This is an appeal from the judgment of HHJ Blair KC sitting as a Deputy High Court Judge (“the Judge”) in which he dismissed the claim of Mr Malik for personal injury following elective surgery performed by Mr Minhas, a consultant neurosurgeon at the respondent’s hospital, on 13 August 2015 which resulted in spinal cord injury. Mr Malik died on 14 July 2021 from causes secondary to his spinal condition. The appeal is pursued by his children as administrators of his estate.

Permission to appeal was granted by Stuart-Smith LJ on 5 August 2022. In granting permission, Stuart-Smith LJ permitted the respondent to submit that the point now being taken by the appellants based upon the failure of Mr Minhas to obtain from Mr Malik the duration of the intercostal pain is not open to the appellants because it was neither pleaded nor put to Mr Minhas in cross examination.

Mr Malik, aged 48 at the date of trial, had a history of spinal problems commencing in 2012 which caused pain, leg weakness and altered sensation. During the subsequent two years, his symptoms deteriorated causing falls, increased leg weakness and pain in the left leg.

On 14 July 2014 Mr Malik attended the respondent’s accident and emergency (“A & E”) department, MRI scans were obtained which disclosed that his spinal cord was severely compressed at the interface of the 10^th and 11^th thoracic vertebrae (“T10/T11”) and there was cauda equina compression around the 3^rd and 4^th lumbar vertebrae (“L3/L4”). Mr Minhas performed emergency spinal surgery namely a laminectomy and discectomy to decompress the spinal cord at T10/T11. There is no criticism of the execution of this surgery, the spinal cord was successfully decompressed at T10/T11 but Mr Malik had suffered neurological damage and subsequently experienced numbness and weakness of his left leg. The medical records for 2014/2015 show that Mr Malik attended his GP practice and the respondent’s A & E department.

On 27 April 2015 Mr Malik attended Mr Minhas’ outpatients’ clinic, further MRI scans were ordered to ascertain whether Mr Malik required further surgery. The MRI scan performed on 9 May 2015 reported a number of findings which included the following:

Mr Minhas stated that when he saw Mr Malik at his outpatient clinic on 13 July 2015 for a review appointment, Mr Malik was experiencing terrible pain from the left side of his back with left side intercostalgia in addition to the ongoing left sided sciatic pain down the length of his leg and into his foot. It was the opinion of Mr Minhas that there were elements of Mr Malik’s pain emanating from the spinal cord as well as from the left T10 nerve root and L3/L4 spinal canal stenosis. This was dual pathology, neuropathic pain from the spinal cord together with possible neuropathic or radiculopathic pain from the nerve root compression. Mr Minhas stated that the intercostal pain was particularly severe and concerning. In his witness statement Mr Minhas recorded that: “Mr Malik was desperate to have the surgery as soon as possible as I recall the intercostal pain was severe and causing him particular difficulty.” Mr Malik denied complaining of left sided pain in his ribs or abdomen.

Following the consultation, and in a letter to Mr Malik’s general practitioner dated 21 July 2015, Mr Minhas recorded his review of Mr Malik’s symptoms and his proposal of surgery as follows:

The surgery which Mr Minhas advised was to be undertaken at two sites namely: (i) a revision thoracic decompression of the exiting nerve root on the left side at T10/T11; (ii) a lumbar decompression at L3/L4.

On the day of the consultation Mr Minhas completed some paperwork in order to include Mr Malik on his waiting list for an urgent operation.

The proposed surgery took place on 13 August 2015. No criticism is made of the quality of the surgery performed by Mr Minhas but regrettably the outcome for Mr Malik was to render him significantly worse off. His previous symptoms were not improved, he suffered a paraparesis and would be wheelchair dependent for the remainder of his life.

At [16] of his judgment the Judge set out the allegations of breach of duty as particularised in the Particulars of Claim namely:

At [17] the Judge recorded that:

At [18] the Judge noted the development of the case at trial and identified the ‘principal matters’ for determination as follows:

The Judge observed that the case turned principally on the resolution of questions of fact. He stated at [8]:

As the Judge recognised, the evidence of Mr Malik and Mr Minhas fundamentally conflicted in many respects. Each had provided a witness statement and given oral evidence. The material differences included whether or not Mr Malik’s condition was deteriorating in the first quarter of 2015, what Mr Malik was told of any risks of the proposed surgery and what information he was given as part of the consenting process to the procedure by Mr Minhas’ assistant surgeon (who was not called as a witness) prior to the completion of the written consent form on 13 August 2015. The consent form records the proposed procedures as being that of a revision thoracic laminectomy (……intercostalgia) plus lumbar laminectomy (……… L3/4). The intended benefits were to “Improve intercostalgia symptoms” and to “Improve leg symptoms…”. The serious or frequently occurring risks included bleeding, infection, CSF leak, spinal cord/nerve damage, leg weakness, sensory disturbance, bladder/bowel/sexual dysfunction, GA risk.

As to the disputed area of a complaint by Mr Malik of left sided pain in his ribs or abdomen at the outpatient appointment on 13 July 2015 Mr Minhas stated that: “… Had he not had that pain, there would be no need to particularly go into the previously operated area at T10/11.” The description given was consistent with intercostalgia starting at the back of the chest and ribs and extending over to the abdominal surface. The symptoms married up with what was shown on the MRI scan of nerve root compression. Mr Minhas accepted that Mr Malik had not been complaining of this pain when he saw him on 27 April 2015.

At [57] the Judge records the evidence of Mr Minhas that “… even though the intercostalgia was a recent symptom, the severity of it was such that the patient was desperate to have something done about it and couldn’t manage as he was.” When challenged on the issue of giving Mr Malik only one option Mr Minhas replied:

At [74] the Judge identified the claimant’s case as being that Mr Malik did not give his informed consent for revision surgery. The Judge stated that: “It is argued that his adverse outcome is the result of not being informed of alternative treatments which he could, and would, have chosen in preference to surgery if he had been told properly of the risks of this surgery and the scale of its potential benefits. Thus, it is argued, his injuries from unsuccessful surgery have been legally caused by the defendant’s negligence.”

For reasons set out at [84] the Judge stated that he did not have confidence in the reliability and accuracy of Mr Malik as a witness. At [85] he found Mr Minhas to be “an impressive, cogent and convincing witness when describing the conditions Mr Malik was voicing in July 2015.”

The Judge’s findings are set out at [86] – [95]:

There was no issue between the parties at trial nor before this court as to the relevant law. Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587 identified the test for the assessment of negligence in the clinical practice of diagnosis and treatment as follows:

In Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] AC 1430 the Supreme Court recognised the autonomy of the patient in respect of decision making. At para 81 Lord Kerr and Lord Reed observed that social and legal developments point away from a model of the relationship between the doctor and the patient based on medical paternalism. The developments point towards an approach to the law which treats patients, so far as possible, as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. At paras 82, 83 and 87 it was stated:

As to causation, the appellants rely upon the authority of Chester v Afshar [2005] 1 AC 134 which represents a narrow modification to the conventional “but for” test of causation in respect of cases where there has been a breach of duty by a clinician in advising of the risks of a proposed course of treatment. Chester identified the issue of causation as being addressed by reference to the scope of the doctor’s duty to advise the patient of the disadvantages or dangers of the treatment proposed, as such a duty was closely connected with the need for the patient’s consent and was central to the patient’s right to exercise an informed choice as to whether and if so when and from whom to receive treatment. On the facts of Chester the injury sustained by the patient was “intimately involved” with the duty to warn. Lord Hope at para 87 held that: “the duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent.” That being so, Lord Hope held that that: “it can be regarded as having been caused, in the legal sense, by the breach of that duty.”

It is the appellants’ contention that the Judge was wrong in law:

Mr Stockwell on behalf of the appellants, accepted that grounds 2 and 3 were parasitic upon ground 1 and therefore if ground 1 fails so too will grounds 2 and 3.

It is accepted on behalf of the appellants that the Judge’s rejection of Mr Malik’s evidence in favour of that of Mr Minhas is beyond challenge. It is also accepted that the Judge was entitled to find at [88] – [89] that Mr Minhas had reasonably concluded that a significant proportion of the intercostalgic pain was radicular in origin, hence potentially amenable to decompression surgery. It is undisputed that Mr Minhas did not ask how long intercostalgic pain had been present and that he did not know.

In essence the appellants make the following criticisms of the judgment, in that the Judge did not:

It is the appellants’ case that the recommendation for surgery by Mr Minhas, in the absence of enquiry as to the duration of the intercostalgic symptoms, represented a clear Bolam breach and an enquiry that was relevant but omitted as part of a Montgomery compliant consenting process as Mr Minhas had not given full and informed advice as a result of which Mr Malik was not in a position to provide properly informed consent. Further, the duration of the symptoms was relevant to the issue of alternative treatments.

The appellants rely on the authority of Wisniewski v Central Manchester Health Authority [1998] PIQR, a clinical negligence case, in which the Court of Appeal stated that in certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. Brooke LJ, at page 340, stated that the following principles can be derived namely:

The appellants criticise the Judge for failing to address this authority and for failing to draw an adverse inference in respect of the evidence of Mr Minhas and his failure to ask a question as to duration of pain.

The appellants contend that the court is compelled to hold the respondent liable absent any finding as to the duration of the intercostalgic pain or a finding that terrible intercostalgic pain was still present on 13 August 2015 because a patient who receives negligent advice and whose consent is then procured for surgery based on that negligent advice is not less deserving of protection in law than the claimants in Chester or Montgomery.

The appellants’ case is that alternative treatment options were available e.g. to wait and see if the pain persisted, steroid injections, pain management services, undertaking the L3/L4 decompression which, given the evidence of the pain experts must be regarded as reasonable alternative or variant treatments within the compass envisaged in Montgomery. Mr Minhas should have told Mr Malik that the pain might resolve spontaneously and, if not, that other conservative options might bring improvements in themselves.

Alternatively the Judge at [92] – [93] erroneously imported the Bolam test into what should have been a strict Montgomery analysis. The respondent’s experts had agreed that alternatives to surgery should have been discussed with Mr Malik even if they differed in their view as to the prospects of success.

The appellants submit that if the court finds that it cannot determine what Mr Malik would have done if properly informed of the risks of the procedure, the court should place Mr Malik in the same category as Mrs Chester in Chester v Afshar following which the breach will be established even though the patient was unable to say what s/he would or would not have done had the correct advice been given.

A Respondent’s Notice addresses the appellants’ primary point that the Judge erred in not addressing the allegation that there was a negligent failure by Mr Minhas to ask Mr Malik about the duration of his intercostal pain on 13 July 2015. The respondent contends that this allegation was not set out in the Particulars of Claim or in the Reply, further it was not put to Mr Minhas in cross examination. It was not suggested to him that without knowledge of the duration of the pain, a surgeon could not reasonably have proceeded with surgery. The point put to Mr Ivanov (the appellants’ neurosurgical expert), was that it would be reasonable for a neurosurgeon to ask about the duration of the symptoms, the issue was not taken further in cross examination. It was not suggested to him that without knowledge of the duration of the pain, a surgeon could not reasonably have proceeded with surgery. The only point finally put to the neurosurgical experts was that it would be reasonable for a neurosurgeon to ask about the duration of the symptoms. At trial the Judge appeared to rule that this allegation was not properly before him and thus did not deal with it in his judgment.

The respondent contends that for a case to be advanced on appeal which is not put to a surgeon in a claim for professional negligence is unfair because:

The omission is also unfair to the Judge who is now criticised for failing to make a finding on an issue which was not before him.

Further, the Judge’s finding that the pain could not have been going on for more than a couple of months represented the agreed evidence of the experts save that Mr Ivanov (the respondent’s neurosurgical expert) was of the view that it might have started as early as March 2015. The Judge did not expressly conclude that the intercostal pain had not resolved by 13 August 2015 but it can be inferred that it was his conclusion as it was the only conclusion open to him on the evidence. The respondent contends that the Judge’s finding as to duration was one he was entitled to make upon the evidence.

As to duration of pain, it is the respondent’s case that the Judge’s finding of fact meant that Mr Malik was aware that the reason for surgery was the severe intercostal pain, he was aware that the re-operation at the thoracic level was to ameliorate the intercostal pain. The consent form referred explicitly to intercostal pain. It referred to pain at two levels such that Mr Malik must have been aware that one of the surgical sites was to ameliorate the intercostal pain. Had that pain resolved between 13 July and 13 August 2015 it is inconceivable that Mr Malik would not have reported that fact following which the surgery would not have taken place. At a GP appointment on 28 July 2015 it was noted that Mr Malik’s analgesia had doubled, the implication being that the pain had worsened.

The issue of alternative treatment was addressed by the Judge [90] – [93]. It reflected the evidence of the neurosurgical experts. As to the criticism of the Judge that he failed to address the evidence of the pain experts, the respondent contends that this was a neurosurgical case.

In any event, the appellants’ claim must fail on causation as there is no good evidential basis for the assertion that, having regard to the unchallenged conclusions of the Judge on causation, with different advice based on the duration of the intercostal pain, the claimant would not have undergone surgery on 13 August 2015.

The appellants’ primary focus in this appeal has been the failure by the Judge to address the issue of the failure by Mr Minhas to ask Mr Malik on 13 July 2015 how long he had been suffering with intercostalgic pain.

The difficulty for the appellants is that the failure of Mr Minhas to ask this question was not a pleaded Particular of Negligence. It was not an issue raised with the neurosurgical experts prior to trial, as a result neither addressed the absence of the question, nor any consequence of the omission, in their reports nor in their joint statement. It was an allegation that was not put to Mr Minhas in cross examination, as a result he was given no opportunity to address the issue which the appellants now elevate to the core of this appeal.

The importance of pleading the specifics of a case was identified by Rimer LJ in Lombard North Central PLC v Automobile World (UK) Ltd [2010] EWCA Civ 20 at para 75 as follows:

The importance of pleadings carries particular weight in clinical negligence claims which can be complex and are dependent on expert evidence. The pleaded allegations of negligence will form the basis of the instructions to the relevant expert, who will then prepare a report. This will be followed by a meeting(s) of experts, the agenda for which will reflect the pleaded particulars.

The appellants’ advisers would have seen from an early stage of proceedings the letter which Mr Minhas wrote following the consultation on 13 July 2015 (para 7 above). Within the letter, Mr Minhas provided no information as to the duration nor as to the onset of the intercostalgia. Further, in his witness statement, Mr Minhas does not state that he had knowledge of the duration or onset of the pain. Upon the basis of these documents, it would appear that Mr Minhas did not have such knowledge. It follows that if Mr Malik, and his legal advisers, intended to rely upon an allegation that there was a negligent failure by Mr Minhas to ask Mr Malik about the duration of the intercostal pain, it was necessary to plead that allegation in the Particulars of Claim and this was not done.

At trial, it was during the cross examination of Mr Minhas that the following exchange took place:

Given the acceptance by Mr Minhas that he had not asked the question as to the duration, if there was to be a challenge that the question should have been asked on 13 July 2015, this was the time to attempt take it. Further, if there was to be alleged a negligent failure to ask about the duration of the intercostal pain, and to do so in the terms now relied upon for the purposes of this appeal, fairness required that an attempt to put this allegation to Mr Minhas should have been made so as to give him the opportunity (absent any objection that the allegation was not pleaded) to respond and explain why he had not asked the question. This was not done.

The first time the duration of the intercostal pain was raised with an expert was during the lengthy re-examination of Mr Todd, the claimant’s neurosurgical expert. He stated:

As to the offer of surgery in respect of the pain, during the same re-examination Mr Todd was asked:

When this second question was asked an objection was raised on behalf of the respondent namely that both questions raised allegations that were not pleaded, and in any event, if they were going to be raised with the witness, they should have been raised by way of examination in chief rather than by way of re-examination. In response the Judge ruled as follows:

The duration of the intercostal pain was subsequently raised during the cross examination of Mr Ivanov, the respondent’s neurosurgical expert. He was asked: “...when Mr Minhas gave evidence yesterday, he agreed that he had never asked the claimant about when the symptom of intercostalgia had come on...Do you consider that to be acceptable?” An objection was raised on behalf of the respondent that that was an allegation that was not pleaded. The Judge responded: “I think...it has to be relevant to the option of taking no action, and not going on to Mr Barnes’s concern that there should have been some further review appointment. But one of the options that we are having to consider is that whether the doctor says: well, live with it. See how we go. So I will allow you to ask the question.”

Later in his evidence Mr Ivanov stated that in his opinion Mr Malik had symptoms of intercostalgia prior to the consultation on 13 July 2015. He believed that Mr Malik’s attendance at A & E in March 2015 was consistent with the pain as a result of compression of the intercostal nerve. Mr Ivanov agreed that, intercostalgia being first reported as a new symptom on 13 July 2015, a reasonable neurosurgeon, before deciding whether to offer surgery for that symptom would want to know for how long it had been present. He stated that it would be right to ask about the duration of these symptoms, it being important to understand the source of the pain. Mr Ivanov continued:

Mr Ivanov was asked, if the pain had developed since 27 April 2015, whether he would agree with the evidence of Mr Todd that “it may have been present for a couple of months …. some weeks.” He confirmed that he would. As to the resolution of the pain Mr Ivanov stated: “...symptoms may get better or spontaneously. But, in my opinion, with the calcified disc and
severe compression, this chance would be much smaller than another situation
when you have a soft disc...I would not give a specific number to this...”.

The Judge made two rulings in respect of questions as to the duration of the intercostalgic pain. As to the first: was it reasonable to offer surgery in the absence of a question as to the duration of the pain? The Judge knew that the Particulars of Claim did not allege a negligent failure by Mr Minhas to ask the claimant about the duration of his intercostal pain. At [16] of the judgment he sets out the Particulars of Negligence. It follows, and I find, that the Judge was correct to rule that the allegation that there was a negligent failure to ask Mr Malik about the duration of his intercostal pain was a departure from the pleaded case and thus was not properly before the court. Not only was the allegation not pleaded in the Particulars of Claim, it had not been put to Mr Minhas in cross examination which basic fairness required. In the circumstances, I do not accept that the Judge can fairly be criticised for not addressing this allegation in his judgment in the context of the reasonableness of the advice as to surgery. The Judge did allow the question as being relevant to the issue of alternative treatment.

The Judge addressed the issue of whether it was reasonable for Mr Minhas to offer surgery which required the Judge to make findings as to the duration of the pain. The Judge’s finding at [87] that the intercostalgic pain lasted no longer than a couple of months is not challenged by the appellants. The appellants submit that a “long stop” of two months does not mean that the pain was present for longer than one day, a week or a month. As to that, it was the evidence of the neurosurgical experts that a complaint of intercostal pain on 13 July was unlikely to represent pain which had begun on that day. The clear sense of their evidence was that the pain preceded the consultation on 13 July. Mr Todd stated that the pain may have been present for a couple of months, Mr Ivanov agreed. This was the evidence of the neurosurgical experts which was accepted by the Judge.

As to the appellants’ contention, that the Judge did not make a finding that the pain had not resolved on 13 August 2015, that is correct but, in my view, it was the only reasonable inference to be drawn from the evidence. Mr Malik had been told that the purpose of one part of the surgery in August 2015 was to alleviate his intercostal pain. He was “desperate” to have the surgery because of the severity of the intercostal pain. If that severe pain had resolved, it would be reasonable to expect and thereafter infer that Mr Malik would have mentioned this to the consenting surgeon on 13 August 2015. Moreover, the absence of resolution of the pain is consistent with the evidence of the neurosurgical experts, namely that the presence of the calcified compression on the nerve root militated against spontaneous resolution. I am satisfied that the finding as to the duration of pain by the Judge reflected the evidence of fact contained in the unchallenged evidence of Mr Minhas and the opinion of the neurosurgical experts.

The appellants do not challenge the Judge’s acceptance of the evidence of Mr Minhas. At [87] the Judge found that Mr Malik had been suffering from “terrible pain” that was “clearly acute and demanded some speedy intervention for its relief”. The acute nature of the intercostalgic pain and its effect upon Mr Malik was evidence given by Mr Minhas.

In his letter to the GP following the 13 July 2015 consultation (para 7 above) Mr Minhas stated in respect of surgery: “Mr Malik is desperate to have this done as soon as possible and I will aim to admit him within the next three weeks…”. In his witness statement (para 6 above) Mr Minhas stated that: “Mr Malik was desperate to have the surgery as soon as possible as I recall the intercostal pain was severe and causing him particular difficulty”. This evidence provided the basis for the Judge’s finding that the pain was “clearly acute” and demanded some speedy intervention for its relief.

It is of note that both neurosurgical experts took account of the severe nature of the pain in arriving at a view as to the reasonableness of the surgery. Mr Todd observed that if the pain is severe “the pressure is on surgeon to do something”. He stated that “severe disabling pain is a pressure not to watch and wait, but to do something.” Mr Todd thought that the probability of the pain improving was of lowish order, difficult to say but about thirty per cent. It was the evidence of the neurosurgeons which provided the basis for the Judge’s finding at [89] that a responsible body of competent and reasonable neurosurgeons would have offered Mr Malik revision surgery at the T10/T11 level of his thoracic vertebrae in July 2015.

In making the findings of fact as to the duration of pain the Judge did not refer to the authority of Wisniewski upon which Mr Malik’s counsel relied at trial in support of his contention that an adverse inference should be drawn as to the duration of the pain. Applying the principles set out by Brooke LJ (para 29 above), relevant to the third principle is the fact that there must be some evidence on the relevant issue before the court is entitled to draw such an inference. The evidence before the Judge was indicative of the fact that the pain had not risen acutely on 13 July 2015 and the fact that Mr Malik consented to the surgery on 13 August 2015 was evidence that the pain had not resolved by that time. In the circumstances the Judge cannot be criticised for any failure to draw a Wisniewski inference and find that the pain was of less than six weeks duration.

For the reasons given, and subject to the views of Lady Justice King and Lord Justice Coulson, I would dismiss this ground of appeal. Notwithstanding the appellants’ acceptance that grounds 2 and 3 are parasitic upon ground 1, I will address them.

The Judge dealt with the issue of alternative treatment at [90] – [93]. Having made a finding as to the duration of the pain, I am satisfied that the Judge’s findings reflected the evidence of the neurosurgical experts in respect of alternative treatment (paras 50 - 55 above). Asked about the alternatives to surgery, Mr Ivanov expressed the view that in his opinion as a spinal surgeon, the options had been exhausted. The dose of the analgesia had reached its maximum, other analgesics had been offered and declined by Mr Malik. Despite the pain killers Mr Malik was still experiencing pain. The point being made by Mr Ivanov was that analgesia can mask these symptoms as a result of which a patient will feel slightly better but it will not represent a return to a pain free scenario which would be expected in 70% of cases with surgery. The purpose of the decompression surgery is to relieve/remove the pain.

Further, it was the evidence of the neurosurgeons, rather than that of the pain experts, which was central to the issue of whether it was reasonable for Mr Minhas to offer Mr Malik surgical treatment as opposed to alternative treatments. It was for the neurosurgeons to assess the nature and degree of the intercostal pain and what surgery conducted by a neurosurgeon could offer in terms of resolution. The Judge did refer to the evidence of the pain experts but in my view correctly focused on the evidence of the neurosurgeons in respect of this aspect of the case as theirs was the appropriate knowledge and experience.

I do not accept the appellants’ contention that the Judge’s approach to the issue of alternative treatment represented a ‘gloss’ upon the authority of Montgomery.

I accept the contention of the respondent that Montgomery draws a distinction between two aspects of a clinician’s role, namely an assessment of treatment options (Bolam) and an assessment of what risks and treatment should be explained to the patient because they are material (Montgomery). The distinction between the two roles of the clinician is contained within the judgment of Montgomery at para 87 where it is stated that: “the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” I accept that “reasonable” in respect of the assessment of alternative or variant treatments encapsulates the Bolam approach. As to material risks, that is the element of materiality which is to be judged from the perspective of the patient i.e. Montgomery. In my judgment it is for the doctor to assess what the reasonable alternatives are; it is for the court to judge the materiality of the risk inherent in any proposed treatment, applying the test of whether a reasonable person in the patient’s position would be likely to attach significance to the risk. Thus the Judge at [93] was correct to apply Bolam and to conclude that his assessment reflected the guidance set out in para 87 of Montgomery.

There is no challenge to the finding of fact that the Judge made, namely that Mr Malik “wanted to have this surgery in order to relieve him of his terrible pain and he wanted it quickly”. Further, Mr Malik did not give evidence that he would have had elected to defer or reject surgery if told something different about the prospects of success due to the duration of the pain. The Judge expressly rejected the claimant’s case that if other options were explained to Mr Malik he would have declined the offer of surgery or sought a second option or would have deferred surgery. There is no evidential basis supportive of the appellants’ arguments upon the issue of causation.

For the reasons given and subject to the views of Lady Justice King and Lord Justice Coulson, I would dismiss this appeal.

I agree.

I also agree.