In Laughton v Shalaby  EWCA Civ 1450, the claimant appealed a decision that the defendant surgeon had not acted negligently in the course of carrying out a hip operation.
First Instance Judgment
The claimant’s case was that the defendant had negligently failed to attach the gluteus medical muscle to the bone following the insertion of an artificial hip. At the original hearing, the judge preferred the defendant’s expert evidence that avulsion, tearing away of the muscle, was a recognised, if rare, occurrence following such an operation and was not indicative of negligence.
The claimant appealed on the basis that natural avulsion was so rare (about 1 in 200 cases) as to be statistically insignificant. Further, the judge had failed to properly consider issues of the defendant’s probity, bearing in mind that the defendant had failed to disclose conditions on his registration and a suspension imposed following a previous General Medical Council report stating that his care had fallen below acceptable standards and the commission of an assault. Finally, the claimant argued that the judge should have admitted the GMC report as evidence of incompetence in other cases from which negligence in the instant case could be inferred, similar to the admissibility of bad character evidence in criminal cases.
For the claimant to show that her operation had been negligently performed she would have to satisfy the court that it had in some way been performed differently to any other operation where avulsion had occurred. There was no evidence to support that.
With regard to lack of probity, while that may have been relevant as to whether or not the defendant made a credible witness, it was his competence, rather than his credibility, that was in issue. The trial judge had been aware that the defendant was unable to practise, but the defendant had not fully disclosed details of his suspension or the conditions imposed upon him. Although that may have affected his credibility as a witness and made him less likely to admit to incompetence, it did not make it more likely than not that he had operated negligently in the instant case.
In relation to evidence of incompetence in other cases, such evidence was admissible only if relevant. The criminal law position was different to that at common law and did not apply in civil proceedings and evidence of extraneous matters should not be admitted on the basis that, unless it was similar fact evidence, it would not be probative of the issue to be determined.
The GMC report undoubtedly made bleak reading, given the comments therein regarding the defendant’s treatment of seven patients (including the claimant) on whom he performed knee, foot, wrist and hip operations. It was not, however, open to the claimant to rely on such general comment unless she could specifically show details of other cases which could amount to similar fact evidence. The details in the report regarding knee, foot and wrist operations were too far removed from hip operations to constitute such evidence. The only other hip replacement dealt with in the report had been criticised for insufficient discussion with the patient and could not be considered to be evidence of similar fact.
The appeal judgment makes clear that admitting evidence of incompetence in other cases is tricky. The evidence has to be relevant and that usually means that only “similar fact” evidence will be relevant and admissible, the position being set out in O’Brien v Chief Constable of South Wales Police  2 AC 534 and governed in criminal proceedings by the Criminal Justice Act 2003. S 101 (1) (d) of that act sets out that evidence of a defendant’s bad character is admissible if it is relevant to an important;
“matter in issue between the defendant and the prosecution.”
S 103 (1) (a) then provides that such matters include;
“the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of an offence.”
In the instant case, evidence of general failings in the defendant’s practice, such as in wrist surgery, or general evidence of lack of probity, were not sufficient to make up for the judge at first instance having been entitled to prefer the defendant’s evidence or the claimant being unable to show that there had been a negligent failure to re-attach the gluteus medius on the balance of probabilities. The appeal therefore failed.