Yousif v Jordan

On a submission that there is no case to answer, a court must distinguish between an absence of evidence and evidence which is disputed, incomplete or difficult to evaluate. Where evidence exists which could establish an essential element, including causation, the court should not dismiss the claim merely because the evidence may prove insufficient at the conclusion of the trial or because expert witnesses have not given oral evidence. The evidence must instead be assessed with the opposing evidence and the other material in the case, applying the balance of probabilities. In a medical negligence claim, an expert’s general statement that a symptom is often unrelated to mechanical obstruction does not eliminate specific expert evidence attributing the symptom to the treatment. The proper course is to determine the issue at a full hearing.

The appellant brought a medical negligence claim against a consultant plastic surgeon who had performed a cosmetic rhinoplasty. He alleged long-term nasal obstruction and failure to warn of that risk, saying that he would not have undergone the operation had he been warned.

The Mayor’s and City of London County Court dismissed the claim at the close of the appellant’s case on the basis that there was no satisfactory evidence of causation. The appellant’s ENT expert had, however, expressed the view that the operation had caused physical obstruction, while the respondent’s expert disagreed. The central issue on appeal was whether that evidence entitled the judge to dismiss the claim as a no-case submission, or whether the causation issue required determination after a full hearing.

1. Appeal allowed. The county court judge’s dismissal at the close of the appellant’s case was set aside. The claim was remitted for hearing to a conclusion before a different circuit judge.
2. The judge had correctly identified that the surviving claim concerned failure to warn of long-term breathing difficulties and that there was no evidence of septal collapse. He was nevertheless wrong to find that there was no evidence linking the appellant’s nasal obstruction to the rhinoplasty. The appellant’s ENT expert had expressly attributed a physical obstruction to the operation, particularly the excision of cartilage maintaining the airway.
3. The expert’s general statement that nasal congestion was often unrelated to mechanical obstruction did not amount to an acceptance that the statement applied to this appellant’s case. The expert’s individual report and the preceding paragraphs of the joint statement showed that he maintained his causation opinion. Any ambiguity in the report required clarification rather than dismissal.
4. The absence of oral evidence from the ENT experts, and the possible difficulty of resolving their disagreement, did not justify a no-case ruling. The judge’s duty was to consider the appellant’s expert evidence alongside the contrary expert evidence, the appellant’s own evidence and the respondent’s evidence concerning subsequent complaints, and then decide whether, on the balance of probabilities, the appellant had suffered long-term nasal obstruction following and by reason of the operation.
5. The matter was to be reheard from the beginning by another circuit judge. The appellant could apply for permission to call further expert evidence, including the existing ENT experts or Mr East, within the directions given. There was no order as to costs.

• Court of Appeal (Civil Division): Yousif v Jordan, [2003] EWCA Civ 1852. Appeal allowed against the county court’s dismissal at the close of the appellant’s case. The claim was ordered to be reheard before a different circuit judge.
• Mayor’s and City of London County Court: On 29 July 2002, His Honour Judge Marr-Johnson entered judgment for the respondent after upholding a submission that there was no case to answer.