Saunders v Gwent Community Health NHS Trust

In a professional negligence claim, allegations of clinical negligence ordinarily require relevant expert evidence unless the case is obvious without it. A claimant cannot obtain further expert evidence as a last resort after several reports fail to support the claim. The court may strike out a claim where the claimant’s own expert evidence provides no realistic prospect of establishing breach or causation. A proposed amendment introducing trespass based on lack of consent may also be refused where it is made too late, was not formally renewed after the claim was reinstated, or would still face an evidential failure on causation.

Mrs Saunders brought negligence proceedings arising from treatment given by a community nurse to her late husband, whose legs were later amputated. She alleged that compression bandaging and other preparations were inappropriate and caused his deterioration.

After the claim was reinstated following earlier procedural appeals, the defendant obtained summary judgment and the claim was struck out on the basis that five expert reports did not support negligence or causation. Mrs Saunders sought a further joint expert and appealed to His Honour Judge Weeks QC, who dismissed the rehearing appeal. She then applied to the Court of Appeal for second-tier permission to appeal, raising the adequacy of the expert evidence, the proposed appointment of a joint expert, Human Rights Act arguments, and an unpleaded trespass claim based on lack of consent.

1. Permission refused. The second-tier test was not satisfied. The application raised no important point of principle or practice, and there was no compelling reason for a further appeal. The claim also had no realistic prospect of success.
2. Clinical negligence is generally proved by expert evidence establishing that the professional acted below the required professional standard. Following the explanation in Sansom v Metcalfe [1998] PMLR 542, expert evidence is unnecessary only in an obvious case. This was not such a case.
3. The five reports obtained by Mrs Saunders consistently supported the appropriateness of the treatment and rejected negligence and causation. The experts had also considered her criticisms and did not change their conclusions. The judge was therefore entitled to conclude that the claim was doomed and to refuse a further joint expert under CPR 35.7. A joint expert is not a last resort for rescuing a claim after existing expert evidence has failed.
4. The Human Rights Act arguments disclosed no valid complaint. Mrs Saunders had received a fair and extensive opportunity to present her case.
5. The proposed amendment to plead trespass based on lack of consent was too late. It had not been renewed after the claim was reinstated, nor was a formal application before the district judge or the judge below. It was inappropriate to consider an amendment that was not formally before the court.
6. Even if the trespass allegation did not itself require medical expert evidence, causation still did. The medical reports attributed the amputations and death to the underlying condition rather than the treatment.

Application dismissed. No order for costs.

• Court of Appeal (Civil Division): Second-tier permission to appeal refused; application dismissed.
• High Court judge, Bristol District Registry: His Honour Judge Weeks QC dismissed the rehearing appeal on 29 June 2001 and upheld the striking out of the negligence claim.
• District Judge Stuart-Brown: Granted judgment for the defendant and struck out the claim after considering the existing expert reports.
• Earlier procedural history: The claim had previously been struck out for failure to comply with an unless order, but was later reinstated by consent following permission granted by Sir Richard Scott, V-C.