Surena Masih & Anor. v The Royal Wolverhampton NHS Trust

An appellate court reviewing findings of fact, expert evidence and causation must respect the trial judge’s advantage in hearing the evidence. Intervention is justified only where the decision is plainly wrong, irrational, unsupported by evidence, infected by an identifiable error, or outside the range of reasonable disagreement.

In a clinical negligence claim, the claimant bears the burden of proving the factual but for projection and that the resulting outcome would probably have been avoided. A late change in the causation case cannot succeed without evidence properly directed to the new case. An appellate court will not overturn reasoned choices between competing experts merely because another conclusion was possible.

The claim arose from the death of Andrew Masih Mattu in hospital after he suffered a cardiac arrest while using a locked toilet. The hospital admitted that he should have received level two intensive care from 5 January 2016, but denied that the breach caused his death.

The claim was originally based on hypoxia. During closing submissions at trial, that case was abandoned and replaced by a case that continuous ECG monitoring in intensive care would have detected an arrhythmia and enabled successful intervention. Permission to appeal was granted on limited grounds, principally concerning the application of Bolitho, survival after resuscitation, expert evidence, and ECG monitoring.

The central questions were whether the trial judge had been entitled to prefer the defendant’s evidence and whether the claimants had proved that treatment in intensive care would probably have prevented death.

1. The appeal was dismissed. The permitted grounds did not show that the county court judge’s decision was plainly wrong, irrational, unjust, or unsupported by the evidence.
2. Under CPR 52.21, an appeal is ordinarily a review of the lower court’s decision. An appellate court does not rehear the evidence or substitute its own assessment merely because it might have reached a different conclusion. Findings may be overturned only where the stringent principles summarised in Henderson v Foxworth Investments Ltd, Walter Lily & Co Ltd v Clin, Volpi v Volpi and Deutsche Bank AG v Sebastian Holdings are satisfied.
3. The claimants bore the burden of proving both what would probably have happened in intensive care and that the projected treatment would probably have prevented death. The trial judge was entitled to find that the deceased would have been permitted to walk to the toilet, rather than being confined to a commode with continuous ECG monitoring.
4. The judge was entitled to prefer Dr McCrirrick’s evidence over Dr Bristow’s. He gave clear reasons based on inconsistency, misunderstanding of the pleaded case, deficiencies in preparation, and the emergence of new theories in oral evidence. Those reasons fell within the proper judicial assessment of competing expert evidence.
5. The judge was also entitled to reject late reliance on letters and on a CASPRI score which had not been addressed in the experts’ reports, joint report, or cross-examination. The material did not provide a proper evidential foundation for concluding that survival would probably have occurred.
6. The challenge based on Bolitho v City and Hackney HA failed. The judge had considered the relevant counterfactual, the competing expert evidence, the proposed intensive-care treatment, ECG monitoring, supervision, toileting and resuscitation, and had given rational reasons for his conclusions.

Costs and consequential matters were left for submissions within seven days.

• High Court (King’s Bench Division) — The appeal from the Wolverhampton County Court was dismissed on all grounds for which permission had been granted.
• Wolverhampton County Court — HHJ Boora dismissed the claim with costs on 17 October 2022.