Moore v Southampton University Hospital NHS Trust

A permission application cannot be used to introduce a new allegation of negligence that was not pleaded or tried below. Any complaint that solicitors caused that omission does not make the trial judge’s decision erroneous, though it may found a separate remedy. In a medical-negligence claim, a failure to warn of a minimal treatment risk is not actionable where expert evidence accepts a respectable body of medical opinion supporting no warning. Causation must also be proved, and fails where the claimant would have undergone treatment anyway. A warning to contact the hospital need not include a dedicated telephone number if the number is readily available. Additional evidence directed to unpleaded issues, particularly evidence available at trial, will not support permission to appeal.

Mr Moore claimed damages from Southampton University Hospital NHS Trust for alleged negligence associated with a knee biopsy and subsequent infection. At trial, the remaining allegations were that he had not been warned of the risk of infection and had not been told to return to hospital if infection occurred. Cooke J dismissed the claim after making findings on expert evidence, witness credibility and causation.

Mr Moore applied to the Court of Appeal for permission to appeal, an extension of time and permission to rely on additional evidence. His proposed appeal principally alleged that the biopsy procedure itself had been performed negligently, although that allegation had not been pleaded or tried. The central issues were whether the new allegation and evidence could be raised and whether the trial judge had reached findings which were open to him.

1. Permission and scope. Permission to appeal was refused. The case had to be considered on the allegations advanced and determined below. A new complaint that the procedure itself was negligent could not be introduced on appeal. If solicitors had negligently failed to plead that allegation, any remedy would lie in a separate claim against them and would not establish that the decision below was wrong.
2. Warning of infection. Dr Bourke had accepted that there was a respectable body of medical opinion that no warning was required for the minimal risk of infection following a biopsy. Cooke J was therefore entitled to reject this allegation. He had also found that Mr Moore would have proceeded with the treatment even if warned, so the omission could not have caused the loss claimed.
3. Advice to contact the hospital. The expert evidence established that negligence did not arise merely because a patient was not given a specific telephone number. It was sufficient to advise the patient to contact the hospital where the number would be readily available. Cooke J was entitled to accept Dr Wong’s evidence that his usual practice was to give the warning, and to reject the evidence of Mr Moore, his wife and Dr Pal.
4. Causation and further evidence. The judge had found that oral antibiotics suppressed the infection and that it was speculative to contend that any delay before intravenous antibiotics exacerbated the knee injury. The admission of Dr Wong’s supplementary statement was within the trial judge’s discretion. The proposed further evidence concerned unpleaded issues, was apparently available below and did not provide a proper basis for an appeal. The formal order was: application refused.

• Court of Appeal (Civil Division): Lord Justice Kay refused permission to appeal and the supplementary applications.
• Queen’s Bench Division, Southampton District Registry: Cooke J dismissed Mr Moore’s medical-negligence claim on 16 January 2002.