Manning & Anor v Kings College Hospital NHS Trust

This is an appeal from the decision of Stadlen J handed down on 29^th September 2008.

Mrs Manning died as a result of cancer of the tongue on 13^th May 2002. In proceedings brought by her husband as personal representative the judge found (1) that the appellants were responsible for the negligence of a pathologist Dr Harrison in failing to exclude the possibility that Mrs Manning had a recurrence of a cancer, diagnosed and treated in 1993, when examining biopsies taken in 1995 and 1996; (2) that but for that negligence further investigation would have revealed the existence of that recurrence and (3) that, if discovered, surgery would have been performed which would have saved Mrs Manning from dying as early as she did. The appeal is brought by permission of the judge himself.

Mrs Manning had originally been diagnosed with a squamous cell carcinoma (SQC) in her tongue in late 1993. In January and February 1994 it was treated at the Royal Marsden Hospital with external radiotherapy (RT) and brachytherapy (BT), the insertion of iridium wires to the tongue. Between 1993 and September 2001 she was reviewed on a large number of occasions both at the Marsden and at Kings College Hospital by Professor Langdon and Dr Henk. During that period of nearly eight years, seven biopsies were performed by Professor Langdon on 6^th May 1994, 28^th July 1995, 15th September 1995, 2^nd December 1996, 26^th February 2001, 19^th June 2001 and 7^th August 2001 and all bar one were the subject of biopsy reports by a pathologist, Dr Harrison, the other, the August 2001 report, being prepared by Professor Johnson. All those reports were negative.

In the action commenced by Mr Manning, as personal representative, it was alleged that Dr Harrison was negligent in his reporting on the September 1995, the December 1996 and the February and June 2001 biopsies, and it was alleged that Professor Johnson was negligent in relation to his reporting on the August 2001 biopsy. Allegations were also made against Professor Langdon. At the trial the allegations against Professor Langdon were not pursued with any vigour, since he relied on the pathologists’ reports, and the real allegations related to the reporting on the biopsies by Dr Harrison and Professor Johnson.

At the trial it was accepted by the defendants that the three biopsies taken in 2001 in fact contained evidence of spindle cell carcinoma (SPCC), which is a well known variant of SQC, and that Dr Harrison was negligent in reporting as he did in February and June 2001, and Professor Johnson negligent in reporting as he did in August 2001.

A finding of negligence in relation to the reports in 2001 would not however lead to any substantial damages because Mr Manning could not succeed in showing that that diagnosis, even in February 2001, would, on the balance of probabilities, have prolonged Mrs Manning’s life.

At the trial accordingly, at least by its end, the main issues were (1) was there a breach of duty of care on the part of Dr Harrison in reporting as he did on the 1995 and/or 1996 biopsies; and (2) if there had been no breach of duty would Mrs Manning have survived longer than she did? Breaking those issues down, they became – (a) should Dr Harrison have warned in his reports in 1995 and 1996 that he could not exclude the presence of malignant cells? (b) if he had so warned would further biopsies and investigations have taken place? (c) if so, would cancer have been revealed, i.e. was the cancer from which she ultimately died already present in1995 and 1996 and, in particular, was it a recurrence of the cancer diagnosed in 1993? All issues involved detailed expert evidence. It was ultimately admitted at trial that had cancer been present and recognised in 1995 and/or 1996 radical surgery would have been performed and she would, on the balance of probabilities, have survived. There was unchallenged evidence from Dr Plowman, Professor Sloan and Dr Woolgar that if SPCC was present in 1995 or 1996 it would have been picked up by a further deeper biopsy. [This finding of the judge is challenged in the grounds of appeal (ground 25), but the judge recorded the point as not being in issue, and Mr Seabrook QC and Ms Mishcon were unable to show either a challenge in cross-examination or any evidence from an expert for the defendants to the contrary, and the ground is accordingly hopeless.] The judge also concluded that if Dr Harrison had reported that he could not exclude recurrence, as he should have done in relation to 1995, that Professor Langdon would “obviously” (because Professor Langdon was himself suspicious that there was a recurrence) have taken a further biopsy; and he also found that, less obviously because Professor Langdon was not suspicious on this occasion, in 1996 Professor Langdon would have taken a deeper biopsy.

A key issue, on which much time was spent at the trial, was whether there was cancer present in 1995 and/or 1996. That issue involved an understanding of extremely difficult expert evidence in a situation where each side’s experts were accepting that the choice lay between very unlikely eventualities.

The trial had originally been estimated to last 8 days but it in fact lasted some 28 days. Closing submissions on liability were completed on 26^th and 27^th November 2007 and oral submissions on quantum were completed on 5^th December 2007.

By the time of the trial Mr Manning had sadly been diagnosed with terminal cancer and all appreciated the importance to him of knowing the result of the case before he died. The judge, through his clerk, expressed the hope that he could give an indication before Christmas; he was unable to do so and thereafter at a meeting in the judge’s chambers on 14^th January, convened because Mr Manning was very ill, the judge explained that he had not yet made up his mind but would give a decision as soon as he could. Sadly Mr Manning died on 18^th January 2008.

Ultimately a draft judgment was produced at the end of July. A first draft sent out on 28^th July was recalled and the final draft was sent out on 31^st July on the basis that the final judgment would be handed down on 29^th September 2008, when the question of permission to appeal would be dealt with. The judgment was 256 pages long with 647 paragraphs.

In summary the judge found (1) Dr Harrison was negligent in failing to draw attention to suspicious aspects of the biopsy taken in 1995 and in failing to make clear that he could not exclude the presence of cancer; and was also negligent on this occasion in not carrying out staining tests on that biopsy; (2) Dr Harrison was negligent in failing to draw attention to suspicious aspects of the 1996 biopsy and in failing to make clear that he could not exclude the possibility of cancer having carried out staining tests; (3) that if non-negligent reports had been produced for Professor Langdon, in either 1995 or 1996, Professor Langdon would have carried out further tests and if cancer had been found, have performed salvage surgery so that Mrs Manning would not have died when she did; (4) that the cancer from which she ultimately died was a recurrence of the cancer she had in 1993 and thus it was present in 1995 and 1996, and would have been found on further investigations in either 1995 or 1996.

The judge considered the recurrence question both by reference to the evidence of oncologists and the inherent likelihood of the cancer recurring, and with the benefit of hindsight by reference to the evidence of pathologists interpreting the slides still available from 1995 and 1996. This aspect of the case involved a detailed understanding of the expert medical evidence and constituted the most difficult part of the case because as I have already said, each side’s case involved accepting that something very unlikely had occurred. On the claimant’s side, for example, it involved there being malignancy present in 1995 and 1996 but having to accept that the fact that the wounds resulting from the taking of the biopsies had healed was a strong indication that there was no malignancy present. The experts for the defendants were of the view that the most likely explanation of what had occurred was that the cancer of 1993 had been successfully eradicated by the RT, that there was no malignancy there in 1995 and 1996, and a new primary cancer had appeared in 2001 caused by the RT. Yet it was very unlikely that a new cancer would appear at exactly the same site as in 1993, and be a cancer of similar type to the cancer that had been present in 1993.

The first two grounds of appeal allege procedural and other irregularity. Ground 1 alleges:-

“The trial judge’s prolonged and excessive questions of witnesses and his repeated interruptions of the examination and cross-examination of witnesses by counsel:-

(i)

made it difficult for Counsel to maintain the flow of examination and cross-examination or properly and effectively to elicit the relevant evidence;

(ii)

deprived the Judge of the advantages of calm and dispassionate observation and assessment of the witnesses;

(iii)

unnecessarily increased and prolonged very substantially the length of the trial and thereby obfuscated the task of assessing the evidence and focusing on and determining the material issues

and was unjust.”

Ground 2 alleges:-

“The trial Judge did not give his decision on the issues of breach of duty and causation for over eight months after the conclusion of the evidence, having informed the parties in the meantime that he had not made up his mind, and at the date hereof he still has not delivered his judgment on the further issues of quantum of damages dealt with at the trial. The Judge’s recollection of the demeanour, credibility and persuasiveness of the witnesses and the way they gave their evidence (particularly the expert witnesses between whom there were critical differing opinions) must have been profoundly diminished by the time he came to give his Judgment.”

When I first read those two grounds of appeal, and the skeleton supporting them, I was extremely troubled. So far as questioning was concerned, a calculation had been done which indicated that the judge had asked a vast number of questions and that in relation to the two Consultant Oral Pathologists called for the claimant (Professor Sloan and Dr Woolgar), the judge had asked more questions of the witnesses than Mr Grace QC and Miss Mishcon put together. Judges on the whole should leave the examination of witnesses to counsel and only themselves ask questions if they need clarification.

Furthermore it was true that the judge had taken nearly eight months to deliver his judgment. If this were an action involving findings of fact based on the evidence of witnesses of fact, or indeed a normal medical negligence action, that would seem an unacceptably long time. This case furthermore had the very unfortunate circumstance that Mr Manning wanted to know the result before he died, and it was clearly regrettable that the judge could not give an indication to Mr Manning of what the result of the case would be before that occurred.

But, having been shown extensive sections of the transcript, and having read more than once the 256 pages of judgment, it is absolutely clear that this was not a normal case. It was being tried by a judge without great experience of medical negligence cases but, even an experienced judge, if he or she was to decide in particular the causation issue, would have had to steep himself in the detailed medical evidence and make sure he understood it. The fact that the judge could not give an indication of the result when he knew that Mr Manning would wish to know it, is actually an indication of the very great care he was taking to resolve a highly complex case. He ultimately wrote an absolutely comprehensive judgment dealing with each and every point in the most rigorous way. Some judges might have written a shorter judgment and not dealt with matters at such length but no-one could suggest that the judge did not face up to the difficult issues and exercise the greatest care in dealing with them.

Mr Seabrook QC, who sought to attack the judgment, was quite unable to point to any aspect of the medical science which the judge had got wrong and indeed had to accept in relation to all the judge’s findings that if any one of them were taken alone he would not be able to attack it in the Court of Appeal.

This was not a case where a judge put the papers away and forgot about them or lost his notes. The judge had transcripts or, so far as one day was concerned, detailed notes from counsel. As he said in the judgment giving permission to appeal there was hardly a day when he did not think about this case and worry about getting it right. In almost any case that comes to the Court of Appeal there is a suggestion that a judge has not dealt with some point or another and the court often says a judge is not bound to deal with every point. This is a case where that has not and cannot be said.

As regards the questions asked by the judge, we were shown large parts of the transcript and it is clear that the judge in many instances does take over the questioning, but this was the most extraordinary of cases. I would not encourage judges to think that questioning of the sort that went on in this case by the judge should be common place, but it is clear that what the judge was trying to do was to make sure he understood and could get an accurate note of the expert evidence that was being given in a case involving extremely complex medical science. If the witnesses had been witnesses of fact trying to give evidence of what had occurred that might be different; if one could find the judge asking questions which appeared to show an antagonism to one side or the other it, again, might be different. But his questioning was not antagonistic at all and, if sometimes searching, was no more so to the experts for the defendants than for the experts for the claimant. We were not referred to any occasion when counsel was prevented from putting their point or indeed any occasion on which counsel protested at the way the judge was asking questions.

It may be with the benefit of hindsight it can be said the judge was making some unnecessary enquiries but it is clear that what he was doing was attempting to exclude points, to understand completely what he was being told and making sure he had an accurate note of what the witness was saying.

What Mr Seabrook’s submission ultimately came down to on the grounds alleging procedural irregularity was that, with the amount of questioning and the delay in the giving of the judgment, there was a danger that the judge had simply lost his way, and thus that for that reason his decision was unsafe. If that were a good submission the only course open to the Court of Appeal would be to order a new trial. I have to say there is absolutely no sign of the judge having lost his way. I am quite clear that any concern that I may have had when I first read the first two grounds of appeal, that they pointed to the possibility of a miscarriage of justice on their own, was fully dispelled after gaining an understanding of the difficulties in the case and appreciating the care the judge took to understand the medical evidence and deal fully with each point in his judgment.

I turn to the other grounds of appeal. First, ground three is simply wrong in its assertion that before deciding breach of duty the judge decided the question whether cancer was present in 1995 and 1996. Second, that the main attack is on the way in which the judge decided the critical issue whether cancer was present in 1995 and 1996 (grounds 4 to 17 out of 25); [it is said by Mr Grace that the grounds do not actually attack the judge’s finding that the cancer in 2001 was a recurrence, only the means by which the judge got there; that may be strictly right on the language but the attack is, it seems to me, implicit in the grounds]. Third, it is unclear whether the grounds attack the finding of negligence in relation to 1995 (just possibly grounds 18 and 20 could be said to be doing so) but, by the end of the appeal hearing, Mr Grace submitted there was no attack on the alleged breach of duty in 1995 and I did not understand Mr Seabrook to suggest otherwise. Indeed it was not a major part of Mr Seabrook’s submissions to attack the finding of negligence in relation to 1996. That had to follow from the fact that it was common ground that there were some suspicious features of the biopsy sections taken in 1996, which the report by Dr Harrison did not refer to. The main issue before the judge in relation to 1996 was the extent to which staining (which Dr Harrison carried out on this occasion), if it were negative, could be relied on as excluding malignancy. Ultimately there was much common ground between the experts that such staining could not exclude the possibility; staining, if it was positive, could confirm that malignant cells were present, but a negative test did not exclude.

I will thus follow the order of the grounds of appeal because on any view it is the attack made on the judge’s finding that cancer was present in 1995 and 1996 which forms the most substantial aspect of the appeal. The first line of attack was that the judge looked at matters in the wrong order and/or predetermined certain aspects so that he, in effect, reversed the burden of proof when he came to other aspects (grounds 3 (slightly adapted), 4, 5 and 11).

The question whether cancer was present in 1995 and 1996 was, in reality, one question – was the tumour in 2001 a recurrence of the tumour in 1993 or was it a new primary? The judge said that he found answering this question a “formidably difficult task” and explained why and his approach in paragraphs 352 to 354:

“352.

I confess to having found this a formidably difficult task for at least four principal reasons. First and foremost both parties were able to point to unusual aspects of the other side's case which meant that if true the case would be highly unusual. Thus it is inescapable that both if there was cancer present and if there was not cancer present certain events or phenomena must have occurred which would not normally be expected. Second, on a number of technical issues there were differences of opinion between experts, the resolution of which by the Court could not easily be achieved by reference to objectively ascertainable facts or criteria. This was particularly the case with the expert pathologists, the differences between whom in no small measure was agreed to lie in a difference of interpretation of what they saw in the biopsies. Since such subjective interpretation is based on years of training practice experience and expertise on the part of the pathologists, the Court is not well equipped to resolve such differences. Third, the underlying issue of whether there was cancer present in 1995 and/or 1996 was approached by both sides by reference to more than one area of medical expertise. In particular there was expert evidence from pathologists as to what was visible on the two biopsies and what inferences could be drawn therefrom. In addition, there was evidence from the oncologists as to the inherent probabilities as to whether the 2001 cancer was a new radiogenic primary cancer or a recurrent or persistent cancer and the inherent probabilities of whether there was a recurrent or persistent cancer present in 1995 and/or 1996.

353.

The matter was further complicated by the fact that there was some degree of overlap between both sets of issues in two senses: first in varying degrees some of the experts in one discipline, in informing their opinions relied on what they had read and/or heard of the evidence of experts in the other discipline. Second insofar as within each area of expertise either party was able to point to unusual features of the other side's case, the task of reaching an overall conclusion on whether on the balance of probabilities cancer was present in 1995 and/or 1996 was rendered even more complicated. The analogy of playing several games of chess at the same time springs to mind. Fourth, SPCC of the tongue is a rare form of cancer. As a result a feature of the literature is that studies and papers tend to be based on comparatively small populations so that caution needs to be exercised in considering whether statistically reliable propositions can be safely extrapolated from them. A further consequence was that none of the experts had a great deal of personal experience of observing and treating SPCC of the tongue. Added to this is the further complication that BT as a treatment for tongue cancer has apparently fallen largely out of fashion since it was used on Mrs Manning in 1994, with the result again that both literature on and individual experience on the part of the experts with the consequences of BT is necessarily limited.

354.

Faced with these formidable difficulties, the responsibility of the Court, as it seems to me, is to absorb itself in the detailed evidence, both oral and written, to attempt to understand and evaluate the competing arguments as to the improbabilities of aspects of both sides cases, to seek to weigh the various probabilities and improbabilities on different aspects of the case and to stand back from the detail and consider the probabilities and improbabilities of each sides case in the round. Finally, while of course bearing in mind that the burden of proof falls on the claimant, the Court must eschew the temptation to avoid the discipline of seeking to explore the complex strands of argument and evidence and deciding difficult questions of fact by throwing up its hand and deciding that the very difficulties of the case dictate the inevitable conclusion that the Court cannot be satisfied on the balance of probabilities that the Claimant's case has been proved. Such a conclusion, if justified, should be arrived at only after, rather than instead of, the undoubtedly difficult task of seeking to resolve the various issues with which the Court is confronted.”

What the judge then did was to look first at the question whether, independent of the pathology evidence, the cancer was likely to be a recurrence or a new primary. In resolving that question he approached the matter by examining first the other matters relied on by Mr Grace for the claimant as indicating a recurrence rather than a new primary and resolving the questions whether those factors had been established. Thus there was a dispute at one time as to whether the cancer in 2001 was at the same site and the judge found the evidence that “the 2001 tumour was in the same site as the original 1993 SQC tumour . . . overwhelming. So is the evidence that the lesions in September 1995 and December 1996 lesions were in the same site as the primary tumour.” (paragraph 363). It seems, as recorded by the judge, that although at one stage Dr Barley, called by the defendants, was asserting that the 2001 carcinoma was not in the same site as the 1993 cancer, he changed his position in cross-examination and ultimately admitted that not only the 2001 carcinoma but also the September 1995 and December 1996 ulcers (which he did not accept were carcinomas) were at the same site (see paragraph 381).

The judge then reviewed the evidence of the experts on both sides including theories as to how it might still be a new primary even if on the same site and concluded that the preponderance of the evidence suggested that, although it was not biologically impossible for a new primary to appear on the same site, the likelihood would be that if a cancer appeared on the same site it was more likely that the 2001 carcinoma was a recurrence.

The judge then examined each of the further points taken by Mr Grace. The tumour’s type (carcinoma rather than sarcoma) - the submission was that, if the tumour in 2001 were a radiogenic new primary, it would be unusual for it to be carcinoma and not a sarcoma. This, the judge found, was supported not only by the experts called by the claimant but also by experts called by the defendants, i.e. the oral surgeon Mr Watt-Smith and the oncology expert Dr Barley (see paragraph 406). He dealt with the MRI appearances in 2001 interpreted by the experts for the claimant Mr Brown and Dr Lewis-Jones as showing the 2001 tumour arising in the depth of the tongue rather than the mucosal surface and thus more likely to be a recurrence. The judge recorded some unsatisfactory features of Mr Watt-Smith’s evidence insofar as he did at one stage suggest a different interpretation, but recorded, essentially, agreement by Mr Watt-Smith (paragraph 411). He dealt with “the intact mucosa” dealing both with the question whether it was intact and then second with whether that points to a recurrence. This is a very long section of the judgment running from paragraph 413 to 460, in which he finds in favour of the claimant on each question. He examines the evidence given by the four experts, Mr Brown and Dr Plowman for the claimant and Mr Watt-Smith and Dr Barley for the defendants.

In this section also the judge deals with some of the evidence from the defendants’ pathologist expert, Professor Speight, who put forward possible theories under which he said a new primary carcinoma could be present on the same site and how the mucosa could still be intact. The judge rejected those theories (see paragraphs 448 to 450)

The judge then summarised his views at the end of this section in the following terms:-

“451.

The cumulative effect of my findings in relation to Professor Speight's theories of (a) the shifting epithelium, (b) the "early carcinoma" and (c) the epithelial dysplasia is to leave the Defendants' submissions in response to Mr Grace QC's arguments based on the same site and the intact mucosa looking distinctly threadbare.

452.

It is convenient at this point before looking at the other arguments raised by Mr Grace QC and Ms Mishcon on the primary versus recurrence issue to take stock of the evidence on that issue thus far.

In summary the evidence was overwhelming that (1) the presence of intact mucosa makes it highly unlikely if not impossible that the 2001 carcinoma was a new primary, (2) the fact that the carcinoma appeared on the same site as the 1993 carcinoma also made it highly unlikely that it was a new primary and (3) if there had been, as the Defendants submit there was, a new radiogenic primary in 2001 there would have been a 90% likelihood that it would have been a sarcoma rather than the carcinoma which in fact it was. The third point was accepted by the Defendants own expert surgeon, Mr Watt-Smith, who also accepted the first point. On the first two points the evidence of Dr Plowman and Mr Brown was very emphatic and very persuasive. Overall both Mr Brown and Dr Plowman were very strongly of the view, taking into account not just these three points but the overall picture including many if not all of the remaining points to which I refer below, that it is more likely that the 2001 carcinoma was a recurrence than that it was a new primary. In this they disagreed with Dr Barley and Mr Watt-Smith (although even Dr Barley agreed that a finding that the 2001 carcinoma was a new radiogenic primary would require building rarity upon rarity. He accepted that it would be very rare to have a new radiogenic primary cancer in the tongue , even rarer for it to be in the same site as the original and yet rarer still for it to be a carcinoma rather than a sarcoma).”

At this stage he also recorded his impression of the four expert witnesses, finding Dr Plowman and Mr Brown “authoritative, careful and straightforward . . . very persuasive and generally very impressive as expert witnesses.” He was not so impressed by Mr Watt-Smith, whom he thought unwittingly strayed “into the territory of advocate rather than expert witness”, or Dr Barley, who he said was “a careful and meticulous witness who I have no doubt was doing his best to assist the court. I was however left with the impression that perhaps because he believed in the defendants’ case, he was somewhat inflexible in his answers and reluctant to concede points which on their merits were persuasive.” (Paragraph 453).

He then says this at paragraph 460:-

“460.

I have dealt with the evidence and my conclusions on this part of the case at some length because of its central importance to the ultimate issue of whether there was cancer present in 1995 and/or 1996. Given the strength of Mr Manning's case on this prior question thus far and in particular given that it is based in large part on the scientific improbability of there having been a new primary in 2001 I approach the remaining arguments on this question on the basis that it would require an even greater scientific improbability if not impossibility in the opposite direction to compel the conclusion that in fact the 2001 carcinoma was a new radiogenic primary or at least to lean to the conclusion that it cannot be said on the balance of probabilities that it was a recurrence.”

The criticism of Mr Seabrook and Miss Mishcon was that at this stage, although the judge had dealt to some extent with the evidence of the defendants’ experts in so far as they were seeking to answer the claimant’s points, he had not dealt with any of the points on which the defendants specifically relied as pointing in the direction of the cancer in 2001 being a new primary. They suggest he was reversing the burden of proof.

I do not think it is fair to say that the judge was reversing the burden of proof. He was spelling out a legitimate reasoning process under which he fairly said that at that stage Mr Grace’s points were very powerful and pointed all one way. He was saying that it would take something highly improbable to displace that to which everything pointed at that stage, i.e. that the tumour in 2000 was a recurrence.

A judge is entitled to take stock by reference to the evidence reviewed until a certain stage as long as his mind is not closed to the points that remain to be made. In simple cases, for example where there is an eye witness, it is legitimate to consider the strength and honesty of that evidence first and record that, since that evidence is convincing and honest, it will take something improbable to persuade the court to depart from it.

The judge then went on to deal with the other points made by Mr Grace – the timing of the tumour, the judge concluding it was inherently unlikely ignoring all other factors that Mrs Manning would develop a new radiogenic primary carcinoma as soon as 7 years after the radiation treatment in January 1994 (paragraph 466); the similarity of cells in the September 1995 December 1996 and 2001 biopsies (471-475); the pathologists’ and clinicians’ description in 2001 that it was a recurrence (paragraphs 476 to478).

The judge then turned in paragraph 479 to assess “the strength of Miss Mishcon’s attack on Mr Grace’s case that it was probably a recurrence.” He did so by first summarising what Mr Grace’s case was or had to be if the claimant were to succeed. The summary of Mr Grace’s case put shortly was that tumour cells from 1993 had survived the RT deep to the mucosa and at some stage SQC transformed to SPCC. The cells were detectable in biopsies taken in September 1995 and December 1996. After the biopsies the epithelium healed but the cells grew slowly because they were “stunned” by the RT (Professor Sloan) or “knocked back” (Dr Plowman) and because of other factors set out by the judge. They produced no symptoms because that is the nature of oral tumours until the tumour invades sensory nerve fibres (Professor Langdon’s book). By the autumn of 2000 it had got to sufficient size to produce symptoms of pain and its growth then accelerated as it spread into better oxygenated and less radiation damaged tissues and/or because of genetic factors and /or because of the hyperbaric oxygen treatment in 2001.

The judge then dealt with the suggested reasons why the above picture was improbable. First Miss Mishcon relied on the expert evidence relating to growth in size of tumours – the Volume Doubling Times/Gompertzian Theory. This theory as the judge said was “broadly to the effect that working backwards from April 2001, if one applies the 2 month volume doubling time to be inferred from the quadrupling of the size of the tumour between MRI scans of 26^th April 2001 and 22^nd January 2002 estimated by Dr Lewis Jones and then makes allowance for the Gompertzian theory, that tumour cells grow more quickly when they are small, it is unlikely that any cancer cells were present in1996.” The related submission was that it would be very unusual for a carcinoma to recur twice in two years (September 1995 and December 1996) and then lie dormant and not recur again for four years.

The judge reviewed the expert evidence from paragraphs 483 to 514. After a detailed survey of that evidence it is clear that he preferred that of Dr Plowman – as he put it “more generally on this aspect of the case I found Dr Barley’s evidence somewhat unsatisfactory and, insofar as it differed from that of Dr Plowman, far less persuasive” (paragraph 505). He then summarised his view on this aspect at paragraph 515 saying:-

“515.

In my judgment the argument based on Gompertzian and retrospective extrapolation of volume doubling rates does not prove that there cannot have been cancer present in September 1995 or December 1996 or even that cancer was not present on the balance of probabilities. While it is one of the factors to weigh in the balance on the defendant's side of the scales it is not one to which in my judgment very much weight should be attached.”

He then turned to the improbability of recurrence in 1995 and 1996 and the dormancy for four years point. He appreciated the strength of this point in favour of the defendants’ case that 2001 was not a recurrence of the cancer of 1993. He says this from paragraphs 517 to 520:-

“517.

The oral surgeons in their joint report agreed that it would be possible but highly unlikely for an SPCC to lie dormant for five years or more. In answer to the question: "How many cases have you seen or heard about where a moderately differentiated squamous carcinoma recurs as a spindle cell carcinoma then lies dormant for more than five years after completing treatment before becoming an extremely aggressive cancer? Is it possible for this to occur?", they agreed that such a scenario had never been seen, discussed or published to their knowledge, but it could occur. The unlikelihood of this was emphasised by Mr Watt-Smith and Dr Barley.

518.

In cross-examination Mr Brown confirmed that in his opinion it would be highly unlikely but possible for an SPCC to have recurred twice within two and a half years and then lain dormant for the next four years. In cross-examination Dr Plowman said that the biggest difficulty he had had in his cross-examination was accounting for the fact that Mrs Manning's tumour did not become overt more quickly after 1996. In evidence in chief he acknowledged that the slowness with which the tumour developed if it was a recurrence in 2001 was a weakness in the claimant's case.

519.

All three pathology experts agreed in their joint report that it would be very rare but nonetheless possible for SPCCs to lie dormant for five years or more. Specifically in the context of the present case they all agreed that it is possible that the spindle cells in the December 1996 biopsy which they agreed were highly suspicious for SPCC represented dormant malignant cells which may have emerged in 2001.While Professor Speight considered that to be highly unlikely Professor Sloan and Dr. Woolgar were of the view, on the basis of having seen the later specimens and with knowledge of Mrs Manning's clinical history that they are the same cells as the ones in the 2001 tumour and that they were dormant for some or all of the intervening period.

520.

This is undoubtedly one of the stronger factors arguing against recurrence in January 2001. However, it remains the case that this was a factor which was taken into account by both Dr Plowman and Mr Brown and which did not prevent them from reaching the very clear conclusion that in fact the 2001 cancer was probably recurrence rather than a new primary. Equally it was taken into account by Professor Sloan and Dr Woolgar and it did not prevent them from reaching the no less clear conclusion that there was probably cancer present in Mrs Manning in September 1995 and December 1996. As many of the experts on both sides had occasion to comment, there are, in Dr Plowman's words, things which do not square on either side of the arguments on this case. It was certainly not suggested by any of the experts that this was a knock out blow on the recurrence versus new primary issue.”

He then reviewed the expert evidence given during the course of which he picked up a tension between two of the claimant’s experts, Professor Sloan and Dr Plowman, arsing from Professor Sloan’s theory that the September 1995 and December 1996 lesions were “polypoid SPCCs” (see paragraph 530), but ultimately he said this at paragraph 537:-

“537.

Standing back and looking at this evidence in the round it seems to me to fall a long way short of showing that the 2001 primary cannot have been a recurrence. Once it is accepted that whichever version of events is correct it will of necessity involve a number of very unusual features, it does not seem to me that the evidence on growth rates, dormancy and deep location of the tumour is of such a character or weight as to displace the inference to be drawn from the powerful effect of the overwhelming evidence as to the unlikelihood if not impossibility of the January 2001 cancer being a new primary if not a recurrence.”

He next dealt with the fact that the wounds from the biopsies in September 1995 and December 1996 healed over. As he said in paragraph 538:-

“538.

Both the September 1995 and December 1996 biopsies healed over. Ms Mishcon submitted in her written closing submissions that this was a strong indication that malignancy was not present on either occasion. This was undoubtedly one of her strongest arguments. . . .”

In this section again he dealt with the tension between Dr Plowman’s evidence and the evidence of Professor Sloan, given for the first time at the trial, that in September 1995 and December 1996 there were “polypoid SPCCS” (paragraph 540).

He appreciated the strength of the healing point taken together with the long dormancy point but said this at paragraph 541:-

“541.

To my mind although, taken together with the long dormancy issue, this is probably the strongest argument pointing against the presence of cancer in September 1995 and December 1996, the two critical points are first that it was not established that this factor meant that it was impossible for there to have been cancer on those dates and second that both Mr Brown and Dr Plowman maintained their strong view that the 2001 cancer was a recurrence(and Professor Sloan maintained his strong view that cancer was present in September 1995 and December 1996) notwithstanding this factor which was drawn to their attention.”

He finally had a number of paragraphs (543 to 549) on whether the 2001 tumour was a recurrence or a new primary:-

“543.

I have given this matter the most careful consideration. I have reviewed in great detail both the factual and expert evidence and I have reflected long and hard on the competing submissions. At the end of this process I have reached the clear conclusion that the weight of evidence points very strongly to the 2001 carcinoma having been a recurrent or persistent form of the original SQC which was treated in February 1994 and not a new second radiogenic primary.

544.

My reasons are apparent in the preceding analysis. In short I am persuaded that it is highly unlikely if not impossible that the 2001 tumour was a new radiogenic cancer. Although, as I have pointed out, it could accurately have been said in for example 1996 that it would be unusual if Mrs Manning were to suffer a recurrence in 2001 with no intervening clinical manifestations and even more unusual with one or two intervening clinical manifestations, so too could it have accurately been said that it would be most unusual if she were to develop a second radiogenic carcinoma (as distinct from a sarcoma) as soon after the RT and BT treatment of February 1994 as 2001.

545. However it seems to me that the proposition that the 2001 carcinoma was a new radiogenic primary goes beyond merely the improbable. The combination of the facts that it presented on the same site as the original carcinoma and that, when it presented, the mucosa was intact, takes this beyond the merely improbable to the realm of the extremely unlikely if not virtually impossible. The defendants on analysis seem to me to have no convincing answers to these points. When added to the fact that by common consent 2001 was statistically too early for a new radiogenic primary, that the chances of Mrs Manning developing a new radiogenic primary were exceedingly small, that only one in ten second primaries present as carcinomas and that all three pathology experts agreed that there were morphological similarities between the cells in the September 1995 and December 1996 biopsies and the 2001 acknowledged cancer, these factors were very powerful indeed. They are supported by the element of coincidence. Ms Mishcon suggested that the claimant's case was based on little more than the coincidence argument. For the reasons I have given this does not seem to me correct. It is, however, a free standing and independently powerful point in favour of the claimant. Both SQC and SPCC are very rare forms of cancer. Mrs Manning had SQC in 1993 and SPCC in 2001. In September 1995, at a time when Professor Langdon was convinced that her cancer had returned, the biopsy revealed cells which were morphologically similar to the very rare SPCC found in 2001. The same is the case in respect of the December 1996 biopsy with the added factor that Professor Sloan and in particular Dr Woolgar were particularly struck by the progression as between the pre-September 1995 biopsies and the September 1995 biopsy the December 1996 biopsy and the 2001 biopsies. Indeed it is that progression which, while of course wholly inadmissible in considering whether there was a breach of duty of care, at which point hindsight is inadmissible, played an important part in the strongly held opinions of Professor Sloan and Dr Woolgar that cancer was present in September 1995 and December 1996.

546. For present purposes it seems to me legitimate, without pre-judging the dispute between Professor Sloan and Dr Woolgar on the one hand and Professor Speight on the other as to whether the biopsy slides in September 1995 and December 1996 contained cancerous cells, to give weight to the consideration that it would be an extraordinary coincidence if there was in fact no cancer present but nonetheless they both contained features which were strikingly similar to the very rare form of oral carcinoma which in fact presented itself in 2001. Finally I place very great weight on the opinions of Dr Plowman and Mr Brown in both of whom I had as I have indicated very great confidence. Although ultimately it is for the court to make findings of fact, it is inevitable in so technical an area as this that where there are conflicting opinions and a mass of evidence pointing in opposite directions, the court is bound to be guided by the views and analysis of those of the expert witnesses whom it finds the most persuasive and reliable.

547. I have of course given the most careful consideration to the various arguments relied on by Ms Mishcon as pointing to the improbability of there having been a recurrence in 2001. In relation to some of them, as I have endeavoured to explain, I was not persuaded, having heard all the evidence, that they were improbable or as improbable as submitted by the Defendants. In relation to others there is in my judgment undoubtedly force in Ms Mishcon's arguments. However I was not persuaded that any of them was of such a character as to compel the conclusion that a recurrence in 2001 would be beyond the merely improbable and in the territory of the extremely unlikely if not virtually impossible. In that critical regard they differed in my judgment from at least two of the arguments against there having been a new radiogenic primary. In addition doing my best to weigh all the competing arguments and evidence as to the probabilities and improbabilities I am of the view that the balance of probabilities points clearly in favour of the contention advanced on behalf of Mr Manning.

548.

In these circumstances I have reached the clear conclusion that on the balance of probabilities the 2001 primary was not a new radiogenic primary but a recurrence or persistence of the original SQC.

549.

It is against that background that I turn to the vexed question of the disputed expert pathology evidence. I do so on the basis that although I retain an open mind on that dispute in my judgment it would require very strong evidence to justify a conclusion that there was not cancer present in September 1995 or December 1996. That is because such a conclusion would be inconsistent with the conclusion which I have reached that the evidence points strongly to the February 2001 carcinoma having been a recurrence. Were that inconsistency to be resolved in favour of a finding that there was no cancer present in September 1995 or December 1996 that would require a finding that the 2001 carcinoma was a new primary, something which, as I have indicated, was in my judgment highly unlikely if not impossible. Plainly if the pathology evidence justified such a finding it would be the duty of the court as best it could to resolve the conflict between two apparently inconsistent putative findings.”

The judge then turned to the question whether, as was the claimant’s case, that with the benefit of hindsight a proper interpretation of the biopsies taken in 1995 and 1996 supported the view that cancer was present or whether, as the defendants were saying, that was not a possible interpretation. The argument of Mr Seabrook and Miss Mishcon was that by having reached the position that the judge had reached in paragraph 548 and 549 the judge had put the cart before the horse. He had (so it is argued) decided that cancer was present and that, it was submitted, must have affected his mind in reaching a conclusion as to whether the proper interpretation of the biopsies showed signs of cancer.

This is, in my view, again not a fair criticism. A judge has to start somewhere. The judge’s process of reasoning seems to me to be this and quite logical. He started by considering whether, on the evidence of the experts other than the pathologists, it was a recurrence or a new primary. He took that in stages, reaching a conclusion that it would take something highly improbable to stop him concluding that the tumour was a recurrence. But he saw the force of Miss Mishcon’s points on dormancy and healing. Despite their force they did not change his mind. He then looked at the pathology evidence. So far as this evidence is concerned his approach was that it was not determinative (paragraph 547). What he meant by that becomes clear when he pulls everything together under his conclusion where he said this at paragraph 628:-

“628.

One of the many complications in this case has been the multiplicity of overlapping issues. I have sought to divide my analysis into two broad areas: the evidence on whether the 2001 primary was probably a recurrence or a new radiogenic primary and the question whether the factual and expert pathology evidence pointed to the presence of SPCC in the December 1996 biopsy. Although it is convenient and indeed essential for the purpose of clarity to analyse these two areas separately it is at some point necessary to draw the strands together. If the clinical and expert pathology evidence showed that there was no SPCC present in December 1996, the 2001 primary cannot have been a recurrence. If the 2001 carcinoma cannot have been a new radiogenic primary, there must have been SPCC present in December 1996. Absent certainty on either of these points, the evidence on both areas needs to be weighed together. In my judgment the factual and expert pathology evidence is far from showing that there was definitely no SPCC present in December 1996. In my view it shows on a balance of probabilities that SPCC was probably present in December 1996. Taken together with my finding that it was very unlikely that the 2001 primary was a new radiogenic primary in my view the factual and expert pathology evidence points on a clear balance of probabilities to the presence of SPCC in December 1996.”

Insofar as he had to decide whether the tumour in 2001 was a recurrence or a new primary, if he were to find on the pathologists’ evidence that a proper interpretation of the slides from 1995 and 1996 with hindsight showed signs of cancer, that would confirm his view that cancer was present; if it was impossible to say one way or the other then it would be neutral and not affect the view formed on the basis of the other evidence; if a proper interpretation was that one could say positively no cancer was present then that would have to alter the provisional view formed. The judge’s view was that, whatever else, the factual and pathology evidence was far from showing that no SPCC was present in December 1996 or (although he does not actually say this expressly) in 1995. That seems to me to be a wholly logical and permissible process of reasoning. I am quite unpersuaded by Mr Seabrook and Miss Mishcon that the judge can be said to have put the cart before the horse.

I turn next to the actual attack on the judge’s finding that the cancer in 2001 was a recurrence of the cancer in 1993. This attack is covered by Grounds 6 to 10, and Grounds 13 16, 17 and 18. All are, in essence and sometimes expressly, criticisms of the judge’s assessment of the expert witnesses, or seek to suggest that the evidence was insufficient to support the judge’s findings. Ground six provides a good example. It asserts that the judge’s preference for the claimant’s oncology and oral surgeon witnesses on the issue as to whether the cancer in 2001 was a recurrence or a new primary cancer failed to take certain factors into account including:-

“(i)

the opinions of the Claimant’s expert oncology witness, Professor Plowman, and oral surgeon witness, Mr Brown, to the effect that the 2001 cancer was a recurrence, were significantly dependent upon their assumptions that the Claimant’s pathology experts, Professor Sloan and Dr Woolgar, were correct in their opinions that spindle cell carcinoma was present in 1995 and 1996;

(ii)

it would be most unlikely that the biopsy wounds of 1995 and 1996 would have healed over if cancer was present;

(iii)

there had been no clinical symptoms or complaints or evidence of any discomfort in the Deceased’s tongue between 1996 and 2000.

(iv)

Recurrence usually occurs within two to three years after treatment of the original cancer (January/February 1994) and it was very unusual to occur over five years later.

(v)

Spindle cell carcinoma of the tongue is a very aggressive tumour and the timing of it strongly suggested that it could not have been present in 1995 or 1996.

(vi)

None of the experts had seen, discussed or seen published any case where a cancer had remained dormant and asymptomatic deep in the radiation scar tissue for five years, a theory upon which the Claimant’s case depended.

(vii)

It was accepted by the Claimant’s expert oral surgeon, Mr Brown, that it would be highly unlikely for a spindle cell carcinoma to occur twice in 1995 and 1996 and then to remain dormant until the end of 2000.”

I have set the above grounds out in full to exemplify the type of grounds relied on in attacking the finding of the judge as to recurrence or new primary. I would note to begin with that from what I have said so far it cannot be said that the judge did not take the above points into account at all and that is going to be true of all the grounds relied on for attacking this finding. Nor, insofar as attacks are made on the judge’s assessment of the experts, can it be said that he did not take any account of the points made for preferring one witness to the other. Nor can it be said that there was no evidence to support findings because the judge’s findings were in all cases based on the opinion of an expert and his preference for the view of that expert, having reviewed carefully the views of others to see where they leant support and where they very much disagreed.

For example, on ground 6(i) he clearly took into account that Dr Plowman and Mr Brown had based their views on Professor Sloan’s and Dr Woolgar’s views – see paragraphs 391 and following and 458; ground 6(ii) the fact that the wounds healed over was fully considered by the judge as appears from what I have already said. Ground 6(iii), (vi) and ground 7 refer to the dormancy issue, which again, as appears from what I have already said, was something that was fully considered. Ground 6(iv) seems to misunderstand the claimant’s case, in that their case was that there was a recurrence in 1995 and 1996, but in any event the judge fully considered the timing issues. Ground 6(vii), the judge appreciated that SPCC is a more aggressive tumour (see paragraph 532). If I went through each of the other grounds relating to this issue, the same picture would appear. For example, it is said that the judge “failed properly to analyse the discrepancies and inconsistencies . . . between the evidence of Professor Sloan and Dr Woolgar . . .” (Ground 13) and “the judge’s preference for the evidence of Professor Sloan and Dr Woolgar to that of Professor Speight was logically unreasonable . . .”(Ground 16). The criticism is not that the judge did not deal with the points, it is that he reached a conclusion which the defendants say is wrong or unreasonable.

What in truth the defendants are seeking from the Court of Appeal is a total re-evaluation of the evidence. It is very rare that the Court of Appeal will be persuaded to conduct such an exercise and it certainly will not do so unless an appellant can demonstrate, at least in some particular somewhere, where the judge has gone plainly wrong or where he has misdirected himself. On this appeal Mr Seabrook had to concede that in relation to any point taken on its own, he would not be able to persuade a Court of Appeal to reverse that fact. His submission was that cumulatively, and in the context of the judge’s interventions and delayed judgment, the finding of the judge on recurrence was unsafe and that thus we should review it.

I have already dealt with the attack on the judge for the questions he asked and with the delay in reaching his judgment. But, I repeat, in this case the judge exercised great care in seeking to understand the evidence and the cases being made. He took tremendous care with the judgment he delivered. I do not start from a position, as in some cases I might, with too many questions and delay, that something has gone wrong. I start from the position that the judge was trying very hard to understand a complex case and that his judgment demonstrates that he did understand the science and all the difficulties in each side’s case.

As regards his findings, if not one of them could be attacked if taken individually, I do not understand how cumulatively there comes a point at which an arguable case arises – as Laws LJ said during the hearing “nought added to nought still equals nought”.

We allowed Mr Seabrook to take us to large sections of the transcript by which he was hoping to persuade us that it was “unfathomable” how the judge came to prefer Professor Sloan to Professor Speight. This was his main line of attack, although if the appeal was to succeed, and as the grounds confirm, an attack also had to be made on the judge’s preference for Dr Plowman and Mr Brown as compared to Mr Watts-Smith and Dr Barley.

A particular point which Mr Seabrook made forcefully related to Professor Sloan’s theory, propounded for the first time at the trial, that the lesions in September 1995 and December 1996 were polypoid SPCC, which was inconsistent not only with Professor Speight’s evidence but was in tension with that of Dr Plowman. But this was something which the judge clearly took note of, as appears from what I have already said.

Of course Mr Grace was perhaps unsurprisingly able to refer us to passages in the evidence which would shine a different light on the question which expert was to be preferred, and would support the judge’s view that he preferred Professor Sloan to Professor Speight. But it is simply not the function of the Court of Appeal to conduct a re-trial comparing large sections of the evidence in the absence of being shown somewhere the judge can be said to have gone wrong in his approach. The points which are being sought to be raised before the Court of Appeal are precisely the points raised before the judge, and which he dealt with. Reading his judgment I can simply find no support for an argument that his rejection of the points made by the defence was irrational or unreasonable.

Grounds 15 and 19 relate to CK staining. In 1995 Dr Harrison did not carry out any immunocytokeratin (CK) staining of the biopsy. The judge found that he was negligent in not so doing, but he also concluded that a reasonably competent pathologist could not have excluded malignancy to the requisite degree of certainty by reason only of negative CK staining. That was because there was a significant “false negative rate” in CK staining, as to which Professor Sloan and Dr Woolgar gave evidence. Professor Speight for the defendants accepted there was a negative rate but would not have given it the significance that the experts for the claimant did. This aspect was dealt with at paragraphs 172 to 190 of the judge’s judgment.

In 1996 Dr Harrison did carry out such staining. His evidence was that in fact he did not rely on it in order to make his negative report, although Professor Speight clearly thought he must have done to some degree and thought that it would have provided support for a negative report. The judge dealt with this aspect and to provide an example of the way in which the judge dealt with matters comprehensively and clearly I will quote 234 to 237 of the judgment:-

“234.

In relation to the effect of immunostaining on the diagnosis, Professor Speight's evidence was similar to his evidence on the September 1995 biopsy. That is to say initially he said that with immunostaining "that brings it up to as certain as one can be, I suppose the 99% … it is the lingering doubt about the possibility that the black swan is still there which the immunocytochemistry helps allay that final doubt."

235.

This was consistent with the fact that when it was put to Professor Speight that contrary to Dr Harrison's evidence that he did not regard immuno as being necessary because he had excluded malignancy to his own satisfaction on the H and E slide, he could not have done so to more than 90%. Professor Speight's answer was: "I don't know what was in his mind but I know he did the immuno and I know it was negative. … I can't say to what degree of confidence he eliminated it before he did his immunocytochemistry, but he must have had a lingering need to reassure himself or otherwise he would not have done any immunocytochemistry."

236.

However as set out above, Professor Speight accepted in cross examination that immunostaining was subject to a 25% false negative rate and thus had no answer to Mr Grace QCs point that the immunostaining in 1996 could not totally allay the residual 10% lingering doubts left on the H and E slide. Professor Speight had earlier accepted that any reasonably competent pathologist seeking to exclude carcinoma could not safely do so unless he was sure beyond reasonable doubt that it was not there, that if you have a reasonable doubt after doing all your intellectual reiterative processes then a reasonably competent pathologist cannot say a biopsy is not malignant and that if a pathologist has a 10% residual doubt on a biopsy which he thinks is very likely to be innocent and he cannot rule out the lingering doubt he has to alert the surgeon to the existence of the lingering doubt. Although of course in September 1995 the position is much clearer in that Dr Harrison did not carry out immunostaining and thus could not reasonably have reached more than a 90% level of confidence that there was no malignancy, the logic in my view is the same in both cases.

237.

I have already expressed my view that even if Dr Harrison had performed immunostaining in September 1995 (as Professor McDonald/Dr Woolgar did) the well known phenomenon of false negative rates meant that even a negative staining of the suspicious cells would not have been sufficient to allay the 10% lingering doubt with which he should have been left after examining the H and E slide and thus would not have relieved a reasonably competent pathologist in the position of Dr Harrison of the duty to alert Professor Langdon to the lingering doubts as to the possibility of the presence of carcinoma. Even though in December 1996 Dr Harrison did in fact perform a degree of immunostaining which showed negative, for precisely the same reasons as would have applied if he had done immunostaining in September 1995, in my view the false negative phenomenon meant that a reasonably competent pathologist in his position could not have sufficiently allayed his lingering doubts and suspicions to the point where he was relieved of the duty to alert Professor Langdon to them. I would add, although my finding is not dependant on this, that in the immunostaining which was done for the purpose of the trial the so called archipelago stained positive. Whatever the correct interpretation of the archipelago is, in my view it is clear that it created a level of doubt which at the lowest would have required Dr Harrison to alert Professor Langdon to lingering doubts if he had performed such an additional immunostaining.”

CK staining also had relevance in considering what interpretation should be placed on the biopsies available from 1995 and 1996 with the benefit of hindsight. As will be seen from the above quote, some cells, known at the trial as “the archipelago”, in CK staining done for the purposes of the trial on the 1996 biopsy, did stain positive but that still left an issue as to whether the archipelago was a collection of what were termed “rete pegs”, i.e. were non- malignant or whether they were malignant epithelial cells. Professor Sloan was of the view that they were malignant cells; Professor Speight was of the view they were “rete pegs”; and under cross examination Dr Woolgar, who had originally supported Professor Sloan, was persuaded that they could be “rete pegs”. The judge took full account of Dr Woolgar’s change of position and explained fully why he still preferred the evidence of Professor Sloan (see paragraph 588). I can find nothing irrational in his reasoning.

Ms Mishcon also relied at the trial on the absence in the December 1996 biopsy of evidence of either epithelial dysplasia or foci of SQC and in particular sought to draw an inference from the absence of positive CK staining. The judge dealt with that point from paragraph 617 to 627, and after reviewing the evidence from all the experts concluded as follows at 626:-

“626.

Taken all in all in my view the CK staining point is one of the stronger arguments pointing against the presence of SPCC in December 1996 (and also in September 1995). Nobody however suggested that it was a knockout blow and in my view it is far from being that.”

The defendant’s pathology expert Professor Speight accepted that there was a false negative rate and thus accepted that CK staining could not be conclusive that there was no malignancy. In those circumstances it seems to me that the judge was clearly entitled to reach the view he did.

Ground 20 asserts that insofar as Dr Harrison failed to describe the existence of suspicious cells and/or to alert Professor Langdon to lingering doubts, the judge’s conclusion, that Professor Langdon would have performed a further biopsy, was “unreasonable and/or unsupported by the evidence”, and reference is made to paragraphs 197 and 198 of the judgment. Ground 24 also attacks the finding that Professor Langdon would have carried out a further biopsy in 1995 (as well as 1996).

The judge reviews the evidence on this aspect from paragraph 198 -212. What (as ground 24 points out) might have pointed to Professor Langdon not repeating the biopsy in 1995 was the fact that the biopsy was a deep one, seeking to remove any malignant cells if there were any, and the way in which the wound healed which would suggest no further malignancy. Thus he was not unequivocal in his evidence, at least initially. He was at one stage suggesting that it might make a difference as to whether the pathologist’s report had actually referred to there being cells suspicious for recurrent carcinoma or simply referred to suspicious cells.

But the very powerful point that his state of mind in 1995 was that his own clinical conviction at the time was that Mrs Manning was suffering from a recurrence ultimately led to this exchange, recorded by the judge in paragraph 210:-

“210.

In that passage Professor Langdon was confirming that the trigger for performing a further biopsy would be the raising by the pathologist of the possibility that the biopsy had not ruled out the presence of cancer. There was another passage, this time in the context of September 1995, which gives further support to the conclusion that Professor Langdon's decision whether to perform a further biopsy would not have been dictated by the semantics of whether the word carcinoma was actually used in the report.: "Q- …Dr Harrison never reported the suspicious cells to you, but what I am asking you about is what you would have done had you had the report of suspicious cells from Dr Harrison, or from whoever the pathologist was. Add to that your own clinical conviction that this was a recurrence, you would not have had any difficulty in getting an MRI scan would you? A- I still wouldn't have ordered an MRI scan, I would have repeated the biopsy…. Q- But you were sure that this was a recurrence as I understood it… you were sure in 1995 that there was a recurrence. If you had received pathological support for that in the form of a report of suspicious cells then surely you would have wanted to do one and you could exclude recurrence couldn't you? A- Indeed and that would have been a repeat and wider biopsy.”

It cannot be said that the judge’s finding of what would have occurred was either “unreasonable or unsupported by evidence”, as alleged in ground 20, or that the judge’s finding was “unreasonable, speculative and against the weight of the evidence”, as alleged in ground 24.

Since there is no attack on the finding of negligence in 1995 it follows that it is unnecessary to consider in any depth the points made in relation to 1996 because the causation links are established - breach of duty - a further biopsy would have been carried out - the cancer was present - and salvage surgery would have been carried out.

In relation to 1996 I will thus take matters shortly. As Mr Grace points out, in relation to 1996 ground 21 seems only to attack certain aspects of the finding of negligence and leave others in place. That might, however, be taking too narrow a view, since it appears from the appellants’ skeleton that their case is that Dr Harrison’s report in 1996 “reasonably drew Professor Langdon’s attention to material factors and that the evidence does not support breach of duty.”

The judge’s reasoning and conclusions in relation to 1996 run from paragraphs 213 to 238. They record common ground between the experts on both sides as to the existence of suspicious features. The judge quotes Dr Woolgar’s report as accepting that Dr Harrison’s report did convey a sense of uncertainty but it failed “to stress the small, superficial nature of the specimen and it does not recommend a further biopsy if there is on-going clinical concern or suspicion of recurrence.” He weighed up the evidence of Professor Sloan and Dr Woolgar on the one side and Professor Speight on the other. He expressed the view already quoted above in paragraph 237 on the relevance of CK staining, and reached his conclusion in paragraph 238 in the following terms:-

“238.

For these reasons in my view, the duty of care owed by Dr Harrison to Mrs Manning in December 1996 required him to alert Professor Langdon to the fact that it was not possible on the basis of the December 1996 biopsy to eliminate the possibility of the presence of carcinoma and that it was not possible completely to allay the suspicions created by the highly suspicious features which, unlike in the case of the September 1995 biopsy report, Dr Harrison did to some extent identify in the descriptive part of his December 1996 biopsy report. Doctor Harrison's failure to so alert Professor Langdon constituted a breach of his duty of care.”

It is relevant to point out that Professor Langdon’s evidence was that he did not interpret Dr Harrison’s report as intending to convey any suspicion. Indeed he understood it to be reassuring (see paragraph 244 of the judgment). In my view the judge’s conclusion, as recorded in paragraph 238, was well supported by the evidence and his analysis of it.

Ground 22 attacks the judge’s finding that, if Dr Harrison’s report had contained the correct warnings, Professor Langdon would have carried out a further biopsy. The 1996 biopsy was not a deep biopsy and thus, unlike the 1995 biopsy, was not one which Professor Langdon would view as having been intended to remove any malignant cells, but on the other hand Professor Langdon was not, in1996, suspicious that there was a recurrence.

The judge quoted passages from Professor Langdon’s evidence in paragraphs 245, and 247 to 249. In those passages Professor Langdon accepted [see 245] that, if he had received a warning in relation to 1995 and then a warning in relation to 1996 of suspicious cells, he would have done a further biopsy in 1996. He further also accepted that, if the report of Dr Harrison had recommended a further biopsy (which the judge held it should have done unless contraindicated see paragraph 342), he would have carried it out [see 248 and 249]. He also accepted that if all that he had been warned was that there are “cells highly suspicious for recurrent cell carcinoma”, he would have carried out a further biopsy [see paragraph 247].

The judge was thus fully entitled to take the view that if Dr Harrison had reported non-negligently in 1996, Professor Langdon would have taken a further biopsy and that cancer would have been revealed.

Accordingly I take the view that none of the grounds of appeal should succeed and that the appeal should be dismissed.

I agree.

I also agree.