David Price v CWM Taf University Health Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 15 April 2019 |
| Neutral Citation | [2019] EWHC 938 (QB) |
| Docket Number | Case No: CF058/2018CA |
| Court | Queen's Bench Division |
| Date | 15 April 2019 |
[2019] EWHC 938 (QB)
IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE CARDIFF
On appeal from the Cardiff Civil Justice Centre
Order of HHJ Petts dated 31 August 2018
County Court case number: B90CF028
Cardiff Civil Justice Centre,
2 Park Street,
Cardiff CF10 1ET
Mr Justice Birss
Case No: CF058/2018CA
Theo Huckle QC and David Haines (instructed by Thompsons) for the Appellant
Charles Bagot QC and Vanessa McKinlay (instructed by NHS Wales Shared Service partnership) for the Respondent
Hearing dates: 6th, 7th March 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
This is an appeal from the judgment of HHJ Petts given on 31 st August 2018 after a trial 26 th–28 th February and 21 st May 2018. The last day of the four day trial had to be delayed because the court closed due to bad weather. The judge heard Mr Price's medical negligence claim arising out of three operations on his right knee carried out on 15 th February 2011, 26 th November 2011 and 30 th April 2012 at the Prince Charles Hospital in Merthyr Tydfil. The conducting orthopaedic surgeon was Mr Sharma. The first two operations were arthroscopy procedures and the third was a partial knee replacement using an Oxford Unicompartmental prosthesis. After the third operation, Mr Price had ongoing and persistent pain and Mr Sharma referred him to another surgeon at Llandough Hospital. Mr Price had a full knee replacement on 20 th May 2013.
In a clearly structured judgment, following an introduction the judge accurately summarised the circumstances from paragraphs 11 to 38, addressed the first operation from paragraphs 39–48, the second operation from paragraphs 49–69 and the third operation from paragraph 70–87. The judge concluded by explaining that he had great sympathy for Mr Price's situation and what he had been through, nevertheless he held that the claim should be dismissed.
In relation to the first arthroscopy operation the issue was about consent. When the arthroscopy was undertaken a microfracture procedure was also performed. The judge found that the proper consent of Mr Price to that further aspect had not been obtained. However this part of the claim failed because the judge also held that if the consent process had been gone through properly then Mr Price would have had the microfracture procedure in any event. I refused permission to appeal on this issue on paper and the point was not pursued further. There is not now any appeal relating to the first operation.
For the second arthroscopy the issue was the decision to proceed with the operation. Mr Price's case was that an arthroscopy was not indicated for a patient in his position, was contrary to the NICE Guidelines and was a pointless operation to perform on him. An aspect of this point was another issue about consent, in that the consent form did not record any benefits for the operation and did not inform Mr Price that it was not indicated by the NICE Guidelines. Mr Price sought permission to appeal on these findings. I gave permission on paper. The matter will be addressed below.
The third operation was a partial knee replacement. The issue before the judge resolved down to a question of fact. Mr Price's case at trial and on appeal is that the femoral component of the prosthesis was installed in such a way that it was misaligned. The manufacturer's specification permits the component to be aligned +/-10° to the relevant reference axis. Mr Price's case was that the component was in fact aligned at about 17° or more. That was based on a composite X-ray image dated 15 th October 2012 which was referred to at trial as the Long Leg image. The defendant's case was that the femoral component was not misaligned. The judge decided that the Long Leg Image was not one on which reliance could be placed. He also held that the relevant angle was no more than 6°. Accordingly the femoral component had not been negligently installed and the claim for the third operation failed. As a result the overall claim was rejected. On appeal Mr Price contends that the judge erred in various ways in his decision about the angle. I gave permission to appeal on that point.
Although other points were taken in the grounds of appeal, by the conclusion of Mr Price's counsel's speech the only issues are the two grounds I have mentioned. It is common ground that if the appeal on either or both of the second or third operations succeeds then there would need to be a further hearing to decide quantum and causation if the matter cannot be agreed. In the context of this case the sum arising from the second operation would be relatively modest but that is no reason not to examine the issue properly.
The appeal
Both grounds of appeal relate to findings of fact by the trial judge. In such cases appellants often approach the matter by seeking to persuade the appellate court what the facts are and then inviting a conclusion that the appeal should be allowed because the judge came to a different conclusion and therefore erred. That is not the right approach, particularly when the first step is necessarily based on edited highlights from the evidence below. The most important principle which I must keep in mind at all times is to remember that I am not the trial judge. The question is not — what do I think the facts are? The question is — has the trial judge erred in finding the facts as he or she has found them to be?
In Wheeldon v Millenium Insurance Co. Ltd [2018] EWCA 2403 Coulson LJ considered the principles applicable to appeals on a finding of fact. He set out a number of passages on the point: paragraph 114 from the judgement of Lewison LJ in Fage v Chobani [2014] EWCA Civ 5 which includes the well known observation about a judge's reasons; paragraph 67 from Lord Reid's speech in Henderson v Foxworth [2014] UKSC 41; and paragraphs 39 and 40 of Longmore LJ in Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94. After that Coulson LJ summarised the position as follows:
“10. In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.”
I turn to consider the two grounds of appeal.
Second operation
The circumstances in which the second arthroscopy was performed were these. Mr Price's first arthroscopy had been performed in February 2011. At that time he was working as aircraft engineer at GE Aircraft Engines. By 2 nd May Mr Price was still off work due to a problem with his wrist, which was due for surgery on 26 th May 2011. In September 2011 one of Mr Sharma's registrars saw him. The relevant passages from the clinic letter are quoted in the judgment at paragraph 29. Mr Price was extremely upset as things had got much worse after his first operation. The letter records that the registrar, Mr Sharma and Mr Price had discussed the possibility of knee replacement and also lifestyle modification and changing the nature of his job. Mr Price did not wish to change his job. The second arthroscopy was performed some weeks later.
The judge found that Mr Price was not a typical patient with osteoarthritis in the knee given his comparatively young age (he was 52 at the time of the first arthroscopy) and found that Mr Sharma was reasonably motivated by a desire to postpone carrying out knee replacement surgery given the implications this might have for Mr Price's employment.
There is no suggestion that the second arthroscopy itself was performed negligently. The arguments presented on Mr Price's behalf on appeal are that the operation was not indicated at all and that the consent process was not done correctly, bearing in mind the omissions from the consent form. In effect the appeal puts together the question of whether carrying out the operation was negligent with the issue of consent.
In relation to consent itself it was also argued that the judge's reasons were insufficient. When the application for permission to appeal came before me on paper it was not clear whether the guidance at paragraph 25 of English v Emery Reimbold [2002] EWCA Civ 605 had been followed, albeit that an application for permission to appeal had been made to the trial judge. I gave permission on paper but also invited the appellant to consider inviting the judge to give further reasons. The appellant's solicitors wrote to the court but by the time of the hearing of this appeal they had received no reply. However shortly after the hearing the parties received a supplemental judgment from the judge dealing with the issue. I invited and received written submissions from both parties on any points arising. The appellant's case was that the supplemental judgment did not alter his case on appeal. There is no need for a further oral hearing. I have taken the written submissions into account in deciding this appeal.
The appellant's case on the second operation is as follows:
i) In the main judgment the judge failed to address consent properly and made no finding. There was no evidence Mr Price consented. No risks/benefits were ever documented or advised to him. The consenting process and the signed consent form were wholly inadequate.
ii) The decision to undertake the operation was flawed because the procedure was not indicated and was contrary to the NICE Guidelines. The judge was wrong to suggest in paragraph 63 of the judgment that failing to follow NICE Guidelines...
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