Hammersmith Hospitals NHS Trust & Ors v Troup Bywaters & Anders (A Firm)

In professional negligence, an expert’s personal view that further enquiries should have been made does not itself establish breach of duty. The court must assess whether the defendant’s conduct fell outside the range of conduct which a reasonably competent member or body of the profession might adopt. An expert may remain personally sceptical while accepting that other reasonably competent professionals could properly regard specialist manufacturer assurances as sufficient. In a fact-rich case, an appellate court should be cautious before overturning a trial judge’s assessment of expert evidence and factual findings, particularly where the judge correctly understood the evidence and the conclusion was open on the whole evidential record.

The claimants appealed from a judgment of Judge John Toulmin CMG QC in the Queen’s Bench Division, Technology and Construction Court, which gave judgment for Troup Bywaters and Anders and dismissed a professional negligence claim.

The claim concerned advice given by the respondent consulting engineers about the installation of hospital waste incinerators. The claimants alleged that the respondent negligently accepted assurances from the manufacturer concerning design modifications, throughput and carbon monoxide emissions. The sole ground of appeal was that the judge had misinterpreted a critical answer given by the claimants’ expert, Mr Hyde, during cross-examination.

1. Appeal dismissed. Lord Justice Dyson rejected the contention that the trial judge had misunderstood Mr Hyde’s evidence. The answer relied upon by the judge was clear, consistent with Mr Hyde’s earlier evidence and properly treated as his considered opinion.
2. Meaning of the expert evidence. Mr Hyde’s evidence contained two distinct strands. He personally considered that the respondent should have made further enquiries before accepting the manufacturer’s assurances. At the same time, he accepted that other, less sceptical, reasonably competent engineers might regard those assurances as sufficient. The latter evidence allowed the judge to conclude that a reasonable body of the profession would have acted as the respondent did.
3. Assessment of breach. The judge did not rely solely on the single answer in cross-examination. He was entitled to consider the manufacturer’s reputation, the reassuring terms of its letter, the proposed performance testing, site visits, the absence of detrimental information from those visits, relevant earlier consultancy work and the wider evidence concerning the project.
4. Appellate review. Lord Justice Brooke emphasised that the case was fact-rich. The trial judge had heard numerous factual and expert witnesses and had made detailed findings supported by a close understanding of the evidence. That context had to be borne in mind when the appellate court was invited to overturn the conclusion on negligence.
5. Lord Justice Sedley agreed with both judgments. The appeal was dismissed with costs.

• Court of Appeal (Civil Division). The court rejected the sole ground of appeal and dismissed the appeal with costs.
• Queen’s Bench Division, Technology and Construction Court. Judge John Toulmin CMG QC gave judgment for the respondent firm and dismissed the claim for professional negligence.