Burnett v Lynch

On an appeal from findings of fact in a clinical negligence claim, a trial judge may accept that witnesses are truthful while rejecting parts of their evidence as inaccurate. The civil standard of proof remains the balance of probabilities. An allegation’s inherent improbability, seriousness, or consequences may require careful scrutiny of the evidence, but does not create a heightened standard of proof or require specially cogent evidence. An appellate court should be slow to interfere with findings based on oral evidence and will do so only where they are plainly wrong. A judge need not address every piece of evidence or submission, provided the reasons sufficiently disclose the route to the findings.

The claimant succeeded before HHJ Gosnell in a clinical negligence claim arising from the delayed diagnosis of breast cancer. The judge found that she had consulted the defendant GP in February or March 2006 about a pea-sized breast lump, had been examined, and had been told that it was likely to be a blocked milk duct. Breach of duty followed by agreement, but the claimant recovered only on a secondary causation case, with damages agreed at £4,000.

The defendant appealed on breach of duty, alleging inconsistent and perverse findings, failure to consider material evidence, and inadequate reasons. The central issues were whether the judge could prefer part of the claimant’s evidence while accepting other evidence from the defendant, and whether his treatment of the evidence and reasons was legally sufficient.

1. Appeal dismissed. The judge was entitled to find that the February or March 2006 consultation occurred and that the claimant had reported a small breast lump which the defendant examined and regarded as likely to be a blocked milk duct.
2. There was no inconsistency in finding that all witnesses were truthful in the sense that they were not deliberately lying, while rejecting parts of their recollections as inaccurate. Truthfulness is not synonymous with accuracy. A fact-finder may accept part and reject part of the evidence of the same witness or party.
3. The approach in In re D did not require a heightened examination in this routine clinical negligence claim. The civil standard remained the balance of probabilities. Even where careful scrutiny is appropriate, the court does not apply a different standard of proof or require specially cogent evidence.
4. On an appeal turning wholly on oral evidence, the Court of Appeal must recognise the trial judge’s advantage in seeing and hearing the witnesses. It should not interfere unless satisfied that the findings were plainly wrong. The judge had adequately assessed the competing evidence and was entitled to prefer the claimant’s recollection.
5. A trial judge need not refer to every part of the evidence or every point made in closing submissions. The judgment must, however, state enough to enable the reader to follow the reasoning and thought processes. The judge met that requirement and explained why the claimant’s account was preferred, including the evidential weaknesses in the computer records.

Lady Justice Rafferty gave the judgment of the court. Mr Justice Mann and Dame Janet Smith agreed.

• Court of Appeal (Civil Division): appeal by the defendant GP dismissed.
• Leeds County Court: HHJ Gosnell gave judgment for the claimant on 7 April 2011 in the clinical negligence claim. Breach followed by agreement; the claimant recovered £4,000 on the secondary causation case.