Chadwick (Donald) v Hollingsworth (Robin)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Patten,Lord Justice Rix |
| Judgment Date | 02 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1210 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2010/0299 |
| Date | 02 November 2010 |
[2010] EWCA Civ 1210
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight Q.C.)
6WT02805
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Moore-Bick
and
Lord Justice Patten
Case No: B3/2010/0299
Mr. Simon Butler (instructed by Stone Rowe Brewer LLP) for the appellant
Miss Katie Gollop (instructed by Brachers LLP) for the respondent
Hearing dates : 4 th October 2010
In July 2003 the appellant, Mr. Donald Chadwick, underwent a total replacement of his left knee under the care of the respondent, Mr. Robin Hollingsworth, a consultant orthopaedic surgeon. Unfortunately, the wound became infected by coagulase-negative staphylococcus aureus which, despite a sustained course of antibiotics, could not be eradicated without the need for further surgery. Accordingly, Mr. Hollingsworth carried out a two-stage revision of the replacement, the second stage of which was completed in January 2004. It was thought at that stage that the infection had been completely eradicated, but that proved not to be the case and as a result of its re-emergence Mr. Chadwick has suffered chronic pain and swelling of the joint. Yet further surgery, possibly leading to an amputation, may be called for.
In June 2006 Mr. Chadwick started proceedings against Mr. Hollingsworth claiming that he had been negligent in the management of his post-operative care. In particular, he alleged that in September 2004 Mr. Hollingsworth had failed to carry out an open debridement and washout of the knee and the exchange of the polyethylene insert and that in January 2004 he had failed to take proper steps to check that the wound was free of infection before proceeding to carry out the second stage of the revision. Mr. Chadwick's case was based on expert advice from another consultant orthopaedic surgeon, Mr. Curry, who had provided an expert report for the purposes of the proceedings. Permission had been given to call Mr. Curry as a witness at the trial. Mr. Hollingsworth instructed his own expert, Mr. Jackson, who was also due to give evidence. In addition each side instructed an expert microbiologist.
In November 2008, following a meeting between Mr. Curry and Mr. Jackson and the preparation of a joint medical report, it became clear that Mr. Curry had changed his mind and no longer felt able to support Mr. Chadwick's case. Why that was so remained unclear, however, because Mr. Curry did not respond to repeated requests from Mr. Chadwick's solicitors for an explanation of his change of heart. In those circumstances the solicitors sought the opinion of another orthopaedic surgeon, Mr. Newman, and, having obtained a favourable report from him, sought permission to call him at trial in place of Mr. Curry. Permission was granted by Judge Bailey on 5 th November 2009.
In his report Mr. Newman identified certain respects in which he considered Mr. Hollingsworth to have been negligent in the management of Mr. Chadwick's treatment. They related both to the treatment carried out in response to the development of the original infection and to the circumstances in which the second stage of the revision had been carried out. It ought to have been obvious to all concerned that it might be necessary to amend the particulars of claim to reflect Mr. Newman's report, but no such application was made or foreshadowed when the matter was before Judge Bailey. In the event, however, it became clear in the course of argument that Mr. Newman's report would need to cover some additional ground, so it is unlikely that an application to amend could have been pursued pending receipt of his further report.
Following the receipt of Mr. Newman's second report, which contained a number of criticisms of Mr. Hollingsworth that were not in his first report, amended particulars of claim were drafted and an application was made for permission to make the amendment....
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