Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors concerned an appeal following an initial unsuccessful claim for damages in a cauda equina case. Hewes emphasises the difficulties a party will face in seeking to challenge judicial evaluation of fact on appeal.
In Hewes, the Claimant had a history of back pain. An MRI scan taken in January 2012 showed bulges in two discs. The Claimant received a caudal epidural on 22nd February 2012. Subsequently, on the 11th March 2012, he went to an Urgent Care Centre with worsening back pain and some reported symptoms of possible saddle anaesthesia. The Claimant was seen by an out-of-hours GP and provided with a prescription. The GP informed the Claimant that he was to consult his GP if he became worse, and if he experienced numbness he would require immediate hospital treatment. The Claimant woke up at 5am in pain on the 12th March with a numb groin, his wife then called an ambulance at 6.02am speaking to one of the Trust’s operators.
The appellant’s grounds for appeal were three-fold. Firstly, against the GP (D3) for an incorrect referral – it was the Claimant’s case that he should have been referred directly to hospital. Secondly, against the Ambulance Service (D2) for incorrect prioritisation with respect to the urgency of ambulance transfer to hospital. Finally, against an NHS Trust (D1) for negligent case management; the Claimant was potentially a surgical emergency, was not seen quickly enough generating delay in treatment. As a consequence of the alleged negligence, it was alleged that the Claimant developed a significant exacerbation Cauda Equina Syndrome, with permanent neurological deficit.
Laing LJ emphasised that the application of Bolam/Bolitho principles, often means that there may not be an absolute answer but instead a number of reasonable answers. Relying on the authority of Perry v Raleys Solicitors [2019] UKSC 19, LJ Laing restated that it was only possible for appellate courts to intervene regarding the ‘whole sea of evidence’ where the trial judge’s evaluation was one, which no reasonable trial judge would reach (paras 61 to 62).
Davis LJ agreed. The appellants had failed to show the trial judge’s findings were so unreasonable as to satisfy the test established in Perry (para 97). Instead, Davis LJ considered that the appellant’s submissions imposed a counsel of perfection upon the trial judge, closer to the yardstick of strict liability than that of reasonableness. As a direct consequence, the appeal was dismissed.
Ben Bradley, of our clinical negligence team, regularly undertakes cauda equina work. He commented as follows:
This judgment demonstrates the difficulties any party will face in overturning a trial judge’s findings of fact on appeal. As the Court of Appeal indicated, by its very nature, the Bolam test imparts a degree of latitude to the Courts when considering whether conduct falls within the realms of professional competence. Where a Court determines that Defendant’s practice in falls within that range of competence, it will be difficult to challenge those findings unless (to pick up the Court of Appeal’s various nautical analogies in this case) it can be said that the judge was sailing ‘far from the shore’ in his or her analysis.
