SEM v The Mid Yorkshire Hospitals Trust

On a renewed application for permission to appeal, the court must identify a demonstrated error of law or a finding of fact that is plainly wrong. Sympathy for a claimant’s condition cannot replace that requirement.

Where negligence consists of failing to advise about treatment alternatives, causation depends on what advice would have been given and how the claimant would probably have responded. If the claimant would have chosen the same treatment, the breach does not establish causation. Agreed expert evidence on a material issue may properly be relied upon where no contrary case was fairly put at trial. Complaints about solicitors’ conduct ordinarily concern the solicitors and do not establish an error by the trial judge.

The claimant underwent a vaginal hysterectomy and related procedures. She later suffered continuing pain and claimed that the defendant’s consultant had negligently failed to advise her about alternative treatments. Negligence was admitted, but the trial issue was causation.

His Honour Judge Langan QC dismissed the claim on 13 September 2005. He found that, even with proper advice, the claimant would have chosen the surgery performed. He also relied on agreed psychiatric evidence concerning her somatoform disorder. The claimant renewed her application for permission to appeal, challenging the medical records, expert evidence, factual findings and the conduct of her solicitors.

Application refused. The Court of Appeal found no reasonable prospect of success.

1. The relevant question on the renewed application was whether the judgment or grounds demonstrated an error of law or a finding of fact that was plainly wrong. Having considered the judgment and grounds carefully, Lord Justice Gage found no such error.
2. The admitted breach was the failure to advise about non-surgical and surgical alternatives. The causation issue required consideration of the advice that should and would have been given and the claimant’s likely response. The trial judge found that she would have selected precisely the surgery carried out. That finding therefore defeated the causation case, irrespective of the complaints about the procedure or sutures.
3. The trial judge was entitled, and in the circumstances effectively required, to rely on the agreed psychiatric report. Both psychiatrists agreed that the somatoform disorder was established by the summer of 1999 and agreed on its likely effect on the claimant’s treatment choices. Any challenge to that evidence should have been raised with the claimant’s legal advisers and fairly placed before the trial judge.
4. The reference by the trial judge to Smith v Barking, Havering and Bedford Health Authority concerned the evidential assessment of a patient’s post-operative account of what she would have chosen. The Court of Appeal did not identify any error in the trial judge’s approach.
5. Unparticularised allegations of solicitor bias, failure to call witnesses, missing evidence, unused correspondence or restrictions on evidence concerned the conduct of the proceedings. They did not amount to an error of law by the trial judge and had to be pursued, if at all, against the solicitors.

Order: application refused.

1. Court of Appeal (Civil Division): renewed oral application for permission to appeal refused on 27 April 2006.
2. Queen’s Bench Division, Leeds District Registry: His Honour Judge Langan QC dismissed the clinical negligence claim and refused permission to appeal on 13 September 2005.