Leicestershire County Council v W & P

In a fact-finding hearing involving conflicting medical evidence, a judge must analyse the expert opinions, make clear findings on the crucial issues, and give adequate reasons for accepting or rejecting them. The court cannot avoid choosing between competing medical explanations merely because the evidence is complex. Where the experts identify possibilities of equal weight, the judge must record that conclusion and examine the other evidence, including the parents’ evidence and relevant social history. Where the conflict can be resolved by specialist evidence, the judge must resolve it. An appellate court may substitute its own finding where the evidence is fully available and permits only one tenable conclusion.

AP, a young child, suffered serious intracranial injuries and retinal haemorrhages after two hospital admissions. His parents attributed the later condition to a re-bleed following an earlier accidental fall. The local authority alleged a later non-accidental injury.

Following a four-day fact-finding hearing, HHJ Hall concluded that he was suspicious but could not decide the issue to the required standard. The local authority sought permission to appeal, contending that the judge had failed to resolve and explain the conflicting expert evidence, particularly the evidence concerning a separate left-sided haematoma and unilateral retinal haemorrhages. The central issue was whether the judge had properly performed the fact-finding exercise and, if not, whether this court should substitute its own conclusion or order a retrial.

Appeal allowed unanimously. The court substituted a finding that AP had suffered non-accidental injury on or about 20 August 2001.

1. Judicial duty in expert-evidence cases. The judge had to identify and resolve the essential conflict between the medical opinions. It was incumbent on him to state clearly his findings on crucial expert opinions or diagnoses and to give full reasons for them. The court applied the guidance in Glicksman v Redbridge Healthcare NHS Trust (2001) 63 BMLR 109.
2. Complexity did not justify non-decision. The evidence was difficult but capable of rational analysis. If the experts had offered only equally probable possibilities, the judge would have had to say so and then assess the remaining evidence, including the family’s social history and the credibility and reliability of the parents.
3. Assessment of the medical evidence. Dr McConachie’s evidence indicated a separate left interhemispheric subdural haematoma which could not have resulted from re-bleeding into the earlier right-sided haematoma. Mr Willshaw’s evidence strongly indicated that the unilateral retinal haemorrhages were inconsistent with the proposed raised-intracranial-pressure explanation and pointed to a recent traumatic event. The judge had failed to give that evidence proper weight.
4. Appellate substitution. A retrial was unnecessary. The evidence was before the Court of Appeal and admitted only one tenable conclusion: the later injuries resulted from a non-accidental injury sustained on or about 20 August 2001. The court therefore substituted that finding rather than remitting the matter.

Order: appeal allowed; finding substituted. Public Funding Assessment.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal from the fact-finding decision of HHJ Hall in the Leicester County Court and substituted a finding that AP suffered non-accidental injury on or about 20 August 2001.