Clinical negligence - defendant denying alleged injury - trial of issue of negligence separately from issue of causation inappropriate

Gow v Harker: CA (Lords Justice Brooke and Waller and Mr Justice Holman): 31 July 2003

The claimant claimed damages from the defendant, her general practitioner, alleging that he had been negligent in drawing blood from her wrist by inserting a venepuncture needle at too deep an angle, and that that had caused damage to the wrist and its underlying structure and to the radial nerve.

The defendant denied any damage to the claimant's radial nerve at all.

Counsel for both parties requested the judge to try the issue of negligence so that the issue of causation could be tried at a later stage with appropriate neurological evidence.

The judge, after hearing the case for two days, gave an extemporary judgment in which he found that the defendant had been negligent and accepted the claimant's evidence that the 'syringe was sticking out of her wrist like a dart on a dartboard'.

The defendant appealed.

Katharine Gollop (instructed by Solicitor, Medical Protection Society) for the defendant; Jane Mishcon (instructed by Preston Goldburn, Falmouth) for the claimant.

Held, allowing the appeal, that in view of the complexity of the issues, the delivery of an oral judgment at the end of the two-day hearing without taking time for proper reflection on the oral and written evidence raised a cause for concern; that a trial judge considering the credibility of witnesses in a difficult case would do well to test their veracity by reference to the objective facts proved independently of their testimony and with particular regard the motives of the parties; and that the issue of negligence could not safely and reliably be considered in isolation from causation of the alleged damage since there had been an important disagreement between the parties about the site of entry of the syringe and a denial by the defendant of the alleged injury to the claimant.