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“Extraneous factors” not relevant in deciding whether surgeon guilty of negligence

RCJ [1]

Longmore LJ: extraneous matters should be confined to “cases of similar fact”

“Extraneous factors”, including an assault on a bus driver, are not relevant in deciding whether a surgeon had acted negligently while carrying out a hip operation, appeal judges have ruled.

Lord Justice Longmore said there was no equivalent in civil law to the criminal law principle that evidence of a defendant’s bad character could be admitted in some cases if it was relevant.

“In my judgment evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that, unless the evidence is similar fact evidence, it is not probative of the issue to be determined,” he said.

“The question whether extraneous evidence is truly similar fact evidence is, no doubt, one of some difficulty and it may be that courts are now readier to admit evidence as being similar fact evidence than they were in the past. But that should still be the test.”

The court heard in Laughton v Shalaby [2014] EWCA Civ 1450 [2] that counsel for Mrs Laughton relied on a number of “extraneous factors” to support her negligence claim.

Among them were that the surgeon did not disclose to the court that there had been an “interim decision” to impose conditions on him as a result of an incompetence investigation by the General Medical Council (GMC).

“As a result of these conditions, he did not in fact practice,” Longmore LJ said. “There was then the incident of assault on the bus driver which gave rise to an immediate suspension from practice.

“That was not disclosed to the court. That was a very serious dereliction on the part of Mr Shalaby of his obligation to be honest with the court.”

Longmore LJ said that now the court knew about the assault, and more importantly that the surgeon sought to conceal it, the court had to assess whether those factors made it “more probable than not” that Mr Shalaby performed the operation negligently.

The judge said that, to his mind, they did not, “even when they are combined” with other factors. He said the fact that a doctor is under stress, another of the factors cited by Mrs Laughton’s counsel, “does not of itself mean that he is more likely than not to have been negligent on a particular occasion”.

The judge described evidence of incompetence in other cases as “highly problematic”. He said “it was not found that any percentage of Mr Shalaby’s previous hip operations” suffered the same complication that affected Mrs Laughton.

Dismissing her appeal, he said that “general evidence of lack of probity, stress and incompetence in other areas of practice such as wrist surgery or record-keeping” could not make up for the deficiency.

Lord Justices McCombe and Vos agreed.