Allen v Burne, Court of Appeal - Civil Division, February 29, 2008,  EWCA Civ 346
|Resolution Date:||February 29, 2008|
|Issuing Organization:||Civil Division|
|Actores:||Allen v Burne|
Case No: A2/2007/1563Neutral Citation Number:  EWCA Civ 346IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISION(HIS HONOUR JUDGE MACKIE QC)(LOWER COURT No: QB200 - 7PTA0219)Royal Courts of JusticeStrand, London, WC2A 2LLDate: Tuesday, 29th February 2008Before:LORD JUSTICE SEDLEY andLORD JUSTICE WILSON- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -(DAR Transcript of WordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -Mr G McDermott QC and Mr H Trusted (instructed by Messrs Irwin Mitchell) appeared on behalf of the Applicant.Mr J Grace QC and Mr A Hockton (instructed by Messrs DLA Piper) appeared on behalf of the Respondent.- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Sedley:1. This is an application for permission to appeal, with the appeal to follow if permission is given. It has been directed to be heard by Wilson LJ and myself because the issue arises from our earlier decision, sitting with Ward LJ, to allow the defendant's appeal against the decision in the claimant's favour on liability, given by HHJ Charles Harris QC. 2. I am not going to set out the procedural history in any detail. It is a matter of record and is well known to the parties. The claim is a personal injury claim against a general practitioner for failure to diagnose a life-threatening condition in the claimant, now a teenager. On a trial of liability only, as I have said, the judge found for the claimant but he did so because he was unprepared to accept the view of both experts that it was inappropriate to ask the mother what were in effect leading questions. Had the defendant done so, it was the judge's conclusion that he would have elicited the critical symptoms and damage would have been avoided. We overset this judgment not because it was not open to the judge to differ from the experts, at least on this issue, but because the judge had done it without its being openly canvassed either by counsel for the claimant, who quite understandably considered himself constrained by his expert evidence, or by counsel for the defendant, who did not have adequate notice that this course was in the judge's mind.3. I said (the judgment is reported at  EWCA Civ 24) at paragraph 30:``It offends one sense of justice to be obliged to accept the unacceptable. I can entirely understand why Judge Harris thought it unacceptable that the culture of general medical practice should be so suspicious of self-serving reportage that it encouraged doctors to ask nothing specific even where the caller was the mother of a child whom the doctor knew to have a shunt in place and the child might have symptoms caused by a blockage. But if this was his initial response, as it evidently was, it was incumbent on him to do one or both of two things: to ask the claimant's counsel whether, should his findings reach this point, he was invited to consider whether the expert evidence in support of the doctor made sense; and, if counsel said yes, to ensure that the doctor's side had a proper opportunity to respond. From what we are told by both leading counsel, this is not what occurred. In fairness to the judge it should be said that he did, over four pages of transcript, canvass with counsel for Dr Byrne the difference between what seemed to him the commonsense approach to questioning Miss Pember and what the experts had considered acceptable. But the possibility in law of his discounting their view was not raised.'I went on to say at paragraph 37:`although it will not be helpful to anticipate in any detail the issues which will arise within this remit, this much seems clear. If the point is taken on the claimant's behalf that, notwithstanding the expert evidence, the practice of asking only 'open' questions was not acceptable by Bolitho standards in the particular...
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