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Laughton v Shalaby [2014]




In this case, Nicholas Yell acted for the Claimant who underwent a left hip replacement operation on 30.07.07 at the Horder Centre in East Sussex. The surgeon, Mr Shalaby, used the antero-lateral approach method of hip replacement. The operation was unsuccessful and subsequently another surgeon discovered that the gluteus muscle was not attached to the trochanter but was stuck to an adjoining muscle called the tensor fasciae. The medical evidence was that the avulsion could either be a rare but recognised risk of surgery (0.5%) or could be attributable to the surgery being performed in a negligent manner. The Claimant's claim failed at trial. The Claimant appealed arguing that : (i) the judge failed to quantify the recognised risk of avulsion occurring without negligence; (ii) the judge failed to consider and assess criticisms made of Mr Shalaby's lack of probity, stress/mental health issues and incompetence on other occasions; (iii) the judge failed to balance those criticisms against the rarity of the avulsion occurring without negligence; (iv) had the judge done the balancing exercise, he would have held that Mr Shalaby had been negligent. The Court of Appeal rejected such submissions on the facts and dismissed the appeal but gave guidance upon the "problematic" issue of the admissibility of similar fact evidence to prove negligence, see Paras 21-22. Laughton v Shalaby [2014] EWCA Civ 1450 here.

Nicholas Yell (instructed by Simpson Millar LLP) acted for the Claimant.

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