Hatswell v Goldbergs (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX,SIR MURRAY STUART-SMITH |
| Judgment Date | 11 December 2001 |
| Neutral Citation | [2001] EWCA Civ 2084 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2001 |
[2001] EWCA Civ 2084
IN THE SUPREME COURT OF JUDICATURE 2001/0522
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH DISTRICT REGISTRY
(JUDGE SEAN OVEREND)
Royal Courts of Justice
Strand
London WC2
Lord Justice Rix and
Sir Murray Stuart-Smith
MR. A. ANTELME (instructed by Messrs. Serpell Son and Davey, Plymouth) appeared on behalf of the Claimant.
MR. G. ALDOUS and MISS L. BEGLEY (for judgment) (instructed by Messrs. Beachcroft Wansborough, Bristol) appeared on behalf of the Defendant.
( )
Thursday, 11 December 2001
This is Mr. Michael Hatswell's appeal from a judgment of His Honour Judge Overend in which the judge had to assess the loss of Mr. Hatswell's chance of suing Dr. McBride, a general practitioner whom he consulted on 9th and 11th October 1986, in a claim of negligence. The judge assessed the loss of chance at nil.
This assessment arose in Mr. Hatswell's action against his former solicitors, Messrs. Goldbergs. A previous judgment of Toulson J. had held that Goldbergs had been negligent in failing to advise Mr. Hatswell to bring an action against Dr. McBride until it was too late. That action was not commenced until 3rd June 1993. By a judgment dated 16th December 1994, Auld J. rejected Mr. Hatswell's arguments that the action had been commenced within time or that the limitation period should be disapplied pursuant to section 33 of the Limitation Act 1980.
In October 1986, when Mr. Hatswell consulted Dr. McBride, he was 42 years old and suffering, as was common ground before the judge, from Q Fever endocarditis, an infection which went undetected until it caused him to suffer a stroke on 28th December 1986, which has unfortunately left him partly disabled and with a speech impediment. The Q Fever was not diagnosed until after his stroke; not, indeed, until 24th January 1987.
Between 9th October 1986 and 28th December 1986 Mr. Hatswell consulted not only Dr. McBride but two other GPs, Dr. Clarence and Dr. Young, and a consultant physician, Dr. Hunter. Initially proceedings had been commenced against Dr. Young, who saw Mr. Hatswell on 24th December 1986, and against Plymouth Health Authority on the basis that it was the responsible authority for Dr. Hunter, who saw Mr. Hatswell on 19th November 1986. But the proceedings against Dr. Young were discontinued in June 1993 and those against Dr. Hunter in 1995.
Mr. Hatswell was born in 1944 with a congenital abnormality of the aortic valve, in that it was bicuspid. That defect involved the risk of developing endocarditis, a form of infection, which he did in fact suffer from at the age of eight. It was cured at that time by antibiotics. At the age of 36 he underwent an aortic valve replacement; a successful operation. Following that, it was necessary for him to be monitored annually. It was part of that monitoring process that took him to Dr. Hunter on 19th November 1986.
In October 1986, Mr. Hatswell was a successful businessman, a garage proprietor. He was a hard-working man. He was married and had three children. He had recently moved, on 1st October 1986, from his former home in Roborough, Devon to a new home near Yelverton. Dr. McBride was a general practitioner at his old clinic near his former home. Dr. Clarence and Dr. Young were GPs at a different clinic nearer his new home.
When Mr. Hatswell visited Dr. Mcbride in October 1986, it was the first time he had been to his GP clinic for four years to consult a doctor on his health. His evidence, and that of his witnesses (his ex-wife and his estranged daughter Rebecca and two former employees, Mrs. Dixon and Mr. Turner) was that at that time Mr. Hatswell was not well and had been suffering from a variety of symptoms, such as, in particular, night sweats, headache, dizziness and a general tiredness. However, Dr. McBride's notes for Mr. Hatswell's two visits say nothing of such symptoms, but merely read as follows, for the first visit:
"Mid tarsal pain advised—shoe inserts. BP 110/70."
The entry for the second visit reads:
"Mild vertigo Stemetal."
The agreed evidence of the GP experts reduced the question for the judge to a narrow one. I read from the joint report of Drs. Ineson and Scott, dated 12th and 30th October 2000.
"Both experts agreed that if the Court finds that the patient complained of night sweats or persistent general malaise on either the 9th [or] the 11th October 1986 we could expect an examination of the cardiovascular system and the taking of blood samples for white cell count and ESR.
Both experts agreed that if the ESR was raised (as they would have expected) urgent specialist referral would have been mandatory.
Both experts agreed that if the patient's complaints were as specified on the records (foot pain on the 9th or vertigo on the 11th) these would not have been considered symptoms that would have brought endocarditis to the mind of the average GP. Correspondingly, it therefore follows that in this situation there would have been no need for investigation or referral."
The judge therefore defined the issue before him as follows:
"What it comes to is that the GP experts were agreed that if the complaints recorded in the GP records for each of the two October consultations with Dr. McBride were correct, then he was not negligent. On the other hand, if the complaints were as they were stated to be by Mr. Hatswell, and supported by his family, then the GP experts agree that Dr. McBride was negligent.
"The issue is thus a narrow one."
It is common ground that the judge set out in his judgment the correct approach as a matter of law to the question he had to try of assessing the loss of the chance to sue Dr. McBride. He cited from the judgment of this court in Kitchen v. The Royal Air Force Association [1958] 1 W.L.R. 563, and in particular the passage of Lord Evershed M.R. at 575 as follows:
"In my judgment, what the court has to do, assuming the plaintiff has established negligence in such a case as at present is to determine what the plaintiff has, by that negligence, lost. The question is, has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."
The judge also cited from a passage in Parker L.J.'s judgment at 576:
"If the plaintiff can satisfy the court that she would have had some prospect of success, then it would be for the court to evaluate those prospects, taking into consideration the difficulties that remain to be surmounted. In other words, unless the court is satisfied that her claim was bound to fail, something more than nominal damages ought to be awarded."
The judge then continued in his judgment immediately as follows:
"Applying those principles, I find that I am quite unable to accept, from the evidence I have heard, that Dr. McBride was or should have been aware of night-sweats or persistent malaise as a result of Mr. Hatswell's attendances in October 1986. That is the conclusion which would likely have been reached by a court in 1994, or whenever the McBride negligence action would have been tried, but for the defendant's solicitors' negligence. It is unlikely that Mr. Hatswell's night sweats either began or were complained of until about mid-December of 1986.
"Insofar as that conflicts with the evidence of Mr. Hatswell and his family, and the witnesses called on his behalf, I conclude that it is likely that they are mistaken as to the commencement date of those symptoms, all of which occurred some 14 years ago.
"The combination of the contemporaneous records of so many doctors, coupled with the evidence of the doctors themselves, is a formidable hurdle. I fear that the claimant has simply not overcome the absence of complaints recorded in material notes of his attendances, and the inconsistent descriptions of the onset of night sweats in history attributable to Mrs. Hatswell; nor would the claimant have been able to overcome such deficiencies in a negligence trial brought timeously against Dr. McBride."
On behalf of Mr. Hatswell Mr. Antelme has made three broad submissions:
1. That the judge, although directing himself by the correct approach, failed to follow it and instead wrongly proceeded to assess Mr. Hatswell's loss of his chance merely by reference to the balance of probabilities.
2. That if that first criticism is well aimed, then this court is in as good a position as the judge was to assess Mr. Hatswell's loss on the narrow question before the court.
3. That if the judge did succeed in applying the right test, then he came to the wrong result and came to a result at which no reasonable judge could have arrived.
Before turning to those submissions, it is necessary to set out in greater detail the factual material that was before the judge and is again before this court on appeal. I will begin with the written contemporaneous records of the doctors whom Mr. Hatswell consulted in the period from 9th October to 28th December 1986, and the hospital notes made following his admission that day, together with such further contextual material as is not in dispute.
I have already read Dr. McBride's notes for the consultations of 9th and 11th October. In the second half of October, Mr. Hatswell went on a family holiday to the United States of America for a period of three weeks, returning on about 11th November. During that time, he suffered headaches and called out a doctor to his hotel. There are no notes relating to that consultation.
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