Glicksman v Redbridge NHS Trust

When resolving a material conflict between suitably qualified experts, a trial judge should identify the relevant issues, marshal the evidence and give coherent reasons for accepting one opinion and rejecting another. Bare conclusions may prevent effective appellate review, particularly where they support a finding of professional negligence.

If inadequate reasoning affects interdependent findings on breach, causation and quantum, the appellate court may set aside the whole judgment and order a retrial rather than preserve isolated findings favourable to either party.

A patient obtained judgment for £4,181 against an NHS trust for clinical negligence arising from the surgical approach adopted during an urgent operation for a suspected incisional hernia. The trial judge concluded that no reasonable body of medical opinion would support the approach, but awarded damages only for the additional effects and risks caused by the unnecessary abdominal incision.

The Trust appealed against liability. The patient sought permission to cross-appeal on causation and damages. The central issue was whether the trial judgment contained sufficient findings and reasons to resolve the substantial conflicts between the expert medical evidence and permit effective appellate review.

1. Appeal allowed and judgment set aside. Lord Justice Henry delivered the judgment of the Court. The trial judge had expressed conclusions on liability without identifying or resolving the subsidiary disputes between the medical witnesses. She gave no reasons for implicitly rejecting evidence pointing the other way.

2. A trial judge remains responsible for resolving conflicts of expert evidence and need not accept an opinion merely because it comes from a distinguished source. Nevertheless, a coherent and reasoned opinion from a suitably qualified expert ordinarily calls for a coherent and reasoned rebuttal, unless there is another good reason to discount it. The Court applied the approach stated in Eckersley v Binnie [1988] 18 Construction Law Reports 1 and applied in the clinical-negligence context in Penney, Palmer & Cannon v East Kent Health Authority [2000] Lloyd's Rep Med 41.

3. The case required the contentious medical issues to be defined, the evidence to be marshalled and reasons to be given. Those elements were essential safeguards in the reasoned judicial process. Their absence was especially concerning because the unsupported conclusions founded a finding of professional negligence and prevented the Court of Appeal from determining whether the conclusions were reasonable and supported by the evidence.

4. The same deficiencies affected the findings on causation and quantum. The judge had attributed only delayed healing, increased weakness and a slight additional risk of recurrence to the unnecessary incision, while rejecting the claimant's wider claims. Liability and causation were inextricably linked, so it was not practicable to preserve the part of the judgment favourable to either party while setting aside the remainder.

5. The entire judgment was therefore set aside. A new trial was ordered on liability and quantum before a judge with appropriate medical-negligence experience. No order was made on the cross-appeal, and the costs in the Court of Appeal and below were reserved to the trial judge.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 1097, allowed the Trust's appeal, set aside the whole judgment and ordered a retrial on liability and quantum. It made no order on the claimant's cross-appeal.

2. High Court, Queen's Bench Division: Her Honour Judge Steel DL gave judgment for the claimant for £4,181 on 29 June 2000 and ordered the Trust to pay two-thirds of her costs. No citation is stated.