In their recent decision inMcCormack v Timlin and others, the Court of Appeal have considered a number of significant procedural and legal issues arising in complex and significantly contested professional negligence proceedings. In its Judgment, the Court commented on the seriousness of professional negligence actions and stated that the case provided concrete proof for the urgent need for reform of the management of clinical negligence claims and relied on the recommendations of the Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims (January 2020, although not published until December 2020), particularly in respect of the identification of the matters at issue in advance of the trial. For a number of reasons, set out in more detail below, the Court of Appeal ultimately set aside the Judgment and Orders made by the High Court and ordered a retrial of the action.

Background

In the case, Mr McCormack had sought damages arising from the alleged negligence of Mr Timlin, a spinal surgeon, and the Mater Private Hospital on foot of a failure to perform an earlier MRI scan leading to a diagnosis of Cauda Equina Syndrome (“CES”). The hospital was sued on foot of its alleged vicarious liability to Mr McCormack, however, this claim was settled before the action proceeded in the High Court. The most significant point of contention between the parties were the results of an MRI scan of Mr McCormack’s spine undertaken on 16 March 2010 and the decision of Mr Timlin not to operate on Mr McCormack until 19 March 2010. Much of the expert evidence and factual evidence was directed to the interpretation of this scan.

The Necessity to Provide Reasons for Findings

When considering the findings of the High Court, the Court of Appeal noted that the trial judge had found that Mr Timlin had misinterpreted the relevant MRI scan but that the misinterpretation was not negligent. The Court of Appeal accepted that, as a matter of principle, such a finding was open to the trial judge, as professional error was not to be equated with professional negligence. However, the Court of Appeal held that, in circumstances where the trial judge had found error, it was important that any such finding should be adequately explained. In short, Mr McCormack was entitled “to be told why, though he had apparently won the battle, he had nonetheless lost the war”. This reasoning was not set out in the High Court judgment. The Court of Appeal commented that such a crucial finding could not properly be a matter for inference or implication. There was, therefore, an obligation on the trial judge to explain, in clear terms, the reason why he determined that Mr Timlin was not negligent and to identify the evidential basis for that conclusion.

The Court stated that the complaints made by Mr McCormack during the course of the appeal were valid and that they went to the very core, or essential validity of the judge’s findings. As the trial judge found that the Plaintiff was suffering from developing CES, which was there to be interpreted on the MRI scan (as contended for by the experts called in support of Mr McCormack), the Court of Appeal found that the trial judge failed to explain adequately why he had proceeded to find against Mr McCormack on the negligence issue and that failure was significantly compounded by his failure to address adequately the question of clinical “red flags”. Such matters were noted to be, both individually and cumulatively, critical to the appropriate resolution of the Mr McCormack’s claim. Accordingly, in the absence of reasons for the decisions made, the Judgment could not stand.

The Pleaded Case vs the Findings of the High Court

The Court of Appeal was asked to consider the relevance of physiotherapy notes, which it was said highlighted Mr McCormack’s developing CES. Mr Timlin had given evidence in the High Court that he had not considered these notes, but the trial judge had placed significant reliance on them in his judgment. Crucially, the significance of the physiotherapy notes was not pleaded in Mr McCormack’s summons, Mr Timlin had not been challenged on his failure to consider the physiotherapy notes, nor was it suggested that such failure was negligent on his part. The Court of Appeal was critical of Mr McCormack’s reliance on the relevance of the physiotherapy notes during the appeal hearing, noting that he had failed to plead his case properly. The Court noted that it was wholly unclear whether the Plaintiff was (or would ever be) in a position to advance a case that, in not reviewing the physiotherapy notes and relying instead on this own examinations and what was brought to his attention by the nursing staff, Mr Timlin departed from the standards to be expected of a reasonable consultant orthopaedic and spinal surgeon. No evidence to that effect was before the Court of Appeal and, further, it was not said that Mr McCormack had any such evidence available to him. The Court held that it was “quite remarkable” that it should be asked to set aside the Judgment and Order of the High Court on the basis that Mr McCormack was wrongly denied an opportunity to made a case that was entirely theoretical. The Court concluded that, on the basis of the evidence before it, it was no more than a case that ‘might’ possibly be made by Mr McCormack and held no more substance than that.

In light of these determinations, the Court of Appeal held that the failure of Mr McCormack to properly plead his case was a significant contributory factor to what occurred in the High Court. The Court stated that it did not appear that any unfairness had been demonstrated and, further, it would be wholly inappropriate for the Court of Appeal to set aside the Judgment and Order of the High Court on the basis of a complaint that could have been made to the High Court but was not. The Court held that the trial proceeded as it did, without any objection from Mr McCormack, and he was not entitled to seek a re-run of it merely because the trial judge subsequently appeared to take a different view as to the significance of the physiotherapy notes.

Expert Evidence

A number of complaints were made by both parties in their respective appeal and cross-appeal in relation to the conflicting evidence given by each side’s experts. In particular, Mr Timlin had suggested that the experts appearing on his behalf were more experienced practitioners with better expertise and, on this basis, their evidence should be preferred. The Court of Appeal re-affirmed the position that it could not and should not undertake any comparative analysis of the expertise and/or experience of the respective expert witnesses called by the parties. The Court commented that, so far as it was aware, no objection was made to any of Mr McCormack’s expert witnesses and it was not suggested that they lacked the necessary expertise and experience to give expert evidence on the issues they addressed. Insofar as it was said that there was any difference of expertise or experience between the respective experts, that went to the weight to be given to their evidence and, the Court held, was a matter for the trial judge.

The Court also gave consideration to the juxtaposition of evidence to be given by a doctor who is a witness of fact but is, at the same time, an expert in his field. The Court commented that it appeared anomalous that neither the Court nor the opposing side would receive notice of the evidence to be given by such a witness, in line with the normal procedural requirements. The Court noted that the distinction between expert evidence and evidence as to fact could be difficult to maintain in these circumstances and called for consideration of the issue in the context of the reform of the management of clinical negligence claims.

Case Management

In remitting the matter to the High Court for a re-hearing, the Court of Appeal directed that the proceedings should be subject to case management. In this regard, the Court was of the view that the issues in dispute should be clearly defined in advance of any re-trial, the expert witnesses should engage with a view to identifying the areas of agreement and disagreement between them and the question surrounding the reliance or otherwise on the physiotherapy notes should also be clarified. The Court further commented that any other issues arising in respect of the pleadings or additional expert reports could also be addressed.

Costs

The Court of Appeal awarded Mr McCormack 75% of his costs of the appeal in view of the findings and orders made, with a stay of execution of those costs pending the determination of the remitted proceedings in the High Court. The original costs order made in the High Court (which awarded Mr Timlin 50% of his costs) was set aside and the costs of that hearing were reserved to the judge to hear the retrial.

Conclusion

The decision of the Court of Appeal is likely to affect the manner in which medical negligence cases are approached, particularly in light of the costs incurred by both sides over the course of the original hearing, the appeal and, now, a retrial. The dissatisfaction of the Court of Appeal in relation to the lack of clarity and definition of the issues during the original hearing suggests that the Courts are seeking to move away from the ‘trial by ambush’ principle of litigation. The acknowledgement of the Court of Appeal of the seriousness of professional negligence actions, particularly to the reputation and livelihood of the professional, coupled with the directions in respect of significant case management aim to increase the transparency of the claims to be advanced and focus the evidence at hearing. From the point of view of future medical negligence proceedings, the parties will need to consider whether applications should be made to the High Court for case management in line with the reasoning set out by the Court of Appeal in McCormack.