Thomas v Curley

Res ipsa loquitur does not reverse the burden of proving negligence. It is a guide to whether a prima facie case exists and is generally inappropriate where factual and expert evidence permits the court to assess how an injury occurred.

A court may nevertheless infer negligence from the particular evidence. An inference was justified where an uncomplicated operation caused injury at a site remote from the operative field and no non-negligent explanation was available. The conclusion follows from an assessment of all the evidence, not from the injury alone.

The claimant underwent a laparoscopic cholecystectomy performed by the defendant. She later suffered a serious bile leak and underwent emergency surgery. She alleged that the defendant negligently injured her common bile duct during the operation and, alternatively, failed to require appropriate monitoring after the leak was suspected.

Griffith Williams J found both allegations established and awarded £92,391. The defendant appealed against the finding of operative negligence, the monitoring finding, aspects of causation and quantum, and the refusal to treat a post-trial diary as material fresh evidence. The central issue was whether the finding of operative negligence depended impermissibly on res ipsa loquitur.

Appeal dismissed. Lloyd Jones LJ held, with Warren J and Sullivan LJ agreeing, that the judge had not found negligence merely from the fact of a bile-duct injury.

1. Res ipsa loquitur was not the basis of the decision. It is a guide to whether a prima facie case exists, rather than a presumption or a reversal of the burden of proof. The judge was entitled to assess the factual and expert evidence as a whole.

2. The trial judge’s unchallenged findings established that the leak arose from a defect in the common bile duct, rather than failed clips on the cystic-duct stump. The operation was uncomplicated and, because of the claimant’s anatomical variation, its field was some distance from the injury. The defendant’s expert could offer no explanation for such an injury if the operative site and injury site were separate. Those facts justified an inference of negligence without resort to res ipsa loquitur.

3. Since the finding of operative negligence stood, the monitoring ground could not affect the damages award. The court therefore declined to hear full argument on it and expressed no concluded view on its merits.

4. The judge’s findings on later abdominal pain and some exaggeration of the effect on quality of life did not make the awards for pain, suffering, loss of amenity, care and assistance inconsistent. No error justified appellate intervention.

5. The claimant’s diary should have been disclosed. It was apparently credible and could not reasonably have been obtained for trial, but the defendant did not identify any respect in which it would probably have had an important influence on the result. Permission to adduce it was refused.

• Court of Appeal (Civil Division) — dismissed the defendant’s appeal: [2013] EWCA Civ 117.
• Queen’s Bench Division — Griffith Williams J gave judgment for the claimant for £92,391 on 29 July 2011.