Neutral Citation Number: [2012] EWCA Civ 1966
Case No: B3/2011/1069 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE FOSKET

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 23rd February 2012

Before:

LORD JUSTICE WARD
and
SIR ROBIN JACOB
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Between:

	Ganz	
Appellant	
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Childs & Ors	

Respondents	

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Mr David Pittaway QC (instructed by Nabarro Llp) appeared on behalf of the Appellant.

Mr Simeon Maskrey QC (instructed by Capsticks Llp, Michelmores Llp) appeared on behalf of the Respondents.
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Judgment
Lord Justice Ward:

1.	In December 1999 Morwenna Ganz was 14 years old.  She became very unwell and she was at first taken to the local surgery on Friday 10 December after having been unwell for two days or so, but she did improve and she was able to get to school on Monday, Tuesday and Wednesday.  Later on Wednesday the 15th she seems to have actually developed mycoplasmal pneumonia, although no one was aware of that fact at the time.  She was seen at the Teddington hospital; the following morning she was seen in the GP's surgery.  At 3.00 or at 8.00 on Friday she was again taken to hospital.  There being no improvement in her condition, she was taken back to the general practitioner's surgery on Saturday 18 December where she was seen by an experienced and reputable general practitioner, Dr Childs.  

2.	What happened there is one of the central issues in the case.  Dr Childs noted the need to exclude pneumonia.  The claim is brought against her now for damages, and it was found approved by Fosket J that Dr Childs was negligent in failing to refer Morwenna to the hospital that same morning.  

3.	During the early hours of Sunday morning -- that is Saturday/Sunday night --Morwenna's condition so troubled her parents that they phoned the out of hours doctor as they had been told to do by Dr Childs and were advised by Dr Lloyd, who is the second defendant.  He gave advice on the telephone but did not attend the child at her home as he ought to have done.  He was for that reason held by the judge to have been in breach of his duty to her.  In fact Morwenna was admitted to the Kingston General Hospital and, about 10.00 in the morning on 19 December, she very sadly lapsed into a coma of progressive depth and, as her condition worsened, she sustained irreversible brain damage, leading to permanent disability.  Fosket J found, after a trial lasting nine days, that her brain damage was caused by a combination of hypocardia and hypoxia, which could have been avoided had she received regular monitoring following her admission to hospital.  He found that the hospital had been negligent in delaying that treatment until the afternoon of Saturday, but, notwithstanding that delay, it was impossible to prove that any brain damage had occurred during that particular period of delay.  He held however that the failures of Dr Childs and Dr Lloyd were causative of the injury she suffered and accordingly he found them liable in damages to be assessed.

4.	It is a huge claim worth, as a lump sum, we are told, in the region of, or in excess of, £10 million.  Dr Childs seeks permission to appeal against the findings made against her that she was in breach of her duty and also the finding of causation.  Dr Lloyd seeks permission to appeal against the finding that his failure to attend was causative of her injury.  

5.	The judge approached the question of breach of duty in this way.  He posed two questions in paragraph 93 of his judgment, asking a) at what level of suspicion concerning potential pneumonia in a fourteen-year-old child should a reasonably competent GP admit the child to hospital for tests; and b) did the presentation of Morwenna on the Saturday morning cross the relevant threshold of suspicion?

6.	Mr David Pittaway QC attacks that direction and submits that the second question should really be broken down into two subparts; firstly, what was the presentation as Dr Childs believed it to be; and secondly, was Dr Childs’ belief acceptable?  The judge went on to conclude in paragraph 108 that the possibility of pneumonia was more than a merely fanciful possibility, and he submits that the judge's second misdirection is to pose the question in that way and not to ask whether there were reasonable grounds to suspect that she was suffering from pneumonia.

7.	I am bound to say that each of those challenges seems to me to be fraught with some difficulty.  Firstly, in this very long judgment extending to a monumental 82 pages of closely typed judgment, the judge was careful in paragraph 67 to direct himself to the law and to the well known cases of Bolam and Bolitho, and it seems to me it is going to be difficult to suggest that he did not have a Bolam test in mind.  On the question of suspicion, looking at a case in a wholly different context, the case of K Ltd v National Westminster Bank [2007] 1 WLR 311, where Longmore LJ, whose judgment I agree, explained that suspicion required a real possibility of the event having taken place not a fanciful possibility of it, and does not seem to me, arguably, that the judge's approach was wrong in that respect.

8.	Given that Dr Childs had herself noted the need for pneumonia to be excluded, her position is difficult to say the least.  As the judge was to find as he did in his judgment, that note indicated that she did consider that there was some possibility of pneumonia and, given therefore the serious consequences that could flow from such a diagnosis and the speed with which those consequences could ensue, then it was incumbent on her, as the judge held in paragraph 108, to arrange for urgent investigation.  It seems to me therefore that this was a strong case.

9.	As for causation, the evidence that was accepted by the judge was evidence that came from the claimant's experts, Professor Kirkham and Dr Pappachan.  There is a serious challenge mounted both orally today and in the written skeleton argument of the judge's accepting the views of both those experts and Professor Kirkham in particular.  The complaint in its broadest way is that when Professor Kirkham advised in writing, her view was that the cause of the brain damage was hypocapnia; that is to say, a low level of blood CO2 leading to the constriction of the vessels and thus to global cerebral ischaemia.  It must be borne in mind that this child was running a very high temperature and that would itself have increased the metabolic demand on the brain.

10.	The judge was however, it seems to me, fully aware of the shift in the case advanced by Professor Kirkham, and he dealt with this in particular in paragraph 197 of his judgment, where he recorded those criticisms of her, but nonetheless concluded: 

"I thought she was authoritative when she felt could be, cautious when she felt she had to be and entirely thoughtful and well-balanced in her approach. She was, in my view, an extremely impressive witness upon whom I felt I could place reliance."

And again he said: 

"The suggestion of a ‘new theory’ being put forward in the witness box was, in my view, entirely misconceived"

11.	In the light of those passages in the judgment read as a whole, the judge seems to me to have been aware of the shifts of her evidence and of the consequent challenges to her expertise, but nonetheless accepted them, and that is the function of the trial judge.  

12.	In fact the evidence of hypocapnia was really dealt with by Dr Pappachan.  The criticism made of him is that his original view of this case was that the child relevant level was 2.94, and he made that quite clear.  He had, however, to change that original written view and, although therefore he had said, as the judge recorded at paragraph 240 of his judgment, that her arterial partial pressure was never above 2.94 kPas, the judge did find that upon adjustment the true levels varied between 3.9, which was I think Dr Pappachan's eventual figure, and 4.3, which was the figure advanced on the claimant's behalf.  What the judge then did was to seem to accept that the level of 4, which was the round figure upon which he worked, was below the acceptable level.  He said so in paragraph 275 of his judgment.  

"It follows, therefore, that despite the debate and the length of time it took to arrive at this point, the adjusted figures should be in the range of, say, 3.9 to 3.3 kPa.  I do not propose at this stage to try to be more precise for present purposes. The net effect of this analysis is that the arterial paCO2 at this time (which was before intubation and ventilation), and which was below that what had been agreed as an acceptable normal range (see paragraphs 248-249 above), was at a level that was hypocapnic.  I will return to the implications, if any, of this in due course."

13.	At paragraph 248 he did indeed record the consensus between Dr Patajam and Dr Russell for the claimant that the normal range of CO2 in the arterial circulation of a 14-year-old girl was between 4.61 and 5.92 kPas, and that was acceptable.  

14.	Mr Pittaway challenges that finding, pointing to the evidence of Dr Russell which is in our bundle at volume 4 page 917 and Dr Thomas volume 5 page 1185.  He points to the fact that Guys Hospital, who became the treating hospital, advised maintaining the level at 4 to 4.5; and so he submits that the judge erred in treating a level of 4 as sufficiently low to justify the conclusion that at that level the child was already hypocapnic.  Mr Maskrey points out, by contrast, that it was accepted that in fact she was to some extent hypocapnic.  One adds to that that it became agreed that the reduced cerebral blood-flow was reduced by 37 per cent.  That, submits Mr Maskrey, is evidence of itself to justify the conclusion that some damage had already become to be occasioned.  Mr Pittaway suggests that there was no evidence capable of causing permanent damage from that level of reduction, and indeed, as he points out, the judge himself concluded in paragraph 287 that although he was satisfied that, at least for the period when Morwenna was in the Kingston hospital, including intubation and ventilation, she had been subject to a significant degree of vasoconstriction.  As a result, less blood was profusing the brain cells than would otherwise have been the case.  I am unable on the evidence to say that this of itself would have caused brain damage.  The question, it seems to me, is whether, taken with any other factors, it might affect the wellbeing of the brain cells and contribute to the brain damage.

15.	So that necessitated his investigating whether, on Professor Kirkham's amended theory, the addition of hypoxia would in combination with the hypocapnia have caused this irreversible brain damage.  Now the challenge to Professor Kirkham is that essentially (and he points out it was belated, but the judge seemed to be aware of that) her sole basis for the conclusion was that when she was admitted to hospital, or shortly afterwards at 10.30 that Saturday morning, there was a 93 per cent saturation level recorded, and that, said Professor Kirkham, was low.  Mr Pittaway and the judge accepted that.  Mr Pittaway points out that the British Thoracic Society guidelines put the figure at a level of 92 per cent not of itself justifying admission, so why, he submits, should 93 per cent have made the difference? 

16.	There are other troubling aspects to this part of the case.  The other tests were perhaps inconclusive, certainly the test from the radiologist.  They were certainly not contrary to Professor Kirkham's view; the judge treated as not being helpful one way or the other.  The other question mark is that which hangs over the fact that hypoxia would ordinarily produce acidosis, but there was no evidence in the test that that was apparent.  The judge accepted Professor Kirkham's answer (he found it to be convincing, see paragraph 292) that there were in fact two processes in place, the hypoxic one leading to excess of acid, whereas the hypocapnia would make the blood more alcalitic, and he accepted the theory that the two balanced each other out.

17.	The worrying thing about the case, and that which made it so very difficult, was that throughout the years that have passed since 1999 there has been, apart from the theories of Professor Kirkham and Dr Pappachan, no convincing explanation for the misfortune which befell this child.  The hospital had tried to run the defence that the cause of the injury was pneumonia encephalitis itself, ie something brought on by the fact she had pneumonia, but the judge rejected that theory and there is no appeal against that finding.  

18.	Trying to sum this up, we have in my judgment a very careful judgment at great length showing great concern taken by the judge in which he arrived at conclusions which Mr Maskrey forcefully submits were conclusions to which he was entitled to come on the evidence and that therefore the attempt by the applicant is an attempt to do no more than rerun before the Court of Appeal questions of fact which were before the judge, which were open to the judge to find, and in respect of which no error can be shown.  I understand that argument.  I go further than that.  It seems to me that the likelihood is that this appeal will fail, both in respect of the negligence found against Dr Childs and in respect of causation.  In my judgment the applicants have considerable difficulties in persuading the full court of the success of their appeal, but we have to ask ourselves whether there is a real prospect of success.  That does not mean is the appeal more likely to fail than to succeed; if it were I would dismiss the application.  We have to ask: is this an appeal where the prospects are fanciful, and, in a case which the judge found as difficult as he did, where there has been raging uncertainty over causation over the years, where there are countervailing arguments to put, even though they have been put to the judge, I cannot be satisfied that the prospects of success are so hopeless and that there is not some prospect which is more than fanciful.

19.	Mr Maskrey has challenged my putting to him the point that because this is a very substantial claim and that this court exists -- though I confess we do not like it -- to hear difficult appeals on questions of fact, it is a proportionate use of the court’s time to hear the appeal.  There is more the professional standing of a good general practitioner who feels aggrieved by the finding against her, and there may just be some argument on the judge's directions as to his approach to negligence.  In any event, if I am going to give permission I would give permission on that score as well, because I do not think it will add substantially to the time that the appeal would be taking, but I repeat that given the doctor's own note she faces a difficult uphill task.

20.	With a high measure of reluctance, but endeavouring ultimately to do justice between the parties, which is what we are here to try and do, I would give permission on both grounds.  I am deeply troubled by the fact which has escaped my notice, that this appeal has been outstanding for a year.  I will therefore direct the listing officer to list it as a matter of expedition to be heard obviously by a court of three Lord Justices, of whom at least one should try and have some experience of this clinical negligence work.  It will take two to three days, and I would direct that a listing officer write in the reading time.  I direct that there should be reading time given with this permission application, but for the grace of God and the fact that we managed to do a two-day appeal in one day, we would not have had that time yesterday.  I needed every minute of it to read this as thoroughly as I could in that time, so it seems vital that the court has sufficient time to read.  It would be helpful if perhaps further skeleton arguments could be placed before the court if thought necessary, or at least to put in some appendices where relevant passages of the reports and/or the evidence are in a schedule before us so that we do not have to spend so much time moving from volume 3 to volume 4 to volume 5.  So please could we try and cooperate in putting the relevant material before the court, as far as that is possible.

21.	I am therefore extremely sorry for Morwenna and her family, for whom this is an obvious anxiety.  I am extremely sorry they have not had a penny from the damages which may well come their way, but I equally have to bear the defendant's position in mind and I give permission accordingly.

Sir Robin Jacob: 

22.	I agree.  If I were asked to give judgment in this case right now from what I have heard and have been able to read so far, then the appeal to be dismissed.  That is not the test I have to apply.  I have to be sure that the case will fail to the level that the appeal is unrealistic, and I cannot be sure of that.  I do suggest exactly what my Lord has suggested, but also a glossary of all the medical terms and sometimes the consequences of this, that and the other, so that any reader of the judge's judgment can work with it very easily knowing all the evidence.

Order:  Appeal granted