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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fox v Ministry Of Defence [2002] EWCA Civ 435 (6 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/435.html Cite as: [2002] EWCA Civ 435

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR J LEIGHTON-WILLIAMS QC
(Sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th March 2002

1. LORD JUSTICE KENNEDY: This is a claimant's appeal from a decision of Mr John Leighton-Williams QC, sitting as a Deputy Judge of the Queen's Bench Division, who, on 25th June 2001, gave judgment for the defendant on the issue of liability.
2. The claimant was born on 21st February 1969. In March 1989, at the age of 20, he joined the Army. In September 1995 he was serving with his battalion in Bosnia and, on 16th September 1995, he took part in an inter-company novice boxing competition. His case is that in that competition he sustained a head injury from which he did not recover with the result that in June 1997 he was discharged from the Army.
3. In the statement of claim as originally pleaded it was asserted that the claimant was not a volunteer, he was coerced by Sergeant Buff, that he was not properly trained, not medically examined, ill matched against someone bigger and better than himself, that the headgear provided was ill fitting and worked loose and that his attempt to bow out at the end of the second round of the three-round bout was turned down by the same sergeant. All of that was said to amount to negligence, assault, trespass and or oppressive and arbitrary conduct by servants of the Government. By amendments made on 8th June 2001, just prior to the date fixed for trial on the issue of liability, it was alleged that the defendant failed -

"i) to ensure that any medical officer undertaking medical examinations prior to boxing was someone with `specialised training and knowledge with respect to boxing',

ii) ..... that any [such] medical officer ..... undertook `a thorough consultation (which) ..... include(d) a comprehensive history',

iii) .....

iv) ..... that a man with a temperature of 37.4 degrees centigrade was ..... prevented from boxing: `as it may have been a sign of infection or dehydration which could have resulted in him being unable to defend himself and [being] susceptible to brain injury [were he] to receive a direct blow to the head',

v) ..... that adequate medical facilities were available at all times ..... "

4. The amendments arose out of reports and letters from Dr Bristow, a consultant anaesthetist and an expert, instructed by agreement between the parties. The defendants denied liability. There was an order for trial of that issue first. Two paragraphs of that order are worth quoting. Paragraph 2 reads:

"That liability apart from causation be tried in advance of causation and quantum and that the following direction shall accordingly apply in relation to such trial on liability."

5. Paragraph 5 reads:

"That the parties have permission to adduce the evidence of a joint witness of opinion (expert) as follows:

.....

ii Dr Aubrey Bristow, Consultant Anaesthetist Expert on the Medical Facilities at Boxing Matches."

6. The claimant gave evidence but called no other witnesses.
7. For the defendant there was evidence from Dr Barker, who, as a serving officer in the Army, had examined the claimant before the boxing competition. There was also evidence from Sergeant Buff and others, and Dr Bristow also gave evidence. He was called by counsel for the claimant and cross-examined by counsel for the defendant.
8. As a result of the evidence given at trial, the factual background became clearer and the judge was able to resolve all of the issues originally raised in favour of the defendant in a way which no longer gives rise to any complaint. As the judge found, the claimant was a volunteer. He was not coerced either before or after the relevant bout. He had been trained. He had been medically examined. He was not ill matched. He was not shown to have an ill fitting head guard. In reality, two issues remain. First, as to the quality of Dr Barker's medical examinations of the claimant, particularly with reference to his taking of a history and his decision to allow the claimant to box on 16th September 1995 when his body temperature had been found to be 37.4 degrees. Secondly, as to the lack of immediately available facilities for dealing with serious head injury such as subdural bleeding.
9. As to the history, later inquiries revealed that the claimant had taken part in a boxing competition in 1989 and had subsequently complained of feeling dizzy. He sought medical advice and, according to him, was told he had concussion. In 1993 he was involved in a road traffic accident when on a motor cycle. He said that his helmet was broken and his head hit the road surface, after which he had recurring headaches for a couple of months. Nevertheless, he was found fit to box and did box without incident in November 1994.
10. In August 1995 in Bosnia, when the September competition was in prospect, the claimant was examined for the first time by Dr Barker, then his unit's medical officer. Dr Barker was found by the judge to be a caring and thorough doctor. He had, as the judge found, briefed himself in relation to head injury by reading the Army aide-memoire and the Amateur Boxing Association publication Medical Aspects of Boxing. He had been the medical officer responsible for a previous boxing tournament. He had his own form devised by him to assist him when taking a history and examining. He did not have access to the Army's full medical records which might have shown what had happened in 1989 and 1993. Such records are not routinely taken on short operational tours because they are bulky and in case they would be lost.
11. It is clear from the judgment that Dr Barker asked all the appropriate questions which should have elicited information from the claimant about his concussion, if such it was, in 1989 and his head injury in 1993 but all that the claimant told the doctor about was boxing uneventfully in November 1994. The claimant did not suggest in evidence that he was more forthcoming with the doctor than that. He said he had forgotten about the 1989 problem and had no recollection of the headaches in 1993 which was at odds with the statement he made in August 2000. Naturally, the judge found that the history given by the claimant to Dr Barker was incomplete. Whether the claimant's withholding of information was deliberate or not, it was unnecessary to decide because plainly the taking of the history had been done by the doctor in a way entirely compatible with all that could be reasonably required of him.
12. The claimant was passed fit for training. After four to six weeks' training he was re-examined by Dr Barker on 13th September 1995 prior to his first bout in the competition. He was found then to be fit and his body temperature, when taken, was 36.7 degrees centigrade. He completed that first round in the competition without incident. Prior to the next bout which was the final on 16th September 1995, the claimant was re-examined by Dr Barker. His body temperature was 37.4 degrees centigrade. According to the text books produced at trial, normal oral temperature is 37 degrees centigrade plus or minus 0.5 degrees. Dr Barker said in evidence that 37.4 was, in his words, at the upper end of normal but within an acceptable range of 36.5 to 37.5 degrees. When he noted the temperature he wrote alongside it "no sign of infection". There was apparently no sign of dehydration. That was something which Dr Barker was able to observe when he checked the claimant's gum shield. The claimant made no complaint of being in any way unwell, and Dr Barker passed him as fit to box.
13. Plainly, Dr Bristow, the expert called to give evidence at the trial, would have taken a different course. He would have had the claimant rest for half-an-hour and then seen what the temperature was lest it had been misread or lest it had been raised by some extraneous factor such as a hot drink or exercising when warming up. If it remained at 37.4 degrees unexplained, Dr Bristow said in the end and when asked questions by the judge that he would not have allowed the claimant to box because, in his judgment, a temperature as high as that is not normal whatever the text books may say. It was, in his judgment, indicative of infection. It is right to say that, although given the opportunity to do so, Dr Bristow did not produce any written work to support his point of view. In the event, the claimant performed well for two rounds so his ability to defend himself during those two rounds does not seem to have been in any way impaired. He failed in the third round. After the bout there was no evidence - because he was examined again by Dr Barker - of antecedent infection.
14. On that evidence the trial judge was not satisfied that a temperature of 37.4 degrees centigrade would of itself indicate to a careful doctor, such as Dr Barker, in this case that a patient was not fit to fight. The judge went on to say that there was in any event no evidence that the raised temperature was causative of any injury. Dr Bristow had also been critical of the lack of facilities for dealing with subdural bleeding. As to that, the judge said that that was plainly not relevant because no such form of treatment was in the end required.
15. Mr May, in his submissions, opened by addressing us in relation to that matter. He accepted that it was not directly relevant but he said it illuminated the question whether or not the claimant should have been allowed to box. For my part, I find no illumination cast upon that issue by the question of whether or not there should have been facilities for dealing with a type of injury which the claimant did not sustain. The issue as to whether or not the claimant should have been allowed to box does focus, as Mr May accepted it focuses, on the question relating to the temperature. He submitted that the approach adopted by the judge was such as to elevate the practice of the doctor on the ground to the level of an expert. In my judgment, it was doing nothing of the sort. What the judge did was carefully to distinguish between the evidence of the expert, which he was rightly quite prepared to accept as demonstrating
16. Dr Bristow's highly skilled view, and the conclusion which he, as the judge, had to reach as to what was a proper standard of care to be demonstrated by the doctor on the ground who had the benefit of being able to produce texts to show that the approach he adopted was in accordance with the views of others in the profession.
17. Mr May submitted that the failure of Dr Barker to follow what he described as the two-stage process, when he found the temperature to be 37.4 degrees, was relevant and that at the end of the two-stage process Dr Barker in exercising a proper degree of skill and care should have prevented the claimant from boxing. For my part, I am unable to see why. When Dr Barker found the temperature to be raised he treated the position as though it were at the end of the two-stage process. He looked for signs of infection and, as he noted, found none. He looked for signs of dehydration when he looked at the gum shield and, as he noted, found none. His state of mind was on the basis of what he had apparently been taught and what he had read that this temperature, although somewhat raised, was within the band of normality.
18. In those circumstances I find it impossible to criticise the conclusion at which he arrived. He was entitled to treat this patient as being sufficiently fit to box. That really is conclusive so far as this appeal is concerned.
19. The judge did also base his decision on the issue of causation. As to that there was the problem raised by the form of the order to which I have already referred. It is important to bear in mind that that order was drawn up at a time when the statement of claim had not been amended. In those circumstances the order, on the face of it, was appropriate.
20. I cannot regard it as realistic to deal with the issue of liability which was raised on the amended statement of claim without paying any regard whatsoever to the issue of causation. In order to demonstrate any form of liability in negligence, it is necessary to show that there was, at the end of the day, some loss. The reality here is that there was no evidence that the temperature of 37.4 degrees - somewhat raised within the bracket of normality in the eyes of Dr Barker, but too high in the eyes of Dr Bristow - did in the end have anything to do with the tragedy which overtook the claimant later on. The evidence, such as it was, as the judge pointed out, was that the claimant was able to box well, at any rate, for two complete rounds. There was no evidence of infection afterwards, as Dr Barker found. There was no evidence adduced before the trial judge to show that when this claimant was treated later on there was any evidence of infection being in existence prior to the boxing.
21. In those circumstances it seems to me that the judge was entitled to take the stance he did, that even had he not found against the claimant on the first ground he would have been obliged to find there was insufficient evidence of causation to make the temperature of 37.4 degrees in any way relevant.
22. In those circumstances and for those reasons, but with the sympathy which the judge undoubtedly felt for the claimant, and so do I, I must come to the conclusion that this appeal must be dismissed.
23. LORD JUSTICE MANTELL: I agree.
24. MR JUSTICE NEUBERGER: I agree also.
Order: Appeal dismissed with the costs. Appellant's liability to pay any such costs be referred to costs judge with the court's view that Ministry of Defence would not pursue such against appellant.