Hussain v King Edward VII Hospital [2013] EWCA Civ 1709

[2013] EWCA Civ 1709Case No B3/2012/3373
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2012] EWHC 3441 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Eady
Venue Royal Courts of JusticeDate Thursday, 23 May 2013
Strand,London WC2A 2LL
B e f o r e:
LORD JUSTICE RIMER
Between
HANI HUSSAINAppellantKING EDWARD VII HOSPITALRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Philip Jones appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE RIMER:

[1]This is a renewed application for permission to appeal, Treacy LJ having refused permission on the papers on 26 February 2013. The applicant is Hani Hussain, whose claim for medical negligence against King Edward VII Hospital, the respondent, was dismissed by Eady J by an order of 30 November 2012.[2]The basis of the proposed appeal is not that the judge misdirected himself in assessing the evidence adduced before him but that fresh evidence has since become available that is said to provide cogent corroboration of Mr Hussain's own evidence that, following the operation at the hospital on 5 January 2005, bruising was apparent on his left shoulder and upper part of his left arm. The judge held that on the totality of the evidence before him, which apart from Mr Hussain’s evidence was negative as to the presence of bruising, no bruising was evident at the material time.[3]The fresh evidence that is sought to be relied upon is, first, a statement of Hussain Baquer, also referred to in the papers as Mr Jumaah, who is Mr Hussain's brother in law and who gives evidence of the circumstances in which he saw bruising on Mr Hussain's arm on the day after the operation.[4]In agreement with Treacy LJ, I do not understand how that can be regarded as relevantly fresh evidence. As Treacy LJ observed, that evidence could have been adduced at the trial and the reason it was not is completely unexplained. That is underlined by a statement that has been put before the court on behalf of the respondent to this application, which draws attention to paragraph 32 of Mr Hussain's own witness statement of 1 June 2012 in which he said:
"On 7 January 2005 the bruising on my shoulder began to darken further, which is when I realised that something had obviously happened to me whilst I was sedated. Hussain Jawad [a reference to Mr Baquer] will be able to confirm this."
[5]Mr Hussain did not, however, call Mr Baquer as a witness although there is no suggestion that he could not have done. Therefore it seems to me there is absolutely no reason why, post judgment, Mr Hussain should be entitled to rely upon evidence which he could reasonably have called but chose not to. To the extent that he relies on Mr Baqer's evidence there is no basis, or no arguable basis, on which he is entitled to say that that evidence should now be admitted as fresh evidence.[6]The second piece of fresh evidence upon which Mr Hussain seeks to rely is a statement of 4 December 2012 from Dr Al-Abassi, who is resident in Kuwait and is said to have examined Mr Hussain on 7 January 2005 in London. That was two days after the operation.[7]I accept that it is at least arguable, for reasons explained in the evidence on this application, that Dr Al-Abassi's evidence could not have been obtained for use at the trial. Dr Al-Abassi does not produce any contemporaneous records but claims to have remembered seeing Mr Hussain nearly eight years before and that he saw severe bruising on his upper left arm, as he sets out in a short "to whom it may concern" statement. That statement was provided, according to Mr Hussain's own statement before the court, on condition that Mr Hussain would not "go back to him or request any further reports or statements", and on Mr Hussain's word "that I would not request anything further."[8]I infer from that that Dr Al-Abassi would not give any oral evidence at any retrial and Mr Jones, who appears for Mr Hussain, indicates that he thought that that was likely. My present view is that his unsupported statement, one that is unlikely in practice to be capable of being tested by cross-examination at any retrial, is likely to be regarded as less than cogent.[9]Mr Hussain's own statement reflects that Mr Al-Abassi had no recollection of Mr Hussain, who said:
"I had to remind him who I was. I had lost so much weight since I last saw him and he could not recognise me. I reminded him of my case. He then stated that he did recall what happened."
[10]The last piece of fresh evidence upon which Mr Hussain wishes to rely is perhaps of rather better quality. It is a fax dated 7 January 2005 from Nadia Awad, a senior medical administrator, to Dr Al-Kandari, recording that Mr Hussain had come into the office:
"Suffering from severe pain in his left shoulder as we saw traces of blood under the skin."
[11]I accept that it is also arguable that that evidence could not reasonably have been obtained for the trial; and the description of what Ms Awad records herself as having seen is consistent with bruising.[12]In sum, it is only those two pieces of latter evidence that appear to me capable of being argued to be admissible as fresh evidence. I have said what I have about Mr Baqer's evidence.[13]I have no solid confidence that this is a case in which the full court would be prepared to admit those latter pieces of fresh evidence but I have also concluded that I cannot be confident that it would not. I find myself at least satisfied that the applicant has a properly arguable case, at least for the admission of the fax.[14]With some hesitation, despite Treacy LJ's cogent views as to why an appeal has no real prospect of success, I shall therefore give permission to appeal but confined to the bid to admit the statements only of Dr Al-Abassi and Nadia Awad. I do not give permission to appeal to adduce the evidence of Mr Baquer.