"Does
the Judge know more than the expert?"
When
is it right for the Court to disregard expert evidence in favour of a
"common sense" approach ?
This issue arose recently in
the case of Burne v A which was heard by the Court of Appeal in December
2005, reported at [2006] WL 316092
“A” had a ventricular shunt fitted shortly
after birth. Shunts may block, and if they do, urgent surgery is needed to
avoid the risk of brain damage. At the age of 6 ½ , “A” was sick at school.
His mother took him home. She was worried about his condition and rang the GP
(Dr. Burne). Dr. Burne concluded, on the basis of the symptoms described by
the mother, that “A” did not have a blocked shunt and was probably suffering
from an infection.
The following day, “A” deteriorated and was
taken to hospital where a blocked shunt was diagnosed. He had suffered
permanent neurological damage as a result. “A” brought a claim, which was
listed for a trial of the preliminary issue of whether the GP was in breach of
his duty of care to “A”.
The trial Judge (HH Judge Harris, sitting
at the Oxford District Registry of the High Court) heard evidence from GP
experts called by both sides. A central issue in the case was whether, during
the crucial phone call, Dr. Burne should have asked “A”s mother so-called
‘closed’ questions, such as “Does “A” have a headache ?”, as opposed to ‘open’
questions, such as “What is wrong with him ?”.
The experts agreed that it was acceptable
for the GP to ask “open” questions. But the Judge found that the GP should
have asked ‘closed’ questions and that, if these questions had been asked, the
GP would have realised that the shunt was blocking and acted accordingly.
The Judge therefore found that Dr. Burne
was in breach of his duty to “A”. He applied the dicta of Lord
Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1998] AC 232 at 241 and concluded that he was entitled to reject the expert
evidence.
The Defendant, Dr. Allen, appealed against
this judgment (mainly) on the grounds that it was not appropriate for the trial
judge to have ignored the experts and formed his own opinion about the merits.
The Court of Appeal found that the Judge was entitled to exercise his own
judgment and decide whether the expert evidence “…makes sense…” (per
Sedley LJ, paragraph 10). The submission that the Judge had wrongly extended
the Bolitho principle was expressly rejected (per Sedley LJ,
paragraph 31). Further, the Court of Appeal held that the issue in the case “…while
an important aspect of clinical practice, sits at the threshold rather than at
the centre of it…” Hence, a Judge can more readily depart from the expert
consensus if the issue is human as much as technical.
However, the Court of Appeal (per Sedley LJ
at paragraph 30) found that the Judge ought to have allowed the parties and the
experts to deal with his opinion that no respectable school of medical could or
should have supported the asking of only “open” questions to “A”’s mother.
The matter was therefore remitted for a
retrial, with an express rider that the parties should be obliged to seek
mediation before further steps were taken.
The case is an illustration of two
important (and connected) points : -
(i) A Judge remains entitled to reject expert evidence which is
plainly unsatisfactory, even if it is agreed; and
(ii) Before rejecting expert evidence in this way, a Judge should
make it clear that such a finding is likely – and give the parties and their
experts a full opportunity to answer the concerns of the Court.
