Broughton v Liverpool Women's NHS Trust

In a clinical negligence claim, the claimant must prove an actual breach of duty on the balance of probabilities. It is insufficient to show that the defendant might have acted negligently at an appointment which the claimant did not attend. The standard of treatment is assessed by reference to the ordinary skilful and competent medical practitioner in the relevant speciality, considering the whole evidential record. An appellate court will not re-try factual or expert-evidence issues resolved by the trial judge after hearing the evidence. A fair-hearing complaint will fail where the judge had the relevant material and the trial could fairly proceed without publicly funded representation.

The claimant applied for an extension of time and permission to appeal against an order of McCombe J dated 13 May 2002. The High Court, Queen's Bench Division, dismissed her claim for damages in negligence against the respondent Trust, arising from an alleged failure between 1996 and 1997 to diagnose cervical cancer.

The claimant accepted the findings concerning the period before 25 July 1996 and the consequences of treatment from January 1997 onwards. The proposed appeal challenged the use of the joint medical experts' report, the finding that treatment on 25 July was acceptable, the significance of a missed appointment in November 1996, and the fairness of the hearing following withdrawal of public funding.

Lord Justice Simon Brown refused both applications. The extension of time presented no difficulty, but the proposed appeal had no reasonable prospect of success.

1. The judge was entitled to consider the joint experts' written questions and answers together with their oral evidence. The relevant question expressly addressed the proper medical response even on the factual basis that the claimant had reported intermenstrual and post-coital bleeding. The judge had the whole evidential record and the advantage of hearing the experts, and his conclusion that the treatment on 25 July 1996 was not below acceptable medical standards was unimpugnable.
2. The applicable question was whether the Trust's response was that of the ordinary skilful and competent medical practitioner in gynaecology. The experts' evidence supported the judge's conclusion, notwithstanding reservations concerning the timing of review, the possibility of cervical carcinoma, and the usual use of the prescribed drug for heavy regular bleeding.
3. The challenge concerning the November appointment was misconceived. The claimant had to prove that the Trust actually breached its duty on the facts which occurred, on the balance of probabilities. She could not establish breach merely by showing that the Trust would have been in breach had she attended an appointment which she did not attend.
4. The withdrawal of public funding did not deprive the claimant of a fair hearing. The judge had before him the relevant material and had carefully examined it. The Court of Appeal could not conclude that publicly funded representation was necessary to achieve a fair trial in the circumstances.

The applications were refused.

1. Court of Appeal (Civil Division): On 8 October 2002, Lord Justice Simon Brown refused the applications for an extension of time and permission to appeal. [2002] EWCA Civ 1426.
2. High Court, Queen's Bench Division, Liverpool District Registry: McCombe J, by order dated 13 May 2002, dismissed the negligence claim for damages.