Julia Tosh v Vivek Gupta [2025] EWHC 2025 (KB)

[2025] EWHC 2025 (KB)

Case No Case No: KB-2023-001967

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31 July 2025

Before

SARAH CLARKE KC

Between

MS JULIA TOSHClaimants

MR VIVEK GUPTADefendants

Ms Helen Pooley (instructed by Holmes and Hills LLP) for Claimant

Mr Matthew Barnes (instructed by Clyde and Co LLP) for Defendant

Hearing Hearing dates: 16 – 18 June 2025

Approved Judgment

This judgment was handed down by release to The National Archives on 31 July 2025 at 10.30am.

Ms Sarah Clarke KC Sitting as a Deputy Judge of the High Court:

[1]This is a trial of liability and causation in respect of a clinical negligence claim brought by the claimant Julia Tosh (“the claimant”) against the defendant Vivek Gupta (“the defendant”). The claimant is currently 58 years old and works as a Clinical Coding Manager. The defendant is a Consultant General, Colorectal and Laparoscopic Surgeon, working within the NHS and in private practice.

Counsel

[2]On 6 March 2019, the claimant (then aged 52 years), was referred by a private General Practitioner (“GP”) to the defendant in his private practice, for investigation of her rectal symptoms. She attended an initial consultation with the defendant on 15 March 2019 and on 21 March 2019, the claimant underwent a flexible sigmoidoscopy (an investigative procedure), performed by the defendant. On 20 April 2019, the claimant attended a further appointment with the defendant by which time he had diagnosed the claimant with haemorrhoids which he graded as Grade 2 / 3. She agreed on the defendant’s advice to undergo a ligasure haemorrhoidectomy (surgical removal of her haemorrhoids) (“the operation”, “surgery” or “haemorrhoidectomy”) which was scheduled for 13 June 2019.

The applicable law

[3]On that date, the defendant performed this operation on the claimant. Sadly, this ordinarily routine surgery resulted in the claimant developing anal stenosis (also known as “anal stricture”) which is a rare but serious complication of this surgery. This has, unusually, left her with life changing consequences namely ongoing severe bowel symptoms which have significantly affected, and will continue to affect, her health and her quality of life. I mean no discourtesy to the claimant by not describing these consequences, but they are not relevant to the issues that I must decide in this trial. Although the claim originally contained allegations of negligence in respect of the defendant’s conduct of the surgery, these allegations were discontinued following the Joint Statement prepared by the experts on 17 April 2025 (“Joint Statement”).

[4]The remaining allegations of negligence that the claimant makes in this trial are that the defendant was negligent in respect of his(i) grading of her haemorrhoids;

(ii) failure to discuss and offer non-surgical treatment options as an alternative to surgery; and

(iii) failure to adequately explain the risks and benefits of the surgical haemorrhoidectomy. The claimant alleges that but for these negligent failures she would have chosen non-surgical treatment options rather than surgery and would therefore have avoided the complications that she suffered as a result.

[5]The defendant denies that he was negligent in respect of any of the matters alleged. His case is that he assessed and graded the claimant’s haemorrhoids correctly, that he appropriately discussed non-surgical treatment options and the risks of surgery with the claimant and that he consented the claimant appropriately for the haemorrhoidectomy. The defendant asserts that in any event, the claim fails for lack of causation.

Haemorrhoid grading system

[6]At this point, it is relevant to set out the grading system that both parties agree is used by all colorectal clinicians to grade haemorrhoids: Grade 1 – haemorrhoids are small swellings on the inside lining of the anus. They cannot be seen or felt from outside the anus. They bleed but do not prolapse (bulge out of the anus). Grade 2 – larger haemorrhoids which can prolapse out of the anus (for example when defecating) but spontaneously disappear back inside the anus. Grade 3 – haemorrhoids prolapse from the anus and may be felt as small, soft lumps that hang from the anus. However, these can be pushed back inside the anus using a finger. Grade 4 – haemorrhoids permanently hang down from within the anus and cannot be pushed back inside. They sometimes become quite large.

[7]The expert witnesses called by the parties agree that if the claimant’s haemorrhoids were in fact grade 1 or 2, then surgery was not indicated and should not have been offered to the claimant nor performed. If however, her haemorrhoids were grade 3 or 4, then surgery (a ligasure haemorrhoidectomy) was indicated as this is the most successful and definitive treatment, but the claimant should still have been advised about the alternatives of non-surgical treatment options. The experts’ opinions accord with the literature with which I was provided (see in particular “Haemorrhoids: an update on management. Brown SR. Therapeutic Advances in Chronic Disease 2017: 8 (10): 141-147” and “Haemorrhoids: modern diagnosis and management. Hollingshead JRF and Phillips RKS. Postgraduate Medical Journal 2016: 92: 4-8”. The issues to be decided in this trial Liability 1. Has the claimant proved on the balance of probabilities, that the defendant negligently breached his duty of care owed to the claimant by: a) Incorrectly grading her haemorrhoids as grade 2 / 3, when in fact they should have been graded as grade 1 / 2; and b) Advising the claimant based on this incorrect grading to undergo a surgical haemorrhoidectomy when surgery was not an appropriate treatment option given that both parties agree that a surgical haemorrhoidectomy would not be indicated for grade 1 / 2 haemorrhoids and the claimant should therefore have been advised to undergo non-surgical treatment options which she probably would have opted for. 2. If the claimant has not proved on the balance of probabilities that the defendant’s grading of her haemorrhoids as grade 2 / 3 was incorrect, then I must decide whether the claimant has established on the balance of probabilities that the defendant negligently breached his duty of care owed to the claimant by: a) Failing to advise the claimant of the risks and benefits of a surgical haemorrhoidectomy, including failing to advise her of the risk of anal stenosis; and / or b) Failing to advise the claimant of alternative non-surgical treatment options and the risks and benefits of these options. Causation 3. If the claimant has not proved that the defendant’s grading of her haemorrhoids was incorrect, but has proved that he did not advise her of the risks and benefits of a surgical haemorrhoidectomy (including the risk of anal stenosis) and / or that he failed to advise of alternative non-surgical treatment options, then I must decide whether the claimant has proved on the balance of probabilities that whilst surgery was indicated, if she had been advised of alternative treatments and risks of surgery, the claimant would have opted for non-surgical treatment options first. In this event, the parties’ experts agree that non-surgical treatment options would be unlikely to be successful such that the claimant would have required a surgical haemorrhoidectomy up to 2 years later. 4. If I decide that the claimant has proved on the balance of probabilities that she would (some 2 years later) have continued to opt for non-surgical treatment options, then the parties agree that causation is established because the claimant would not have suffered the surgical complication that she did. If the claimant fails to prove this, then the parties agree that damages would be limited to the acceleration of her symptoms arising from her surgical complication by up to 2 years.

Burden and standard of proof

[8]It follows from my summary of the issues, that the burden of proof is on the claimant to prove both breach of duty and causation. The standard of proof is the civil standard – the balance of probabilities. Counsel

[2]I acknowledge the hard work, care and skill which has been deployed by both counsel (Ms Pooley for the claimant and Mr Barnes for the defendant) over the course of this trial and in written submissions in the preparation and presentation of their respective cases. I do not intend any disrespect to either of the parties if I do not address every single point which has been made to me, but I have taken them all into account and what follows is my assessment of the law, evidence and issues which are important to the resolution of the issues relating to liability and causation as summarised above. The applicable law Negligence

[3]In Hunter v Hanley

[1955] SC 200

, at [204] (“Hunter”), Lord President Clyde held that:

“…[a surgeon] is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test…is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”

[4]In Bolam v Friern Hospital Management Committee

[1957] 1 WLR 583

, at [587] (“Bolam”), Mr

Justice McNair summarised the test as follows:

“…[a surgeon] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

[5]The House of Lords subsequently qualified the Bolam test in Bolitho v Hackney HA

[1998] AC 232

(“Bolitho”), at [241H]-[242A] (Lord Browne-Wilkinson) by explaining that, “The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

Consenting a patient to a procedure

[6]In Montgomery v Lanarkshire Health Board

[2015] UKSC 11

, at [86] to [87] (“Montgomery”) the Supreme Court held in relation to the issue of appropriate consenting of a patient to a procedure: There is no reason to perpetuate the application of the Bolam test in this context any longer…The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. At [89]-[90], their Lordships explained that:89. ….the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.

90. Secondly, the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.

[7]Where the advice given by the doctor for the purposes of consent is informed by clinical judgment, the approach described in Hunter and Bolam remains applicable to that exercise of clinical judgment (McCulloch v Forth Valley Health Board

[2024] AC 925

(“McCullough”) at [57] to [78] (UKSC), see in particular: 57.…The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. 58.It is important to stress that it is not being suggested that the doctor can simply inform the patient about the treatment option or options that the doctor himself or herself prefers. Rather the doctor's duty of care, in line with Montgomery, is to inform the patient of all reasonable treatment options applying the professional practice test.

Causation

[8]In Chester v Afshar

[2004] UKHL 41

(“Chester”), the majority of the House of Lords held that causation will be established not only in respect of a patient who would have declined the surgery if properly warned of the risks, but also a patient (such as Ms Chester) who, the trial judge had concluded (per Lord Bingham): [7]…would not have undergone surgery three days after her first consultation with Mr Afshar but would, very understandably, have wished to discuss the matter with others and explore other options. But he did not find (and was not invited to find) that she would probably not have undergone the surgery or that there was any way of minimising the small degree of risk inherent in surgery.

[9]The rationale for this was explained by Lord Hope at [60]-[61], [81] and [86]-[87]:60. …But how can causation be established when, as in this case, the patient would not have refused absolutely there and then and for ever to undergo the operation if told of the risks but would have postponed her decision until later?

61. The problem is rendered all the more acute in this case by the fact that the failure to warn cannot be said in any way to have increased the risk of injury. The risk was inherent in the operation itself. It was described by Miss Chester's expert witness, Mr Firth, as “the terror of neurosurgery.” The evidence indicated that it was also liable to occur at random, irrespective of the degree of care and skill with which the operation was conducted by the surgeon. This means that the risk would have been the same whenever and at whoever's hands she had the operation. It can be said that Miss Chester would not have suffered her injury “but for” Mr Afshar's failure to warn her of the risks, as she would have declined to be operated on by him on 21 November 1994. But it is difficult to say that his failure was the effective cause of the injury. 81. I would accept that a solution to this problem which is in Miss Chester's favour cannot be based on conventional causation principles. The “but for” test is easily satisfied, as the trial judge held that she would not have had the operation on 21 November 1994 if the warning had been given. But the risk of which she should have been warned was not created by the failure to warn. It was already there, as an inevitable risk of the operative procedure itself however skilfully and carefully it was carried out. The risk was not increased, nor were the chances of avoiding it lessened, by what Mr Afshar failed to say about it. As Professor Honoré in his note “Medical non-disclosure, causation and risk: Chappel v Hart” (1999) 7 Torts LJ 1 , 4 has pointed out, to expose someone to a risk to which that person is exposed anyhow is not to cause anything. . 86. I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here-the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy-simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately. 87. To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.

[10]In Correia v University Hospital of North Staffordshire NHS Trust [2017] ECC 37 at [24], the Court of Appeal (Simon LJ) described at [28] the “crucial finding” in Chester as being, “that, if warned of the risk, the claimant would have deferred the operation.”

[11]In Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18, the Court of Appeal held that: 69 ….the majority decision in Chester does not negate the requirement for a claimant to demonstrate a "but for" causative effect of the breach of duty, as that requirement was interpreted by the majority, and specifically that the operation would have not have taken place when it did. The approach to evaluating evidence The claimant’s evidence

[12]In respect of the approach to be taken to the Claimant’s evidence on causation, I endorse and adopt Hutchinson J’s approach in Smith v Barking, Havering and Brentwood Health Authority[1994] 5 Med LR 285 (“Smith”), at pages 288-289 which can be summarised as: i) It is for the claimant to prove that with different advice she would not have elected to undergo surgery. ii) This is to be judged on a subjective basis, “the question must be: If this plaintiff had been given the advice that she should have been given. would she have decided to undergo the operation or not?” iii) “However there is a peculiar difficulty involved in this sort of case – not least for the plaintiff herself – in giving, after the adverse outcome of the operation is known, reliable answers as to what she would have decided before the operation had she been given proper advice as to the risks inherent in it. Accordingly, it would in my judgment, be right in the ordinary case to give particular weight to the objective assessment. If everything points to the fact that a reasonable plaintiff properly informed, would have assented to the operation, the assertion from the witness box, made after the adverse outcome is known, in a wholly artificial situation and in the knowledge that the outcome of the case depends upon that assertion being maintained, does not carry great weight unless there are extraneous or additional factors to substantiate it”.

[13]A similar approach was endorsed by the Court of Appeal in Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] PIQR P12 (“Diamond”), at [21]-[22]:21. In my opinion the judge was scrupulous in his assessment of the appellant and her evidence. He found that she was a reliable and honest person, he took account of the personal and social considerations particular to the appellant. The judge considered the clinical facts in the context of the appellant's character and circumstances. He made the valid observation that recalling specific events or conversations is markedly different from attempting to reconstruct what a person's response would or might have been had that person been given certain information. Hindsight was acknowledged to be a factor in such a consideration and the judge found that it would be "quite impossible" for the appellant to divorce from her thinking "the fact that she was subsequently told by Mr Jones that it would be inadvisable for her to become pregnant because of the mesh and that, in the event, she has not had another child." He found that the "sad outcome" coloured and informed her view of what she would have done had she been appropriately warned. The judge did not leave the matter there; he went on to conclude that the appellant genuinely believes and has convinced herself that she would have opted for the suture repair had she been provided with all the relevant information. Critically he held that her evidence accorded with her honestly held belief, however it did not follow that what she now believes would in fact have been the position at the material time.

22. The judge's approach, coupled with his assessment of the appellant and her evidence, was detailed, nuanced and insightful. It was an assessment that was properly open to him to make on the evidence before the court. The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient's position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of "rationality" without more to the issue of causation. No valid criticism of the judge's approach, still less his assessment of the factual evidence can be made. There is no basis for this court to find that there was a material error of law or that a critical finding of fact was made for whichthere is no evidential basis. This limb of ground of appeal 1 is dismissed.

The approach to witness evidence generally

[14]I endorse the “very general and basic propositions” set out by HHJ Cotter QC (now Cotter J), sitting as a Deputy Judge of the High Court in Pomphrey v Secretary of State for Health [2019] Med LR 424 (“Pomphrey”) at [31]-[33]:31. I start with some very general and basic propositions. When evaluating the evidence of a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily mean, that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.

32. The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the tell-tale statement being “I would have” rather than “I remember that I did”.

33. To approach the exercise of fact finding in a complex case (when faced with stark conflicts in witness evidence) as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because individual pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally Rhesa Shipping Co SA v Edmunds (The Popi (M) [1985] 1 W.L.R. 948). However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen.

[15]InSynclair v East Lancashire Hospitals NHS Trust

[2015] EWCA Civ 1283

(“Synclair”), the Court of Appeal dealt with the defendant’s appeal based on the trial judge’s evaluation of the evidence heard at trial, and in particular, whether he was entitled to regard as incorrect - observations recorded in an apparently contemporaneous clinical note of a ward round conducted by a surgical registrar. It was common ground at trial that if the trial judge accepted oral evidence given at trial by the claimant and his wife concerning his condition on the day of his discharge from hospital after surgery, then the claimant he would succeed in his claim that the defendant Trust had acted in breach of duty in discharging him that day. The registrar and the surgeon (Mr Zafar) had no recollection at all of either the claimant or of what transpired on the ward round. The defendant’s defence on this issue depended entirely upon the notes being accurate and being accepted in preference to the oral evidence of the claimant and his wife (see [7]).

[16]Tomlinson LJ set out the classic principles on the nature of judicial fact finding in particular the significance of contemporaneous documents at [10]-[12]: 10. Both Mr Giles Colin for the Trust and Mr Darryl Allen QC for the Claimant reminded us of some of the classical learning on the nature of the judicial fact-finding function. We were shown, in chronological

[17]Plainly, whilst all the matters identified in the extracts from the cases summarised above are relevant and provide useful guidance in terms of the evaluation of evidence and the fact-finding exercise that I must perform, it is equally clear that these tasks will always be specific to the evidence in the case in question – there are no immutable rules.

The witnesses

[18]I heard evidence from the claimant and defendant and from their respective experts. As regards the claimant and defendant, neither side accused the other of lying or giving deliberately misleading evidence. However, each side said that the other’s evidence was incorrect or mistaken in material respects. I do not have to resolve every difference or dispute between them – only those which are relevant to the issues I have to determine. This applies also to any differences between the experts’ respective opinions. The claimant

[19]Ms Pooley submitted that the claimant recalled the events of March and April 2019 with specificity given that she had reason to remember due to the rare and serious complications that followed her surgery. She submitted that the claimant’s evidence was clear and consistent across her witness statement, pleaded case and oral evidence. Ms Pooley also submitted that the claimant’s evidence is supported by the absence of any mention of prolapsing haemorrhoids in the medical records prior to, and at, her appointments with the defendant.

[20]I find the claimant to be an honest person, doing her best in very difficult circumstances. I do not underestimate the physical and mental effects she has suffered under since her surgery and it is inevitable that this has taken its toll on her, as no doubt, has the stress of this litigation. However, I find her to be an unreliable historian. This is not because she is consciously not telling the truth or embellishing her evidence. I find that she genuinely believes, and has convinced herself, that she was not provided with all the relevant information by the defendant, and had she been, she would not have undergone surgery. However, I find that what she now believes, does not accord with the evidence at the material times. Examples of this are given in my summary of the relevant facts below.

[21]Her lack of reliable recall is understandable given the lengthy passage of time since the events in question, and also the issue of hindsight, particularly due to the extremely rare, painful, debilitating and life changing effects of the anal stenosis she developed as a consequence of the haemorrhoidectomy she underwent on 13 June 2019. It would be difficult for many people in this situation to reliably remember years later what their specific symptoms were at a particular time, what she said about these to doctors and what was said by the doctors to her, and I find that the claimant is similarly affected. In addition, it is inevitable that the claimant now sincerely regrets undergoing the surgery. Her sad outcome has inevitably coloured and informed her view of all these matters.

[22]However, in my judgment there is an additional relevant factor, which is that the claimant now knows the importance of these issues to her claim, and this has affected her recollection such that she has at times recreated her view of what happened, whether consciously or subconsciously. (see Diamond at [21]-[22] and Pomphrey at [31]-[33]).

[23]For these reasons, when assessing the claimant’s evidence, I have had particular regard to the relevant contemporaneous documents, objective facts and overall probabilities and to the evidence of Professor Phillips in order to resolve conflicts of evidence between the claimant and the defendant (see Synclair at [10]-[12]). The defendant

[24]The defendant is clearly an extremely experienced practitioner with many years of experience in diagnosing and treating haemorrhoids and performing ligasure haemorrhoidectomies. His record keeping in this case was not thorough or detailed, as he did not fully record the details of the results of his examinations of the claimant or the details of his discussions with her. Although he had some recollection of the claimant, in large part his evidence was based on what he believes he would have done or must have done based on the contemporaneous documents and his usual practice rather than any actual recollection of the claimant herself. In consequence, I have had regard to HHJ Cotter’s (as he then was) warning in Pomphrey at [32] of the need to keep in mind that “I would have” is not as persuasive as “I did”, particularly when the person concerned is being criticised.

[25]I find the defendant to be an honest witness but given his limited recollection of the claimant, I have (as with the claimant), paid particular attention to the relevant contemporaneous documents, objective facts and overall probabilities to resolve conflicts of evidence between the claimant and the defendant and in particular to the evidence of Professor Phillips. In so doing, I have considered the reliability of the relevant documents, observing that the starting point is that medical records ordinarily fall into the category of “reliable documents” and are therefore worthy of careful consideration. However, I have judged the contemporaneous documents alongside each other and the other evidence in the case and the opinions of the experts, in particular Professor Phillips. (as per Synclair at [10] – [12]).

Expert evidence

[26]Both experts retired from clinical practice prior to 2019. Ms Pooley for the claimant conceded that the claimant’s expert Mr Thompson’s level of expertise in terms of the live issues in this case was limited given how few haemorrhoidectomies he has ever carried out and how few patients he has seen with grade 3 or 4 haemorrhoids.

[27]In my view Ms Pooley’s concession was properly made. For the reasons given below, I consider that Professor Phillips has significantly more relevant expertise than Mr Thompson and that regrettably Mr Thompson’s evidence appears in certain respects to have fallen short of the requirements of PD 35 as I set out below.

[28]Therefore, where there is a conflict between the evidence of Mr Thompson and Professor Phillips, I unhesitatingly prefer the evidence of Professor Phillips.

The claimant’s expert witness – Mr Michael Thompson (“Mr Thompson”)

[29]Mr Thompson is a retired general and colorectal surgeon with over 25 years’ experience in a District General Hospital. In evidence-in-chief he said that his last major surgery was in 2019. In cross-examination he said that by the 1990’s he was “pretty well exclusively a colorectal surgeon” mainly cancer but also haemorrhoids. However, he then said that he had not done many haemorrhoidectomies and had never done a ligature haemorrhoidectomy. He also said that from 2009 he was doing “very little operating on haemorrhoids” but then added that after 2010 he did no operating on haemorrhoids at all. He agreed that it was “a reasonable point” that it was difficult for him to identify the standard of a reasonably competent haemorrhoid surgeon in 2019.

[30]My view of Mr Thompson as a witness was that his evidence was based on limited experience or expertise. Unfortunately, during cross-examination it emerged that in several instances he had not acted in accordance with his duties as an expert under Civil Practice Direction 35 (“PD 35”). I observe here that the General Requirements for Expert Evidence contained in PD 35 are as follows: Expert Evidence – General Requirements2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

2.3 Experts should consider all material facts, including those which might detract from their opinions.

2.4 Experts should make it clear –

(a) when a question or issue falls outside their expertise; and

(b) when they are not able to reach a definite opinion, for example because they have insufficient information.

2.5 If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

[31]One example of this is that in cross-examination, Mr Thompson was asked why his witness statement dated 21 July 2021 referred to him having read the claimant and defendant’s witness evidence when this was only served in April 2024. He said that when the witness evidence was served, he did have regard to it but his opinion had not changed since he wrote this 2021 report. This does not however explain how he was able to have regard to witness evidence in July 2021 when these statements did not even come into existence until 2024. It was also pointed out to him that neither this expert report, nor his subsequent report dated 4 February 2022 made any reference to the defendant’s case and nor had he analysed the defendant’s case. He accepted this and also accepted that under PD 35 he was under a duty to assess the arguments on both sides and weigh them up fairly – which he believed he had (even though he had not addressed the defendant’s case at all in either of his reports). There are other examples which are dealt with in the body of this judgment below.

The defendant’s expert witness – Professor Robin Phillips (“Professor Phillips”)

[32]Professor Phillips retired in November 2017 having been a Consultant General Surgeon since 1987. Of relevance, he was appointed the Clinical Director for St Mark’s Hospital for Intestinal Diseases in 2004 (the National Bowel Hospital), taking on additional responsibilities for Gastroenterology, Upper Gastrointestinal Surgery and Emergency Surgery for North West London Hospitals NHS Trust in 2010. In June 2000 he was made Honorary Professor of Colorectal Surgery by Imperial College London, a post which was made substantive from 2007. After his retirement in 2017 he continued with his Honorary contract. He is the author of 9 recent textbooks in colorectal surgery and has contributed to 300 original articles and 59 book chapters. The Joint Statement lists Professor Phillips’ contribution to the literature on haemorrhoids and their treatment including haemorrhoidectomy. Twelve publications are listed which include publications on haemorrhoids, including diagnosis and treatment, haemorrhoidectomy and evidence-based practice.

[33]Professor Phillips said that up to retirement he was a full-time colorectal surgeon at the National Bowel Hospital where he undertook a combination of complex and anorectal work. He also ran several clinical trials relating to haemorrhoids in which he did all the surgery. As the National Bowel Hospital is the specialist centre for bowel issues, the patient cohort differs from a district hospital. In the studies he has done, all surgeons in North West London referred their haemorrhoidectomy patients to him.

[34]I consider therefore that he has extensive experience of diagnosing, grading and treating haemorrhoids and of undertaking haemorrhoidectomies. I found him to be a forthright, straightforward witness who gave direct answers to questions and made concessions where appropriate (as set out in the body of this judgment below). In my judgment his evidence is reliable, objective and unbiased and I therefore consider it appropriate to place considerable reliance on it. I prefer his evidence in all respects to the evidence of Mr Thompson save where he and Mr Thompson agree. Relevant facts, evidence and findings

The claimant

[35]At the time of the events in question, the claimant was 52 years old and was employed as a coding manager for Ramsay Healthcare UK who owned and ran the Rivers Hospital, where she saw the defendant on a private basis and where the surgery was carried out. The defendant

[36]The defendant has been a Consultant Laparoscopic and Robotic General and Colorectal Surgeon since 2012. He has specialised in general and colorectal surgery since approximately 2001. He has both an NHS and private practice. At the time of these events, he was the Clinical Director for General and Vascular Surgery at his NHS hospital.

The claimant’s history

[37]The claimant has suffered from constipation since approximately 1995 which she managed with laxatives. In 2000 whilst straining to go to the toilet she found it extremely painful and felt like she was passing glass, and she would also pass mucus and blood. She had a sigmoidoscopy in 2001 to check her colon which was normal.

[38]Between 2005 and 2006 she suffered with diarrhoea and went to the toilet 2 – 3 times per day which was unusual for her. She had another sigmoidoscopy but was again reassured that everything was normal. Her diarrhoea resolved and she had no further rectal problems until the end of 2018 to the beginning of 2019 when she had some intermittent bleeding after going to the toilet over a period of 3-4 months. At times the bleeding was heavy and at other times it was only present on wiping. The claimant’s evidence was that she did not notice anything obvious on the outside of her bottom other than a small skin tag. She was also a keen long-distance runner, and she said in evidence that she told the defendant that the bleeding had started to become troublesome because she was bleeding after a run.

The claimant’s appointment with the Private GP

[39]As a result of this bleeding, the claimant consulted a private GP (Dr Siew) because no appointments were available with her NHS GP. In her witness statement she said that the GP told her that she was suffering with haemorrhoids but that these were not prolapsed.

The GP’s referral letter

[40]A referral letter dated 7 March 2019 was sent by the GP (Dr Siew) to the defendant. The letter stated (of relevance) that the claimant “reports a 4-month history of fresh red painless bleeding with each defecation. This has not improved with time. She also reports an associated abdominal pain with this. She tells me that she has existing haemorrhoids.” The letter stated “Her bowel habits are unchanged tending to be more slow, but no hard stools. She opens her bowels every 2 days or so. She has not noticed any weight loss, but says she has some decreased appetite.” Regarding the GP’s examination, the letter stated, “Examination: External haemorrhoids + potential bleeding point seen. No active bleeding. No rectal mass.” The letter requested, “in view of her ongoing bleeding and abdominal pain, I would be grateful for your opinion.”

[41]Of note, in neither the claimant’s witness statement nor in evidence, did the claimant refer to having been diagnosed with haemorrhoids or of being aware that she had external haemorrhoids.

[42]In her witness statement, the claimant denied telling the GP that she had existing haemorrhoids. She said in her witness statement that all she told him was that she had a skin tag in this area. She said that she wasn’t aware of, and had not previously felt, any “acutely present external haemorrhoids” – which she described as being “unusually large/bulging or exposed bulky tissue that I might have expected to be hanging outside my bottom. I didn’t have any pain either that I would supposedly associate with having what is described as ‘external piles’. I was only aware of my skin tag. To me, external haemorrhoids would give a picture of something outside of my rectum, resembling grapes. That was not something I was suffering with.” She said that the GP carried out a brief internal examination and told her he could feel some haemorrhoids which might be the cause of the bleeding.

[43]In cross-examination, she said that she did not have any pain that she would have associated with external haemorrhoids. She denied having haemorrhoids that hung outside her anus. She said that she had not confused haemorrhoids with a skin tag. She said that the skin tag was “tiny and fleshy” and she would have expected haemorrhoids to be larger than this. She said that there may have been some tinier skin tags surrounding it, but she could only feel one. She suggested that a GP would refer to any kind of skin tag as a haemorrhoid. The experts agree with this as their Joint Statement states that GPs tend to use the terms ‘piles’ or ‘haemorrhoids to describe anything wrong with the anus, particularly if associated with itching or bleeding. The defendant in cross-examination also agreed that GP’s often misuse or misapply the term “haemorrhoids”.

[44]Mr Thompson agreed in evidence that if the GP’s examination was correct then this must mean that the claimant’s haemorrhoids were Grade 3 or 4 although both experts agreed in their Joint Statement that a surgeon’s classification would be more generally accepted than a GPs. The defendant agreed that his examination of the patient would be more in depth than an examination conducted by a GP.

[45]It was put to the claimant in cross-examination, that Mr Thompson’s report dated 4 February 2022, states that during her zoom meeting with him on 29 December 2021 she said that “she had no anal pain but was aware of a small external skin nodule which made cleaning difficult after a bowel action. She was not aware of any prolapse although she was aware of something around the anus once every two weeks when she had to strain to empty her bowels. This swelling had not occurred since the haemorrhoidectomy”. She said that Mr Thompson’s account was not accurate and that she did not tell him this because she did not have swelling, she only had discomfort and nothing else apart from the skin nodule. The same passage from the report was put to Mr Thompson in cross-examination. He did not resile from his record of what the claimant told him but said that her account was consistent with swelling in the perianal area which does not mean that it was outside the anus. However, he then also agreed a responsible body of Consultant Colorectal Surgeons would consider this information to be consistent with a grading of 2 – 3.

[46]The GP (Dr Siew) was not called as a witness by either party so the inconsistencies between his referral letter and the claimant’s recollection could not be put to him. The first consultation with

The defendant

[47]The claimant had her first consultation with the defendant on 15 March 2019. She said in her witness statement that the defendant asked her for her history including how often she went to the toilet and about her symptoms which she said was some bleeding after going to the toilet with occasional abdominal pains. He asked her if she had lost any weight which she confirmed she had not, and he asked her what medication she was taking, her family history and her past medical history. In cross-examination, she said that she imagined she would have told the defendant about the skin tag and the difficulty cleaning it.

[48]However, when she gave evidence, she said for the first time, that she told the defendant that the bleeding was becoming a nuisance particularly in respect of her long-distance running hobby. She found that she was bleeding after a run. She said that she told him that the bleeding was aggravating if she wanted to do a long run. It didn’t happen all the time and, in the consultation, she queried with the defendant whether it might be “runner’s tummy”. It is notable that this was the first time the claimant had given this account as this was not referred to in her witness statement nor when she saw was seen by both experts. The defendant said in evidence that this bleeding whilst running meant that it was very unlikely that she had grade 1 or 2 haemorrhoids. This bleeding indicates that it is caused by something prolapsing out of the anus to cause the bleeding (meaning that the haemorrhoids were grade 3 or 4).

[49]The claimant said in her witness statement that the defendant then carried out an examination and told her that she had some anal skin tags and haemorrhoids, which he thought was causing the bleeding and that he wanted to arrange for a flexible sigmoidoscopy to have a better look. In evidence the claimant said that at no stage did the defendant ask her about prolapsing haemorrhoids.

[50]The claimant said in cross-examination that she was only aware of one skin tag because that was all she could feel. She wasn’t sure if it was that was causing the bleeding and the only issue she had was trying to keep the skin tag clean after opening her bowels.

[51]She also said that she was not aware that she had an anal fissure at the time the surgery was carried out. It was pointed out that was in the letter dated 21 March 2019 which she received. She said that this was not mentioned to her by the defendant in consultation.

[52]The defendant wrote a letter to the GP dated 21 March 2019. In evidence the defendant explained that his practice was to dictate such a letter immediately after the consultation and that the letter represented his contemporaneous note of the consultation. The letter would then be typed by his secretary and sent out – and therefore the date of 21 March 2019 on this letter represents the day on which it was typed and posted by his secretary. The letter was sent to the GP and copied to the claimant. The claimant agreed that she had received it. The defendant’s evidence on this was not challenged and I accept therefore that this letter represents his virtually contemporaneous note of the consultation.

[53]The first paragraph of the letter recounts the claimant’s history. Of relevance it states, “She has a four-month history of rectal bleeding with no anorectal pain or discomfort. Her bowels open once every 4-5 days and there is no significant change in her bowel habit. There is no family history of colorectal cancer but she does get occasional lower abdominal pains. There has been no significant weight loss.” The next paragraph states, “Abdominal examination was unremarkable. Rectal examination revealed some anal skin tags and chronic posterior fissure. Rigid sigmoidoscopy was normal and proctoscopy confirmed some bulky haemorrhoidal tissue. I have arranged for her to have flexible sigmoidoscopy.” The defendant said that it was very common for him to summarise findings in a short way rather than write everything down in a clinic letter.

[54]A proctoscopy is where a short, rigid tube called a proctoscope is inserted into the lower end of the rectum and anal canal to visualize the area for abnormalities. It is used to diagnose conditions in the lower part of the colon and anus. It can identify prolapsing haemorrhoids when inserting and removing the proctoscope.

[55]A rigid sigmoidoscopy is an examination of the rectum and the lower part of the colon using a short, rigid tube called a sigmoidoscope. This test helps in diagnosing the cause of rectal bleeding or other anal symptoms, or changes in bowel habits. It can also be used to take tissue samples (biopsies). It is a longer instrument than a proctoscope and can see up to 15cm.

[56]The defendant said that he could not now recall the consultation he had with the claimant. His practice at first appointment was to exclude more significant / sinister causes of the bleeding. The claimant’s four-month history of rectal bleeding, plus the fact that her bowels were only opening every 4 – 5 days, meant that haemorrhoids would have been one of his differential diagnoses. If the claimant had reported haemorrhoids to him, he would not necessarily have put this in his clinic letter because it wasn’t his practice to include everything. He agreed that the letter does not refer to prolapsing haemorrhoids. He said that a proctoscopy and rigid sigmoidoscopy are both very uncomfortable examinations so it can be difficult to ascertain the exact amount of prolapse and bulky haemorrhoid tissue. If he had found both this would not necessarily be in his clinic letter. What he meant by bulky haemorrhoidal tissue is that when he was withdrawing the proctoscope, the haemorrhoidal tissue prolapsed out. He did not grade the haemorrhoids at that time and his focus at that time was to rule out anything more serious (such as cancer) and that the purpose of the flexible sigmoidoscopy was to rule out other pathology for the bleeding such as colorectal cancer. A flexible sigmoidoscopy can also visualise haemorrhoids to a certain extent.

[57]He said that the claimant may be correct that the chronic posterior fissure was not discussed as it was an incidental finding and causing no pain. He said that the fissure was healed so was not symptomatic and therefore did not require addressing. He said that a healed fissure was not likely to be a substantial cause of bleeding over 4 months.

[58]It was put to Mr Thompson in cross-examination that the reference to “bulky haemorrhoidal tissue” meant tissue that prolapsed when the proctoscope was withdrawn. He agreed that it could mean that the haemorrhoids were either Grade 2 or 3 depending on whether the haemorrhoids returned spontaneously or had to be digitally replaced.

[59]Regarding the claimant’s account of bleeding whilst running, Mr Thompson accepted that when running, the external sphincter would be closed which would contain any bleeding until the bowels were subsequently opened.

[60]Professor Phillips was also asked about this, and he said that bleeding whilst running would be likely to be caused by prolapsed haemorrhoids which become traumatised and then bleed. If the haemorrhoids were not prolapsed, he would not expect them to cause visible bleeding on the outside whilst running. He explained that the reason for this is that the anus is continent (ie: closed) and he wouldn’t expect it to be incontinent when running. If the blood had come from haemorrhoids inside the anus, he would not expect this blood to come out during a run. He said that marathon runners may find blood in their stools after running, but the complainant’s evidence is that she had blood on her underwear when running.

[61]Professor Phillips said that the only cause of this bleeding was haemorrhoids. Infrequent bowel function of itself does not cause rectal bleeding and cancer or other causes were ruled out by the defendant’s investigations. The only other possible cause of such bleeding would be a fissure – but the claimant did not have an active fissure, only a chronic fissure – meaning that it had healed. He described a chronic fissure as a “tombstone” of a past acute fissure. The fissure has healed and is asymptomatic and inconsequential but leaves a scar. This chronic fissure would not therefore cause the claimant’s bleeding and in any event, bleeding from a fissure is almost always associated with pain and discomfort which the claimant denied. Therefore, he concluded that bleeding while running must have come from prolapsed haemorrhoids which were likely to be grade 3 or 4 as they were outside the body.

[62]Initially the claimant and Mr Thompson alleged that the claimant’s fissure was a relevant finding both in terms of it being the cause of the claimant’s bleeding, but also in respect of the risks of surgery. It was alleged in the Particulars of Claim that the defendant had been negligent in failing to consider the significance of the fissure and failing to advise and treat it before offering surgery. However, by the end of the trial, Ms Pooley conceded that Mr Thompson was wrong about this and that a chronic (healed) fissure was of no relevance to the issues in this case. In my view she was right to make that concession given that both experts now agree that the claimant’s chronic fissure could not have been the cause of her bleeding and was of no relevance or significance to the issues of advice and treatment.

[63]Professor Phillips said that at this first consultation, the defendant would have been in “diagnostic mode” regarding the cause of the claimant’s bleeding and whether the cause could be cancer or a condition such as ulcerative colitis. He said that this takes priority for obvious reasons. The fact that haemorrhoids, some anal skin tags and a chronic posterior fissure were seen would be noted but would not be relevant to explore further at that time as the priority would be ruling out a more serious cause for the bleeding and to decide what further investigations were needed – either a flexible sigmoidoscopy or a colonoscopy. He said that it followed that there was no requirement at that time to grade the complainant’s haemorrhoids, nor to explore the issue of prolapse and that not to do so was consistent with the actions of a responsible body of consultant colorectal surgeons in a similar situation.

Flexible sigmoidoscopy procedure

[64]On 21 March 2019, the claimant underwent a flexible sigmoidoscopy performed by the defendant which is a procedure in which the lower part of the colon is examined using a thin flexible tube with a camera and light at one end. Biopsies can also be taken of the colon during this procedure.

[65]The Sigmoidoscopy Report dated 21 March 2019 records that a digital rectal examination was performed, biopsies were taken and that when the scope was retroflexed in the rectum there were “haemorrhoids on retroflexion.” ‘Retroflexion’ is when the sigmoidoscope is inserted into the anal canal and then bent back on itself to look backwards.

[66]This Report does not therefore record whether these haemorrhoids were prolapsed and nor does it record the grade of haemorrhoids seen. In cross-examination the defendant said that you would not see whether haemorrhoids were prolapsing on retroflexion as the sigmoidoscope is still within the anal canal. Professor Phillips agreed in evidence that the Report means that the haemorrhoids have been visualised internally, so this does not assist with grading.

[67]The claimant said that the defendant told her she had haemorrhoids and had taken biopsies of her colon which he did not expect to show anything sinister. The second consultation with

The defendant

[68]On 20 April 2019, the claimant had a further consultation with the defendant. Again, the defendant’s note of this consultation is his clinic letter dated 23 April 2019, which he dictated immediately following the consultation and which was sent to the GP and copied to the claimant. The letter states: I saw this lady following her flexible sigmoidoscopy on the 21st March 2019. This was normal to the splenic flexure. She does have 2nd and 3rd degree haemorrhoids, and she takes Movicol which does improve her bleeding symptoms. We had a discussion about haemorrhoid surgery and she is keen to proceed. I have listed her for a ligasure haemorrhoidectomy on the 13th June and have warned her of all the usual risks, but in particular post-operative pain. I have given her an EIDO information sheet with regards to this.

The process of grading the haemorrhoids

[69]The defendant filed a supplementary witness statement dated 3 June 2025 after the Joint Statement produced by the experts on 17 April 2025. In this supplementary statement he said that “the diagnosis and grading of the Claimant’s haemorrhoids was based upon a combination of the rectal examination on 15 March 2019, flexible sigmoidoscopy on 21 March 2019 and the presenting symptoms as reported by the Claimant”. He further said that “when discussing symptoms my standard practice is to ask patients whether they have noticed any lumps or protrusions from the anus. Whilst I may not have used the phrase “prolapse” I do enquire whether any lump or protrusion present can be pushed back inside the anus. A note is then made in the records of the corresponding grade and in this case, it is recorded in the contemporaneous clinical letter that, “she does have 2nd and 3rd degree haemorrhoids””.

[70]It was put to the defendant in cross-examination that there was no history given by the claimant of prolapsing haemorrhoids. He said that after a flexible sigmoidoscopy and once cancer or other causes of bleeding have been excluded and he is sure that the cause of bleeding is haemorrhoids, it is his standard practice to go into more detail with the patient of her haemorrhoid symptoms. His grading of 2 / 3 prior to surgery takes into account his previous examinations and the patient’s history.

[71]He accepted that his clinic letter does not have this detail in it, but this accords with his practice of writing brief clinic letters. He pointed out that for example, his clinic letters do not refer to the claimant telling him that she was experiencing bleeding whilst running, although she is clear that she did tell him this. The fact that she was bleeding while running meant that her haemorrhoids were at least grade 3 as bleeding when running means a prolapse. It also demonstrates that he did elicit more relevant information from the claimant than is contained in his letters. He did accept however that if he had not obtained an appropriate history from the claimant in combination with the examinations, then it would not have been appropriate to grade her haemorrhoids and that this would be below the standard of a responsible Consultant Colorectal Surgeon.

[72]The claimant said that the defendant told her that the biopsy had confirmed haemorrhoids and that this was the cause of the bleeding. She said that the defendant at no point told her what grade her haemorrhoids were, and she was not even aware that haemorrhoids were graded until she met Mr Thompson. However, she accepted receiving and reading the defendant’s letter which referred to 2nd and 3rd degree haemorrhoids. She said that she didn’t understand what this grading meant. She said that the defendant did not ask her if she could feel any lumps outside her bottom when emptying her bowels. She said that she did not query or clarify the grading of her haemorrhoids as “you trust your consultant that they are going to be giving you the best advice.”

[73]Mr Thompson agreed that the use of the grade 1 – 4 grading system was consistent with the practice of a responsible body of Consultant Colorectal Surgeons. He was asked why therefore he had asserted in his first expert report that the defendant graded the claimant’s haemorrhoids based on their size alone. Mr Thompson agreed that if this is what the defendant did then he was operating a unique grading system, and he was not aware of any other surgeon who would do that. He was unable to explain why he had asserted that the defendant had done this or what evidence there was to support it. I therefore reject this evidence as I agree that there is no evidence to support it and in fact much to contradict it.

[74]Mr Thompson’s first report dated 21 July 2021 said that in his opinion the claimant’s haemorrhoids “were Grade 1”. However, in the Joint Statement he stated that “it is likely that the Claimant had Grade 1 – 2 piles”. Despite this, in cross-examination he denied that his opinion had changed and said that for him the most important factor is that the claimant did not have prolapsing haemorrhoids. Mr Thompson was asked what his evidence was for saying that the claimant’s haemorrhoids were only Grade 1-2. He said that he could find no clear evidence that her haemorrhoids were prolapsed.

[75]Mr Thompson agreed that as regards the 24 April 2019 letter in which the defendant graded the claimant’s haemorrhoids as grade 2 / 3, that any responsible body of Consultant Colorectal Surgeons reading that would understand what this means and would reasonably assume that this grading was made by taking a history from the claimant and by examination. He agreed that if the defendant’s evidence as to how he graded the haemorrhoids is accepted, then this would be consistent with a responsible body of Consultant Colorectal Surgeons. He agreed that severe constipation was consistent with a diagnosis of grade 2 / 3 haemorrhoids – it could be a known cause. The information provided to him by the claimant during the zoom consultation on 29 December 2021 that, “She was not aware of any prolapse but aware of something around anus every 2 weeks when she had to strain to empty her bowels. This swelling has not occurred since the haemorrhoidectomy” was put to him. He said that this is swelling in the perianal area which does not mean it was outside the anus. However, he agreed that a responsible body of Consultant Colorectal Surgeons would consider this information to be consistent with a grading of 2 – 3.

[76]Professor Phillips said that by the time of this appointment, the defendant was able to exclude cancer or other serious causes of the claimant’s bleeding. The defendant was therefore, “now in decision making mode”. He said that the haemorrhoid grading system was understood by everyone. You cannot arrive at a grade without asking the questions. What this means is that a Colorectal Surgeon can just use a grading term without explaining what it means. The fact that the defendant has simply written the grades does not mean he has not asked the questions or taken the history because he could not have done anything else to arrive at a grading of 2 – 3. He said, “the question is – do you have a sensation of something falling out of your bottom that either goes back on its own or you need to push back, and then you might add does it stay inside, or does it fall out again - then I would write grade 2 / 3 etc”. If the court finds that no history was elicited of prolapse then this would not be in accordance with a responsible body of Consultant Colorectal Surgeons because it would be impossible to write the grading down because they are defining words.

[77]He said that at the second appointment, if a responsible Colorectal Surgeon had identified a prolapsing haemorrhoid then this would trigger a further conversation with the patient about whether she sensed something coming out etc and on the basis of that, the surgeon makes a note of his grading – and on that basis he is then in a position to suggest management. Professor Phillips was therefore firmly of the view was that 2nd and 3rd degree haemorrhoids could not be written in the notes without those questions being asked.

[78]Professor Phillips said that he had no reason to suppose that the defendant was not being truthful when he wrote grade 2 – 3 haemorrhoids and it was therefore logical that the defendant was given information by the claimant that was consistent with this grading.

[79]Professor Phillips said that he fully accepted that it is not his role to find facts, but he did have a role to provide expert evidence which guides logic, because technical words have a factual meaning. The words that are used are defining – the fact that the haemorrhoids are described as 2nd and 3rd degree defines the haemorrhoids and prolapse. “This says everything you need to know. The evidence of prolapse is defined by the words used. This notation has a highly specific meaning and means that a history of prolapsing must have been obtained.”

Advice on treatment options and risks of surgery

[80]During the second consultation on 20 April 2019, the claimant said that the defendant told her that the biopsy had confirmed haemorrhoids and that this was the cause of the bleeding. She said that the defendant told her that the haemorrhoids needed removing and once removed this would stop the bleeding and she would feel much more comfortable. She said that the defendant recommended a ligasure haemorrhoidectomy under general anaesthetic which he said was the definitive surgery and his preferred method. He briefly explained how the procedure would be carried out. She said that the defendant explained that the most common side effect was post-operative pain which would last approximately 3 weeks, which would be managed with Movicol and pain killers. He also said that there might be some minor post operative bleeding, discharge and incontinence after surgery which would resolve fairly quickly. The claimant said that she was keen for the bleeding to be stopped so she agreed to the surgery which was booked in for 13 June 2019.

[81]The claimant said that the defendant did not explain at any point during this consultation that he had seen an anal fissure during the flexible sigmoidoscopy. She said that a potential anal stenosis complication was not discussed with her, nor were alternative, non-surgical methods of stopping her rectal bleeding. She said that if these had been discussed, she would have taken time to consider them and would have asked for full details of such alternative treatments.

[82]The claimant agreed that the defendant had given her the EIDO Healthcare leaflet and that she had taken it away with her and read it. The EIDO leaflet is a four-page document which explains what haemorrhoids are, the benefits of surgery, the alternatives to surgery, what the surgery involves and what surgical complications can happen. On page 1, under the heading “Are there any alternatives to surgery” the leaflet states: Haemorrhoids can often be treated by simple measures, such as making sure your bowel movements are bulky and soft, and that you do not strain while opening your bowels. Drinking plenty of fluid and increasing the amount of fibre in your diet usually improves the way your bowels work. If these simple measures are unsuccessful, the haemorrhoids can usually be treated in a clinic. Local treatments aimed at shrinking the haemorrhoids include ‘banding’ or ‘injecting’ the haemorrhoids. For 7 in 10 people these treatments are successful but they may need to be repeated. The treatment is usually painless but can cause discomfort for up to 24 hours.” On page 3, under the heading “Specific complications of this operation”, anal stenosis is listed - “Anal stenosis, where your back passage narrows caused by scarring. You may need another operation”.

[83]The defendant said that he did address alternative treatment methods with the claimant including conservative measures such as diet and banding. The alternatives to surgery that he would have discussed with the claimant were those contained in the EIDO leaflet.

[84]However, he told her that dietary changes were unlikely to assist with Grade 3 haemorrhoids and that banding for Grade 3 haemorrhoids had a variable success rate and was not a definitive treatment as it either doesn’t work at all or it works for a while and then the problem returns. He said that the claimant was keen to proceed with surgery.

[85]He said that the fact that his letter records “we had a discussion about haemorrhoid surgery, and she is keen to proceed” meant that he had a discussion with the claimant about non-surgical options as well as surgery. If they have discussed conservative measures but the patient is keen to proceed for surgery, he writes in clinic letter “keen to proceed” – and then provides the EIDO leaflet so that the patient can also read about alternative measures. This was his standard practice, “I don’t perform surgery in benign cases without discussing alternative methods.” He said that he appreciates that patients may not remember everything in clinic so it is his standard practice to give them the EIDO leaflet so that they can read through it, and if the patient has any issues or concerns, then they can make another appointment or raise these on the day of surgery.

[86]It was put to the defendant that if the claimant was responding to Movicol then that pointed towards conservative treatment in the first instance. He said that she had already had a period of conservative treatment with Movicol, and the bleeding symptoms were still persistent. It was put to him that whatever grade the haemorrhoids were, the recommended treatment should have included the option of conservative (non-surgical) treatment. He said that the alternatives to surgery should be given but whether they would be recommended would depend on what grade the haemorrhoids were and how much the patient wanted their symptoms to clear up.

[87]In December 2021 and February 2022, the claimant had consultations with Mr Thompson. He told her that if her haemorrhoids were the cause of her bleeding then these could have been treated by injections or banding (this was on the basis that at this time, Mr Thompson’s opinion was that the claimant’s haemorrhoids were only grade 1). The claimant said that if these options had been discussed with her by the defendant, she would have tried these as for her, surgery was a last resort.

[88]The defendant said that he discussed the risks of surgery with the claimant which included several risks including anal stenosis and that the claimant was also given the EIDO leaflet. As regards anal stenosis – he would have explained to the claimant that this is where the back passage narrows due to scarring and that another operation may be needed.

[89]The claimant said in cross-examination that she did read the EIDO leaflet. She said that she read the “Alternatives to Surgery” section “I was aware of this when I read the leaflet but this was not something discussed.” She said that she trusted the defendant and that no other options except surgery were offered to her. He asked her if she definitely wanted to stop the bleeding, she said yes, and he said that his preferred method was surgery.

[90]She accepted reading the “complications” sections however she was not advised about these complications verbally by the defendant. All he concentrated on was the post operative pain. She denied that he had discussed the range of risks as set out in the EIDO leaflet. She said that when she read the EIDO leaflet, she did not then raise with the defendant the complications contained in it because in her layman’s view, she thought that these more drastic risks were less likely. The defendant concentrated on post operative pain and said that any difficulties would resolve within 2-3 weeks. He came across as relatively confident that this was a straightforward surgical procedure because this was his preferred method of dealing with the bleeding and haemorrhoids.

[91]She said that the defendant did not advise her about the risk of anal stenosis. As regards the risk of anal stenosis in the EIDO leaflet she accepted reading this but because the information about it was quite scanty and it was listed towards the end of the complications, to her it was less of a risk than the pain and everything else listed in that leaflet. She said in her witness statement that had she been fully informed by the defendant about what anal stenosis is and how it may affect her, she would not have had the surgery.

[92]Mr Thompson was asked about his opinion in his first report dated 21 July 2021 that “most reasonably competent surgeons would not have immediately advised surgery before treating the chronic anal fissure and assessing to what extent her infrequent bowel function was the primary cause of her rectal bleeding’ and “most reasonably competent colorectal surgeons would have initially discussed treatment options to heal [the claimant’s] fissure before treating her piles”. It was put to him that the chronic anal fissure was completely healed. He gave a rather confusing answer “I don’t believe the chronic anal fissure came back but it could have been the cause of the bleeding”. He said that he was “trying to make the point that the haemorrhoids were not the only possible cause of her rectal bleeding.”

[93]It was put to him that when he wrote his first report, he wrongly thought that the fissure was not healed and therefore needed treating. He said, “I thought constipation was a cause and I thought that if the fissure split then it might cause bleeding – sorry I didn’t make that clear in my report”. In fact, his report makes no reference to this at all and it is clear that at the time he wrote this report he thought that the fissure was not healed. It is concerning that Mr Thompson was unable to make this reasonable concession and admit that he was wrong.

[94]Mr Barnes put to Mr Thompson that in the Joint Statement he stated that, “as the fissure had healed it needed no active treatment at that time”. He was asked by Mr Barnes “has your opinion changed?” He replied, “no I haven’t changed my mind at all”. Again, it is a matter of concern that Mr Thompson was unwilling to admit what is obvious to any reader – which is that he has completely changed his mind by the time of the Joint Statement, presumably because he has at this point finally realised that the fissure was chronic (and therefore healed). Instead, Mr Thompson gave a confusing and rather incoherent response, “I agree it is unclear and I do apologise – what I meant was that the fissure had occurred at some time because of constipation which hadn’t been cured and the constipation could have caused a crack in fissure so in terms of treating her rectal bleeding that has to be taken into account.” Mr Barnes put to him again, “do you accept that you have changed your opinion”. He replied, “I agree it is not clear”. Therefore, despite being given three chances to concede that he had obviously changed his mind, he was unable to do so. This does not appear to comply with his duties under PD 35 which requires that “if after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.”

[95]He was asked about the difference between his first report in which he identified 3 factors as the possible main cause of the bleeding – a chronic anal fissure, occasional straining to pass less frequent drier stools or her ‘large’ piles – and his comments in the Joint Statement in which he said that the main cause of the 4 months of rectal bleeding was the claimant’s “severe constipation”. There is no reference to “severe constipation” in his first report. He said that he wanted to emphasise that she had struggled for many years with her bowels. Mr Barnes suggested that he was having to focus on constipation as the cause of the bleeding now that the anal fissure had fallen away as a possible cause and that this was “claimant’s advocacy”. He said, “my language changes but the treatment doesn’t.” He accepted that there had been no change in the claimant’s bowel habit over some 20 years and therefore the fact that she had been bleeding for four months meant that probably what had happened was that the haemorrhoidal tissue had started to bleed. He did therefore ultimately accept that the substantial cause of the bleeding was the haemorrhoidal tissue.

[96]It was pointed out to him that in the Joint Statement - in response to a general question “Please explain how piles are graded”, he gave a 32-paragraph answer in which he focussed on his opinion supporting the claimant’s case rather than simply answering the general question. He replied, “yes I am afraid I did – it is a piece of advocacy for the claimant”. This is another breach of the requirements of PD 35 “Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation”; and “Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”

[97]Mr Barnes put to him that in the Joint Statement, in response to the question, “if the Defendant’s factual evidence is accepted, is his advice consistent with a responsible, even if minority body of surgeons” he replied “as in my opinion the Defendant’s factual evidence is unacceptable for several reasons as outlined above it is not possible for me to answer this question”. Mr Thompson said that if the claimant had Grade 3 or 4 haemorrhoids then it would be reasonable to recommend surgery. He was asked why he had not said this in either of his reports or in the Joint Statement and he agreed he should have done so. He agreed that this amounted to another failure to comply with his PD 35 duties, “I think that’s a reasonable comment”. He then agreed that it was consistent with a reasonable standard of care to advise surgery for a patient with grade 3 haemorrhoids and “if a patient was referred to me with grade 3 haemorrhoids, then I would advise them to have a haemorrhoidectomy” because surgery is the definitive treatment for prolapsing piles which were Grade 3 or above. He agreed that if the defendant told the claimant that surgery was the definitive treatment for Grade 3 haemorrhoids and he also told her about the non-surgical options such as banding but explained that these were unlikely to resolve the problem, then this would be consistent with the approach taken by responsible Consultant Colorectal Surgeons and would represent a reasonable standard of care. He said that most people with grade 3 haemorrhoids will eventually have a haemorrhoidectomy.

[98]He said that the EIDO leaflet is comprehensive and that the risks of surgery are reasonably described. He agreed that if a patient read this leaflet they would be reasonably informed about the risks of surgery. He agreed that the EIDO leaflet was correct to describe the risk of anal stenosis as being less than 1%. He said that this complication was unique in his experience, and he had never seen it before. He said that even though the leaflet is excellent, it should not be a substitute for the surgeon having a conversation with the patient about the risks of surgery.

[99]Professor Phillips said that with Grade 3 or 4 haemorrhoids he would advise surgical management not conservative management. He agreed though that the discussion should still include non-surgical options because different patients will have different views about what their priorities are and what they want to do. No responsible body of Consultant Colorectal Surgeons would not discuss non-surgical options with the patient and if the court accepts the claimant’s evidence that this did not happen then this would be a breach of duty. The operation The consent process

The operation

[100]On 13 June 2019, prior to surgery, the defendant consented the claimant. The consent form was completed and signed by the defendant by hand, and he included several complications under “Significant, unavoidable or frequently occurring risks” - “bleeding infection, pain, incontinence, bowel urgency, anal stenosis” as possible complications. The consent form also records that the claimant had been given the EIDO leaflet “which explains the risks and benefits of the proposed procedure”. The defendant said that he consented her by reiterating all the risks prior to surgery. The consent form was also counter signed by a nurse who was present during the consenting process and who signed to confirm that the consent process has taken place appropriately and that the patient wishes to go ahead with the surgery.

[101]The defendant said in evidence that his standard practice for consenting patients prior to an operation is to ask the patient about the surgery they are having, whether they are experiencing the same symptoms, whether they have read the EIDO leaflet and if so, whether they have any further questions about the surgery. Then he would complete the consent form and write down the complications in front of the patient. He ticks the box to confirm that the patient has been provided with the EIDO leaflet, he then signs and dates the consent form, the patient also signs and dates it and then the admitting nurse signs to confirm the consent form.

[102]The consent form was signed by the claimant although she says that she did not think that she was at risk of anal stenosis as this was not something that the defendant mentioned when discussing possible risks of the surgery. The claimant said in cross-examination that she was only asked to sign the consent form some 5-10 minutes prior to the surgery.

[103]Professor Phillips’ 1st report dated June 2024 states, “the consent form includes risks as ‘Bleeding, Infection, Pain, Incontinence, Bowel Urgency, Anal Stenosis and shows that she had been supplied with EIDO information. In my view consent was adequate”. He also says, “it would seem to me there is very good evidence of a proper discussion and proper consent having been obtained.”

The operation note and findings

[104]The operation note made by the defendant on 13 June 2019 records his findings as (of relevance): Circumferential Grade 3 / 4 haemorrhoids Skin tags 3, 7, 11 o’clock – ligasure haemorrhoidectomy with excision [of] skin tags

[105]The defendant’s letter which was dictated after a follow up consultation with the claimant stated (of relevance), “I performed a ligasure haemorrhoidectomy on the 13th June 2019 for circumferential grade III and IV haemorrhoids. She had large bulky skin tags associated with this.”

[106]The references to a clock face in the operation note are to designate where the haemorrhoids were found. The defendant said these were his clinical findings while the claimant was under anaesthetic. His practice was to reassess the patient’s haemorrhoids using a proctoscope while the patient was under general anaesthetic and before starting surgery. If during this reassessment he had found only Grade 2 haemorrhoids he would not have gone on to perform the surgery and would have performed a banding exercise instead. Surgery was only indicated if the haemorrhoids were Grade 3 or 4. He said that skin tags are generally found in the same place as the haemorrhoids as the skin tag is usually the external skin component of the haemorrhoid.

[107]When he assessed the claimant during the operation he found grade 4 haemorrhoids. He said that it is possible that the claimant had developed grade 4 haemorrhoids between the last time he examined her in March 2019 and the date of the operation, or that he under graded her haemorrhoids previously because when patients are assessed in clinic a grade 4 haemorrhoid is not necessarily noticed because a clinical examination is carried out when the patient is tense and uncomfortable. This changes when the patient is under anaesthetic and completely relaxed with a relaxed anal sphincter, so it is perfectly possible to have different findings at surgery. Grade 4 means that he saw a prolapsing haemorrhoid, tried to push it back in but it wouldn’t stay inside.

[108]Professor Phillips said that it would be impossible to write Grade 3 / 4 haemorrhoids in the operation note and letter without evidence of prolapse because these are defining words. He said that he did not consider it a real possibility that the defendant was mistaken when he wrote this grading. The fact that grade 4 haemorrhoids were found during the operation means that at this time he found that she had prolapsed haemorrhoids which prolapsed again after he digitally pushed them inside.

[109]He said that haemorrhoids do progress over time, so it is possible that the claimant had developed grade 4 haemorrhoids between the previous examination and the date of the operation. However, he considered that a more likely explanation is that when the claimant was under anaesthetic, her legs were in stirrups (in the lithotomy position) which creates quite a high inter abdominal pressure which in turn creates an expulsive pressure in the bottom. This is unlike being examined in clinic when the patient is on their left side and the inter abdominal pressure is not high. Therefore, a grade 3 haemorrhoid which is returnable on examination in clinic, becomes a grade 4 in the operating theatre because the higher expulsive pressure pushes the haemorrhoid out again when it is returned.

Letter of complaint

[110]On 10 October 2019, the claimant wrote a letter of complaint to the private hospital where she had the surgery. This letter was focussed on complaints about her treatment by the defendant after surgery and the severe, life changing complications she endured afterwards. The claimant’s letter says that at her appointment with the defendant on 14 August 2019 she “explained to him at this time that I believed I had an anal stenosis”. The letter did not contain any complaint about her treatment prior to surgery, nor any complaint about not having been informed of the risks of surgery or of not being informed of other non-surgical treatment options. She said that she did not complain in this letter about her treatment by the defendant prior to surgery because it was “not at the forefront of my mind as I was complaining about a lot of other things”. She also said that she did not include her complaint about the defendant’s advice prior to the surgery because “I was afraid to complain because I was worried I was going to lose my job” (presumably because her employer owned the private hospital where she saw the defendant and had the surgery). She accepted that she could have raised these concerns during the complaint process but “I had a lot going on due to my health”.

[111]The defendant replied to this letter of complaint by letter dated 21 November 2019. Of relevance, his letter said: I saw Julia in my clinic on the 15th March 2019 with a four month history of rectal bleeding. She tended to be constipated, opening her bowels every 4 – 5 days. Examination at that time revealed anal skin and bulky haemorrhoids. I then organised a flexible sigmoidoscopy which was performed on the 21st March 2019 and this did not reveal any other cause for her bleeding. I did take some random colonic biopsies and there were no significant abnormalities. They did mention melanosis coli. Following that I reviewed Julia on the 20th April 2019. She was taking Movicol which did improve her bleeding symptoms. We had a discussion regarding conservative versus surgical management and she wished to proceed after that consultation. I booked her in for a ligasure haemorrhoidectomy on the 13th June 2019 and performed this. Operative findings were circumferential grade 3 and 4 haemorrhoids with associated skin tags. This was a non-complicated procedure with ligasure excision and it is my standard practice to leave adequate skin bridges….Histology confirmed three haemorrhagic tissue ranging in size from 15 – 20mm. This tissue was in keeping with haemorrhoids.

[112]A letter in response dated 11 February 2020 was sent to the defendant by the hospital Director. This letter contained comments from the claimant in respect of passages of the defendant’s 21 November 2019 letter. In cross-examination it was put to the claimant that again she did not raise any complaint about the defendant’s treatment of her prior to surgery and about his failure to advise her about alternatives to surgery and nor did she contradict what the defendant had said about these in his 21 November 2019 letter of reply. She said that there was no discussion about alternatives and therefore she was not aware of any such alternatives.

[113]In cross-examination the claimant denied that her evidence has been influenced by the outcome of the surgery and her unhappiness with the defendant. She said that if she had been given the options of non-surgical treatments, she would not have had the surgery whatever grades her haemorrhoids were. She accepted that what she is saying is that if she had been told she would get the outcome from the surgery that she did, then she would not have had the surgery. She said that if the defendant had explained to her the extent to which anal stenosis causes damage she would not have gone ahead with the surgery. The mention of anal stenosis is only in the EIDO leaflet and the consent form. The defendant did not ever explain this to her verbally. It was pointed out to her that anal stenosis occurs in less than 1% of cases and therefore this risk would not have affected her decision to have the operation. She said that she would still have opted to try non-surgical options first.

Causation

[114]Both experts agreed that if the court finds that the claimant’s haemorrhoids were only grade 1 – 2, then surgery would not be indicated, and the claimant would not have opted for surgery.

[115]For grade 3 or 4 haemorrhoids, the experts agreed that conservative treatment methods such as dietary advice, laxatives, creams, banding and injections might have provided a transient placebo effect but would not have addressed grade 3 or 4 haemorrhoids, nor the anal skin tags. Rubber band ligation would not have managed the skin tags and would likely have managed the prolapsing haemorrhoids for up to 2 years followed by likely recurrence. What the claimant would then opt to do would depend on her priorities and lifestyle choices. Most patients would opt for surgery because this would give the best long-term outcome. Submissions The claimant

Submissions

[116]On behalf of the claimant, Ms Pooley submits that: i) The claimant has clear reasons to specifically recall the relevant events given the significant consequences she suffered because of the surgery. ii) The claimant’s evidence that she did not have prolapsing haemorrhoids is supported by the absence of any mention of an issue with prolapsing haemorrhoids in the medical records. The fact that her presenting complaint was bleeding and not prolapsing haemorrhoids corroborates this. She submits that the GP has confused her skin tag with haemorrhoids as GPs are wont to do and that it is for the surgeon to carry out his own assessment. iii) The parties and the experts agree that if the claimant’s haemorrhoids were only grade 1 – 2 then surgery was not indicated and should not have been offered to her. The claimant’s evidence is consistent with a finding of grade 1 – 2 haemorrhoids. iv) The parties and the experts agree that appropriate grading of a haemorrhoid requires both a history from the patient and examination findings. v) The defendant’s evidence for the most part relies on his standard practice rather than any particular recollection of the claimant. His clinic letters do not contain a full and accurate record of all the information that he claims he elicited from the complainant or discussed with her. They do not explain how and why he graded her haemorrhoids as grade 2 / 3 (and grade 3 / 4 at the operation). vi) If a prolapsing haemorrhoid had been visualised during the first examination by the defendant on removing the proctoscope (ie visualised without obtaining a history of a prolapsing haemorrhoid requiring digital replacement), this would have likely been recorded in the first clinic letter and the Claimant would have been made aware (both of the digital replacement and via the likely conversation that would follow). It would also have featured in the Defendant’s witness statement or, failing that, in his supplementary witness statement. Similarly, the flexible sigmoidoscopy report does not refer to any grading of haemorrhoids. vii) The process of when and how grading took place is therefore unclear. Nowhere in the documents does the defendant confirm that he visualised prolapsing haemorrhoids or that he obtained a history of prolapsing haemorrhoids that required digital replacement. In addition, the change in grading from grade 2 / 3 to grade 3 / 4 during the operation is unexplained by the defendant in evidence and the explanation provided by Professor Phillips is a theoretical explanation which is not evidence that the defendant himself has given. viii) Although the claimant accepts that she told the defendant that she had episodes of bleeding whilst running and it is accepted that this bleeding must have come from haemorrhoids and not the chronic, healed fissure, this does not assist with what grade the haemorrhoids were. ix) When the claimant received the letter dated 23 April 2019 that graded her haemorrhoids as grade 2 / 3, she would not have flagged this up or queried it because she would not have known what this grading meant. She is not a medical professional. x) As regards the advice and options given to the claimant, the parties and the experts agree that if the claimant’s haemorrhoids were grade 3 or above then surgery was indicated. However, the experts agree that the claimant should still have been advised about conservative, non-surgical alternative treatment options. xi) Ms Pooley submits that the defendant’s letter of 23 April 2019 following the second consultation positively presents surgery as the only option and makes no reference to discussion of alternative conservative, non-surgical treatment options. She submits that the defendant only refers to having given advice about alternatives in his response to the claimant’s letter of complaint much later. The claimant’s evidence was that the only verbal advice she received from the defendant was that surgery was her only real option and conservative alternatives were not discussed with her. The only information she got about alternative options came from the EIDO leaflet, but it is understandable that she would not have queried these with the defendant subsequently because the advice she had got from him was that surgery was her only option. xii) The court should not put much weight on the fact that the claimant’s complaint letter did not raise issues about the grading of her haemorrhoids or advice about the risks of surgery or alternative treatments because this needs to be seen in context which was that her main concern was what had happened to her after the operation. xiii) On causation, Ms Pooley submits that if the court finds that the claimant’s haemorrhoids were grade 1 or 2, then it is common ground that she should not have been advised to have surgery, and she would not have had it. She would thereby have avoided the haemorrhoidectomy and the complications that flowed from it. xiv) If the court finds the claimant’s haemorrhoids were Grade 3 or above, whilst surgery was indicated, the claimant would always have opted for conservative methods first. The logic of this position is supported by the fact the claimant had been suffering from rectal bleeding for a relatively short period of 4 months and therefore to jump straight to surgery seems unlikely given the advice about alternative methods in the EIDO leaflet and the advice she should have received from the defendant about alternative methods that could be tried. xv) The experts agree that in this scenario, resolution of the Claimant’s haemorrhoids would have required surgery at some point within the next two years. Ms Pooley submits that the treatment at that stage would have been patient choice and on balance, given the claimant’s presenting complaint was bleeding only, not any issue with prolapsing haemorrhoids, it is likely that she would have chosen to continue managing her bleeding with conservative methods. Beyond the persistence of the bleeding there were no other negative consequences. If the court however finds that she would in fact have had surgery at this point, then the claim is limited to up to two years of accelerated symptoms in accordance with Chester. xvi) Ms Pooley submits therefore that the approach to the claimant’s evidence taken in Smith is distinguishable from this claimant’s case. In Smith, the claimant would have become quickly severely disabled if he had not had surgery, whereas all that the claimant in this case would have continued to suffer was bleeding.

The defendant

[117]On behalf of the defendant, Mr Barnes submits that: i) The evidence of the defendant is that, consistent with his usual practice, he would have relied on an examination and a history of prolapse before reaching a diagnosis of grade 2 / 3 haemorrhoids. It is not suggested that he is lying about this. If it is suggested that he is mistaken, then it is difficult to understand why his practice should be different for this claimant as opposed to all his other patients. The claimant does not suggest that his usual practice has changed. Therefore, the defendant’s evidence that this is his usual practice, and he would have followed it, is difficult for the claimant to overcome. ii) The medical records support the defendant’s diagnosis: The GP letter says “existing haemorrhoids” and “Examination: External haemorrhoids + potential bleeding point seen” - which is consistent with a description of at least grade 3 haemorrhoids. The claimant’s assertion that the GP has got this wrong is speculation, as is the suggestion that he has confused a skin tag with a haemorrhoid, particularly in circumstances where the GP has not been called as a witness and has not been challenged. iii) The 15 March 2019 clinic letter refers to “some bulky haemorrhoidal tissue” which is consistent with grade 3 haemorrhoids. The operation note is a description of grade 3 and 4 haemorrhoids, which means that it is likely that there were at least grade 3 haemorrhoids. There is nothing in the documentation that supports the claimant’s case that her haemorrhoids were only grade 1 / 2 and Mr Thompson is unable to explain the basis for this opinion. iv) The claimant’s evidence that her symptoms amounted to bleeding and a single skin tag is inconsistent with the medical records and also with the account she gave to Mr Thompson – that she was aware of “something around the anus every 2 weeks when she had to strain to empty her bowels”. It is also inconsistent with the fact that severe constipation is consistent with grade 2 / 3 haemorrhoids, and that the claimant told the defendant that she bled when running. The claimant’s evidence has been affected by hindsight and by the complications she suffered from the operation. Ultimately even the claimant’s own expert accepted in evidence that a diagnosis of grade 2 / 3 haemorrhoids was reasonable. v) As regards the issue of advice, there is no dispute between the experts that with bleeding and a diagnosis of grade 2 and 3 haemorrhoids, it was reasonable to advise the claimant that surgery was the definitive treatment, that conservative management was unlikely to assist with grade 3 haemorrhoids, and that banding had variable success rates. This is what the defendant did. vi) As to the risk of anal stenosis:(i) the description of the risk set out in the EIDO leaflet was appropriate;

(ii) the experts agree that this risk was less than 1% and the particularly poor outcome that the claimant had was even less than this; and

(iii) the defendant’s letter of 20 April 2019 said that the claimant had been advised of “all the usual risks” and the fact that anal stenosis was one of these risks is corroborated by the fact that the defendant has written “anal stenosis” on the consent form and has also written several other risks. vii) The claimant did not raise any questions following her reading of the EIDO leaflet which contained all the alternative non-surgical options and all the risks of surgery. This suggests that the defendant had already been through these with her during the second consultation. The claimant signed the consent form without raising any issues or concerns. viii) The claimant’s letter of complaint dated 10 October 2019 was extensive in its complaints about her treatment following surgery but made no complaints at all about the process of diagnosis or advice about risks of surgery and alternative options. Even when the defendant’s letter in response dealt with these issues, her response made no comment on these aspects. It is implausible that if the claimant genuinely had complaints and concerns about these matters that she would not have raised them. The reason she gives – that she was worried she might lose her job – is also implausible, given the lengthy and extensive complaints she does make about many other aspects of her care. ix) The conclusion therefore is that the defendant did appropriately advise the claimant about alternatives to surgery and the risks of surgery. x) As regards causation, Mr Barnes submits that the the Claimant’s assertion that she would not have gone ahead with surgery should be rejected because (i) she had significant symptoms, including bleeding, discomfort, difficulty cleaning herself and bleeding while running; (ii) whilst there had been some improvement with Movical this had not resolved her bleeding, therefore demonstrating that she had already tried a non-surgical method which was unsuccessful; (iii) she did not make any complaints about advice regarding non-surgical options and risks of surgery in her extensive complaint letter, nor in reply to the defendant’s letter in response which clearly raised these issues;

(iv) the claimant’s evidence that she would have tried non-surgical methods first, is likely to be influenced by her knowledge of the outcome of the surgery in her case;

(v) that the success of her case depends on this assertion (see Smith);

(vi) her assertion is based on what Mr Thompson told her – namely that she had a grade 1 haemorrhoid, and that the bleeding would therefore be resolved by conservative treatment. xi) The claimant may well now believe that she would not have gone ahead with surgery, but this is tainted by the outcome and that her case turns on it. It is also inconsistent with an objective assessment of her situation (see Smith). xii) She had significant symptoms – bleeding for 4 months, bleeding when running, difficulty cleaning herself due to what she believed was a skin tag, something around her anus when straining to go to the toilet. Movicol had improved but not resolved her symptoms, but she clearly still wanted to have the operation. This demonstrates the importance of her symptoms to her. xiii) She made no complaint about the advice regarding surgical versus non-surgical options, nor advice about risks in her lengthy complaint letter. xiv) The claimant’s evidence is significantly affected by hindsight and the knowledge of the full extent of the unusual complications she has suffered. Therefore, what she is really saying is – had I been told I would end up like this, I would not have gone ahead. However, the duty on the defendant does not extend to warning her about the unusually severe risks she has suffered, but merely to warning her about the risk of anal stenosis as per the EIDO leaflet. xv) The claimant said in evidence that she trusted the defendant. Therefore, the likelihood is that if he told her that the definitive treatment for her haemorrhoids was surgery and that conservative management including banding was unlikely to be effective – then the overwhelming likelihood is that she would have opted for surgery (as in fact she did). xvi) The claimant read and understood the EIDO leaflet but raised no concerns about alternative treatments or surgery risks, even though these are clearly set out in the leaflet. xvii) In any event, it is agreed between the experts that, if grade 3 haemorrhoids were treated with conservative measures including banding, it is likely that they would have recurred within 2 years. In that situation, it is likely that the Claimant would have come to haemorrhoidectomy, with the same risk profile and so the same outcome, and damages would therefore be limited to acceleration of the Claimant’s symptoms by 1.5 years (see Chester). Discussion Liability Issue 1 - Has the claimant proved on the balance of probabilities, that the defendant negligently breached his duty of care owed to the claimant by (a) Incorrectly grading her haemorrhoids as Grade 2 / 3, when in fact they should have been graded as Grade 1 / 2; and (b) Advising the claimant on the basis of this incorrect grading to undergo a surgical haemorrhoidectomy when surgery was not an appropriate treatment option.

Discussion

[118]I find that the claimant has not proved on the balance of probabilities that the defendant incorrectly graded the claimant’s haemorrhoids as grade 2 / 3 when in fact they should have been graded as grade 1 / 2. Specifically, I find that the defendant on the balance of probabilities did correctly grade the claimant’s haemorrhoids as Grade 2 / 3 prior to surgery, and that he did so on the basis of a practice of taking a history and examination which is accepted as proper by a responsible body of Consultant Colorectal Surgeons applying a logical basis (see Bolam and Bolitho).

[119]I take into account the claimant’s submission that the defendant for the most part, has relied on his standard practice rather than any particular recollection of the claimant and that his clinic letters do not contain full details or descriptions of the steps that he said he undertook. To that extent, his evidence is not as strong as it does not contain his particular recollections of precisely what he discussed with the claimant, nor the detail of what he found on examination.

[120]However, against this I also take into account that the defendant is an extremely experienced Consultant Colorectal Surgeon who has significant experience over many years of dealing with patients with haemorrhoids including diagnosing, grading and advising on management including surgery. Grading of haemorrhoids is standard practice and well known and understood by all responsible Consultant Colorectal Surgeons.

[121]Although the defendant frankly said that he had little recollection of the claimant herself, he was able to speak of his usual practice in respect of all these matters and with reference to his contemporaneous letters and documents. These were written well before there was any dispute between the parties and as medical records – are inherently more likely to be reliable (Synclair). It is relevant also that it is not suggested by the claimant that the defendant is lying and nor is it suggested that the defendant’s usual practice has changed. If it is suggested that the defendant is mistaken then as Mr Barnes submits, it is difficult to understand why his approach would be different with this claimant as opposed to all his other similar patients over many years.

[122]In my view, the contemporaneous documentation when viewed in its entirety supports the defendant’s case as does the history. The starting point is the GP’s letter, the contents of which are relevant for the following reasons: i) The claimant contends that the references in this letter to “haemorrhoids” are wrong and do not correspond to what she told the GP, nor what he said to her during the consultation. I accept what the experts and the defendant say about GPs using the term ‘haemorrhoids’ when this may not necessarily be correct, and I therefore approach this letter with that degree of caution. However, what is significant in my view is that the claimant makes a similar complaint about the accuracy of her own expert witness Mr Thompson, in that she disputes that she told him that she “was aware of something around the anus”. She also asserts that she did not give the defendant any history of prolapsed haemorrhoids which he says would have informed his grade 3 grading. I consider it inherently unlikely that all three medical practitioners are wrong about what she told them about her history and that it is more likely that it is the claimant who has misremembered, whether due to the passage of time or because she is viewing events through the prism of hindsight in the light of the serious complications she suffered (see Smith and Diamond). ii) The GP’s letter records that the claimant told him that “she has existing haemorrhoids” (plural). In evidence, the claimant asserted that she told the GP that she had only one skin tag. However, the GP’s record of what the claimant told him is consistent with what he found on examination – namely “External haemorrhoids [plural] + potential bleeding point seen”. It is notable that in both places, the letter refers to “haemorrhoids” in the plural not the singular. This is not consistent with the GP having mistaken a single skin tag for haemorrhoids. iii) The GP’s description of his finding as “external haemorrhoids” is also relevant because as Mr Thompson accepted – this finding is consistent with the haemorrhoids being grade 3 or 4.

[123]The claimant said in evidence that in the first consultation with the defendant on 15 March 2019, he asked her about her history including her symptoms. This demonstrates that it was part of the defendant’s normal practice to take a history from the patient and that he did so at this consultation. The clinic letter also records a history taken by the defendant. This undermines the suggestion that he would not have done so at the second consultation.

[124]In evidence at trial, the claimant said (for the first time) that she told the defendant in the first consultation, that her bleeding had become particularly problematic when running. Both experts and the defendant agree that the cause of her bleeding was haemorrhoids, and all agree that bleeding whilst running would not be caused by internal haemorrhoids – the bleeding source had to be external, meaning the haemorrhoids must have been grade 3 or 4. This is also consistent with what the GP has recorded as “external haemorrhoids + potential bleeding point seen”.

[125]It is also notable that the claimant recalls telling the defendant about bleeding while running in the first consultation, but this is not specifically referred to in his consultation letter, which supports the defendant’s evidence that he kept his clinic letters brief and did not record every detail of what was discussed.

[126]Regarding the fact that the defendant’s record of “bulky haemorrhoidal tissue” in the first clinic letter does not provide a grade. I accept the evidence of Professor Phillips and the defendant that at this time the defendant would have been in “diagnostic mode” with the priority being to rule out cancer or another more serious cause of the bleeding. This is consistent with the letter’s comment that “rigid sigmoidoscopy was normal” and the fact that he decided to carry out a flexible sigmoidoscopy. The use of the term “bulky” is consistent with the defendant’s description of the haemorrhoids prolapsing out when the proctoscope was withdrawn and it is notable that even the claimant’s expert agrees that this could mean that the haemorrhoids were grade 2 or 3.

[127]I take a similar view in relation to the flexible sigmoidoscopy report not recording the grade of haemorrhoids seen. The purpose of this was to rule out cancer, therefore haemorrhoids were an incidental finding. The letter following the second consultation on 20 April 2019 is consistent with this in that it records that the flexible sigmoidoscopy was “normal to the splenic flexure” – meaning that there was no sign of cancer.

[128]It is correct that this second clinic letter does not refer to the specifics of the history taken from the claimant which led to the diagnosis of 2nd and 3rd degree haemorrhoids but equally this letter does indicate that there was a discussion with the claimant about her history – because the letter records that “she takes Movicol which does improve her bleeding symptoms” which is information that does not appear in the GP letter nor in the defendant’s first consultation letter.

[129]In terms of what the claimant recalls, there are several inconsistencies in her account. Firstly, her evidence was that the defendant told her that “the biopsy had confirmed haemorrhoids” – this must be factually wrong as a biopsy would not have confirmed haemorrhoids – instead the purpose of a biopsy is to check for signs of cancer. Secondly, she said that the defendant did not ask her about whether she could feel lumps outside her bottom when emptying her bowels – however when she saw Mr Thompson on 29 December 2021, she told him that she “was not aware of any prolapse but was aware of something around her anus every 2 weeks when she had to strain to empty her bowels”. Mr Thompson said that a responsible body of Consultant Colorectal Surgeons would find this to be consistent with grade 2 – 3 haemorrhoids. Given that the claimant volunteered this information to Mr Thompson, I do not see why she would not have volunteered similar information to the defendant given that at this consultation he was focussed on the issue of her haemorrhoids and the appropriate treatment for them. Furthermore, once the claimant received the clinic letter, she would have seen his grading of her haemorrhoids. She did not query this grading, even though she said she didn’t know what it meant. This is surprising, given that on her evidence she trusted the defendant, and therefore had no reason not to raise anything with him that she did not understand.

[130]I accept the evidence of Professor Phillips that by the time of this appointment, a more sinister cause of the claimant’s bleeding had been ruled out and therefore the defendant would be in “decision making mode” in terms of how to deal with her haemorrhoids. This explains why his clinic letter now gives a grading. Given that the grading system is used and understood by all responsible clinicians, I accept Professor Phillips’ evidence that the grades are “defining words” which carry a specific meaning in themselves. It follows therefore that to arrive at a grade, the defendant must have taken a history and as well as carrying out examinations because a grading could not be arrived at without asking the claimant questions about prolapse and finding prolapse on examination. The fact that only the grading has been written is consistent with the short form, summary style of the defendant’s letters and does not mean that the questions have not been asked which enable such a diagnosis to be made. As Professor Phillips said, the grading given defines the haemorrhoids and the prolapse and the evidence of prolapse is therefore defined by the grade used. I find therefore that a body of responsible body of Consultant Colorectal Surgeons would consider that the grading has a highly specific meaning and (as Professor Phillips says) “says everything you need to know”. This combined with the other corroborating evidence means that I am satisfied that a history of prolapsing must have been obtained together with examination findings and that this is what led to the 2nd and 3rd degree grading.

[131]I do not find that the operation note which records the grading as 3 / 4 undermines this conclusion. I accept that there is a difference in the quality of an examination conducted whilst the patient is anaesthetised and therefore fully relaxed and in the lithotomy position, thereby creating a much higher inter abdominal pressure on the bottom. I accept Professor Phillips’ evidence that this makes grading of haemorrhoids easier and that a grade 3 haemorrhoid can then become a grade 4 because the higher expulsive pressure pushes the haemorrhoid out again when it is returned.

[132]It is also relevant that some of the haemorrhoids found during the operation were grade 3, which is consistent with the grading found previously. I accept the defendant’s evidence that the purpose of the examination under anaesthetic is to confirm the grading and that if the grading at this point had been 1 / 2 then he would not have proceeded with the haemorrhoidectomy. Were this not the case, there would be little purpose in this additional examination. Issues 2 - If the claimant has not proved on the balance of probabilities that the defendant’s grading of her haemorrhoids as grade 2 / 3 was incorrect, then has the claimant established on the balance of probabilities that the defendant negligently breached his duty of care owed to the claimant by(a) Failing to advise the claimant of the risks and benefits of a surgical haemorrhoidectomy, including failing to advise her of the risk of anal stenosis; and / or

(b) Failing to advise the claimant of alternative non-surgical treatment options and the risks and benefits of these options.

[133]I find that the claimant has not proved on the balance of probabilities that the defendant failed to advise her of the risks and benefits of a surgical haemorrhoidectomy including failing to advise her of the risk of anal stenosis. I also find that the claimant has not proved that the defendant failed to advise her of alternative non-surgical treatment options. I find that the defendant acted in accordance with the requirements in Montgomery and McCullough and took reasonable care to ensure that the claimant was aware of any material risks involved in the recommended surgical option and of any reasonable alternative treatments, taking into account the claimant’s particular circumstances. The combination of oral advice in consultation on 20 April 2019, the provision of the EIDO leaflet (which the claimant read) and the subsequent consent process undertaken on the day of the operation all contribute to my findings in this regard. Given my findings in respect of Issue 2, it is not necessary for me to deal with issue 3.

[134]I do not accept the claimant’s submission that the letter following consultation on 20 April 2019 makes no reference to non-surgical alternative treatments. This is too narrow a reading of the letter. The wording “we had a discussion about haemorrhoid surgery and she is keen to proceed” is consistent with there being a discussion with the claimant “about” surgery as opposed to her merely being told that surgery was her only option. This is also consistent with what the claimant said in evidence which was that the defendant told her that surgery was his “preferred” method for dealing with the bleeding and her haemorrhoids, which carries with it the clear implication that there must have been a discussion about alternative methods which were not “preferred”. Both sides agree that for haemorrhoids of grade 3 or above, surgery was the definitive treatment but that the claimant should still be advised about other non-surgical options. In these circumstances it would be consistent with a responsible body of Consultant Colorectal Surgeons to give advice that surgery was the preferred option. The provision of the EIDO leaflet is also relevant because this lists the alternative non-surgical options. The claimant accepts that she read this leaflet but did not raise any questions or concerns about its contents. If as she claims, she would have opted for surgery if she had been given alternative options, then it is difficult to understand why she would not have asked questions about alternative options when she read about them in the leaflet.

[135]As regards advice about the risks of surgery, I consider it significant that the second clinic letter states “I have warned her of all the usual risks, but in particular post-operative pain” (emphasis added). This is consistent with the defendant’s evidence that he warned the claimant of the risks (plural) and that he did not refer only to post operative pain. Again, these risks are all contained in the EIDO leaflet which both experts agreed is comprehensive and gives a good summary of surgical risks. The claimant says that she did not raise any questions when she read about these in the EIDO leaflet because she thought that the more drastic risks were less likely. She is right about this given that the risk of anal stenosis is agreed to be less than 1%. However, if the claimant was as averse to surgery as she now claims to be, then this is inconsistent with her not raising any questions about the more serious risks – particularly if (as she claims), she was given no advice about these at all by the defendant during the consultation.

[136]As regards whether the claimant was advised about the particular risk of anal stenosis, I find, for the same reason, that she was. It is contained in the EIDO leaflet and both experts agree that this describes the risk in appropriate terms. I find that a responsible body of Consultant Colorectal Surgeons would consider this an adequate description of the risk of anal stenosis and the consequences, and I accept Professor Phillips’ evidence that that the defendant was not required to advise that anal stenosis could result in the exceptionally rare and exceptionally serious complications that the claimant in fact went on to have.

[137]The consent form that was completed and signed on the day of surgery also supports my view. The defendant hand wrote several risks which specifically included “anal stenosis”. The claimant did not raise any issues about any of these risks. This is consistent with the defendant’s case that in the second consultation, he advised the claimant about risks, including specifically about anal stenosis specific. I accept Professor Phillips’ view, that the evidence taken as a whole is consistent with their having been a proper discussion and proper consent having been obtained.

[138]I also find it significant that the claimant’s lengthy letter of complaint dated 10 October 2019 did not refer at all to any complaints or concerns about the grading of her haemorrhoids, nor the advice she had been given to undergo surgery, nor the alleged failure by the defendant to advise her about alternatives to surgery and the risks of surgery. I accept that the claimant’s main concern at the time she wrote this letter was her health ongoing health issues, but I do consider that if the claimant had in fact never been warned by the defendant about the risks of surgery, in particular the risk of anal stenosis then she would have raised this in the complaint letter. I also find it difficult to understand the claimant’s evidence that she did not include this information because she was worried that if she complained too much, she would lose her job. I note in this regard that her letter covers 2 closely typed A4 pages in which she raises several concerns about her care since the operation. In addition, the claimant’s letter says that at her appointment with the defendant on 14 August 2019 she “explained to him at this time that I believed I had an anal stenosis”. This suggests that she was aware of this condition as a complication of the operation. The defendant’s letter in response dated 21 November 2019 is consistent with his evidence in this case. He specifically says that “we had a discussion regarding conservative versus surgical management”, however in the letter in response dated 11 February 2020, the claimant makes no comment about this – which is surprising if she was not in fact offered any alternatives to surgery and that if she had been, she would have taken these alternatives.

[139]I consider that this is an issue in which the claimant is particularly affected by the application of hindsight because her view is inevitably affected by the terrible outcome she has had from the surgery. I do not criticise her for this as it is an understandable reaction to what she has been through, but it does mean that the warnings given in Smith are particularly pertinent and it is therefore important to test (as I have done), the claimant’s evidence of her subjective state of mind against the objective evidence. I do not agree with Ms Pooley that the extreme facts of Smith mean that it is not applicable to this case because in my view what Smith does is make the valid point that a claimant’s evidence of her subjective state of mind needs to be properly tested against other relevant, objective evidence. This general principle would be appropriate in respect of any witness in any type of case.

Issues 3 - 4 – Causation

[140]Given my findings on liability, it is not necessary to consider the issue of causation. However, I will deal with this issue briefly for completeness. As I have said at paragraph 147 above, the approach set out in Smith is particularly relevant here for the reasons I have given. As Hutchinson J said in Smith, “the assertion from the witness box, made after the adverse outcome is known, in a wholly artificial situation and in the knowledge that the outcome of the case depends upon that assertion being maintained, does not carry great weight unless there are extraneous or additional factors to substantiate it.” I do not consider that there are any such extraneous or additional factors to substantiate the claimant’s evidence on this issue. For the reasons I have already given, there are in fact several factors which undermine her evidence on this issue.

[141]For completeness, in the unlikely event that she decided to try non-surgical options first, then the parties agree that within 2 years she would have required a surgical haemorrhoidectomy to permanently resolve her symptoms and that is the advice she would have been given. At that point, she will have had two further years of recurring symptoms that she was already finding troublesome, and she will have had two years of evidence that conservative methods do not work. I consider therefore that she would at that time probably have opted for surgery and therefore, applying Chester damages would have been limited to two years acceleration of her symptoms.

Conclusion

[142]I end by expressing sympathy to the claimant who I acknowledge has suffered extremely rare and serious, life changing complications from her surgery on 19 June 2019. No one in this case can fail to be moved by her description of these and the profound effect this has had on every aspect of her life. It is a tragedy that what is ordinarily a routine operation has had such serious consequences for her.

[143]Ultimately though, this Court cannot decide cases on sympathy but must instead find the facts and apply those facts to established legal principles. Unfortunately, this analysis has resulted in my finding that the claimant has failed to prove her case on liability and causation.

[144]This claim is therefore dismissed. The parties are to agree what orders should follow from this judgment, failing which I will decide on the consequential orders.

order

the well-known remarks of Lord Pearce in his dissenting speech in Onassis & Calogeropoulos v Vergottis

[1968] 2 Lloyds Rep 403

at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co

[1987] 1 Lloyd’s Rep 207

at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost)

[1985] 1 Lloyd’s Rep 1

when he said, at page 57:- “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. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships’ opinion “equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.” We were reminded too that in “The Business of Judging”, Oxford, 2000, Lord Bingham of Cornhill observed that:- “In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time.” The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence. 11. In the present case it is plain that the judge recognised that the evidence of the Claimant had to be assessed in the light of the apparently contemporaneous clinical note. Indeed that note was doubly important. Not only did the Claimant’s evidence fall to be evaluated in the light of it, the note also represented the full and entire extent of the evidence which Mr Zafar could give as to what was said and observed on his ward round, as he had no recollection as to what had transpired independent of what was written in the note. 12. However it is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind. I would commend the approach of His Honour Judge Collender QC, sitting as a judge of the High Court, in EW v Johnson

[2015] EWHC 276 (QB)

where he said, at paragraph 71 of his judgment:- “I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.” Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson’s oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth

[2015] EWCA Civ 11

a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.

Cited in 1 later judgment

M Anea v OCS UK & I Limited & Ors 2026