In Barnett v Medway NHS Foundation Trust  EWCA Civ 235 the Court of Appeal considered an appeal against the trial judge’s dismissal of a clinical negligence claim on the basis that the claimant had failed to prove the claim on the balance of probabilities. The judge did not therefore make express findings as to which experts’ evidence carried greater weight.
It is rarely that it is considered appropriate for a claim to be resolved on this basis. In Stephens v Cannon  EWCA Civ 222 it was said:
“A court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so. The parties must be able to discern the court’s endeavour and to understand its reasons in order to be able to perceive why they have won and lost. An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation [my emphasis] of being entitled to resort to the burden of proof.”
In Verlander v Devon Waste Management  EWCA Civ 835 the Court of Appeal stated that:
“First, a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence. Secondly, the Court of Appeal should only intervene where the nature of the case and/or the judge’s reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort.…”
In Verlander the Court of Appeal emphasised that the use of the word “exceptional” in Stephens meant no more than that resorting to the balance of probabilities is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case.
“The burden of proof remains part of our law and practice – and a respectable and useful part at that — where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”
In Barnett the claimant suffered from a rare congenital condition, hypophosphatasia, resulting in deficient bone mineralisation and a tendency to stress fractures. He was admitted to hospital with acute pain at the back of his thigh. He was given antibiotics, and was discharged home after 2 weeks in hospital. He was readmitted as an emergency just over a month later with an abscess in his spine at L5/S1 and infarction of the lower thoracic spinal cord, resulting in paraplegia at T7.
The issues at trial revolved around what blood cultures, if taken prior to the administering of antibiotics during his first admission to hospital, would have revealed, and whether that would have resulted in more effective treatment of the infection. The defendant argued that it was likely that even if cultures were obtained no infection would have been detected at that time. The claimant was markedly vulnerable to infection and was on a combination of drugs which would probably have diminished the effectiveness of his immune system.
The 2 experts called had clearly found answering the questions very difficult. As the Court of Appeal summarised: “Not only was the medicine particularly difficult, but the evidence of the 2 microbiology experts was expressed in difficult and shifting terms … both experts shifted position. The evidence of both experts was somewhat rebarbative … Taken as a whole [the claimant’s expert’s] evidence fell short of establishing probability.”
The trial judge was therefore entitled, on the particular facts of this case and given the state of the expert evidence at trial, to conclude that the claimant had failed to discharge the burden of proof, and therefore without concluding that either expert was probably right or probably wrong. The judge was however criticised for the brevity of his judgment in justifying this approach.
An additional point of note, and remarked upon with some surprise by the Court of Appeal, was that at the joint discussion the microbiologists had not been asked to consider whether cultures taken following the initial admission to hospital would have revealed infection, although this was a very important issue and was considered at trial in the oral evidence of the experts. Primary responsibility for preparation of an agenda for a joint discussion lies with the lawyers. Experts often comment that an agenda is of little assistance, but here is an example of a case where one of the issues which was of considerable importance for the claim was omitted by the lawyers and was not therefore discussed prior to the trial.
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