Welch v Waterworth

On an appeal against factual findings following a clinical-negligence trial, the appellate court must respect the trial judge’s advantages in seeing the witnesses and assessing the evidence. The judge may identify the reliable evidential pointers and need not address every subsidiary issue or speculative argument separately, provided the judgment explains why the losing party lost. In assessing whether a surgical precaution was required, the court must weigh its protective benefits against the operative risks. A practice is not negligent where it is supported by a responsible and reasonable body of medical opinion and the evidence does not establish that the competing risks require a different course.

The claimant recovered £155,000 in the Manchester County Court for negligent surgery performed by Mr Welch during a re-do aorto-bifemoral bypass graft on Mrs Waterworth. The operation was followed almost immediately by irreversible failure of both kidneys.

Mr Welch appealed the trial judge’s findings that he had prematurely clamped the aorta across the occlusion, causing atheroembolic material to enter the renal arteries, and that this amounted to negligence. The respondent’s notice challenged the judge’s conclusion that Mr Welch had not separately been negligent in failing to sling or clamp the renal arteries, or to use supra-renal or supra-coeliac clamping. The Court of Appeal considered the reliability of the operative notes, the adequacy of the judge’s reasons, and the competing expert evidence.

1. Appeal dismissed. The Court of Appeal upheld the finding that Mr Welch had negligently sequenced the clamping of the aorta. The operative notes, read chronologically and in light of the judge’s findings about Mr Welch’s state of mind, provided significant evidence of what had occurred. The proposed post-operative and intra-operative “alarm bells” were speculative because they had not formed part of Mr Welch’s evidence or the pre-trial expert issues.
2. An appellate court should not overturn an experienced trial judge’s factual conclusion merely because alternative inferences or subsidiary criticisms can be advanced. The judge was entitled to fasten on reliable evidence without addressing every issue, side-issue or speculation seriatim, provided the judgment adequately explained the result: Biogen Inc. v Medeva Plc [1997] RPC 1 and Henderson v Foxworth Investments Ltd. [2014] 1 WLR 2600.
3. The judge was not required to answer individually every “alarm bell” point raised in closing submissions. His reasoning informed Mr Welch why he lost, so the separate challenge based on inadequate reasons also failed.
4. Although it was unnecessary to determine the respondent’s notice, the court indicated that it would have rejected it. Given the obstructed and scarred access to the renal arteries, direct clamping or slinging involved significant risks. Supra-renal clamping was not negligent to omit where the risks outweighed the benefits and the evidence supported that conclusion. Supra-coeliac clamping also did not establish negligence: Professor Thompson’s view that he would not have used it, because of the risk to the blood supply of the abdominal organs, represented a strand of reasonable medical opinion.

Lord Justice Beatson and Sir David Keene agreed with Lord Justice McCombe.

• Court of Appeal (Civil Division) [2015] EWCA Civ 11: appeal from the Manchester County Court dismissed. The court upheld the judgment for the claimant in the sum of £155,000.
• Manchester County Court: His Honour Judge Armitage QC entered judgment for the claimant for £155,000 in damages for negligence.