Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors [2020] EWCA Civ 1523 (18 November 2020)

C is 50. He has a history of pain in his lower back. An MRI scan taken in January 2012 showed bulges in two discs (L4/5 and L5/S1). He was given a caudal epidural on 22 February 2012. On 11 March 2012, he went to an Urgent Care Centre (‘UCC’) with worsening back pain. He was seen by an out-of-hours GP and given a prescription. He was told to consult his GP if he became worse, and that, if he became numb, that would show that he needed immediate hospital treatment. [7]

C went to bed at 0100 on Monday 12 March. He had urinated just before he went to bed. He woke at about 0500 in pain. His groin had become numb. His wife called the UCC at 0543. She called an ambulance at 0602. She spoke to one of Trust 2’s operators. [8]

…’some 17 hours or so had passed’ between the points when the GP suspected CES and when the Claimant had the necessary surgery [17]

C’s case was that the GP did not make the right kind of referral… [26]

His case against D2 was that D2 did not give his transfer by ambulance to the Hospital the right priority [27]

His claim against D1 was that D1 managed his case negligently. He was potentially a surgical emergency. He was not seen quickly enough, with the result that the investigation and treatment was delayed. [28]

Each Respondent was responsible for causing him permanent and avoidable injury and loss of function. His case was that he had not developed CESR by the point at which, absent the Respondents’ negligence, he should have been operated on. Had he been operated on sooner, he claims, on balance of probability, he would not have suffered the injuries which he in fact suffered. [29]

J concluded… on the balance of probability, C was in CESR by 1203 [56]

I would dismiss this appeal… I not only consider that the decision which J made was one which was open to J, but that it was the right decision. [93]

C’s submissions at stages seemed to come close to advocating an approach in effect requiring a counsel of perfection, bordering on strict liability: a long way away from the yardstick of reasonableness. [98]