Doubell v Kings College Hospital NHS Trust (Rev 1)

An appellate court should not reweigh evidence or substitute its own evaluation for that of the trial judge. Where findings depend on the judge’s assessment of evidence as a whole, including credibility and the weight of competing factors, intervention is justified only where the conclusion was not open to the judge, lacked evidential support, contained an identifiable flaw, or was perverse. Greater latitude may exist where primary facts are undisputed and the appeal concerns only the permissible inference from them. A party may not ordinarily raise on appeal a factual point which was available at trial and would require a retrial.

The claimant appealed from the dismissal of her personal injury claim by Her Honour Judge Baucher, sitting in the Central London County Court. She had fallen from a hospital bed while an inpatient. Liability depended on whether a nurse had assessed her as requiring bed rails, whether that assessment had been negligently communicated, whether rails would have remained in place, and whether they would have prevented the fall.

The appeal challenged the judge’s approach to the alleged breach, her findings of fact concerning the initial assessment and later removal of any rails, and her finding that causation had not been proved.

1. The appeal was dismissed. The trial judge had considered both the alleged breach on the date of the accident and the claimant’s alternative case that an earlier assessment had been negligently communicated. The first ground therefore added nothing.
2. The governing approach to appellate review was that an appellate court must give substantial weight to the trial judge’s advantage in seeing and hearing the evidence and assessing the case as a whole. It may disagree where undisputed primary facts permit an independent inference, but it must not conduct the balancing exercise afresh where the finding is an evaluative judgment. Intervention requires an identifiable flaw, lack of evidential support, or a conclusion no reasonable judge could have reached.
3. The finding that causation had not been established was open to the judge. The medical record did not provide a clear or comprehensive account of how the fall occurred, and the wider evidence showed confusion, hallucinations, mobility and attempts to get out of bed. The judge was entitled to conclude that the claimant had not proved that the absence of rails caused the accident.
4. The finding that any rails installed earlier would probably have been removed before the accident was also an evaluation of the evidence. It was supported by expert evidence, the claimant’s changing mental state and mobility, and the risks associated with using rails in those circumstances. The appellate court was not entitled to substitute its own view.
5. The challenge to the nurse’s original assessment identified a possible procedural flaw in the trial judge’s treatment of one form. Nevertheless, the evidence was not one-way, the judge had considered the competing evidence in detail, and the remaining grounds independently defeated the appeal.
6. A new factual argument based on rails remaining in place after the accident could not be raised for the first time on appeal. It was not a pure point of law and, if accepted, the claim would have required a retrial.

• Central London County Court: Her Honour Judge Baucher dismissed the claimant’s personal injury claim after a two-day trial, with judgment handed down on 30 August 2019.
• High Court (Queen’s Bench Division): The appeal against that decision was dismissed.