Gow v Harker

In a fact-sensitive clinical negligence appeal, a judge must assess a witness’s account against contemporary documents, independently established facts and the inherent probabilities of the case. A finding that a witness is honest does not resolve whether her recollection is objectively reliable. Where liability and causation are closely connected, separating them may prevent a reliable determination of what happened and whether the defendant was negligent. An appellate court may order a retrial where the trial judge’s reasoning fails to address material improbabilities or an apparent impossibility, even though the trial judge saw the witnesses. The retrial should, where necessary, determine liability and causation together.

The claimant brought a clinical negligence action concerning blood taken from her wrist by the defendant general practitioner in June 1995. She alleged that the needle was inserted at an excessive angle, causing injury to the radial nerve. The Exeter County Court tried liability as a preliminary issue, leaving causation for later, and entered judgment for the claimant.

The defendant appealed on the basis that the judge had accepted the claimant’s account without adequately addressing contrary contemporary records, medical evidence and inherent improbabilities. The central questions were whether the liability finding was safe and whether liability could properly be determined separately from causation.

1. Appeal allowed. The judgment on liability could not safely be upheld. The action was not dismissed; it was directed to be retried by a different judge. The parties were given a two-month stay to consider mediation. If a retrial was required, liability and causation were to be tried together.
2. Per Brooke LJ, a judge deciding a difficult factual case should use conventional fact-finding techniques. The assessment of credibility should be tested against contemporary written evidence, objective facts, the witness’s motives and the overall probabilities. Those techniques apply where a claimant’s account is inherently improbable and there is a risk that an apparently truthful witness has come to believe a materially inaccurate reconstruction of events.
3. The trial judge had not adequately addressed material matters, including the absence from the defendant’s contemporary note of any dramatic incident, the inconsistency between the claimant’s account of swelling and the following doctor’s note, the medical evidence about how blood could have entered the syringe, the anatomical consequences of the alleged entry site, and the improbability of the defendant using the alleged technique. These matters included an apparent impossibility which required careful analysis.
4. The fact that the trial judge had seen the witnesses did not cure the omission. The Court of Appeal was entitled to intervene because the reasoning did not explain how the findings could stand against the evidence as a whole.
5. Waller LJ agreed that the issues of liability and causation should not have been separated. Holman J likewise held that the site and angle of entry could not reliably be severed from the neurological question whether the radial nerve had been touched and damaged. The trial judge’s compromise finding, between 25 and 90 degrees, was not supported by either party’s evidence and required reconsideration at a complete retrial.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 1160, the appeal from the Exeter County Court was allowed. The liability judgment was not upheld, and the matter was directed to be retried by a different judge, with liability and causation to be tried together if necessary.
• Exeter County Court: On 13 November 2002, Judge Overend entered judgment for the claimant on liability as a preliminary issue in the clinical negligence action, leaving causation unresolved.