Dane Abbott v Sonia Hodge
| Jurisdiction | Antigua and Barbuda |
| Judge | EDWARDS, J.A [AG.] |
| Judgment Date | 25 February 2008 |
| Judgment citation (vLex) | [2008] ECSC J0225-1 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | HCVAP 2005/012 |
| Date | 25 February 2008 |
IN THE COURT OF APPEAL
The Hon. Mr. Justice Denys Barrow SC Justice of Appeal
The Hon. Mde. Justice Dancia Penn-Sallah QC Justice of Appeal [Ag.]
The Hon. Mde. Justice Ola Mae Edwards Justice of Appeal [Ag.]
HCVAP 2005/012
Sir Clare Roberts QC. for the Appellant
Mr. Gerald Watt QC. and Dr. David Dorsett for the Respondent.
Tort —Medical Negligence — standard of care — res ipsa loquitur
The appellant, an obstetrician gynaecologist, performed a hysterectomy and bilateral salpingooophorectomy on the respondent on 27 th June, 2001. On the day following the operation and upon her discharge from the hospital on 3 rd August, 2001, the respondent complained of a "tugging" sensation at the base of the operation incision, whenever she moved. The appellant assured her that there was no problem. The respondent's discomfort worsened and she was re-admitted to the hospital on 16 th and 17 th August, 2001. The respondent was diagnosed with a bowel obstruction by other doctors (while the appellant was abroad) and an emergency operation was performed on the 18 th August, 2001. The respondent successfully claimed damages for professional negligence against the appellant in relation to his performance of the surgery (it being alleged that he had inadvertently sewn an area of her small intestines into the base of the sutures) and post-operative care, which decision the appellant has appealed against.
Held, allowing the appeal, reversing the decision of the trial judge, entering judgment for the appellant dismissing the claim and awarding costs to the appellant:
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(1) The applicable law for testing whether the actions of a medical practitioner are negligent is whether or not the practitioner has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. The test is applicable to all aspects of a medical practitioner's work, including post-operative care.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 , Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 and Sidaway v Bethlem Royal Hospital Governors and others [1985] 1 All ER 643 applied.
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(2) The respondent, who had led no evidence on the standard of care, was not entitled to invoke the doctrine of res ipsa loquitur to establish the requisite want of care on the part of the appellant. Res ipsa loquitur will generally be applied where there is common ground as to the occurrence of the mishap, unlike the circumstances presented in this case.
Scott v London and St. Katherine's Docks Co. (1865) 3 Hurl & C 596 and Mahon v Osborne [1939] 1 All ER 535 applied.
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(3) The respondent was entitled to rely upon any evidence given by any expert at the trial to prove that the requisite standard of care had been breached by the appellant. There was however no evidential basis for concluding that the appellant was negligent in his performance of the surgery or in his post-operative care.
This is the judgment of the court. The appellant who is an obstetrician gynaecologist, has appealed against the judgment of Thomas J given on the 23 rd June 2004, by which he held the appellant liable to the respondent in damages to be assessed, for professional negligence. The action arose from the appellant's performance of a hysterectomy, and bilateral salpingo-oophorectomy on the 'thin' 51 year-old respondent on the 27 th June 2001 at the Holberton Hospital in St John's, Antigua, and his post-operative care of her up to the 3 rd August 2001.
The learned trial judge found that the appellant had failed to follow the standard procedure, had sutured an area of the respondent's small intestine to her vaginal stump during his performance of the surgery, and had failed to properly investigate the respondent's 4 complaints to him within 5 weeks of the operation, about her specific ill feelings including a "tugging" sensation in her lower abdomen at the base of the operation incision. The judge found further that the respondent's bowel obstruction, which was diagnosed (while the appellant was abroad) by other doctors at the Holberton Hospital on the 18th August 2001, was due to the suturing of her bowel to her vaginal stump coupled with the development of adhesions. This resulted in that portion of her bowel which was compromised being removed by Dr. John and Dr. Mangenard in emergency surgery on the 18th August 2001. Thomas J concluded that the appellant was in breach of his duty of care and his actions caused the respondent injury, pain, physical agony, mental stress, severe weight loss and debilitation.
The 25 grounds of appeal collectively challenge: (a) the learned judge's assessment evaluation and interpretation of the evidence and his findings of facts concerning the conduct of the appellant, the adhesions on and suturing of the bowel, and (b) his application of the law in determining negligence and proof of causation. Grounds 1,2,19 and 20 in substance urge that the respondent failed to meet the burden of proof for the standard of care owed to the respondent in relation to surgery and post-operative care. Grounds 3, 5, 6 to 18, and 21 to 26 contest the judge's resolution of conflicts in the evidence, his determination of what the circumstances were and what the appellant did, his failure to consider the testimony of the appellant's expert witness, and some of the inferences drawn by him from his findings of facts. Ground 24 challenges the judge's decision on the facts found that the damage was caused by the appellant.
Although the appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusions of Thomas J upon that evidence should stand, learned Queen's Counsel, Mr. Watt, has reminded us to exercise this jurisdiction with the requisite caution pronounced in a plethora of previously decided cases including Watt (or Thomas) v Thomas1 and Whitehouse v Jordan2.
The authorities repeatedly emphasise that the advantages which the judge derives from seeing and hearing the witnesses must always be respected by an appellate court. The main reason why, in the absence of an error of law, the judgment of the trial judge calls for the utmost respect," is that he has seen and heard the witnesses,…including the rival parties. The strength of this consideration will vary from case to case according as conclusions have to be reached as to credibility, or based on demeanour….[T]he ultimate conclusion to be drawn depends much more on the setting in which [this] evidence was given, and the relation which it must be thought to have to the events which occurred." 3
The importance of the part played by the advantages which the trial judge derives from seeing and hearing the witnesses "in assisting the judge to any particular conclusion of fact varies through a wide spectrum from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision." 4
Where the trial judge's decision on an issue of fact was an inference drawn from primary facts and depended on the evidentiary value he gave to witnesses' evidence and not on their credibility and demeanor, the appellate court is just as well placed as the trial judge to determine the proper inference to be drawn and is entitled to form its own opinion thereon. 5
The appellant's counsel contends that the trial judge "palpably misused his advantage" in arriving at certain fundamental findings which are inferences. Sir Clare, QC counsel
for the appellant, has urged this court to interfere. In light of these contentions, a critical review of the relevant findings, evidence and pleadings ought to be carried out by this court.We must first decide whether the respondent failed to meet the burden of proof for the standard of care owed to the respondent in relation to surgery and post -operative care (grounds 1,2,19 and 20) which is a matter of law. These are fundamental grounds upon which the judgment will stand or fall. We must also determine whether the legal conclusions reached by the trial judge that negligence and causation had been proven find support in the evidence and are legally and logically correct. We regard the other issues raised by the appellant as a subset of his contention about the trial judge's findings on the issue of negligence and causation. The inferences, failures and factual errors complained about in the grounds of appeal and submissions of Sir Clare,QC all relate to the issue of negligence and causation in our view. Accordingly, we treat the issues together.
At paragraph 19 of his judgment, Thomas J correctly addressed the burden of proof in the following way: "The Claimant has the onus to prove her allegation that Dr. Abbott was negligent in the performance of the surgery and his post-operative care. Accordingly the Claimant must tender such evidence that the treatment or action of the Defendant fell below the standard of care of an ordinarily competent obstetrician and gynaecologist in the same circumstances and that his negligence caused her damage." At paragraph 23, Thomas J stated further that having established the duty of care, another part of the negligence equation is the standard of care appropriate or required in the particular situation. It is therefore crucial for this court to identify what the standard of care is, in deciding whether the respondent proved that the appellant failed to conform to it.
The applicable law for testing whether the actions of a medical...
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