Ganz v Childs & Ors

At the permission stage, the question is whether an appeal has a real prospect of success, meaning a prospect that is more than fanciful or unrealistic. The court must not ask whether the appeal is more likely to fail than succeed. An appeal should not simply rerun factual findings or the trial judge’s assessment of expert evidence. However, difficult medical-causation issues, competing evidence and an arguable challenge to legal directions can meet the threshold. Permission was therefore granted without determining the merits.

Morwenna Ganz, aged 14, suffered permanent brain damage after developing mycoplasmal pneumonia. Following a nine-day trial, Fosket J found Dr Childs negligent in failing to refer her urgently to hospital and Dr Lloyd in failing to attend her at home. He held those breaches causative of the injury. Dr Childs sought permission to challenge breach and causation, while Dr Lloyd sought permission to challenge causation. The central issue was whether the proposed appeals had a real, rather than fanciful, prospect of success.

1. Permission threshold. Ward LJ held that the relevant question was whether the proposed appeals had a real prospect of success. That did not require the court to conclude that success was more likely than failure. The threshold was whether the prospects were more than fanciful or unrealistic. Sir Robin Jacob agreed.
2. Appellate review. The proposed challenges involved findings of breach, causation and the assessment of expert evidence. The Court of Appeal recognised that such applications should not become a mere rerun of factual questions which were open to the trial judge. Nevertheless, the difficult medical evidence, continuing uncertainty about causation and countervailing arguments meant that the prospects were not hopeless.
3. Negligence and suspicion. The court considered the trial judgment as a whole. It was difficult to argue that Fosket J had failed to apply the Bolam test, since he had directed himself to Bolam and Bolitho. In the different context of K Ltd v National Westminster Bank, Longmore LJ had explained suspicion as requiring a real possibility rather than a fanciful possibility. Ward LJ agreed with that approach and saw no arguable error in the trial judge’s treatment of suspicion. Dr Childs nevertheless faced a difficult merits case because she had recorded the need to exclude pneumonia and the judge had found that urgent investigation was required.
4. Causation and order. The trial judge was entitled to assess the experts’ evidence, including Professor Kirkham’s developing explanation involving hypoxia and hypocapnia and Dr Pappachan’s adjusted calculations. The Court of Appeal did not finally determine those issues. Permission to appeal was granted on the proposed challenges, with the appeal directed to expedited hearing before three Lord Justices.

1. Court of Appeal (Civil Division) — In [2012] EWCA Civ 1966, Ward LJ, with Sir Robin Jacob agreeing, granted permission to appeal and directed an expedited hearing before three Lord Justices.
2. Queen’s Bench Division — After a nine-day trial, Fosket J found Dr Childs and Dr Lloyd in breach of duty and held their breaches causative of Morwenna Ganz’s brain injury. Damages were to be assessed.