Opinion
25 November 2021

Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)

Pupil barrister Bharat Jangra examines the outcome of Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB) whereby the case was dismissed.

Factual Background

The Claimant suffered a stroke as a result of his anti-coagulation medication (Warfarin) being stopped whilst undergoing an angiogram in April 2005. Mr Justice Soole’s judgment considered: breach of duty; the Wisniewski principles regarding adverse inferences; causation and material contribution.

The Claimant advanced two breach of duty arguments:

• Prior to the angiogram, the Claimant was told to not take any anti-coagulation medication for four days, contrary to the ‘guidance’ document; and
• Following the angiogram, the Claimant should have been advised to re-start his Warfarin on the evening of the angiogram.

The Defendant submitted that the guidance document was not strictly applicable to angiograms and so there was no breach of duty. In response to the second claim, the Defendant submitted that this course of action was not contrary to Bolam or Bolitho and that there was a reasonable body of competent practitioners who would have delayed re-starting Warfarin until the day after the procedure rather than the same day.

Breach of Duty, the Guidance Document, Wisniewski Principles and Adverse Inferences

The guidance document was titled ‘Anticoagulation and Surgery (Sandwell)’ and had not initially been disclosed by the Defendant as it was their position that it was not directly applicable. The Defendant did not bring any factual evidence regarding this document, either from those who were responsible for drafting the document or from those who had clinical responsibility for Mr Thorley.

During the trial, the Claimant’s expert advanced the position that the guidance was applicable and should have been followed in this case reducing the period prior to the angiogram without anti-coagulation medication to three days rather than four. He also also accepted that it was only a guideline and could be departed from on clinical grounds [para. 46].

In contrast, the Defendant’s expert stated it was not applicable as angiography was not a surgical procedure and therefore not covered within the scope of the document. Further, as it was not a protocol or policy, and absence a protocol relating specifically to angiography, it was not reasonable to apply guidance relating to surgery to angiography [para. 43]. The Judge also accepted the position that in 2005 guidance documents were much less common.

To support their breach of duty arguments, the Claimant sought an adverse inference due to the failure by the Defendant to call any evidence regarding the document, in line with the principles from Wisniewski v Central Manchester Health Authority [1998] PIQR P324, being:

“(1) 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.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

Soole J did not seek to apply these rules strictly, in reliance on the Supreme Court judgment in the case of Efobi v. Royal Mail Group Ltd [2021] UKSC 33 where Lord Leggatt JSC (with whom the other JSC agreed) observed at [41]:

‘…Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so…'

Whilst this was an employment case, Soole J interpreted the above to have the widest possible application.

Soole J agreed with the Defendant expert’s interpretation regarding the guideline document, in that it did not apply to angiography and it was contrary to the ample material cited to the court advocating a four or five day period without anticoagulation medication. There were no adverse inferences to be drawn by the Court from the Defendant’s failure to call any factual evidence on this issue. Therefore, there was no breach of duty in failing to follow the guideline [paras. 57 - 67].

The Court went on to discuss that the expert evidence provided no basis to conclude that a three day period was better than a four or five day period of omission without Warfarin. Consequently, regardless of the guideline, there was no breach of duty in the treatment to Mr Thorley [paras. 75 – 77].

Regarding the second breach of duty claimed around the delay in resuming warfarin, Soole J did acknowledge and accept that some practitioners, with supporting independent publications, would have restarted Warfarin later on the day of the angiogram.

However, Soole J preferred the Defendant’s expert evidence, in that this position had to be read in the context of the assessment of the Claimant and risk of post-operative haemorrhage. There was a risk of bleeding following the angiogram, which may have been delayed or would not have been immediately apparent after the angiogram, especially considering that the Claimant was obese. The delay in resuming anti-coagulation medicine the day after the angiogram carried a risk, but provided extra safety to the Claimant should a late bleed have occurred [para. 79]. This approach was supported by a reasonable body of competent practitioners, including the Defendant expert himself. Therefore, there was no breach of duty in not resuming Warfarin in the evening on the day of the angiogram.

Causation and Material Contribution

The Claimant’s causation case was brought on two grounds: ‘but for’ causation and material contribution.
Regarding ‘but for’ causation, Soole J found difficulty in accepting the Claimant’s expert evidence in relation to the applicability of the study he produced to the Claimant’s position, or the points raised regarding the relevance of the study relied on by the Defendant’s expert. Instead, he preferred the evidence of the Defendant’s expert and the way in which he extrapolated the evidence he brought and applied it to the Claimant’s condition. On that basis, he did not find that there was any ‘but for’ causation and that the Claimant would have suffered a stroke in any event.
Soole J undertook a comprehensive review of the case law regarding material contribution, and in agreement with the Court of Appeal in both Ministry of Defence v AB [2010] EWCA Civ 1317 and Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86, material contribution is not an issue that can be raised when there is one defendant and an indivisible injury.

The claim was therefore dismissed.

Conclusions

The Court will not restrict themselves to a formulaic test when considering the Wisniewski principles, and in line with Efobi it will take a holistic and common sense approach to the evidence. Further, material contribution cannot be raised as an issue where there is an indivisible injury and one defendant.

The Author

Bharat Jangra is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.

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