difficulties during the procedure. The judge stated:
“As he isolated the cystic duct at the gall bladder end and at the proximal end where it came from the right hepatic duct and repeated the process for the cystic artery … he was operating some distance from the common bile duct.”
The judge’s conclusions were as follows: (1) He concluded on the balance of probabilities that the findings of Mr Prasad of loss of tissue of the anterior wall of the common bile duct established that the bile leak was a consequence of an iatrogenic injury to the bile duct. (2) Both expert witnesses agreed that the likely mechanism of the common bile duct injury was a diathermy injury, a traction injury or a partial laceration of a sharp instrument. (3) The judge concluded on the balance of probabilities that the iatrogenic injury was occasioned by one of those three explanations and so by the appellant who conducted the operation. Once again, these conclusions are not challenged.[25]Turning to the question whether the iatrogenic injury was caused negligently, the judge referred to the different positions of the experts as set out in their joint statement. He then dealt with the appellant’s submissions on res ipsa loquitur as indicated above. The judge accepted that there was no suggestion in this case that the appellant had cut corners. He addressed the literature on the basis of which Mr Whitting had submitted that a common bile duct injury is a recognised non-negligent risk of this procedure. Contrary to the submission of Mr Whitting before us, I do not consider that the judge misunderstood or misrepresented the appellant’s case on the occurrence of non-negligence injury of the common bile duct during this operation. On the contrary, he set out the relevant passage from Mr McDonald’s report of 20th July 2010 at paragraph 57 of his judgment immediately before paragraph 58, quoted above, in which he set out his conclusions.[26]I consider it clear that in paragraph 58 the judge was not drawing an inference of negligence from the mere fact of injury to the common bile duct during an operation. He was addressing the particular circumstances of this particular case in the round, having regard to all the evidence and having assessed its weight. This is apparent from his reference to the fact that this was an uncomplicated procedure some distance removed from the site of the common bile duct injury.[27]Mr Whitting criticises this passage on the basis that “uncomplicated” is nowhere defined. However, paragraph 58 has to be read in the light of the passage from Mr. McDonald’s report set out at paragraph 57 of the judgment. There, Mr McDonald had explained that he did not consider that iatrogenic bile duct injury in every circumstance is due to a negligent action by the operating surgeon. He explained that when there is a very abnormal bile duct anatomy (i.e. an hepatic duct entering into the gall bladder fundus itself) or if there is severe inflammation of the whole of Calot’s triangle, the likelihood of bile duct injury in the hands of a competent surgeon is high. It is not suggested that the particular features described by Mr McDonald were present in the present case. Furthermore, I note that both experts were able to agree on the use of the term “uncomplicated” in their joint report.[28]So far as concerns the judge’s reference to the procedure being some distance removed from the site of the injury, the judge had explained in exhaustive detail why that was so in the present case. This arose from the anatomical variation which was present in the respondent. Furthermore, the point was implicit in what was put to the appellant in cross examination: namely, that if the hole was not where the cystic duct had been, it had been made negligently. The appellant’s answer was to put forward the theory, rejected by the judge, that the stent had moved. He made no suggestion that the common duct below the convergence of the left and right hepatic ducts was nonetheless very close to the site of the operation. (See Transcript p. 979 G-H).[29]In the course of his reply before us, Mr Whitting suggested for the first time that it did not following from the finding that the source of the leak was a defect in the common bile duct that it was a remote from the site of the operation. He submitted that because of the anatomical variation in the respondent, the common bile duct would extend up to the point where the hepatic ducts join. Setting to one side the question of the appropriate terminology in these particular circumstances, I am unable to accept that the two locations could have been sufficiently proximate so as to explain the injury to the common bile duct. This is not suggested by Mr McDonald as a possible explanation for the injury. Indeed Mr McDonald’s evidence was that there must be quite a large separation between those areas. It was suggested to Mr McDonald in cross examination that if the cystic duct was off the right hepatic duct and the defect was in the bile duct, it made negligence more likely because there was no reason why the surgery should have been in the region of the common bile duct. Mr McDonald’s response was as follows:
“If Mr Curley was right and he was working high up on the right hepatic duct, which is what Professor Parks believes, and if Mr Prasad is right and the injury was in the bile duct…then there must be some separation, quite a large separation, between those two areas” (Transcript, p. 1139.) The judge then asked whether three centimetres would be average. He replied: “I would have thought three centimetres and in a non-inflamed gall bladder without any other problems, that’s an awfully long distance to assume diathermy injury.”
[30]Addressing the issue of negligence in the context defined by the judge in paragraph 58, Mr Whitting nevertheless submits that there was no evidence which entitled the judge to conclude that the injury in this case was avoidable and the conduct in this case was negligent. To my mind there was an ample basis in the evidence for the judge’s conclusion that this gave rise to an inference of negligence. It is to be found in the evidence of Mr McDonald.[31]Mr McDonald, it will be recalled, had proceeded in his evidence on the basis that the cystic duct on which the operation took place joined the common bile duct i.e. that there was no variation in this case. The judge found otherwise and that finding is not challenged. The present relevance of Mr McDonald’s evidence on that point is that in the course of his evidence it became clear that one reason he was proceeding on that basis was that otherwise he could not explain how an injury had occurred to the common bile duct. I have set out above his evidence at page 1139 of the Transcript. A little earlier in his evidence he was referred to the joint statement. “Q…. What Professor Parks is saying is quite clear; that Mr Curley’s note is that the cystic duct came off the right hepatic duct. Mr Prasad’s note says that he saw the defect in the common bile duct and that, therefore, it could not have been caused by a cystic duct stump leak because the two are not in the same place. A. My problem with that argument was I could not see how an inadvertent injury to the bile duct could have been caused. If this right hepatic duct was so much higher and there was no problem at surgery (and I think we can all accept the operating note from that point of view) then I could not see a mechanism of a bile duct injury so that corroborated my thought that this wasn’t a bile duct injury and, in particular, there wasn’t a stricture and there weren’t any clips found on the cystic duct, that corroborated my feeling that this was a cystic duct leak.” (Transcript at pp. 1137G – 1138A)[32]Once the judge concluded the leak came from an injury to the common bile duct, Mr McDonald’s evidence becomes compelling evidence in support of the respondent’s case on negligence. Once it was established that the injury was not in the area of the operation, Mr McDonald could not offer any explanation for the injury.[33]In the circumstances I am satisfied that the judge’s approach to the issue of negligence was entirely appropriate. The respondent had established that in this case, during an uncomplicated operation, injury was caused in an area other than that where the operation took place. That called for an explanation as to how that might have occurred in the absence of negligence. None was forthcoming from the defendant’s expert or from any other quarter. That is entirely consistent with the judge’s direction to himself that he should assess the weight of the evidence and decide whether negligence on the part of the appellant had been proved. This has nothing to do with the reversal of the burden of proof and nothing to do with res ipsa loquitur.[34]I would therefore dismiss the appeal on Ground 1. Ground 2.[35]Ground 2 relates to the judge’s conclusion in relation to the respondent’s secondary case that the appellant was negligent in failing to require fluid balance and renal monitoring of the respondent’s condition between the 19th and 21st October.[36]At the hearing before us it became clear and was accepted by both parties that if the appellant failed on Ground 1, Ground 2 could have no impact on the outcome of the appeal. In short, if the appellant failed on Ground 1 but succeeded on Ground 2, the fact that there had been no negligence in relation to the treatment regime during this period would not affect the award of damages because the injuries flowed from the negligence in the course of the operation. In these circumstance, I consider that it would not be a proportionate use of the court’s time to hear the detailed and lengthy submissions which Ground 2 would inevitably require.[37]In coming to this conclusion I make clear that the court has not heard full argument and should not be taken to express any concluded view on the merits of this ground of appeal for which leave to appeal was given. Ground 3.[38]At paragraph 71 of the judgment

the judge concluded:

“There is no dispute that if the bile duct injury was caused negligently, then all of the consequences as to the claimant’s condition and prognosis follow from that injury.”
Ground 3 of the Grounds of Appeal criticises the judge for this conclusion on the basis there was very significant dispute about causation in respect of both the primary and secondary cases. It then sets out 13 specific grounds. However, during the course of argument before us it was accepted by Mr Whitting that if the appellant failed on Ground 1 the only causation issue which remained alive was that concerning an alleged inconsistency between the judge’s award of damages and his findings on abdominal pain and whether the respondent had exaggerated her evidence in relation to the impact of the operation on her quality of life.[39]The criticism of the judge’s general statement at paragraph 71 is unwarranted because the judge went on to address the more specific issues of causation which now arise on this appeal in that part of his judgment which dealt with quantum.[40]At paragraph 108 the judge identified the features of the respondent’s case which he considered of particular relevance to the claim for pain and suffering and loss of amenity:
“I identify the following features of the claimant’s pain and suffering and loss of amenity as of high relevance: there is the period from 14 – 26 October when the claimant was in serious pain and underwent the life threatening event; the traumatic effects of that experience causing her to suffer nightmares and to relive events; the failed ERCP on 18 October and the subsequent surgical procedure on 26 October; her hospitalisation from 14 October – 18 November; her period off work and her part-time working until 2 May 2006; the scarring; the loss of libido; the incisional hernia and the surgery of December 2008; her psychiatric adjustment disorder; her urinary incontinence; the effects on the quality of her life. From the foregoing, it is clear that though the events of 14 Oct – 26 October must have been most upsetting, she has suffered no seriously continuing disability. While she has less energy, she has coped with the demands of her employment and her social life is slowly improving.”
[41]Mr Whitting in his submissions makes clear that his challenge to this award is limited to that part which relates to the period after May 2006. He points to the judge’s conclusion (at paragraph 97) that he was unable to conclude on the balance of probabilities that the abdominal pains since May 2006 described by the respondent were caused by any act or omission on the part of the appellant. The judge considered that they were in all probability the consequences of reflux disease, itself a consequence of the removal of the gall bladder. Mr Whitting then points to the judge’s conclusion (at paragraph 105) that the claimant and her witnesses had exaggerated their evidence in relation to the impact on her quality of life.[42]To my mind there is no inconsistency between these conclusions and the award of damages. First, and notwithstanding his conclusion that the claims in relation to the impact on quality of life have been exaggerated, the judge expressed himself satisfied on the balance of probabilities that there were effects on the claimant’s quality of life, significantly so for something between one and two years from October 2005, but that her quality of life had improved since 2008 and would continue to do so. Secondly, many of the matters referred to in paragraph 108 are supported by the evidence of Dr. Webster, Consultant Psychiatrist, and Mr Chapman, Plastic and Reconstructive Surgeon, which evidence was not challenged at trial.[43]The award of £30,000 in respect of pain and suffering and loss of amenity, which is itself relatively modest, relates to both the period up to and after May 2006. I can detect no error which would permit this court to intervene with that award.

The judge set out his conclusions in relation to care and assistance at paragraph 114:

“At first blush, a claim for past and future care and assistance by a claimant who has been in full time employment since May 2006 may seem inconsistent and all the more so when the claimant’s own evidence is that she is getting better, albeit it is a very slow process. While the claimant exaggerated parts of her evidence, I have concluded she was entirely genuine when she said that she can no longer cope with genuinely heavy work about the house and in the garden – I should add that her complaints of pain are not relied upon in support of her claims for care and assistance. That said, the claims are for modest levels of care and assistance. I am satisfied on the balance of probabilities that the claimant needed a high level of care and assistance following her discharges from hospital in November 2005 and December 2008 and that the number of hours claimed for both periods (18 November 2005 – 18 January 2006 and 4 December 2008 – 31 March 2009) are both justifiable and appropriate. The lower levels of care and assistance are similarly justifiable and appropriate as is the claim for the cleaner who was employed from 1 December 2007 to 1 September 2010 is in respect of the 2 hours work which family members have previously provided, so reducing their contribution to 3 hours weekly.”
[45]The judge then went on to consider the cost of future care and concluded that the respondent was entitled to the cost of three hours weekly care and assistance for a period of twenty five years.[46]The judge found that the respondent was entirely genuine when she said that she could no longer cope with genuinely heavy work about the house and in the garden. Furthermore, he drew attention to the fact that her complaints of pain were not relied upon in support of her claims for care and assistance. I consider that there is no inconsistency between the specific findings of the judge and his award of damages under this head. Here again, no ground is made out which would permit this court to intervene. Ground 4.[47]By supplemental Grounds of Appeal the appellant seeks to raise a further ground of appeal, namely that there has been material non-disclosure by the respondent.[48]During the course of the cross examination of the respondent she said that she had during the relevant period kept a diary which formed the basis for certain specific evidence in her witness statement. She also said that she had told her solicitors about it. The respondent’s solicitors had previously asked for disclosure of any such material and had been told that there was no such material to disclose. After trial and after the judgment was handed down, a copy of the diary was disclosed. Mr Whitting submits that its contents contradict critical elements of the respondent’s evidence which would have been challenged at trial and that it therefore would have formed a material consideration in the judge’s analysis of causation and quantum. This is, in effect, an application to adduce further evidence on the appeal.[49]Lady Justice Smith adjourned the application for permission to appeal of this ground to the full court.[50]Clearly this material should have been disclosed in the proceedings and something has gone badly wrong. We were told that an explanation has been provided to the appellant’s legal advisers but we were not told what that explanation was.[51]I consider that this material, emanating as it does from the respondent, is to be regarded as apparently credible. Furthermore, I accept that the evidence could not have been obtained with reasonable diligence for use at the trial. However, I am not satisfied that the evidence would probably have had an important influence on the result of the case. Mr Whitting has made general submissions as to the relevance of the new material but has failed to identify any particular respect in which the new material might have had an important bearing on the outcome. In these circumstances, I would refuse permission to adduce this evidence on the appeal and would dismiss this Ground of Appeal. MR

JUSTICE WARREN :

[52]I agree.

LORD JUSTICE SULLIVAN :

[53]I also agree.

Cited in 4 later judgments