Subpoena: Legitimate forensic purpose

Not a medical claim, but of interest for its consideration of legitimate forensic purpose in the issue of a subpoena in a matter where the claimant alleged head injury (concussion) sustained in course of employment as a professional rugby league player. The court was required to consider whether documents relating to treatment of other players with concussive head injuries were relevant to plaintiff’s claim against his employer: McManus v Knights Rugby League Pty Ltd [2017] NSWSC 1101. At [18] – [19] per Harrison J:

I do not accept that there is no legitimate forensic purpose to which the disputed subpoenaed material may be directed. The demonstration of the possible absence or maintenance of a safe system of work for employed rugby league players is one such potential forensic purpose. The foreseeability of risks associated with a failure to conform to a proper and safe system of work may be another.

It may be in the final analysis that specific failings with respect to other players, if they are failings, by Knights Rugby League Pty Ltd or its predecessor, will be less significant than evidence from epidemiologists and sports medicine experts concerning what was known in the general sporting community or the rugby league community in particular about the failure properly to treat concussive injuries in the relevant period. In that respect I am informed by Mr McManus that significant literature on this topic was available at the time. That fact does not, however, derogate from the potential significance of specific cases showing how the defendants treated similarly injured players in the past.

Objections to unserved treatment reports and expert evidence

Not yet available on Caselaw is the interlocutory decision from last week of Macquarrie v Hunter New England Local Health District & Ors 2017 NSWDC (17 August 2017).

During the course of the trial the defendants objected to parts of the plaintiff’s tender bundle and to part of the plaintiff’s expert evidence concerning liability.

The proposed tender bundle included two letters from a specialist (Dr Teo) to a general practitioner, that had been produced on subpoena (at [3]) but had not been served (at [7], [19]). Similar issues arose in relation to other documents. The defendants objected on various bases but of particular interest is the trial judge’s discussion at [22] of whether Dr Teo’s letters contained opinions and therefore required compliance with the expert evidence provisions of the Evidence Act. The trial judge held that there were significant opinions in the letters concerning the plaintiff’s condition at the relevant time. Compliance was necessary and hence the letters were inadmissible ([23]).

The defendants also objected to the tender of five reports of Professor Brew neurologist for reasons including non-compliance with the expert witness code of conduct and the requirements of section 79(1) of the Evidence Act 1995 (NSW) (at [25]).  The plaintiff pointed to ‘late notice’ of the objection and the fact that the defendants had not objected to Professor Brew’s participation in conclaves. At [48] the trial judge held that the reports were not admissible given a number of factors (not all of which are listed here):

  • A failure to meet the requirements of form and comply with the Code.
  • A failure to demonstrate a clear reasoning process.
  • A failure to sufficiently expose the steps taken in reaching the various opinions expressed.
  • A failure to identify matters of significance that otherwise might be expected to be touched upon by him in the reports, including a clear explanation of why various propositions were articulated.
  • The failure to identify any particular neglect by any particular defendant.
  • A disparity between assumed facts and the evidence before the court (see also [50])..

The following day saw the publication of Macquarrie v Hunter New England Local Health District & Ors 2017 NSWDC (18 August 2017), dealing with applications for indemnity costs following (presumably consent) judgments in favour of the defendants on day 14 of the trial. The trial judge ordered that the plaintiff pay the various defendants’ costs on an ordinary basis and then on an indemnity basis after certain dates.

With thanks to Don Munro for noting these two matters.

Disability discrimination + Admission to medical College

In a decision published yesterday, the Full Court of the Federal Court of Australia considered an appeal alleging direct and indirect discrimination on the part of the Australasian College of Dermatologists in respect to entrance examinations for an medical practitioner seeking to become a member of the College: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128.

The appeal was dismissed, following consideration by the court of the issues summarised in the catchwords below.

HUMAN RIGHTS – disability discrimination – Disability Discrimination Act 1992 (Cth) (“DDA”), ss 5 and 6 – where the appellant was refused admission to the Australasian College of Dermatologists having failed to meet the College’s entrance examination condition – where the appellant suffered from a disability described as a specific phobia of the College’s examination – where the appellant claimed the refusal to be simultaneously direct and indirect discrimination – whether direct discrimination and indirect discrimination are mutually exclusive – direct discrimination is concerned with disparate treatment whereas indirect discrimination is concerned with adverse impact – whether the primary judge misconstrued s 5(2) of the DDA – (see below in relation to the proper construction of s 5(2) of the DDA) – the primary judge did not so err – refusal for failure to meet the examination condition involves no nexus between the conduct and the disability – s 5 not relevant to whether the College discriminated against the appellant on the ground of his disability

 STATUTORY INTERPRETATION – consideration of the proper construction of s 5(2) of the DDA – whether the introduction of an obligation to make reasonable adjustments changed the causation requirement in s 5(2) as compared to s 5(1) – s5(2) still requires there to be a nexus to disability from conduct (unfavourable treatment) and not from effect

 HUMAN RIGHTS – disability discrimination – DDA, s 6(3) – whether the primary judge erred in holding that the examination condition was reasonable – where the primary judge relied upon a case not made by the College to find the condition reasonable – no error in drawing upon the evidence of an applicant to discharge a respondent’s burden of proof – any denial of procedural fairness was capable of being cured on appeal – no additional evidence sought to be adduced or relied upon by the appellant – the evidence adduced in the trial supported the findings made by the primary judge

 HUMAN RIGHTS – disability discrimination – Disability Standards for Education 2005 (Cth) cll 5.2 and 6.2 – whether the primary judge provided sufficient reasons to dismiss a claim of a breach of the Standards – where the Standards require a process of consultation and decision‑making separate from the making of any adjustment – implicit cross-reference to earlier findings and reasons of the primary judge sufficient to discharge the obligation to provide reasons

DAMAGES – whether the primary judge erred in finding that appellant had not proved that he had suffered any damage by being refused fellowship – where evidence adduced of the income of a successful dermatologist and of an unsuccessful general practitioner – duty of the Court to do the best that it can in assessing damages does not extend to speculating about whether any loss had been suffered at all when it is within the power of an applicant to call such evidence


Lung cancer diagnosis

Goran Petrovic v Dr Anthony Johnson [2017] NSWDC 205 saw the approach of each party to the question of breach of duty of care focused upon the question of the risk of the plaintiff undergoing an unnecessary left lower lobectomy and lymph node dissection against the risk of suspected lung cancer becoming inoperable by delay in treatment.

The claim failed on breach of duty and on causation. At [117] the court said:

In my opinion the documentary evidence and the plaintiff’s oral evidence, analysed above, does not support a finding that the defendant either advised the plaintiff that lung cancer was a certain diagnosis or advised him to have surgery. Indeed, the plaintiff’s concessions during cross examination, consistent, with the documentary evidence and in particular the Liverpool Hospital admission forms, establish that the defendant arrived at a differential diagnoses of cancer, discussed possible diagnosis of pneumonia and infection with him, and referred the plaintiff to cardiothoracic surgeon, Associate Professor French, for diagnostic opinion and determination of whether surgery was the appropriate treatment course. The unanimous opinion of the expert liability witnesses, they being specialist respiratory thoracic physicians and a specialist radiologist, was that the defendant’s referral of the plaintiff to Associate Professor French on the basis of the results of investigations obtained to 19 July 2012 was an act in a manner that at the time the service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice (I adopt the wording of s.5O(1) CLA).

Assessment of damages – Mental harm & reduced earning capacity

Reasons for judgment were published today in South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 per Simpson JA with Macfarlan & Meagher JJA agreeing.

The Court provided a helpfully detailed headnote, as follows (bold added for emphasis):

The respondent gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph was born with profound disabilities, such that his life expectancy is significantly shortened, and he will require lifetime care. While a claim on behalf of Joseph was settled on confidential terms, the respondent claimed damages in the Supreme Court for personal injury, in the nature of mental harm, suffered by her as a result of the negligence of the appellant. Liability was admitted by the South Western Sydney Local Health District and damages were awarded to the respondent under various heads, including non-economic loss, past economic loss, and future economic loss.

The appellant appealed the award of damages on two primary bases. First, the appellant challenged the primary judge’s acceptance of the expert opinion evidence of Dr Allnutt and Ms Luca (a psychiatrist and a psychologist retained on behalf of the respondent) over that of Dr Brown (a psychiatrist retained on behalf of the appellant) as to the causation of the respondent’s condition. The second basis asserted that the primary judge was in error in assessing the respondent’s residual earning capacity by casting an onus on the appellant to establish what employment remained open to the respondent. Further, it was contended by the appellant, that the primary judge ought to have taken the approach outlined in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 which concerns the assessment of the chance that circumstances other than the defendant’s negligence would, in any event, have brought about the injury of which the plaintiff complains.

In relation to the first basis, the Court was satisfied that the primary judge was not in error in accepting the opinions of Dr Allnutt and Ms Luca over that of Dr Brown. The Court considered that the appellant had not advanced sufficient reasons to prefer the opinion of Dr Brown, particularly given that the weight of the remainder of the evidence did not support that opinion.

In addressing the second basis, the Court affirmed the approach taken by the primary judge in assessing future economic loss. In particular, the Court affirmed that once a loss of earning capacity has been established by a plaintiff, the onus of demonstrating a failure to exploit any residual earning capacity lies on the defendant, taking into account all of the circumstances that apply to the plaintiff. No error was demonstrated by the appellant in this regard.

The Court held that assessment on Malec principles was not appropriate, there being no issue that the appellant’s negligence was the cause of the respondent’s condition, and it was not part of the appellant’s case that there was a chance that the respondent would, without the appellant’s negligence, have suffered disabling psychiatric injury.


Simpson JA at [3] (Macfarlan JA at [1] and Meagher JA at [2] agreeing) dismissing the appeal:

(1)   The primary judge was not in error in preferring the evidence of Dr Allnut and Ms Luca over that of Dr Brown.

(2)   The primary judge was not in error in not applying the approach discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. The chance that the respondent would have developed the injury was accounted for in the conventional allowance made for “vicissitudes”.

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 distinguished.

(3)   The primary judge was not in error in casting an onus on the defendant to prove that the plaintiff could exploit any residual working capacity.

Nominal Defendant v Livaja [2011] NSWCA 121 applied; Mead v Kearney [2012] NSWCA 215 at [16] and [25] applied; Harold Luntz: Assessment of Damages for Personal Injury and Death, (4th ed 2002, Butterworths) at 118 considered.

(4)   There is not a sufficient basis to conclude that the award of damages to the respondent should be reduced due to any settlement reached on behalf of her son.

Civil Liability Act 2002 (NSW), s 15 considered.

On that final point (identified at (4) above, the court noted at [77] – [80]:

  1. It formed no part of the appellant’s argument that the evidence established one form of employment which Ms Sorbello is capable of undertaking. That is the care of Joseph. What the evidence does not establish is that Joseph is in a position to employ his mother as his carer, and to pay for her services.
  2. That raises for consideration Ground 6 as pleaded in the Notice of Appeal. That ground is framed as follows:

“The trial judge erred in failing to have sufficient regard to the award of damages approved by the Court for her son which enabled others to be employed to perform tasks which she chose to undertake in the care of her son.”

  1. The premise upon which this ground is founded was not clearly articulated. The mere fact that an award of damages in favour of Joseph was made is insufficient to warrant any reduction in the award to be made to Ms Sorbello. The evidence did not disclose the amount of the award made in Joseph’s favour. It did not disclose the makeup, or breakdown, of the heads of damage by which it was calculated. It did not disclose the extent of the discount applied to what would have been regarded as a “full value” award of damages. It did not disclose that any component (more realistically, the quantum of any component) was attributable to future care. Assuming that it did include a component for Joseph’s future attendant care, it did not disclose whether it was calculated on the basis that the services would be rendered gratuitously (see Civil Liability Act, s 15) or at commercial rates.
  2. In the absence of such evidence it would have been erroneous to have taken into account, by way of reduction of Ms Sorbello’s damages, a postulated fact that Joseph had been placed in a position to provide employment to Ms Sorbello.



Mandatory reporting law consultation foreshadowed

On 4 August 2017 the  COAG Heath Council make the following announcement:

  • Health Ministers agree that protecting the public from harm is of paramount
    importance as is supporting practitioners to seek health and in particular mental
    health treatment as soon as possible.
  • Health Ministers agreed that doctors should be able to seek treatment for health
    issues with confidentiality whilst also preserving the requirement for patient safety.
  • A nationally consistent approach to mandatory reporting provisions will provide
    confidence to health practitioners that they can feel able to seek treatment for their
    own health conditions anywhere in Australia.
  • Agree for AHMAC to recommend a nationally consistent approach to mandatory
    reporting, following discussion paper and consultation with consumer and
    practitioner groups, with a proposal to be considered by COAG Health Council at
    their November 2017 meeting, to allow the amendment to be progressed as part of
    Tranche 1A package of amendments and related guidelines.

Sexual assaults by a medical practitioner performing employee examinations: Vicarious liability (UK)

In this group litigation 126 claimants sought damages against Barclays Bank in respect of alleged sexual assaults to which they were subjected by the late Dr Gordon Bates. At the time of the alleged assaults the majority of the claimants were applicants for employment with the Bank, a small number were existing employees. Each claimant was required to attend the home of Dr Bates where he had a consulting room. There Dr Bates is alleged to have carried out a medical assessment and examination on behalf of the Bank and in the course of so doing sexually assaulted each of the claimants.

Various claimants v Barclays Bank PLC [2017] EWHC 1929 (QB) included consideration of the potential basis of the Bank’s liability given that Dr Bates was not an employee of the Bank. The court agreed (at [27]) that a two stage test was required – whether the relevant relationship was ‘akin to employment’ and if so was the tort sufficiently closely connected with the employment / quasi-employment.

The analysis by the trial judge at [44] – [47] is set out below:

Stage 1: Is the relevant relationship one of employment or “akin to employment”?

    1. Five criteria:

i) The defendant is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability;

Underlying the concept of vicarious liability is the fact of two innocent parties and a balance having to be weighed. Dr Bates died some eight years ago, his estate has long since been distributed. The claimants have no recourse against Dr Bates, his medical defence insurers would not indemnify for alleged sexual assaults. The only legal recourse the claimants have is to sue the Bank for the vicarious acts of its tortfeasor. There is no issue that the Bank or its insurers have the means to meet such claims.

ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

An applicant’s employment was conditional upon the Bank being satisfied, as a result of the medical examination, that the applicant was medically suitable for service in the Bank and was recommended for life insurance at ordinary rates. Dr Bates was the chosen doctor of the Bank. Prospective employees or existing employees were given no choice as to the doctor to be seen. The Bank made arrangements for the medical examinations, directing present or future employees where to go and when. The medical reports completed by Dr Bates were headed with the Bank’s logo, signed by himself and by the relevant claimant. The claimants felt compelled to undergo the pre-employment examination because they understood (correctly) that it was an essential stage of the Bank’s recruitment process. The claimants had no reason to be examined by Dr Bates other than their proposed or existing employment with the Bank. It was the Bank which paid for the examination not the claimant. The work carried out by Dr Bates was for the benefit of the Bank, to ensure that those who were employed by the Bank had the health to carry out its work. Given all of these facts I find that the medical examination, assessment of a claimant and subsequent report of the same to the Bank by Dr Bates was performed for the benefit of the Bank and on its behalf.

iii) The tortfeasor’s activity is likely to be a part of the business activity of the defendant;

The purpose of the pre-employment medical examination was to enable the Bank to be satisfied that a potential member of staff would, health wise, be an effective member of its workforce. A workforce is an intrinsic part of the business activity of a bank, it could not function as a business without it. The medical assessment enabled the Bank to satisfy itself that a present or future employee was physically suitable for the work which they were, or were to be, employed to do. The requirement to undergo the medical examination emanated solely from the Bank, it was of no health benefit to the individual concerned. In providing a medical assessment and conclusion, namely that a claimant was physically suitable to be a member of its workforce, Dr Bates was acting for the benefit of the Bank and in so doing was an integral part of the business activity of the Bank.

iv) The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;

The Bank directed the claimant where to go for a medical examination. Many of the claimants were young girls, who were being seen and examined by a doctor they did not know. The claimant had no choice as to the doctor and was directed by the Bank to be seen and examined by him at his home. The Bank directed the doctor to perform a physical examination which included a chest measurement. The claimants, many of whom were 15 or 16, saw the doctor alone in his room when, as part of the medical examination, they were asked to remove clothing. In my judgment given the factual set of circumstances the Bank did create the risk of the tort which was allegedly committed by Dr Bates.

v) The employee will, to a greater or lesser degree, have been under the control of the employer;

The fact that Dr Bates organised his own professional life and carried out other medical activities does not negate an argument that he was under the control of the Bank. Were this to be a strict employer/employee situation the fact of part-time employment and/or whether the employee has one or more other jobs does not prevent an employer from being vicariously liable for acts or omissions occurring during the course of the employee’s relevant employment. Further the fact that Dr Bates performed the examinations in his own home does not negate the “control” argument. An employer can be vicariously liable for the act of its employee, e.g. a driver, even though the alleged act or omission takes place outside the employer’s premises. What has to be looked at is the control which existed as between the Bank and Dr Bates in respect of the identified activity namely medical assessments, examinations and reports.

Lord Reed in Cox agreed with Lord Phillips in Catholic Child Welfare Society in identifying the significance of control as being that the defendant can direct what the tortfeasor does not how he does it. This would be of particular relevance in this situation where the individual is conducting a medical examination and should be utilising his particular professional expertise and knowledge. It is of note that the Bank was directional in identifying the questions to be asked and the physical examinations to be carried out by the doctor for the purpose of completing the templated form. The control was of a higher level of prescription than might usually be found in the context of an examination required to be performed by a doctor. The control also manifested itself in directing the claimant to a particular doctor and giving the claimant no choice in the matter. I am satisfied that the Bank exerted sufficient control to satisfy this criterion. Accordingly the relevant criteria in respect of Stage 1 are met.

Stage 2: Was the tort sufficiently closely connected with that employment or quasi employment?

    1. The alleged sexual assault occurred during the course of a medical examination which the defendant required the claimants to undergo in respect of present or future employment. The task of carrying out the medical examination was entrusted to Dr Bates by the defendant. The task assigned to Dr Bates placed him in a position to deal with the claimants. On the alleged facts he abused that position. It is difficult to see how it can sensibly be argued that his acts did not fall within the activity tasked to him. To use the words of Lord Phillips in Catholic Child Welfare Society in [84]:

“…the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them…”

The claimants were in physical proximity to Dr Bates by reason of the nature of the examination. He was a doctor and, at the time of these offences, is likely to have been viewed by young women as being in authority not least because he was the doctor chosen by their present or prospective employer to carry out a medical examination relating to their employment. The sexual abuse took place when the doctor was engaged in the duties at the time and place required by the Bank. On the facts I find that the alleged sexual abuse was inextricably interwoven with the carrying out by the doctor of his duties pursuant to his engagement by the Bank. In the circumstances I find that the tort is so closely connected with that employment or engagement as to satisfy the second stage.

  1. Applying the check of whether my conclusions are just and fair I accept that this is a balancing exercise between two innocent parties. I understand the submission made on behalf of the defendant that had these claims been made earlier Dr Bates and his estate could have had the financial means to meet them. The ability of any person to make a claim of sexual abuse is never straightforward. These are claims made many years after the alleged abuse and in the Master Defence the defendant has taken the limitation point. The action against the Bank is the only legal recourse now available to claimants. Balancing those factors and applying the just and fair test does not cause me to alter the conclusions. Accordingly I find that the defendant is vicariously liable for any assaults that any claimant may prove to have been perpetuated by Dr Gordon Bates in the course of medical examinations carried out at the request of the defendant either before or during their employment with the defendant.


With thanks to Associate Professor Tina Cockburn for noting this decision.

Subpoena, public interest immunity and sexual abuse complaints

Smith v Jones (pseudonyms) [2017] NSWSC 980 is of interest for its consideration of an application to set aside a subpoena directed to an organisation called Bravehearts Foundation Limited, in the context of a defamation claim.

The defendant had made statements asserting that the plaintiff had sexually assaulted children. The subpoena issued by the plaintiff sought records held by Bravehearts in relation to those children and their mother.

Bravehearts commenced Abbey’s Project in 2015. It “involved gathering the stories of a number of children who alleged they were the victims of child sexual assault, and their families, [studying] how they felt that the family law system had let them down”: [9].

The plaintiff asserted that the documents held by Bravehearts in relation to the children may contain prior inconsistent statements by the children: [13].

The Bravehearts organisation successfully sought to have the subpoena set aside, including on the basis of public interest immunity. At [22] – [23] the Court said:

The affidavit of Ms Johnson to which I have already referred establishes a firm basis for concluding that Bravehearts is an organisation which relies upon confidentiality for its very existence. Mr Dibb drew my attention to a series of indications that the identity of the child in the present case has been disclosed in a number of forums, including in the matter complained of itself, where the defendant (who is named) openly identifies the child as a child related to him and openly refers to the allegations of sexual assault. However, as already stated, it is not for the parties to waive that kind of confidentiality which, in any event, is based on broader interests including the interest of Bravehearts in preserving the very vital trust reposed in it by the kind of people most likely to benefit from its work.

For those reasons, I am satisfied that a basis for setting the subpoena aside is made out. The relevance of the documents sought is tenuous. Whilst the conclusion in respect of the second ground pertaining to particularity might, in some circumstances, warrant allowing a more closely refined subpoena, the effect of my conclusion on the third ground, the public interest issue, is that there should be no further subpoena issued to Bravehearts in the present case.

Melanoma diagnosis

Coote v Kelly; Northam v Kelly [2017] NSWCA 192 saw this matter return for further consideration the NSW Court of Appeal, following a re-hearing after an earlier successful appeal in Coote v Kelly [2013] NSWCA 357 and a rehearing Coote v Kelly [2016] NSWSC 1447. On the rehearing (the claim then being brought by the patient’s widow) the claim failed both on breach and causation.

As explained in the headnote, the issues on the second appeal were:

(1)   With respect to breach of duty, did the trial judge err in failing to accept the evidence of Mrs Coote and her late husband that the lesion had a black spot, or dark pigmentation, at the time Mr Coote first visited the respondent and thereafter?

(2)   With respect to causation, did the trial judge err in failing to find that the melanoma had probably not metastasised during the period Mr Coote was treated by the respondent?

Basten JA with Meagher JA and Simpson JA agreeing dismissed the appeal and held:

In relation to question (1):

1.   As the trial judge eschewed any reliance upon the impression created by witnesses in the course of the hearing, this Court was able to reconsider the factual findings made by the trial judge: [117].

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), discussed.

2.   Mrs Coote’s evidence was that the lesion retained its black colour throughout the period August 2009 through to May 2010 and even when examined by two medical practitioners in 2011. That evidence was directly contradicted by four medical practitioners who treated Mr Coote. It was the constancy of her description of the lesion that rendered her description of its appearance at earlier times suspect. It is likely that the impressions of Mrs and Mr Coote were the result of the overwhelming effect of subsequent developments. The trial judge was correct not to accept the description given by Mrs and Mr Coote of the appearance of the lesion in August 2009: [121], [153], [155].

3.   There was no real dispute as to the location of the lesion. If the precise location had been identified as an issue of importance, there should have been expert evidence as to why a plantar wart was less likely to occur on the instep than on the heel. There was no such evidence. There was no material error in the way in which the trial judge dealt with this issue: [105].

In relation to question (2):

5.   To succeed on causation the appellant needed to establish that the lesion was a melanoma in September 2009, or at least before Mr Coote’s last visit to the respondent in May 2010, but had not then metastasised. The experts agreed that it was not possible to say whether metastasis to distant organs had taken place by 20 May 2010: [127].

6.   However, no error was demonstrated in the conclusion of the trial judge that the plaintiff had not established that the lesion was a melanoma in 2009. Therefore, the hypothesis required in order to determine whether causation was established had not been made out. In that circumstance there was a degree of artificiality in reaching a conclusion as to causation and the better course was not to decide the question: [133].

Factual  findings

The judgment contains a useful passage as to the circumstances in which an appellate court might reconsider the factual findings of a trial judge, at [117].

Accepting the validity of these assertions, which were not challenged on the appeal, there remains a question as to the extent to which the trial judge, in a case where honesty is not in question, enjoys an advantage over an appellate court which relies upon a transcript of evidence. There may be a significant doubt as to whether the trial judge hearing oral testimony which may have been affected by unconscious processes of reconstruction has much of an advantage over the appellate court reading the transcript. A trial judge will often work from a transcript in writing a judgment and, in doing so, will no doubt revisit impressions created by hearing the oral evidence. A comparison of remarks made by judges in the course of either evidence or submissions, when compared with the final judgment, will demonstrate that initial impressions are not uncommonly reformulated upon reconsideration after the hearing. In the present case, the judgment of the trial judge eschewed any express reliance upon the impression created by witnesses in the course of the hearing. Accordingly, and favourably to the position of the appellant, this Court should be willing to reconsider the factual findings made by the trial judge.

Gross negligence manslaughter: Acquittal on appeal

Honey Maria Rose v Regina [2017] EWCA Crim 1168 was an appeal decision published on Monday, following the earlier conviction (in 2016) of Ms Rose for gross negligence manslaughter.

Ms Rose was an optometrist who had carried out certain tests on a child Vincent (aged 7), following a history of headaches. The tests were reported as showing no issues of concern. Vincent died 4 months later.

Later investigation showed that Vincent had died from acute hydrocephalus. Review of the images taken by Ms Rose indicated that they showed significant congestion of the veins and swelling of the optic nerve. Ms Rose later gave evidence to the effect that the images were clearly abnormal and that she must have been looking at an earlier retinal image. (At [17])

The prosecution case was that Ms Rose was guilty of gross negligence manslaughter by (i) failing, without good reason, properly to examine the back of Vincent’s eyes during his sight test on 15th February 2012 as she was required to do by reason of her statutory duty of care, and (ii) failing to refer him for urgent medical treatment as a result of the significant findings shown on the retinal images which she should have viewed. Had she not breached her statutory duty of care to examine his eyes properly and had she referred him, Vincent could have been successfully treated in hospital and would not have died. She was guilty of gross negligence manslaughter by omission and it was reasonably foreseeable that her breach of duty at the time the eye examination was concluded would have resulted in a serious and obvious risk of death to the reasonably prudent optometrist. (At [18])

The issue on appeal was said to be simple (at [1]): In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?

At [78] the court stated that none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.

Then at [86]:

Put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination of the back of Vincent’s eyes, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. This is not enough to found a case of gross negligence manslaughter since there must be a “serious and obvious risk of death” at the time of breach. This was conceded by the prosecution at the trial, who recognised that for the matter to proceed beyond half time, the Crown need to rely upon the knowledge of the clear signs of papilloedema which Ms Rose “…would have had if she had conducted an internal investigation or looked at the retinal images”.

The court concluded at [94] – [95]:

Reverting to the question posed at the commencement of this judgment, we conclude that, in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a “serious and obvious risk of death” at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death. For these reasons, this appeal is allowed and the conviction is quashed.

We add that this decision does not, in any sense, condone the negligence that the jury must have found to have been established at a high level in relation to the way that Ms Rose examined Vincent and failed to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the context of this case, however, it does not constitute the crime of gross negligence manslaughter.