Manning & Anor v Kings College Hospital NHS Trust

On an appeal from findings in a complex medical negligence case, the Court of Appeal will not re-try expert evidence or reverse a trial judge merely because another assessment is possible. An appellant must identify a plain error in approach, a misdirection, or a conclusion unsupported by the evidence. A judge may assess complex evidence in stages and take stock of its provisional strength, provided the burden of proof is respected and the judge remains open to the remaining evidence. Extensive questioning of expert witnesses and a lengthy reserved judgment do not, by themselves, establish procedural unfairness or make a decision unsafe where the questioning is non-antagonistic, counsel can present their case, and the judgment demonstrates careful engagement with the issues.

The personal representatives brought a medical negligence claim concerning pathology reports on biopsies taken after treatment for tongue cancer. The High Court, after a lengthy trial, found that the defendant NHS trust was liable for negligent reporting in 1995 and 1996. It concluded that further investigation would have revealed recurrent cancer and that earlier surgery would probably have prolonged the deceased’s life. The trust appealed, alleging excessive judicial intervention, delay in judgment, errors in assessing the expert evidence, reversal of the burden of proof, and unsupported findings on breach and causation. The appeal concerned whether those matters made the High Court’s liability decision unsafe.

Appeal dismissed unanimously. Waller LJ gave the judgment, with Laws LJ and Hughes LJ agreeing.

1. Judicial questioning. Judges should generally leave the examination of witnesses to counsel. However, in an exceptionally complex case involving difficult medical science, extensive questioning aimed at clarification and accurate understanding is not, without more, a procedural irregularity. The questioning was non-antagonistic, was not shown to have prevented counsel from putting their case, and was not the subject of any relevant protest.
2. Delay. The delay of nearly eight months in delivering judgment was regrettable. It did not make the decision unsafe. The trial judge retained the transcripts and notes, continued to engage with the case, and produced a comprehensive judgment showing that he had addressed the difficult issues rather than lost his way.
3. Assessment of probabilities. The judge was entitled to consider first the evidence bearing on whether the 2001 tumour was a recurrence or a new primary, take stock of the provisional strength of that evidence, and then examine the pathology evidence. That staged approach did not reverse the burden of proof, since the judge remained open to the outstanding arguments and ultimately weighed all the evidence together on the balance of probabilities. The complexity of the case could not replace that assessment.
4. Appellate review. The grounds sought a wholesale re-evaluation of expert evidence. The Court of Appeal would not conduct such a re-trial without a demonstrated misdirection, plainly wrong approach, irrationality, or a finding unsupported by evidence. No such error was established.
5. Breach and causation. The findings that the pathology reports should have warned that carcinoma could not be excluded, that negative CK staining did not eliminate the residual doubt, and that further biopsy would have followed were supported by the evidence. The causal chain to discovery of cancer and salvage surgery therefore remained established.

• Court of Appeal (Civil Division): The appeal against the High Court’s liability decision was dismissed unanimously: [2009] EWCA Civ 832.
• High Court of Justice, Queen’s Bench Division: Stadlen J found the defendant NHS trust liable for negligent pathology reporting and causation: [2008] EWHC 1838 (QB).