Surena Masih v The Royal Wolverhampton NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1280 (KB) |
| Court | King's Bench Division |
| Docket Number | APPEAL REF: KA-2022-BHM-000049 |
[2023] EWHC 1280 (KB)
Mr Justice Ritchie
APPEAL REF: KA-2022-BHM-000049
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BIRMINGHAM REGISTRY
ON APPEAL FROM
THE COUNTY COURT AT WOLVERHAMPTON
Michael Redfern KC (instructed by William Graham Law LLP) for the Appellants
Robert Dickason (instructed by Browne Jacobson LLP) for the Respondent
Hearing dates: 12 th & 15 th May 2023
APPROVED JUDGMENT
The appeal
This is an appeal from a decision of HHJ Boora [the Judge] handed down at Wolverhampton County Court on 17 October 2022.
The Judge dismissed the claim with costs against the Claimants.
By notice of appeal dated 4th November 2022 (sealed 7 th November 2022) the Appellants seek to obtain judgment on liability for damages to be assessed later.
Permission to appeal was granted on the papers by Eyre J on 21.2.2023 refusing all grounds except for: 1 and 7, 12–14 and 22–29.
Bundles and evidence
The Court was provided with various digital appeal bundles named as follows: (1) appeal hearing bundle; (2) supplemental bundle; (3) appeal bundle part 1; (4) appeal bundle part 2; (5) application for determination at hearing bundle; (6) Doc00205620230510150351.pdf; (7) skeleton arguments from both parties; (8) Masih Exhibits; (9) the Appellants' speaking note.
These bundles contained: 1,758 pages in the appeal bundle, which included the whole of the trial bundle and a bundle for the pre-trial review and 523 pages for the supplementary bundle. There was no core bundle of key medical records for the appeal.
No suggested reading list was provided and the Appellants' skeleton had no appeal bundle page references in it.
CPR 52B PD at para 6.4 requires that only relevant documents are put into the appeal bundle. The Appellants ignored that rule. It was a challenge to sort out what to read before the hearing. The PDF bookmarking of the digital bundles was inadequate and confusing. The bundles sent in just before the appeal were repeats of earlier bundles. In the event Counsel for the Appellants had a different bundle with different pagination.
Background facts
This was a tragic fatal accident claim arising from the death of Andrew Masih Mattu [I hope his family will not min me calling him Andrew] between 3.30 and 4.25 am on 8.1.2016 in the Defendant's New Cross Hospital, Wolverhampton. He had been admitted to ward A14 on 2.1.2016 with quite severe pancreatitis and was treated conservatively. He had been provided with an oxygen mask. His family had agreed with the hospital for the family to provide 24 hour supervisory care support. On 8.1.2016 he got up at night needing to go to the toilet and at just before 03.30 am, having handed his urine bottle (for measurement) to his cousin, Jonathan, he locked the cubicle door and suffered a wholly unexpected cardiac arrest. When Jonathan realised Andrew was not responding verbally he called the nurses. They arrived and (according to the notes) they unlocked the door from the outside, after some difficulty, taking 2–3 minutes. They took him out of the cubicle and tried to resuscitate him. When they failed they made a crash call at 03.38 am and the resuscitation team arrived including Senior Registrar Berair [SRB]. Electrodes were put onto his chest. Andrew was in PEA (pulseless electrical activity of the heart, so no blood was being pumped around his body) for 25 minutes whilst they tried to resuscitate him through chest compression. Then he went into ventricular fibrillation so SRB could (only then) give Andrew's heart “shocks” to try to restore the rhythm. Three were delivered, alongside various heart stimulating injections, but by 04.25 am Andrew was in asystole (heart stopped beating and no electrical activity-flat lining) and so had died.
Pleadings
The Claim Form and Amended Particulars of Claim in the Appeal Bundle were undated. Andrew's family sued the hospital for damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. The breaches alleged included failing to transfer Andrew to ICU. On causation the Claimants pleaded that had Andrew been given ICU high dependency treatment involving: better fluid balancing; better oxygenation; perhaps mechanical ventilation or O2 intubation, all to prevent hypoxia occurring and causing the cardiac arrest, he would have survived. It was asserted that in ICU Andrew would not have gone to the toilet without his oxygenation. If he had been better oxygenated he would have survived. The lack of oxygen caused the arrest. It was specifically pleaded that the delay in opening the door of the cubicle was not causative on the Claimants' case. I note here specifically that there was no mention of ECG monitoring anywhere in the Amended Particulars of Claim.
In the Amended Defence, the Defendant admitted that Andrew should have been cared for in ICU from 5 th January 2016 with “level two care”, however the Defendant denied causation. The Defendant pleaded that Andrew had an oedematous and necrotic pancreas. He was stable on 7.1.2016. He was oxygenated properly with a mask on the ward. He could and did mobilise (walk about) on ward A14. He had no need for intubation or mechanical ventilation. He had no evidence of significant hypoxia. On the but for projection: whether, had he gone to the toilet from ICU, the same result would have occurred, it was pleaded that the probable cause of the heart stopping was undiagnosed arrythmia. The Defendant asserted that the crash response and result after the attack would have been the same on ICU.
Breach was admitted, so the issues for the trial were:
(1) whether hypoxia caused the cardiac arrest (the Claimants' case);
(2) whether Andrew would have been better ventilated in ICU such that the cardiac arrest would have been avoided and he would have been resuscitated.
(3) Whether heart arrythmia caused the heart attack not hypoxia.
Before trial the Claimants' counsel wrote this in his skeleton argument:
“(j) The evidence of hypoxia causing death is overwhelming and the likelihood of coincidental arrythmia is vanishingly unlikely upon logical, responsible, reasonable and respectable medical analysis of the Deceased's in-patient treatment from 2.01.2016 to death in the early hours of 8.01.2016.”
Closing submissions were taken on 3 separate days: 16 May, 26 July and 13 September 2022. On the first day of closing submissions that Claimants pursued their originally pleaded case, so the Claimants wrote in their document entitled “Final Submissions” on 16 May 2022 that:
“It is the Claimants' contention that on any logical, reasonable, responsible and respectable analysis the Claimants' argument on causation is highly persuasive. The Defendant's contention is speculative and lacking in specificity (sic) logical evidence.”
It was therefore a considerable surprise to the Judge and the Defendant that on the second day of closing submissions, in July 2022, the Claimants' case on causation due to hypoxia was abandoned and the Claimants accepted the Defendant's case on the causation of Andrew's cardiac arrest, namely arrythmia.
The Claimants applied to re-amend the claim as follows:
“The Claimants' contention that hypoxia was the cause of cardiac arrest and death of Andrew Masih Mattu on January 2016 stands withdrawn”
And,
“14(viii) (a) Failed, on or before 5 January 2016, to transfer Andrew to Level 2 Critical Care where, inter alia, he would have been on continuous ECG monitoring which would have immediately identified any ventricular arrhythmia and immediate intervention would have saved Andrew's life.”
Despite the Defendant's objection to this very late amendment of the fundamental issue in the case permission was granted. No appeal from that decision is before me.
The Claimants' new causation case
So the Claimants had changed horses. They had not done so “mid-stream”, instead they did so right at the end of the crossing of the river. What then was the Claimants' new case? To what type of horse had they changed?
The new pleaded case was based solely or mainly on ECG monitoring. Hypoxia was abandoned and the delay in medical staff getting into the locked cubicle had been expressly disavowed from the start.
The main issue in the appeal
The two real issues in this appeal in my judgment related to (1) whether, on the balance of probabilities, continuous ECG monitoring would have picked up the arrythmia and prevented cardiac arrest, and (2) whether resuscitation of Andrew in ICU would have saved his life. This involved asking whether the Judge wrongly accepted the Defendant's expert and lay evidence, when determining the Claimants' new case on causation, instead of the evidence, which the Claimants' sought to rely on in part two of their final closing submissions in July and September 2022.
Appeal — CPR 52
I take into account that under CPR rule 52.21 every appeal is a review of the decision of the lower court, unless the court rules otherwise or a practice direction makes different provision, it will not hear oral evidence or new evidence which was not before the lower court and will allow the appeal if the decision was wrong or unjust due to procedural or other irregularity.
This appeal is restricted to the evidence before the lower court. Additional pieces of evidence can only be allowed them into evidence under CPR rule 52.21(2) and the three grounds in Ladd v Marshall [1954] 1 W.L.R. 1489 (CA), namely that it was (1) not obtainable with reasonable diligence before the lower court, (2) would have an important influence on the result and (3) was apparently credible though not incontrovertible.
Under CPR rule 52.20 this court has the power to affirm, set...
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