KA & Anor v East Midlands Ambulance Service NHS Trust

LADY JUSTICE MACUR: This is a renewed application for permission to appeal against the order of Mitting J made on 27 November 2015 whereby he ordered that there be judgment for the second claimant for damages to be assessed. The second claimant was the child born of his mother, the first claimant, following antenatal emergency which was found to have caused the subsequent devastating injuries to the child which are lifelong.

The claim for negligence made against the defendant, the East Midlands Ambulance Service National Health Service Trust, alleged that the negligence consisted primarily of the delay in transporting the mother to hospital. The defence to that claim was, and remains if this application be permitted, that the delay occasioned in transportation of the mother to hospital was caused by the genuine and reasonable actions of the emergency medical technicians in determining that prior to removal fluids should be administered intravenously by a paramedic. The consequent delay, the judge found, was determinative of the nature of the injuries that befell the child which would otherwise have been avoided.

Mr Spencer QC appears on behalf of the applicant and makes clear that this application is pursued in the context of the deep sense of anxiety felt by the Trust that two conscientious and caring members of their personnel should be branded as negligent in the circumstances that existed at the time of the incident under the judge's review.

There are two aspects to this appeal: the first in relation to the admissibility of the expert report, un-redacted, and subsequent oral evidence of a Dr Peta Longstaff; and, second, the manner in which the trial judge is said to have failed to have acknowledged in his judgment the horns of the dilemma conceded by Dr Longstaff which consequently, seen in the light of Bolam , could not have led reasonably to a finding of negligence on their part.

The first aspect of the application is in fact permission to make a second appeal. This, by virtue of the chronology, was indicated by the judge in a separate judgment prior to the commencement of the case in November 2015 upon the appeal of the claimant against the decision of Master Cook that a redacted copy of Dr Longstaff's report should be served.

The chronology of the applications -- which are rightly defined as case management decisions -- appears in the judgment of the court below. I summarise them as follows: in June 2014, District Judge Phillips made directions including that which permitted each party to rely upon the evidence of an expert in the fields of paediatric neurology, emergency and ambulance medicine and paramedic science. The context of the questionnaires made clear that the claimant sought to rely upon two such experts in terms of emergency and ambulance medicine, and also, it must therefore necessarily follow, the limited extent of overlap, paramedic science, and that those two experts should file their reports in the normal course of proceedings. The defendant appealed that decision. The case came before Master Cook. There had been insufficient notice given to the claimant. Objection was taken. Mr Spencer QC conceded the lack of appropriate notice, but Master Cook went on to exercise his management decision in ordering a redaction of the report of Dr Longstaff, which dealt with matters that had been dealt with by Dr Kilner.

The claimant appealed that decision, and that decision was subject to the ruling of Mitting J, which was to this effect: that the evidence of Dr Longstaff should be admitted, that it should not be circumscribed or redacted, that it could be clarified during the course of her oral evidence, that it was admissible evidence, since it was relevant evidence, and that insofar as the application of the claimants was concerned, that they had made good their appeal that Master Cook's decision had been erroneous, given the preceding decision of District Judge Phillips, which all accepted, as did the judge, may well have resulted in a late application by the defendants on the basis of a misunderstanding rather than an opportunistic stance.

Whatever the basis of the timetable of the appeal before Master Cook, the judgment of Mitting J in relating the chronology set about dealing with the fact of potential ambush by circumstances to the claimants in not being able to proceed with the full and un-redacted report of Dr Longstaff, or to call her on those matters. The application made on behalf of the Trust today in relation to his decision on appeal is therefore an application for permission to make a second appeal. CPR 52.13(2) applies. The Court of Appeal will not give permission unless it considers that either (a) the appeal would raise an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it. It is now well accepted jurisprudence that that which constitutes an important point of principle or practice means one that has not yet been established by the Court of Appeal.

Mr Spencer concedes that the issue that he would wish to put before the full court -- that is one of equality of arms which he contends was not dealt with by the court below -- has already been dealt with by the Court of Appeal. I have nevertheless considered whether or not his submission that the judge at first instance failed to deal with this aspect of the arguments made against Dr Longstaff's report being admitted in full by the defendants has merit in order to consider the second limb of the rule, and have concluded that it does not.

In my judgment, Mitting J adequately deals with the equality of arms point by reference to the factual circumstances leading to the application made by the claimants to rely upon both experts at the time of the initial case management hearing before the district judge, dealt with the prejudice that they had in dealing with the matter before Master Cook, and came to a conclusion that was well within his case management jurisdiction on appeal. There is no merit in the proposed grounds of appeal, it being a second appeal, in relation to the admissibility of that evidence.

As to the other aspect of the appeal, Mr Spencer in short contends that there was evidence before the first instance judge that the technicians faced a difficult decision and were on the "horns of a dilemma". The dilemma for the emergency technicians was whether or not they delayed the transportation of the mother to hospital versus the possibility of cardiac arrest befalling the mother if moved before a fluid challenge by way of intravenous cannulation took place. Only, Mr Spencer argues, if the judge had been able to say that the risk was in one was significantly greater than the other would it then be possible to say that the technicians had been negligent if they failed to take the appropriate course. In that he contends that Dr Longstaff had conceded that the technicians did have a dilemma he argues that it is not possible to say that whatever judgment call they made, even if it transpired, as in this case, to be wrong, that they could be categorised as negligent.

The judge in his judgment deals with the dilemma faced by the technicians and acknowledges that neither possible course of action would entirely avoid the risk of cardiac arrest. In the course of his judgment, it is clear that he considered that the emergency medical technicians acted throughout with conscientious concern for the welfare of the mother and, at that time, unborn child - they called for paramedic assistance - and were in a situation which the judge described as rarely encountered outside hospital.

The judge is clear, however, in his judgment at paragraphs 29 through to 38 that despite the infrequency with which ambulance technicians and paramedics are likely to encounter the condition, that they are all taught about it and that it is the subject of authoritative guidance by relevant professional bodies. The judgment within those paragraphs in fact recalls the relevant parts of the guidance, and in doing so compares and contrasts subsequently the actions of the two medical technicians and subsequently the paramedic. The judge described their state of mind as being described by them truthfully, as was their reasoning described accurately, and that they were attempting to do their best for their patient and her unborn child. He went on to say that, having made that finding, he then needed to consider the expert evidence of the witnesses in relation to the evaluation of that risk.

Mr Spencer places great reliance upon that part of his judgment, criticising the answers of the defendant's expert in the joint expert meeting, that he was puzzled as to the oral explanation given, that that expert could not quantify the precise extent of risk. Mr Spencer then goes on to interpret the following sentence to read that the judge thereby acknowledged that no-one could quantify that risk. That sentence is:

"I am puzzled that he [the defendant's expert] could have thought that he was being asked to do so, or that anyone could do so."

I interpret that sentence, in the context in which it clearly falls, to mean that he, the judge, was puzzled that the expert, or anybody else, could have thought that the expert was being asked to quantify the precise extent of the risk.

In going on to deal with the other expert evidence on this point, he records the evidence of Dr Kilner, which was to the effect that immediate transfer to ambulance and hospital was the only reasonable course open, and that of Dr Longstaff, who was described as "by far the best qualified expert to give evidence on these issues". Having recorded qualifications and expertise, he went on to say:

"She acknowledged the dilemma in which Miss Snell and Mr Oliver believed themselves to be placed, and like me is satisfied that they were trying to do their best for their patient. However, she is adamant that the only reasonable response open to them was to transfer the mother immediately to ambulance and hospital."

Mr Spencer has referred to his solicitors' notes of the evidence on this point. That part of the judgment appears to me to accord exactly with the evidence, and there is no merit, with respect, to Mr Spencer's argument that the judge was thereby failing to grapple either with the evidence or the test to be applied in relation to the emergency technician's decisions and actions as set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587, namely, did they act in accordance with the practice accepted as proper by a responsible body of emergency medical technicians skilled in their profession? On their evidence, which he considered, the judge's only answer which he thought could properly be given was that they did not, and this despite the fact that they acted in what they believed to be the interests of their patients, since by the objective standards of the law, their decision making and actions must be held to be negligent because as a result injury was caused to C.

I do not consider that Mr Spencer's arguments as to the deficiencies in the judgment are made out in any regard, or by reference to the term "horns of a dilemma," accepted by Dr Longstaff in accordance with the note of evidence made by Mr Spencer's solicitor, when seen in context of the whole of her evidence. In reality, the submissions of Mr Spencer, if accepted on this point, would amount to little short of suggesting that wherever there were two courses of action, and providing that the emergency technicians were exercising some judgment rather than acting against guidance and otherwise than like robots, that there would never be a case where negligence could be established.

In this case, the judge made clear that the established authority of the majority and reasonable body of medical opinion was made good and underlined by the evidence of Dr Longstaff. He was entitled, therefore, to reach the decision that, well meaning though the technicians were, they were negligent. He had no need to deal with each and every submission made on behalf of the Trust, having indicated the basis of his decision, against which he had heard all criticisms and all commentary as appropriate during the course of closing submissions.

In these circumstances, this being an application for permission to make a first appeal, I ask myself whether or not the judgment of the court below was wrong. I cannot see that there is any prospect of successfully challenging the decision and therefore conclude that the answer is no, and find no other compelling reason to give permission to appeal, the angst caused to these conscientious technicians being regrettable, but not being a sufficient basis upon which to take this case forward. In so doing, I confirm the decision of Tomlinson LJ, the single judge who dealt with the case upon the papers.

It is unnecessary to address many of the points raised by Mr Spencer in the statement filed correctly in pursuant to CPR 52.13(1), since many in fact erroneously avoid the point raised, first by the issue of a second appeal, and next by the findings made by the judge upon the basis of his assessment of the expert evidence.

The applications are therefore dismissed, with all due thanks to Mr Spencer for his focussed submissions.