John Whitting QC represented the MPS in the case of Thomas v Curley  EWCA Civ 117′.
In this case the Claimant suffered an injury to the common bile duct during the course of a laparoscopic cholecystectomy. Her pleaded case (which reflected her expert evidence) simply asserted that such an injury should not occur during such a procedure. The appellant surgeon argued that it was inappropriate in clinical negligence cases to infer negligence simply from the fact of injury. The Court of Appeal agreed with that argument in principle but found that as the site of injury was, in relative terms, some distance from the operation site, the fact of injury required explanation, in the absence of which the trial judge was entitled to infer inadequate surgical technique.