Gow v Harker

Gow v Harker

The trial judge's findings on liability were unsafe because he failed to address significant improbabilities and inconsistencies in the claimant's evidence, did not properly consider the objective medical evidence, and separated liability from causation inappropriately. A retrial is necessary for justice to be served.

Parties
Claimant/respondent: Nina Naicker Gow; Defendant/appellant: Dr Rosemary Harker
Jurisdiction
England and Wales
Judgment Date
31 July 2003
Procedural Posture
Civil Appeal (clinical Negligence) / Appeal From Trial Court Judgment on Preliminary Issue of Liability
Outcome
Appeal allowed; trial judgment set aside; retrial ordered before a different judge.
Legal Topics
Standard of Care, Liability, Causation, Fact Finding, Judicial Technique
Medical Negligence Tort Law Civil Procedure Standard of Care Liability Causation Fact Finding Judicial Technique

Case Brief

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Parties

Nina Naicker Gow

Claimant/respondent

Dr Rosemary Harker

Defendant/appellant

Procedural Posture

Civil Appeal (clinical Negligence) / Appeal From Trial Court Judgment on Preliminary Issue of Liability

Legal Issues

  1. 1 Whether the trial judge erred in finding liability for clinical negligence without determining causation
  2. 2 Whether the judge failed to address inherent improbabilities and inconsistencies in the claimant's evidence
  3. 3 Whether the angle and site of needle insertion constituted a breach of duty

Ratio Decidendi

The trial judge's findings on liability were unsafe because he failed to address significant improbabilities and inconsistencies in the claimant's evidence, did not properly consider the objective medical evidence, and separated liability from causation inappropriately. A retrial is necessary for justice to be served.

Court Disposition

Appeal allowed; trial judgment set aside; retrial ordered before a different judge.

Orders

  • Stay on action for two months to allow for mediation; if not resolved, retrial of both liability and causation before a different judge.