O'Brien v Camden & Islington Health Authority

An appellate court will interfere with a decision made in the exercise of a trial judge’s discretion only where the decision is clearly wrong or the judge misdirected himself on the applicable legal principles. Where the evidence relevant to liability is unanimous and shows no reasonably arguable breach of duty, permission to appeal and a new trial should not be granted merely because the pleadings were later amended or the litigation was conducted unsatisfactorily. The exercise of the amendment discretion is assessed in the circumstances known at trial, including whether the opposing party understood the case it had to meet and whether the proposed further material could realistically affect the result.

Julia O'Brien brought a medical negligence claim against Camden and Islington Health Authority arising from the treatment of a Colles fracture. His Honour Judge Mackay, sitting as a High Court judge, entered judgment for the authority on 10 March 2000. The claimant sought permission to appeal and permission to rely on further evidence, contending that the trial judge had been misled about the defendants’ expert evidence and that the defence had been improperly amended.

The central issues were whether the trial judge had wrongly exercised his discretion concerning the amendment and whether the proposed further material gave a realistic basis for reopening liability.

1. Application dismissed. Permission to appeal and permission to rely on further evidence were refused.
2. The trial judge had exercised a discretion to permit the defendants to rely on the case that the fracture had been satisfactorily reduced. The claimant’s advisers and expert had understood before and during the trial that this was the substantive liability issue, despite deficiencies in the pleaded defence.
3. Following the principle stated in G v G, an appellate court interferes with a discretionary decision only where it is clearly wrong or based on a misdirection as to the applicable legal principles. No such error was shown.
4. The proposed further report could not reasonably have affected the result. The evidence of both experts, including the claimant’s expert, was that the third manipulation produced as good a result as could reasonably be expected. There was therefore no reasonably arguable breach of duty.
5. The court expressed sympathy for the claimant and criticised the conduct of the treating clinician and the defendants’ legal representatives, particularly the retention of a damaging allegation on the pleadings without supporting evidence. Those criticisms did not provide a legal basis for a new trial.

• Court of Appeal (Civil Division) — Application for permission to appeal and permission to rely on further evidence against the order of His Honour Judge Mackay, sitting as a High Court judge, dated 10 March 2000. Application dismissed.