Emeh v Kensington and Chelsea and Westminster Area Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE SLADE,LORD JUSTICE PURCHAS |
| Judgment Date | 24 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0724-5 |
| Docket Number | 84/0325 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1984 |
[1984] EWCA Civ J0724-5
Lord Justice Waller
Lord Justice Slade
Lord Justice Purchas
84/0325
1979 E. No. 446
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE PARK)
Royal Courts of Justice,
MR B.S. GREEN, Q.C., and MR J.H. FOX (instructed by Messrs. Jack Bernstein & Co.) appeared on behalf of the Appellant.
MR J. REIDE (instructed by Messrs. Radcliffes & Co.) appeared on behalf of the Respondents.
)
This is an appeal from a decision of Park J. given on the 21st December 1982, when he awarded a sum of damages to the plaintiff, Mrs Emeh, on the ground of the negligence of two surgeons at St. Stephen's Hospital, London, who had operated on her for sterilisation—but thereafter she becoming pregnant.
The judgment of the learned Judge confined the damages to matters which had occurred by the time the plaintiff discovered that she was in fact pregnant—including the fact in future there would have to be another operation for sterilisation in order to restore the situation.
This appeal is brought on her behalf against that finding with the submission that there are many other elements of damage to which this plaintiff, the appellant before us, is entitled.
It is not necessary to set out in great detail the facts; it is sufficient to say this, that the plaintiff first met her future husband in 1964. They lived together for a number of years before being married in 1973, by which time they had three normal, healthy children. When the husband went to Nigeria a separation occurred—the husband apparently going to Nigeria to find out what had happened to his family as a result of the Biafran war. So in late 1975 or early 1976 the plaintiff was in London living alone.
The evidence does not show precisely when her husband returned from Nigeria, but it was some time in 1976.
In March 1976 the plaintiff thought she was pregnant. She therefore consulted her doctor, and within a short time she was admitted into St. Stephen's Hospital, where an abortion and sterilisation operation was carried out upon her. By that time she was some 8 to 12 weeks' pregnant.
Following her operation, the plaintiff began to see her husband again—although at that time he was not living with her—but there came a time towards the end of the year, while she was working, that she went to consult her doctor. The doctor's record of that visit showed that the plaintiff was very depressed, but I do not think it is necessary to go into any detail with regard to that matter. She in fact visited her doctor both in November and December.
On the 5th January 1976 she visited her doctor again, and then again on the 19th January she saw Dr. Fisher—her doctor. He carried out an internal examination of her and described what he found as "a tumour which resembled a possible infant of 18 to 20 weeks". He then advised her to go and see another member of the partnership, Doctor Bassett, whom the plaintiff in fact went to see on the 24th January, when a urine test was taken. The papers show that that urine sample was sent to the hopspital and was returned on or about the 24th January, showing a positive result indicating that the plaintiff was in fact pregnant. The evidence shows that some time shortly afterwards that information was given to her.
On the 16th February the plaintiff underwent a cervical smear test—the purpose of which was quite different.
The learned Judge heard the evidence of the plaintiff, and he formed an adverse view of her truthfulness. Undoubtedly there were parts of her evidence which were almost certainly untrue; there were other parts which might or might not be untrue. But there was one finding about which complaint is made before this Court with which I will deal before coming to the matters of law with which we are concerned.
At an early part of his judment when the learned Judge was dealing with the evidence of the plaintiff, and after he had described the plaintiff's visit to Queen Charlotte's Maternity Hospital when the cervical smear test was carried out, he said this: "The plaintiff was an unreliable and, on many matters, an untruthful witness. Despite her evidence to the contrary, I am sure that she knew that she was pregnant within a day or two of 25th January 1977. She said, 'When I learnt I was pregnant I tried to accept the pregnancy. I was shocked. I had to break the news to my husband and to re-arrange my life if I was having a baby. I did not consider an abortion. I was afraid about having an abortion'". That first finding by the learned Judge is one to which exception is taken by Counsel on her behalf.
As I am, at this stage, looking at the findings of the learned Judge, I think it is desirable to look at three or four answers which the plaintiff gave in her evidence in order to show the nature of the attack on that finding. At page 75 letter? of the transcript she is asked: "And then at some stage you obviously gave a urine sample to be sent to the hospital for this test that we have seen? (A) That same day that Dr. Bassett examined me, she said that she would like me to take a urine test up to St. Stephen's Hospital for it to be tested. I took the urine test. I took it straightaway up to St. Stephen's Hospital which could have been on the 16th of the 2nd, and I went back for the result to Dr. Bassett, and she said: 'Yes; you are definitely pregnant'". She had put in the date "the 16th of the 2nd", because that was a matter which had been put to her a short time before. She was saying that it was the urine sample which established the pregnancy, and she was told about that some six days later. As the result of the urine sample test is dated the 24th January, that means the plaintiff was told she was pregnant at some time towards the end of January.
In fact this matter was put to her in examination: "…. About how many days between Dr. Fisher saying you might be about 24 weeks' pregnant and Dr. Bassett saying you definitely are pregnant 'We have had the test'? (A) About six days".
Then in cross-examination the matter was put to her again. She was asked: "If it was about the middle of March or indeed any date in March, that would have been after you already knew the news from your pregnancy test, would it not? (A) But I found out I was pregnant at the end of January" and then she continues her answer to speak about the number of weeks. Then she was asked: "Do you mean you found out you were pregnant at the end of January? (A) The end of January, yes."
Again she was pressed about the result of the test in February. She was asked: "I thought you were telling us this morning that you did not really know you were pregnant until you got the results of the test on the 20th February? (A) That is right, whichever way the test went. I did say to you that, if this is the date that I went to the doctor and he was reckoning me to be pregnant, I am only explaining to you what the doctor said to me, that the time could be the end of January/the beginning of February".
So the plaintiff is fixing those dates as being the dates when she had her urine test, and the result of that test was conveyed to her.
Then in re-examination she was asked another question: "The second point I want to clear up is this. When my friend asked you questions, you said 'At the end of January or the beginning of February I knew I was pregnant'. (A) I knew I was pregnant when Dr. Fisher examined me, and when Dr. Bassett gave me the internal examination then I definitely knew. I said that could have been the end of January/the beginning of February. I am not sure of the dates or the time of the month".
It is clear from those answers that at all times she was saying it was a result of the urine test that she was told she was pregnant, and that was the end of January or the beginning of February; and that she was told about six days after the urine test—and we know that that urine test was on the 24th January.
Mr Green has explained to us that the document relating to the urine test was not before the Court at first—and indeed not until after he had completed his examination-in-chief of the plaintiff. He has invited us to say the result of that was the plaintiff was misled when dates were mentioned—because he had mentioned the smear test, which was in February, and at that time the difference between the two had not been appreciated.
But it is clear from an examination of the transcript that at all times the plaintiff was saying two things; one, she knew she was pregnant at the end of January, and two, that it was as a result of the urine test.
In those circumstances, reverting to the passage which I have quoted from the learned Judge's judgment, it is not right to say, "despite her evidence to the contrary, I am sure that she knew she was pregnant within a day or two of 25th January 1977", which is what he said at page 130D of the transcript, because when one looks at the transcript of her evidence, it is clear that is what she was saying at all times.
So while there are other aspects of the plaintiff's evidence which clearly were not reliable, the learned Judge appears to have placed great emphasis on this original point, which does not seem to me, at any rate, to be justified.
It is difficult to know what view he would have taken of the rest of the plaintiff's evidence if it had not been for that error—which I think Mr Green accepts was not entirely the Judge's fault.
Then the plaintiff, in her evidence, gave her views about those matters; she...
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