Sakandar Azam v University Hospital Birmingham NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 10 December 2020 |
| Neutral Citation | [2020] EWHC 3384 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: D14YM909 |
| Date | 10 December 2020 |
[2020] EWHC 3384 (QB)
THE HONOURABLE Mr Justice Saini
Case No: D14YM909
Appeal Ref: BM90166A
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM APPEALS CENTRE
Birmingham Appeal Centre,
Priory Courts, 33 Bull Street,
Birmingham, B4 6DS
Charles Bagot QC and Sham Uddin (instructed by Direct Access) for the Respondent
John Coughlan (instructed by Bevan Brittan) for the Appellant
Hearing date: 7 December 2020
Approved Judgment
This judgment is in 7 main parts as follows:
| I. Overview | — paras. [1]–[8] |
| II. The Facts | — paras. [9]–[22] |
| III. The Judgment | — paras. [23]–[35] |
| IV. Grounds of Appeal | — paras. [36]–[47] |
| V. Appealing Discretion | — paras. [48]–[53] |
| VI. Analysis | — paras. [54]–[85] |
| VII. Conclusion | — paras. [86]–[87] |
I. Overview
This is an appeal against an Order dated 2 September 2019 made by His Honour Judge Rawlings (“the Judge”) sitting in the County Court at Birmingham. By this Order, the Judge permitted the Respondent (“Mr Azam”, the Claimant below) to proceed with his clinical negligence claim against the Appellant (“the Trust”), despite the expiry of the primary limitation period. The Judge's Order was made under section 33(1) of the Limitation Act 1980 (“the LA 1980”), following the trial of a preliminary issue as to limitation.
The underlying claim arises out of gynaecomastia surgery which took place nearly 25 years ago, on 9 March 1996. The surgical procedure which is the subject of the negligence claim was performed by a consultant surgeon, Mr Duncan Campbell (“Mr Campbell”), at Selly Oak Hospital, an institution for which the Appellant (“the Trust”) has assumed responsibility. Mr Campbell died on 12 April 2014.
The claim was issued on 20 July 2017. In summary, Mr Azam complains that the surgery was of a poor standard and undertaken using an inappropriate technique. He says that in consequence he has suffered severe pain as well as chest wall distortion and significant scarring. The Trust has thus far submitted only an outline Defence and relies primarily on a limitation argument.
In his succinct judgment, the Judge held that the primary limitation period had expired in March 1999 because Mr Azam had the necessary knowledge for the purposes of section 14 of the LA 1980 almost immediately after the operation. He also held that there was no concealment for the purposes of section 32 of the LA 1980.
However, as indicated above, the Judge concluded that it was equitable on the facts before him to give Mr Azam permission to pursue his negligence claim out of time, applying section 33 of the LA 1980.
It is against this final conclusion that the Trust appeals. In summary, it argues that although this was an exercise of discretion, the Judge's decision was manifestly wrong.
Mr Azam responds that this is essentially an impermissible appeal against a discretionary evaluation, where no error of law in the Judge's approach has been identified.
Permission to appeal was refused by the trial Judge and by Soole J on the papers on 5 March 2020. Following an oral renewal hearing on 4 June 2020, Martin Spencer J granted the Trust permission to appeal to the High Court.
II. The Facts
The operation carried out on 9 March 1996 for the correction of Mr Azam's gynaecomastia was undertaken by performing bilateral subcutaneous mastectomies. Mr Campbell was at that time a senior consultant surgeon at Selly Oak Hospital.
On 7 June 1996, Mr Azam was seen by Mr Campbell's senior house officer, a Dr Wong, who wrote to Mr Azam's GP:
“He has an acceptable cosmetic appearance from this. The scars have healed well with no sign of infection. Discharged back to your care.”
(Recorded in a letter sent to Mr Azam's GP, Dr Rajput).
In February 1998, Mr Azam saw a Consultant Cardiologist, Dr Beattie who made a note in relation to the mastectomy possibly being “redone”. On receipt of Dr Beattie's clinic letter, on 16 April 1998 Dr Rajput rang Mr Campbell's secretary and, as a result of that telephone conversation, noted: “If needs redo, needs to be re-referred.” This appears not to have been followed up, but is evidence that at least two years post-operatively Mr Azam was dissatisfied with the results of the operation.
Mr Campbell died of pancreatic cancer on 12 April 2014.
On 12 August 2014, Mr Azam was seen by another surgeon, a Mr Atul Khanna at Sandwell Hospital, who offered revision surgery, albeit expressing significant concerns about the potential difficulties in performing satisfactory correction and describing some of the potential adverse consequences. The offer of revision surgery was not taken up by Mr Azam.
In April 2015, Mr Azam entered into a conditional fee agreement with solicitors and an expert's report was commissioned from Mr T E E Goodacre (“Mr Goodacre”).
As to his qualifications, Mr Goodacre is a Consultant Plastic, Reconstructive and Aesthetic Surgeon with an NHS appointment at the Oxford University Hospitals. He is past President of the British Association of Plastic, Reconstructive and Aesthetic Surgeons, a member of the British Association of Aesthetic Plastic Surgeons, and past Chair of Professional Standards for British Association of Plastic, Reconstructive and Aesthetic Surgeons, 2012–2015.
In his report of 23 May 2016, Mr Goodacre expresses his views as to the surgery in what, it is fair to observe, are forthright terms.
In Mr Goodacre's opinion the surgery was of “a very poor standard indeed and falls well below the standard expected of a reasonable body of medical practitioners”. I note that, in particular, Mr Goodacre criticises the use of a form of inverted ‘T’ scar approach to reduce the breast tissue, and states that there has:
“clearly been over-resection of tissue in the central area, accompanied by inadequate resection of peripheral fat/gynaecomastia tissue, as well as inadequate positioning of the nipple/areola complex.”
Mr Goodacre further observes:
“I have never encountered a gynaecomastia that could not reasonably be approached using some form of concentric ring technique accompanying the subcutaneous reduction to avoid transverse chest wall scars. I am aware, however, that a certain body of practitioners would adopt such mutilating and scarring inducing approaches, especially using the transverse incisions for some reason or other. However, that does not render the gross loss of tissue and distortion of chest wall acceptable and, in good hands, the use of a transverse scar might be an acceptable sequelae so long as the resulting contour was more satisfactorily delivered than is evident in this case.”
On 11 November 2016, a pre-claim letter was sent relying upon Mr Goodacre's report. On 18 May 2017, the Trust responded and raised the defence of limitation. In this letter the Trust asserted that the primary limitation period expired in 1999 and asserted that there was a discussion with the GP, Dr Rajput, in April 1998 when the notes record a reference to “chasing a redo mastectomy”, which indicated that Mr Azam had “knowledge” for the purpose of section 14 of the LA 1980. The letter also stated:
“We should also point out that the surgeon whom we believe carried out this surgery, Mr Duncan Campbell, died in 2014. Accordingly, if you intend to rely upon the court's discretion to overcome the limitation position, it is clear that the defendant will be severely prejudiced.”
The claim form was issued on 30 June 2017 and Particulars of Claim were served on 10 October 2017. Surprisingly, this statement of case did not plead and rely on section 33 of the LA 1980, but did assert that Mr Azam's date of knowledge did not arise until 12 August 2014 for the purposes of section 14 of the LA 1980.
A Defence was served on 15 December 2017 noting, in terms, that Mr Azam had advanced no application for discretionary disapplication of the primary limitation period pursuant to section 33 of the LA 1980. This was met with a Reply belatedly relying on section 33.
On 27 July 2018, District Judge Shorthouse gave permission to Mr Azam to amend the Particulars of Claim, and Amended Particulars of Claim relying additionally on sections 32 and 33 of the LA 1980 were in due course served.
III. The Judgment
Sections 33(1) and (3) of the LA 1980 are the main relevant provisions:
“33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11, 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
….
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action...
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