O'Connor v The Pennine Acute Hospitals NHS Trust

In clinical-negligence cases, an injury sustained during an operation may be proved to have resulted from negligence by inference from the whole of the evidence. The claimant retains the legal burden of proof. Res ipsa loquitur does not reverse that burden.

Eliminating other possible causes does not, by itself, prove the remaining cause. The court must decide whether that cause is established on the balance of probabilities after considering all the evidence. A trial judge may take account of the absence of a plausible non-negligent explanation, provided that it is not treated as conclusive. A late application for further expert evidence may properly be refused where it would require an adjournment, cause delay and increase costs.

The claimant developed a left femoral-nerve injury immediately after surgery to repair a vesicovaginal fistula. She alleged that the defendant NHS trust’s surgeon had negligently caused the injury while dissecting an adherent sigmoid colon. The defendant disputed that mechanism and contended, among other matters, that anaesthesia might have caused the injury.

Mr Recorder Hunter QC, sitting in the Manchester County Court, found that the injury had probably been caused by blunt surgical trauma during dissection. He held that this was negligent and awarded damages. The trust appealed on liability. It challenged both the refusal of permission to call an additional anaesthetic expert at trial and the evidential basis for the finding of surgical trauma.

1. Appeal dismissed. The recorder was entitled to find, on the balance of probabilities, that the surgeon caused the femoral-nerve injury during difficult dissection. The finding rested on the totality of the factual and expert evidence, including the accepted urological evidence and the surgeon’s contemporaneous explanatory letter.

2. The court rejected the defendant’s late application to adduce further expert evidence. The relevant change in the pain expert’s opinion was limited and had developed after disclosure of the anaesthetist’s factual account. The application was made on the first day of trial and would have caused an adjournment, delay and substantial additional cost. The post-2013 approach to case management supported refusal: [2014] EWCA Civ 906.

3. Res ipsa loquitur did not govern the case and did not reverse the burden of proof. The principles in Ratcliffe v Plymouth & Torbay Health Authority [1998] PIQR P170 permit an inference of negligence in an appropriate medical case, commonly supported by expert evidence. The ultimate question remains whether negligence is established on the whole evidence.

4. The recorder did not commit the error identified in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948. The rejection of alternative explanations could not alone establish surgical trauma. It was, however, a legitimate supporting consideration once the judge had independently assessed all the evidence. The anaesthetic explanation was properly rejected as highly unlikely, while the evidence supported trauma during dissection. This was consistent with Thomas v Curley [2013] EWCA Civ 117, where negligence could be found from the whole evidence without a reversal of the burden of proof.

5. Although an appellate court may scrutinise an inferential finding, it will not interfere where the inference is properly founded on the evidence. The recorder’s minor and unsupported reference to possible visualisation difficulties was not material to his conclusion.

• Court of Appeal (Civil Division) — dismissed the defendant NHS trust’s appeal against the liability finding: [2015] EWCA Civ 1244.
• Manchester County Court — Mr Recorder Hunter QC found that the surgeon negligently injured the claimant’s femoral nerve during dissection and awarded damages.