A v Burne [2006] EWCA Civ 24 (25 January 2006)

A child with a shunt suffered brain damage when a blocked shunt was not diagnosed by telephone. The GP failed to ask specific questions that would have revealed symptoms indicating shunt blockage. The Court of Appeal allowed the appeal and ordered a retrial, finding the trial judge had improperly applied the Bolitho exception without giving parties opportunity to respond.

Facts

The claimant, A, was born in 1991 with a hydrocephalic condition requiring a ventriculo-peritoneal shunt to be fitted at 9 weeks old. On 27 January 1998, when A was 6½ years old, he began vomiting at school and complaining of a headache. His mother telephoned Dr Burne, the family GP, who made a diagnosis of upper respiratory infection by telephone without seeing the child. The following day A’s condition deteriorated, and upon hospital admission it was discovered that his shunt had become blocked, causing a heart attack and brain damage.

Issues

Primary Issues

The key issues were: (1) whether Dr Burne was negligent in failing to elicit sufficient history from the mother to diagnose the possibility of a blocked shunt; (2) whether the GP should have asked specific ‘closed’ questions about symptoms despite expert evidence that ‘open’ questioning was acceptable practice; and (3) whether the trial judge was entitled to reject the joint expert evidence on the basis that it lacked logical foundation.

Judgment

The Court of Appeal (Lord Justice Sedley, Lord Justice Wilson, and Lord Justice Ward) allowed the appeal and ordered a retrial. The trial judge had found for the claimant on the basis that Dr Burne should have asked specific questions to determine whether symptoms of shunt blockage were present. The judge had applied the Bolitho principle to reject the experts’ joint view that asking only ‘open’ questions was acceptable practice.

Reasoning

The Court of Appeal held that while the judge’s legal approach to the Bolitho principle was correct, he erred procedurally. The possibility of departing from expert evidence on logical grounds had not been raised by counsel, and the defendant’s side had not been given proper opportunity to respond to this approach. Lord Justice Sedley noted that if the judge intended to discount expert opinion because it did not make sense, he should have raised this with counsel and ensured proper opportunity for response.

Lord Justice Wilson identified that the judge had misunderstood a question posed to the experts, treating an answer to a hypothetical scenario as relevant when the premise of that question had not materialised given the judge’s factual findings.

Lord Justice Ward expressed sympathy with the trial judge’s view but concluded that the Bolitho point had not been properly taken at trial and experts had not been given opportunity to justify their practice.

Implications

The case reinforces that while judges may apply the Bolitho exception to reject expert evidence lacking logical basis, this must be done procedurally fairly. Parties must be given notice and opportunity to address the point before a judge departs from jointly held expert opinion. The case also emphasises the importance of alternative dispute resolution in medical negligence cases, with all three judges strongly urging mediation before any retrial.

Verdict: Appeal allowed; judgment set aside and retrial ordered on both liability and causation, with strong recommendation for mediation before further proceedings.

Source: A v Burne [2006] EWCA Civ 24 (25 January 2006)