Jones v South Tyneside Health Authority

The Court of Appeal’s discretion to admit fresh evidence under rule 52.11(2) of the Civil Procedure Rules is governed by principles, rather than rigid rules. The Ladd v Marshall criteria remain important considerations. Fresh evidence may be admitted where it was unavailable at trial and examination on appeal is just, without that admission prejudging its conclusiveness. The evidence must then be evaluated in its clinical and evidential context. A witness’s conditional or hypothetical answer, particularly where memory is impaired and cross-examination has not tested the evidence, may be insufficient to displace findings at trial. The Bolam/Bolitho framework distinguishes the factual question of what a practitioner would have done from the professional-negligence question of what proper care required.

Wayne Jones, acting through his mother, brought a clinical-negligence claim against South Tyneside Health Authority arising from his birth in 1975. The trial judge found several breaches of duty but dismissed the claim on causation and on the professional standard applicable to the proposed caesarean section.

After judgment, Mrs Jones traced Dr Panow, the obstetrician who had delivered Wayne, and sought to adduce her evidence on appeal. The High Court refused permission to appeal, but the Court of Appeal permitted the appeal to proceed. The central issue was whether Dr Panow’s evidence was sufficiently reliable and conclusive to justify disturbing the trial outcome.

1. Appeal dismissed. The Court admitted the fresh material for consideration, but concluded that it provided no reliable basis for allowing the appeal.
2. Under rule 52.11(2) of the Civil Procedure Rules, the Ladd v Marshall criteria remain principles requiring careful consideration, rather than inflexible rules. The court may admit evidence unavailable at trial where justice requires its examination on appeal. Admission does not determine the evidence’s weight or conclusiveness.
3. The appeal depended on evidence from Dr Panow about what she would have done if called earlier. The evidence was materially hypothetical, directed principally to a later time than the critical 17.00 question, untested by cross-examination, and affected by the witness’s serious illness and loss of memory. Her answers also showed a readiness to modify her views. Taken as a whole, the evidence was wholly inconclusive.
4. The proper analysis of an omission to act follows Bolitho v City and Hackney Health Authority. The factual question is what the practitioner would in fact have done; the Bolam/Bolitho professional-standard question is whether proper care required the action. The latter inquiry requires responsible medical opinion with a rationally defensible basis.
5. The trial judge’s findings as to what Dr Panow should have done were not challenged. The new evidence did not establish what she would have done or provide a sufficient basis for entering judgment for the claimant. The appeal was dismissed, with counsel directed to agree a minute of order.

• Court of Appeal (Civil Division): Appeal from the decision of Mr Recorder Nolan QC dismissing the liability claim after trial of liability and causation. The Court of Appeal admitted the fresh evidence for consideration but dismissed the appeal.