Starcevic v West Hertfordshire Health Authority

Where a trial judge recognises that a factual conflict is decisive but does not resolve it, an appellate court may review the record and substitute the finding required by the evidence. In a clinical-negligence claim, a report of a swollen and painful calf before surgery should be passed to the medical team where it may indicate deep vein thrombosis. Failure to communicate such warning signs may establish breach. Conversely, where clinicians receive no information capable of alerting them to the condition, there may be no duty to investigate an otherwise silent condition. A dismissal founded on an unresolved crucial factual issue may therefore be set aside, with judgment entered for the claimant where liability follows.

The appellant, the widow and administratrix of Anthony Starcevic’s estate, claimed damages from the respondent health authority after his death from pulmonary embolism following knee surgery. The claim alleged that an occupational physiotherapist failed to communicate complaints of calf swelling and pain, and that a nurse failed to report discolouration of his foot. The High Court, before Ian Kennedy J, dismissed the claim on the basis that no sign or symptom of deep vein thrombosis had been shown which clinicians ought to have detected. The appeal concerned whether the judge had properly resolved the critical conflicts between the appellant’s evidence and that of the physiotherapist and nurse.

The appeal was allowed unanimously. The order of Ian Kennedy J was set aside and judgment was entered for the claimant.

1. The trial judge had recognised that the factual dispute was decisive but had not directly resolved whether Anthony Starcevic told the physiotherapist that his calf was swollen and painful, or whether the nurse noticed that his foot was discoloured. The judge had not found that the appellant was dishonest or mistaken.
2. The Court of Appeal considered that the appellant was an honest and straightforward witness whose account was recorded consistently shortly after the events and was consistent with the deceased’s condition. The evidence of the physiotherapist and nurse did not directly contradict her account. It principally described what they would have done if the events had occurred as she described. The evidence therefore required acceptance of the appellant’s account on both occasions.
3. The medical evidence established that a complaint of a swollen and painful calf should have been communicated to the medical staff, and that blue or purple discolouration of the foot would have been significant. The accepted factual findings meant that the clinicians had been given information capable of alerting them to the deep vein thrombosis. The earlier conclusion that there had been no such warning signs could not stand.
4. The court ordered that the appeal be allowed with costs here and below, the order below set aside, judgment entered for the claimant, and agreed damages awarded in the sum of £175,000.

1. Court of Appeal (Civil Division): Appeal allowed unanimously. The High Court order was set aside, judgment was entered for the claimant, and agreed damages of £175,000 were awarded.
2. High Court of Justice, Queen’s Bench Division: Ian Kennedy J dismissed the negligence claim on 19 October 1999.