David John Saunders v Central Manchester University Hospitals NHS Foundation Trust

In a clinical negligence claim involving competing medical explanations, the claimant retains the burden of proving breach and causation on the balance of probabilities. The court must first examine and evaluate the totality of the evidence. It should resort to the burden of proof only if the evidence leaves the issue rationally unresolved. A claimant need not always identify the precise mechanism of injury, but must establish that the injury was probably caused by negligence. An inference of negligence may be drawn without direct evidence, but the occurrence of injury alone does not establish breach. Factual causation and breach may overlap where the proposed mechanism of injury bears upon the likelihood of the competing explanations.

The claimant sought damages for serious injury following surgery to reverse an ileostomy. His entire colon subsequently became ischaemic and had to be removed, leaving him with a permanent ileostomy and other complications.

The claimant alleged that surgical traction or torsion damaged the blood supply to the bowel. The defendant contended that the injury resulted from a naturally occurring arterial thrombosis. The parties agreed that these were the only realistic explanations. The court determined liability alone, quantum having been deferred, and considered whether surgical negligence had been established on the balance of probabilities.

1. Burden and evaluation of evidence. The claimant bore the burden of proving both that damage occurred during surgery and that it resulted from a lack of proper care. Following Barnett v Medway NHS Foundation Trust [2017] EWCA Civ 235 and Verlander v Devon Waste Management [2017] EWCA Civ 835, the court had to examine and evaluate all the evidence before resorting to the burden of proof. That resort was appropriate only if the evidence left the factual issue rationally unresolved.
2. Inference and mechanism. The claimant did not rely on res ipsa loquitur. The approach summarised in O’Connor v The Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244, with reference to Ratcliffe v Torbay Health Authority [1998] PIQC P170, confirmed that the court could draw an inference of negligence from the totality of the evidence without reversing the burden of proof. The claimant was not necessarily required to prove the exact mechanism of injury, but still had to prove that the injury was probably caused by negligent surgery.
3. Application. The evidence showed two rare possibilities: iatrogenic injury and spontaneous thrombosis. The pattern of damage provided some support for the claimant, but the delayed onset of symptoms, the anatomical distance between the operative site and the affected vessels, the absence of any recognised mechanism, and the evidence that the operation was straightforward supported the defendant’s case. The claimant’s expert could not give a clear or consistent explanation of how the injury occurred or what the surgeon had done wrong.
4. The claimant therefore failed to establish, on the balance of probabilities, either that the damage resulted from surgical injury or that the surgeon had fallen below the required standard. The claim was dismissed.

First instance decision. The judgment does not state any subsequent appellate history.