Hewes v West Hertfordshire Acute Hospitals NHS Trust and 2 Others [2020] EWCA Civ 1523
The Court of Appeal dismissed a challenge to a first instance decision of the High Court that two NHS Trusts and an out-of-hours GP were not liable to the Claimant for alleged failings in the identification and treatment of Cauda Equina Syndrome.
Cauda Equina Syndrome (“CES”) is a devastating condition, and where it arises due to negligence, it frequently leads to large and complicated claims for compensation. Accordingly, it is of note that this was said by Davis LJ to be, so far as is known, “the first case directly relating to the treatment of CES which has come before the Court of Appeal”. That may be so, but the Court of Appeal was also at pains to emphasise that, having regard to the issues in the case and the nature of the grounds of appeal, it was not a case of wider public significance (albeit of course very important to the Claimant); rather, it was a case which turned on its own facts.
The crucial issues in the case related to: (1) the urgency with which the Claimant’s suspected CES was dealt with by the out-of-hours GP he spoke to on the phone and the Trusts involved in his care thereafter, and (2) the point at which the Claimant’s condition progressed from CES “Incomplete” (“CESI”) to “Retention” CES (“CESR”). This involved the judge at first instance considering evidence from factual witnesses relating to matters such as the process for arranging MRI scans at a District Hospital and thereafter making arrangements for surgery, and resolving disputes between experts as to the significance of (1) the Claimant not feeling like urinating for a specified period of time and (2) not being able to urinate when advised to try a period of hours later.
At first instance, the judge concluded that the Claimant had been managed reasonably (save for a delay in transporting him to hospital, of de minimis causal impact) and that, in any event, his condition had progressed to CESR (and was therefore largely irreversible) at a point in the chronology that was much earlier than that contended for by the Claimant. That meant that the alleged breaches of duty would have had no impact in any event.
On appeal, the Claimant advanced a “detailed attack” on the reasoning and conclusions of the first instance judge. Attempting to summarise the key points in the first instance judgment, the submissions of the parties on that judgment, and the conclusions of the Court of Appeal would risk misleading the reader (or making this article far too long). Suffice it to say that the appeal was heavily focussed on the detailed reasoning of the first instance judge and whether, in light of the evidence that had been heard, that reasoning was permissible.
Ultimately, the Court of Appeal rejected the Claimant’s grounds of appeal, and in fact rather went out of its way to praise the judgment of Anne Whyte QC, sitting as a Deputy Judge in the High Court. It emphasised that first instance judges are the primary assessors of the evidence, the primary finders of fact, and they have the primary role of deciding the issues between the parties. In those roles, the appellate courts will not lightly interfere – see e.g. the decision of the Supreme Court in Perry v Raleys Solicitors [2019] UKSC 5, in which the key issue was whether the judge at first instance had gone wrong in his decision on the facts to an extent which enabled the Court of Appeal to intervene. At [52], Lord Briggs said that the test is whether there is no evidence to support a challenged finding of fact, or that the finding was one which no reasonable trial judge could reach.
In setting out the challenges to the judge’s assessment of the evidence, her findings and her conclusions, Laing LJ said:
[62] The trial in this case lasted six days. There were pages of pleadings, witness statements, experts’ reports and academic literature for the Judge to absorb before the trial, and to reflect on after she had reserved judgment. This appeal is not a wholesale opportunity to revisit, in detail, her findings of fact, her evaluative assessments, or her mixed findings of fact and law. To use Lewison LJ’s vivid metaphor in Fage UK Limited v Chobani UK Limited [2014] ETMR 26 , at paragraph 114, ‘In making [her] decisions the trial judge will have regard to the whole sea of evidence presented to him, whereas an appellate court will only be island hopping’…
[66] The Judge was given many building blocks for her judgment, that is, all the evidence, lay and expert, and the parties’ submissions. The agreed issues were the framework of the judgment. But they did not dictate its overall structure, or its details. Those were for the Judge to decide, as a result of a cumulative series of assessments which it was for her to make; not for this court. I consider that the Judge is to be commended for having grappled with the details of the evidence and submissions, and for having distilled the essence of those materials into a judgment which deals economically and persuasively with what, the parties had agreed, were the significant issues. The tight structure of the judgment, and its succinctness, are signs that the Judge had carefully navigated the sea of evidence and analysed its essential components into a coherent whole.
Accordingly, it seems that the most important part of this case is not the articulation of any legal principle of specific relevance to CES cases, but as a reminder of the proper scope of an appeal generally: to deal with points of law and broad public significance, and only to interfere with evidential assessments and findings of fact at first instance where they were impermissible on the evidence that had been presented.
Richard Booth QC acted for the Appellant in this case. He did not contribute to this article.
