Appealing Without a Point of Law
Two interesting recent cases show the Court of Appeal’s approach to appeals on only matters of fact, and the importance of all of the key evidence being taken into consideration by the trial judge and the judgment being properly justified.
In Nathan Popple v Birmingham Women’s NHS Foundation Trust  EWCA Civ 1628 the Court of Appeal (Ward LJ, Longmore LJ, Richards LJ) considered the defendant’s appeal on causation.
Nathan Popple suffered with severe athetoid cerebral palsy following his birth on 21 September 1997. Following a 9-day trial, HHJ Oliver Jones QC, in a detailed 70-page judgment, held the defendant hospital liable on the basis that its midwives failed to recognise a pathological fetal heart rate pattern 22 minutes before Nathan was in fact delivered, such that, if delivery had been expedited by episiotomy 10 minutes earlier than it did occur, or at least no later than 5 minutes earlier, as it should have been, Nathan’s injuries would have been avoided.
There was no dispute over breach of duty or the cause of Nathan’s injury. However, the defendants appealed on medical causation i.e. when the injury actually occurred and whether delivery up to only 5 minutes earlier would have avoided the injuriesÍ¾ and on factual causation, i.e. when the episiotomy and delivery would have occurred absent the breach of duty, arguing that Nathan’s injuries had already in fact occurred before delivery would have taken place. Both issues were determinable from matters of fact and expert evidence, much of the expert evidence being wholly dependent upon the judge’s findings of fact.
Prior to the appeal, damages had been agreed in the sum of £5.5 million. Lord Justice Ward, having given permission to appeal, also gave the Judgment of the appeal Court, acknowledging that the appeal was only on matters of fact with no point of law to determine and, while “an uphill task” for the appellant, it had been allowed partly because of the value of the claim.
The defendant appealed on both causation grounds on the basis that the judge’s conclusions were unsupported by the evidence and, therefore, wrong, because: a) on medical causation, the conclusions depended upon a finding that the CTG trace did not reliably exclude fetal bradycardia throughout the last 15-20 minutes before birth, and that finding was not supported by the evidenceÍ¾ and b) on factual causation, the judge ought to have found that delivery would not have been achieved before 5 minutes earlier than it was.
Ward LJ gave a detailed 43-page judgment that picked through the factual and expert evidence upon which the trial judge relied and the reasoning he applied in reaching his judgment, and concluded that the judge’s factual findings, and his application of the expert evidence to those factual findings, were supported by the evidence, noting that during the trial “the judge was taking conspicuous care”. Despite having “agonised over this case”, Ward LJ was thus “totally satisfied that the judgment cannot be faulted”, and dismissed the appeal.
However, in another case on appeal on the facts only, this time a road traffic accident personal injury rather than a clinical negligence case, Michael Goodman v Faber Prest Steel  EWCA Civ 153, the appeal Court (President of the Queen’s Bench Division, MooreBick LJ, Rimer LJ) reached a contrasting conclusion.
The defendant appellant had admitted breach of duty but appealed against a finding that the respondent had suffered pain in his knees, back and neck as a result of the accident. The trial judge had accepted the orthopaedic surgeons’ agreement that, for the accident to be the cause of the pain, the respondent would almost certainly have suffered with pain immediately after the accidentÍ¾ she also accepted the respondent’s evidence that he had, as a matter of fact, suffered with pain immediately after the accidentÍ¾ and concluded, in finding for the respondent, that the accident had indeed been the cause of the respondent’s pain.
The case thus turned on the Judge’s assessment of the factual and expert evidence, having heard and seen the witnesses, and her findings of fact. As with Popple, the appeal Court confirmed that, as a result of this, the appellant faced an uphill task to succeed on appeal, but nevertheless they sought to do so by relying on the respondent’s medical history as documented in his medical records, which did not mention any immediate post-accident pain, and upon an email he had sent to his employer a month after the accident, which stated that he had suffered no pain.
The Court of Appeal considered whether the trial Judge was entitled to reach the factual findings that she did reach based on the evidence available. Lord Justice MooreBick, giving the Court’s judgment, noted that the only evidence that the respondent had suffered with pain immediately after the accident came from him and further noted that, because witnesses’ memories are often unreliable, the court must look “to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth”. In this case, the Judge was aware of the medical records and the email, but appeared “to have accepted [the respondent’s evidence] … without testing it against the medical records and other documents …”
In allowing the appeal, the Court concluded that, “It may have been open to [the Judge] to prefer what [the respondent] had said in the witness box, but if she was minded to do so it was incumbent upon her to deal with the documentary evidence and explain why [the respondent’s] oral evidence was to be preferred”.
The appeal Court therefore set aside the Judge’s order and remitted the matter for a rehearing before a different judge.
The contrasting conclusions of the Court of Appeal suggest that, while it will continue to be difficult to mount a successful appeal on findings on fact only if the trial judge’s judgment considers all the key evidence and explains why particular evidence is preferred over other ostensibly conflicting evidence, should it fail to do so, an appeal even on the facts alone is still probably worth considering.
Dr Jock Mackenzie is a Partner in Anthony Gold’s personal injury department. For further information email Jock or call 020 7940 4060.
This article was first published by PI Brief Update Law Journal on 14 March 2013, and is reproduced by kind permission.