Panther v Wharton & Anor

Permission to appeal should be granted where the proposed grounds are properly arguable and the case requires consideration by the appellate court. This may be so even where the trial judge’s conclusions rest substantially on findings of primary fact derived from hearing and seeing witnesses. The appellate court may grant permission on all closely interlocking grounds where issues of negligence, causation and novus actus interveniens cannot sensibly be separated. Granting permission does not indicate that the appeal will succeed. Appellants remain at risk of costs incurred in pursuing grounds that are not ultimately substantiated.

The claimant obtained judgment against two medical defendants in the Queen’s Bench Division on 29 March 2001, before His Honour Judge Heppel QC. The first defendant was a consultant physician and the fourth defendant was the claimant’s general practitioner.

The defendants sought permission to appeal findings of negligence concerning the claimant’s treatment before the eventual amputation of part of a leg and digits. The proposed appeals raised issues concerning the existence and scope of the doctor–patient relationship, the adequacy of examination and diagnosis, referral to a psychiatric hospital, novus actus interveniens, and causation. There was also expert disagreement about whether earlier steroid treatment could have altered the outcome.

1. Permission granted. The Court of Appeal held that the grounds advanced by both defendants were arguable and properly sustainable. The complexity of the case, and the close interrelationship between the negligence, intervening-act and causation issues, meant that the matter required review by the appellate court.
2. The court acknowledged that the claimant’s case was based substantially on primary findings made by the trial judge after seeing and hearing the witnesses. An appellate court would be reluctant to interfere with such findings, but that consideration did not make the proposed arguments unarguable at the permission stage.
3. The causation issue was sufficiently arguable because the alleged opportunity for effective steroid treatment was narrow, and the experts disagreed whether earlier treatment would have affected the claimant’s condition. In relation to the general practitioner, the court also considered arguable the question whether later negligence by the consultant might constitute a novus actus interveniens.
4. It was inappropriate to restrict permission to selected grounds because the issues were closely interlocked. The court cautioned that the appellants would risk costs in relation to grounds which they pursued but failed to substantiate, even if they succeeded on other grounds.

Costs were ordered to be costs in the appeal. Directions were given for the respondent’s notice, skeleton arguments, and reading list.

• High Court, Queen’s Bench Division: Judgment for the claimant against both defendants on 29 March 2001 before His Honour Judge Heppel QC.
• Court of Appeal (Civil Division): Permission to appeal granted to both defendants on all proposed grounds.