Morris (A Child) v Blackpool Victoria Hospital NHS Trust

The course of the appeal and the issues debated in it

The revised grounds of appeal (served pursuant to the grant of permission to appeal) emphasised two matters: the first was the judge’s error regarding his finding of no IUGR, which I have already mentioned, and the second was some new evidence which was said to support Christopher’s case on the causation issue.

As to the first of these matters, it is remarkable that, although Mr Coghlan at the appeal hearing made it clear to us that the judicial error was common ground (although he also said that it was irrelevant to the outcome of the appeal), nevertheless at the time of his skeleton argument and until responding orally to the appeal, it remained the hospital’s case that the judge had been entitled to find no IUGR. Thus at paras 28/29 of his skeleton Mr Coghlan submitted:

“As to whether the Claimant in fact had IUGR, [the judge] relied on the evidence of Dr Hilton Miere [sic, in fact Dr Hylton Meire] who brought to bear almost unrivalled experience and expertise in the field of ultrasound scanning. As the learned judge noted, Dr Miere gave three compelling reasons why IUGR was not likely in this case. Firstly, the placental weight was high; secondly, there were unusually large quantities of liquor present at birth; thirdly, the condition of the Claimant during labour and at birth was good and he did not have the clinical appearance of a growth retarded fetus…The Claimant was unable to meet Dr Miere’s arguments – hence the learned judge’s conclusion that he found ‘these reasonings convincing especially as there is no cogent evidence to the contrary. Thus, I conclude that Christopher was not suffering from IUGR and this means that the Claimant cannot establish part of his case.’”

At the appeal hearing, however, Mr Coghlan abandoned this reasoning, and thus accepted in effect that Dr Meire’s evidence was out of line with the consensus of the relevant evidence of the obstetric experts, and should not have been relied on by the judge.

As for the second strand of the appeal, the matter of new evidence, this went to the question whether birth of a baby in (apparent) good condition was consistent with prior hypoxic ischaemia. The hospital had responded to the new evidence, in case answer was needed, by some further expert material on its own behalf. In the circumstances Mr Redfern accepted at the hearing that he could not, and did not, rely on his new evidence to support the appeal, since that evidence would merely trigger a new round of issues between the experts, which this court could not resolve. He submitted nevertheless that if he succeeded in obtaining a new trial as a result of the appeal, he would be entitled at that new trial to rely on the new evidence as part of his case. In the circumstances we never had to consider the argument based on the new evidence, and the appeal took the shape already described above based on the judge’s error in finding no IUGR.

The IUGR error

It is now necessary to describe, and to seek to account for, that error in more detail.

The judge dealt with it under Issue B, the disclosure issue. He might have dealt with it as the primary point, since without IUGR there was no claim at all. However, there was a certain logic in approaching the points in terms of the progressive history of the protagonists’ opportunity for knowledge as distinct from the retrospective knowledge of hindsight. The judge therefore first dealt with Issue A, the issue of negligence, and decided there was nothing to put the hospital on suspicion of any dysfunction such as would suggest the need for a scan. He then asked himself what a scan would have revealed (Issue B). That depended in part on what would have been measured if a scan had been performed. The hospital argued that the only measurement which would have been carried out would, as before, have been of Christopher’s BPD. But, if there had been any suspicion of IUGR, that would have made no sense, for the diagnostician would have been measuring for possible asymmetry and would therefore also have measured Christopher’s abdominal circumference. The judge accepted the predominant expert obstetric evidence that this would have been done. He also reminded himself (para 58) of the obstetric experts’ agreement, recorded as part of their answer to question 6 in their report of 14 May 2003, that

“We agree that on these two occasions [29 April and 19/20 May 1987] the abdominal circumference would have been significantly below the mean…”

The judge next referred (at para 59) specifically to the evidence of Dr Meire, the hospital’s expert on ultrasound scans, a consultant radiologist of distinction with obstetric qualifications, whose expertise really lay in ultrasound scanning rather than in clinical obstetrics, but who had been one of the experts who joined in the answer just quoted. In his oral evidence he said that a scan on 20 May, if subsequently repeated (as it was common ground a scan, if once then performed, would have been, a fortnight later) would have detected progressive growth reduction if it had been present. However, the judge continued as follows (at para 60) in a passage from which Mr Coghlan’s skeleton, as cited above, itself quoted:

“Dr Meire explained that there were three important factors indicating that IUGR was not present in Christopher’s case. First, the placental weight was high, while second, there were unusually large quantities of liquor present at birth. Third, the condition of Christopher during labour and at birth was very good and he did not have the appearance of a growth retarded fetus. Dr Meire’s views that Christopher’s low weight was because he was small for his gestational age or genetically predetermined to be small, rather than suffering from IUGR is, he says, confirmed by a factor which is regarded as being significant for showing that a fetus is genetically predetermined to be small, which is maternal height and weight. This Dr Meire says is very relevant to the present case not only because Mrs Morris was unusually short and light but also because she had previously given birth to a child weighing 2.5kg who does not suffer from IUGR but was genetically destined to be small. So he concludes that Christopher was constitutionally small or genetically predetermined to be small and not suffering from IUGR. I find these reasonings convincing especially as there is no cogent evidence to the contrary. Thus, I conclude that Christopher was not suffering from IUGR and this means that the claimant cannot establish part of his case.”

At the appeal hearing counsel on both sides struggled to account for this reasoning. Dr Meire was the only witness to throw any doubt on the diagnosis of IUGR. At the hospital, Dr Stevens, the principal witness who saw Christopher soon after birth, had noted that he was “grossly small for dates”, hardly the description of a constitutionally or genetically small baby: and in his evidence (for the defence) he agreed that he believed he was seeing IUGR (Bundle 4.1311). Since the presence of IUGR is common ground, it is unnecessary for me to identify in full the medical evidence on the subject; however examples are as follows. Mr Nicholas Bedford, who was the consultant obstetrician and gynaecologist at the hospital who had actually seen Mrs Morris on 20 May 1987, and was another witness for the defence, in answer to a question from the judge himself, said that Christopher was suffering from IUGR at birth; he also agreed that that would have been detected if the fetus had been scanned on 28 April (B4.1281/2). Professor Ronald Taylor, professor emeritus of the department of obstetrics and gynaecology at St Thomas’s London and one of the defence obstetric experts who had signed the joint report of 14 May 2003, said in evidence that Christopher was “undoubtedly growth retarded…he was growth retarded even if he was [constitutionally] small” (B4.1521). And Dr Anthony Emmerson, a consultant paediatrician and since 1996 the clinical director for neonatal medicine at St Mary’s Manchester and another defence witness, principally on Issue D, said in his evidence that the presence of IUGR was an “essential part” or “key factor” for both parties’ cases on causation, and that “the situation which is agreed is that Christopher grew poorly in utero in the last few weeks…And both Dr Smith and Dr Rosenbloom, who will speak for himself in due, and myself accept that that happened” (B4.1556). He referred there to Dr Michael Smith, a consultant paediatrician at The Childrens Hospital and a consultant neonatologist at the Jessop Hospital for Women, Sheffield, an expert witness on causation for the claimant, and to Dr Lewis Rosenbloom, a consultant paediatric neurologist at Alder Hey Children’s Hospital, Liverpool, and another defence expert on the issue of causation. Indeed, Drs Emmerson, Rosenbloom and Smith had on 19 December 2002 already signed a joint report in which they agreed that Christopher suffered IUGR (answer 3(iv)).

Dr Meire, on the other hand, was alone in his view that Christopher was not suffering from IUGR. When it was put to him that “the clinicians, the obstetricians and the paediatricians in this case accept that there was IUGR” he sought to argue that the difference between him and the others was all a matter of semantics. He said (at B4.1550):

“My Lord, I have unfortunately to go into semantics at this point. An IUGR has two different meanings, which I think have been touched on in evidence to date. The original meaning was intra-uterine growth retardation and within that group of fetuses identified as such there would be babies who were normal and whose, quotes, growth retardation was an expression of their normal genetic make up. When that was identified, it was felt that it was necessary to try to identify the genetically small ones from the ones who were not growing properly. So the concept of intra-uterine growth restriction was introduced a few years ago. And the growth restricted group are those in which growth has been pathologically abnormally restricted, reduced.

MR JUSTICE SILBER: So the difference is the first group would be people who just might have small parents?

A.

Correct. Whereas the second are, by definition, abnormal. And inevitably there is some confusion over this…”

In effect, Dr Meire was suggesting that it was only semantics which appeared to be driving a wedge between him and the other experts. He was suggesting that he too, in one of the two senses of IUGR of which he was speaking, could, if he chose, describe Christopher’s condition as IUGR, and that the other experts were also using IUGR in its non-pathological sense. The judge, in accepting Dr Meire’s evidence that Christopher was merely genetically small and not pathologically retarded and in stating that “there is no cogent evidence to the contrary”, wholly appears to have overlooked or discounted the fact that all the other witnesses who diagnosed IUGR were clearly talking of an abnormal, significantly asymmetrical, and pathological condition, which was itself a “key element” in Christopher’s brain damage.

It is true that in Dr Meire’s supplementary report dated 4 May 2003 he had already expressed the opinion, for instance, that “I cannot see any evidence to suggest that IUGR was present…merely a small fetal abdomen. I am sure that, if a further scan had been taken to monitor fetal growth, it would have shown a normal growth rate and refuted a diagnosis of IUGR”. But this was before he had himself agreed, as part of the joint report of 14 May 2003, that on 28 April and on 19/20 May 1987 a scan would have revealed an abdominal circumference “significantly below the mean”. A further question in the joint report asked what conclusions should be drawn as to Christopher’s condition from previous answers. The report stated that Dr Meire “has undertaken not to be involved in this”, presumably because it was really a question for the clinical obstetricians. The claimant’s expert obstetricians (Mr John Hare, a retired consultant obstetrician and gynaecologist, and Mr Anthony Johnson, emeritus senior consultant in obstetrics and gynaecology at the Jessop Hospital for Women, Sheffield) said that “IUGR would have been diagnosed”; Professor Taylor at that time said (and the defence’s second expert clinical obstetrician, Mr Ian MacKenzie, reader in obstetrics and gynaecology at John Radcliffe Hospital, Oxford, also said) that “the scans would have shown a fetus making reassuringly normal progress”. All of these comments were confusedly mixed up with the question of what scans would have revealed and taught those clinically responsible for the care of the pregnancy. However, Professor Taylor, as mentioned above, was clear in his evidence that, with hindsight, Christopher was suffering from pathological IUGR; whereas Mr MacKenzie, did not, I think, give evidence on the post-birth diagnosis of IUGR.

At a certain point, during the cross-examination of Mr Hare, the judge was alive to the question of different specialities among the experts. The judge himself said (at B4.1368E):

“I am in fact going to, unless people persuade me to the contrary, look at all matters concerning the appearance of what happens at birth, after delivery, as being matters of paediatricians.”

The difficulty remains in understanding why or how the judge erred in this matter of IUGR, as it is now agreed that he did. It is hard to believe that in an otherwise scrupulous judgment the judge merely overlooked the evidence to the contrary. It is equally hard to believe that he discounted the evidence to the contrary, considering its preponderance and the judge’s failure at this point of his judgment to identify and consider what he was rejecting. The only possible explanation is perhaps that in final written and oral submissions Mr Redfern for his part was so confident of the common ground (barring Dr Meire) that he omitted to emphasise it, whereas Mr Coghlan made somewhat opportunistic use of Dr Meire’s evidence. Thus, if there had really been an issue over the presence of IUGR (in the pathological sense, the real sense in which the term had been used), that would and should have been identified as an initial issue of fact on which everything else depended. It was not (because it was not an issue), which is why Mr Redfern proceeded straightway to the question of breach of duty. It was only in the subsequent context of the disclosure issue that Mr Redfern’s closing written submissions almost in passing (but accurately) remarked –

“On the balance of probabilities Christopher suffered from placental insufficiency, affecting him in the third trimester, and leading to IUGR of the asymmetrical type. This is agreed and forms the basis of the explanation of both sides of the damage to Christopher.”

Mr Coghlan on the other hand, in his closing written submissions, named his Issue B as “The 28.4.87 growth retardation issue” (identifying 28 April because when these submissions were composed the claimant’s case had not yet been restricted to 19/20 May). This was the first time that “growth retardation” had been named as an issue. At the forefront of this passage of his argument, Mr Coghlan relied on Dr Meire’s evidence and canvassed the latter’s reasons in support of the submission that “it is very doubtful whether C suffered from IUGR at all”. Unfortunately, this new turn to the analysis bore the fruit of error, possibly because so much of the true dispute at trial concerned the question whether IUGR could have been anticipated (the forward looking breach of duty issue) as distinct from whether it had with hindsight been found, as to which there was, as is now conceded, in truth no issue at all.

The essence of the appeal

In these circumstances, it seems to me that the essence of this appeal comes to this: whether the judge’s other findings are fairly and securely based on a reasonable approach to the evidence, or whether on the contrary they are themselves undermined by the judge’s error as to the presence of IUGR.

Issue A and the finding of no negligence

The judge dealt with this issue, and arrived at his conclusion that there had been no negligence, in a section of his judgment found at its paragraphs 30/56. He had previously set out the history of the pregnancy (at paras 6/21) and the relevant law (at paras 24/29). These passages amount to the heart of his judgment.

As for the law, on this appeal it is common ground that it is as stated in the judgment below. There the judge referred to Bolam v. Friern Barnet Management Committee [1957] 1 WLR 583 at 586 and the well-known test enunciated by McNair J (“it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”) as explained and developed in Bolitho v. City and Hackney Health Authority [1998] AC 232, for instance at 241B/242D per Lord Browne-Wilkinson (“The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis”). The judge also referred to Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634 at 638E and Sidaway v. Governors of Bethlem Royal Hospital [1985] AC 871 at 895B. The judge therefore directed himself (at para 29):

“Thus, when examining the 19 and 20 May 1987 negligence issue, I will have to consider first, if there was a body of opinion which considered the management of Mrs Morris’ pregnancy on and after 20 May 1987 was reasonable and if so, second, whether that body of opinion was, in Lord Browne-Wilkinson’s words “reasonable and responsible”.”

In the Introduction section above I have already said something about Christopher’s EDD (whether based on LMD or scan) and the Co-operation Card which Mrs Morris took with her to her ante-natal appointments. Her GP was Dr Stephen Cushing, and many of the entries on the Card were made by him, as a result of Mrs Morris’s visits to his surgery. Other entries are by various nurses or doctors who saw Mrs Morris at the hospital. The health of the pregnancy was assessed inter alia by weighing Mrs Morris and by measuring the height of the fundus (or fundal height) in centimetres. The fundus is the top of the uterus. The fundal height is thus the distance from the pubic symphysis (the bone at the bottom of the abdomen) to the top of the uterus. Its measurement is a guide to the growth of the fetus and to its age: because as a rule of thumb the fundal height should increase by one centimetre per week of pregnancy. There are therefore two ways of measuring or calculating the age of a fetus. The most accurate is by ultrasound scan, as described above: the fetus’s biparietal diameter is measured and this permits the age of the fetus (and thus the EDD) to be calculated precisely. The alternative method is by palpation of the mother’s abdomen and estimating or measuring with a tape measure the fundal height. This is obviously a more subjective test, and thus can be influenced by the palpator’s belief as to the age of gestation. As for the mother’s weight, a rule of thumb was said to be that weight should increase by 0.5 kg per week, although obviously factors, such as for instance the use of different weighing scales or variations personal to the mother, can affect the measurement.

The judge appended to his judgment relevant information extracted in tabulated form from Mrs Morris’s Co-operation Card. The document appended was agreed by the expert obstetricians and by counsel at trial (the “Appendix”). The Appendix is likewise appended to this judgement. For present purposes the relevant columns of the Card are those headed “Date”, “Weeks” (ie weeks of gestation, the age of the pregnancy in weeks), “Weight” (of Mrs Morris), “Height Fundus” (explained above), and “Sig” (ie the initials of the attending medic). The information under these columns has been translated in the Appendix as “Date of Examination”, “Week of Pregnancy when examined”, “Method of ascertaining fundal height” (ie either by palpation or by scan), “Person who measured Fundus Height” and “Weight of Mrs Morris in kilos”.

As a result of agreement the information on the Card and in the Appendix respectively differs in certain respects. Thus in the Card the “Weeks” column entry might either be based by the medic on the LMD or, after scans had taken place in December 1986 and January 1987, on the age of the fetus as so calculated from those scans. It will be recalled that there was a difference of some three weeks between the two EDDs thus derived, for the LMD predicted an EDD of 17 May 1987, whereas the scans predicted an EDD of 5 June 1987. The GP, Dr Cushing, it is plain, generally used the LMD to date the age of the pregnancy, but sometimes he gave both alternatives. In the Appendix, however, the “Week of Pregnancy when examined” column has, by agreement, substituted for the Card entries under “Weeks” a precise figure calculated by reference to the scan derived EDD of 5 June 1987. Sometimes both parties’ figure for the age of the pregnancy as at the date of a particular examination is precisely the same, sometimes it differs by a day or at most a few days. Where it differs, the hospital’s figures are given in the Appendix in square brackets and the claimant’s figures are given in round brackets: but both figures are scan based figures.

I will deal with arguments based on the various figures for weight and fundal height when considering Mr Redfern’s submissions on the issue of negligence below. For the present, it suffices to come straight to Mrs Morris’s visit to the hospital on 28 April 1987. The judge found that she was seen by a Dr El-Kasaby, a registrar experienced in obstetrics. Dr El-Kasaby noted on the Card under “Weeks” the entry “34 scan”, adopting the scan data (the Appendix agrees: “[34.4] (34.3)”). However his entry under “Height Fundus” is indistinct and raised an issue at trial. The Card reads “= //”, where the notations // are in fact uneven sloping squiggles. Consultation during the appeal hearing of the original Card seemed to indicate that the squiggles were on a hinge of the Card, where it folded over. It seems to me that the probability is that the squiggles were intended to represent two figures, as to which there was speculation at trial in terms of 34 or 38. The Appendix records it as simply “=?”, which was intended to express the uncertainty of the issue. The judge, assisted by the hospital’s Mr Bedford (who it will be recalled saw Mrs Morris on 20 May 1987) and Mr MacKenzie (one of the defence’s expert obstetricians), concluded that the = sign “meant and would be understood by obstetricians to mean that the fundal height equalled the length of the pregnancy” (ie 34) and that what I have called the two squiggles “do not denote any specific figures or have any meaning especially as they could not be regarded by any reasonable observer as denoting any specific number”; and in any event were not the figure 38. Mr Redfern criticised the judge’s findings at this point, but I do not see how it is possible in this court to depart from them. If I had to make up my own mind, I would think that the squiggles were intended to represent a certain figure, but that the figure is in truth indistinct and therefore cannot in itself support any particular reading of the chart. If I had to speculate, I would say that the intended figure was 34, which would have the same effect as the judge’s findings. As it is, the judge was prepared to assume for the sake of argument that the squiggles represented either 34 or 38. For those three reasons, I do not think that this dispute is of any real significance.

Since the case of negligence based on 28 April was abandoned on the last day of trial, the entry for that date only has relevance to the extent that it is part of the total picture of the pregnancy when Mrs Morris went to hospital on 19 May. She was then admitted overnight as a result of turning up with suspected spontaneous rupture of the membranes. She was then in the 38^th week of her pregnancy (see the Appendix’s “[37.6] (37.4)”). She was seen by Sister Ruth Reid who palpated her abdomen and noted (but not on the Card) a fundal height of 38. Her notes also entered the “EDD” as “17.5.87 scan 5.6.87”, the first date representing the LMD calculation and the second representing the scan calculation. She also noted that Mrs Morris’s cervix was tightly closed, which suggested that she had not yet reached term. Mrs Morris was also seen by a house doctor, Dr John, who among various other tests also palpated her abdomen and in his case considered that term had been reached: he wrote “Term fundus” (but this is not on the Card either). A CGT was noted as “Initially reactive  Flattened off”. He admitted her to the ward and advised “Rest and observe”.

On 20 May 1987 Mr Bedford saw Mrs Morris on the ward. His ward record reads: “U/s [ultrasound] 37+” and below that “T Dates 37 scan Head NE  Nitrazene negative CTG reactive. Home.” The Card entry (ignoring the columns) reads: “19.5.87 Admitted to D/S ?SRM u/s 37+ Dates Term. Head not engaged Nitrazene negative x 2. Seen by Dr Bedford allow home ANC 2/6/87 2.15 pm”. In the Appendix the agreed entries for 19 May reflect the fundal height measurements of Sister Reid and Dr John (even though these were not entered on the Card) but not the Card entry itself, which reflects a potted version of the events of 19/20 May as a whole (thus there was one nitrazene test on the 19^th by Dr John and one on the 20^th by Mr Bedford). Mrs Morris’s weight does not appear to have been taken or at any rate recorded during these days.

Mr Redfern submits that the judge ought to have found that the hospital and in particular Mr Bedford was negligent in sending Mrs Morris home on 20 May without scanning her for suspected IUGR. He submits that Mr Bedford did not consult the Co-operation Card or carry out an examination of Mrs Morris, but made a perfunctory entry in the antenatal notes (above) before referring her to the antenatal clinic in two weeks time. In particular, however, Mr Redfern had to concentrate on two factors about Mrs Morris’s pregnancy as indicators for a scan on the ground of suspicion of IUGR: the fundal height and her weight. This is because in other respects, and as the judge found, the signs were reassuring. It was indeed common ground among the obstetric experts that the relevant factors for considering whether IUGR should have been suspected as of 19/20 May 1987 were “fundal height, liquor volume, maternal weight, blood pressure and urine tests” (para 36). Liquor volume (amniotic fluid) would have been felt on palpation: there was nothing to suggest it was not ample and history was in due course to show (on birth) that volume was high, so high indeed as to be anomalous with IUGR. The judge found that the two CTGs taken on 19 and 20 May were satisfactory. No criticism is made regarding urine tests or what they would have shown. So the case at trial and again on this appeal, although put generally, came to revolve around fundal height and maternal weight.

The judge sub-divided the negligence issue into three sub-issues: (i) the circumstances in which a scan should be ordered late in a pregnancy; (ii) the relevant factors for indicating a suspicion of IUGR as of 19/20 May (which I have just described); and (iii) the ultimate issue of negligence, which, because Mr Redfern accepted that the evidence of the defence’s two obstetric experts, Professor Taylor and Mr Mackenzie, satisfied the Bolam test, ultimately came to be considered under the Bolitho qualification.

As for sub-issue (i), the judge decided this in Mr Redfern’s favour. He said –

“33.

Nevertheless, the degree of suspicion that would have necessitated the ordering of an ultrasound scan by a reasonably competent obstetrician was low for three inter-connecting reasons.

34.

First, if there was anything untoward about a fetus, it might mean that there was something actually or something potentially devastatingly wrong with the fetus and this would have necessitated urgent, prompt and proper investigation by an ultrasound scan. Second, it would have been easy for Mrs Morris on 19 or 20 May 1987 to have been scanned as there were then adequate facilities readily available for carrying out a scan on Mrs Morris at the hospital. Third, there would not have been any particular adverse risks for Mrs Morris in having an ultrasound scan on 19 or 20 May 1987 which in any event would have been outweighed by many potential benefits if there was a risk of abnormalities with the fetus. Thus, I agree with Mr Redfern that if there was even a suspicion of abnormality, and in particular, of intra-uterine growth retardation in Christopher on 19 or 20 May 1987, an immediate ultrasound scan of Mrs Morris should then have been ordered to be prepared.” [my emphasis]

I have emphasised the judge’s acceptance of Mr Redfern’s submission on this sub-issue because of Mr Redfern’s criticism that, in the previous paragraph of his judgment (at para 32), the judge had erred in accepting some evidence from Dr Meire to the effect that an ultrasound scan late in a pregnancy may constitute a detriment or have damaging effects. The judge said –

“Thus on balance he concluded that there was no benefit to mothers in general in having a scan at the stage of Mrs Morris’ pregnancy which had been reached on 19 and 20 May 1987 after taking into account the benefits and the damaging effects of ultrasound scanning. In the absence of any cogent contrary evidence or argument, I accept this evidence of Dr Meire as being correct.”

Whatever may be the case about this, the judge should have recalled that at the point of his evidence where Dr Meire began to talk about potentially damaging effects of ultrasound and “X-rays”, Mr Redfern interrupted to say that there was not a word about this in Dr Meire’s reports and “We have had no opportunity to investigate…”: whereupon the judge cut in sympathetically to say “No. I was, in fact, going to move him off from this…” (at B4.1545). Moreover, both Mr Hare and Mr Johnson, the obstetric experts for the claimant had said without challenge that scans had no risk (at B4. 1341A and 1391F).

Ultimately, however, this point does not take Mr Redfern anywhere, because it was common ground that it was not usual or routine to perform a scan late in a pregnancy and that “there had to be something suspicious before a reasonably competent obstetrician ought to have ordered a scan” on Christopher at that time (para 32): and for the rest the judge accepted Mr Redfern’s submission, despite his flirtation with Dr Meire’s views, that if there was “even a suspicion” of abnormality, a scan ought to have been ordered. This point therefore went in favour of the claim.

As for sub-issue (ii), I have already set out the relevant factors on which the experts were agreed. There was a dispute below as to whether fetal movement was also relevant, but the judge commented that this was academic as it was common ground that it raised no problem (at para 36). Mr Redfern returned to the question of fetal movement on the appeal. He pointed to the fact (found at para 21 of the judgment) that when Mrs Morris visited the hospital next on 2 June 1987 (in the 40^th week of her pregnancy) she was given a kick chart to record Christopher’s movements. This was because, as Mrs Morris said in her witness statement, she mentioned that she had felt that her movements had slowed. She added: “I am not sure when the movements slowed down, but it was sometime between 30 May and my next appointment on 2 June…Christopher had been very active during the pregnancy…There were still movements during this time but they were not as prominent.” That evidence, particularly its chronology, demonstrates however that, even if it is relevant to the issue of treatment, the judge was right to say that at this point (19/20 May) and on the issue of negligence it was irrelevant.

I come therefore to the critical sub-issue (iii) and the factors of fundal height and maternal weight.

Fundal height

Mr Redfern’s essential case under this heading rests on the Card entry for 28 April 1987 which I have described (at para 36) above. He submits that if the proper interpretation of the entry is a fundal height of 34 (as the judge found), then the Card readings showed an increase of height of only 1 cm between the 33 of 24 March and the 34 of 28 April, a period of over 4 weeks in which the fundus should have grown by 4 cms. If, however, the 28 April entry is to be understood as 38 (which the judge rejected on any account), then that suggested a large baby (in the 35^th week of pregnancy) which indicated a scan for potential complications. If there was uncertainty, that itself mandated a scan. The submission was based on Mr Johnson’s evidence (at B4.1400). Moreover, if the fundal height as of 28 April was 38, then there was insufficient growth between then and 19/20 May.

In my judgment, the trouble with this submission is that there is nothing to indicate a fundal height of 38, and as to a fundal height of 34, that is exactly what you would expect at 34.4 or 34.3 weeks (the figures found in the agreed Appendix for this date). By 19/20 May 1987, just under four weeks later, Sister Reid’s palpation is 38, which fits both with the 34 of 28 April and with the age of the pregnancy at that time (which was just under 38 weeks (see the Appendix for 19 May). It is true that Dr John considered that the fundus was at term, but Mr Bedford, while noting the disparity between the scan based and LMD based age of the pregnancy, concluded, accurately, that Mrs Morris was not at term. He asked her to return two weeks later. I cannot see any negligence in this. Mr Bedford was right, and we know (in retrospect) that the fundal height was normal and indeed average. In his evidence, Mr Bedford accepted that he could not remember whether he had or had not looked at the card, but in this respect at any rate, I cannot find that it would have made any difference. He said that the earlier figures on the Card would not have raised a suspicion indicating need for a scan, and in this he was supported by the evidence of Professor Taylor and Mr MacKenzie.

The judge recorded Mr Redfern’s acceptance at trial that the evidence of Professor Taylor and Mr MacKenzie satisfied the Bolam test, and went on to ask whether it also satisfied the Bolitho test as being reasonable and responsible. The judge concluded that there were six events after 28 April which supported that evidence.

The first and second of these events were the GP Dr Cushing’s findings, on palpation, of a fundal height of 38 and 39 on 6 and 13 May respectively. It is fair to say that the judge does not explain what was reassuring about these measurements: but it seems to me that, although they are somewhat high for what is now agreed to be the true age of the pregnancy (then nearly 36 and 37 weeks respectively), they represent a clear progression in Dr Cushing’s measurements from 16 (in the 13^th week) on 28 November 1986, to 20 (in the 18^th week) on 2 January 1987, to 24 (at the end of the 22^nd week) on 30 January, to 27 (at the end of the 26^th week) on 27 February, to 31 or 33 – the writing is indistinct – (at the end of the 30^th week) on 27 March, to 35 (in the 33^rd week) on 15 April, to 34 or 36 – the writing is again indistinct but it looks to me like 36 and makes sense as 36 – (at the end of the 34^th week) on 24 April, to 38 (in the 36^th week) on 6 May and to 39 (in the 38^th week) on 13 May. Dr Cushing’s measurements were in excess of what one might expect from what is now the agreed age of the pregnancy (based on scan dates), but were consistently so. The reason for that consistent excess is probably the fact that Dr Cushing began his palpations before the scans of December 1986 and January 1987 and thus consistently entered as the age of the pregnancy a number of weeks based on the original LMD dates (see the Co-operation Card). Dr Cushing was not called by the claimant as a witness.

The judge’s third factor was Sister Reid’s measurement of 38 on palpation on 19 May, which I have already mentioned above. The judge found that she was experienced at palpation and that Mr Bedford would have been entitled to have relied on her assessment. The fourth factor was the reassurance provided by Mrs Morris’s liquor volume (which would have been apparent on palpation) at this time. Fifthly, Mr Bedford found nothing to raise a suspicion of fetal abnormality when he examined Mrs Morris (finding the fetus’s head not engaged) on 20 May. Sixthly, the two CTGs were satisfactory.

I can find nothing erroneous about this reasoning of the judge. I have expressed the matter in my own way above. Nor does this reasoning depend in any way on the judge’s error in finding no IUGR. In any event, where fundal height was concerned, there was no abnormality.

Mr Redfern further submitted that the record shown by the Card raised such uncertainty, in part by reference to the indistinct entry for 28 April 1987, but principally because of the circumstance that many of the entries (and other hospital records) referred to both scan and LMP dates, that for that reason alone there should have been a further scan come 20 May to check the position. Mr Johnson’s evidence supported this approach. However, the judge rejected it in these terms (at para 38):

“This was surprising evidence because a day or so earlier, Mr Johnson had changed his mind at the second meeting of the obstetrics experts when he accepted that the correct date for assessing the expected date of delivery was to rely on the ultrasound scan and so he then resiled from his earlier opinion that the expected delivery date was to be calculated from the date of Mrs Morris’ last menstrual period. In other words, in the light of Mr Johnson’s stance at the second meeting of the experts, there was not any uncertainty that had to be clarified or “sorted out” on 20 May 1987 and so I cannot accept Mr Johnson’s reasoning, leading to the conclusion that a further scan was needed on 20 May 1987.”

I agree, and to the extent that Mr Redfern raised the same argument on appeal, it could not succeed. I have already pointed out how the agreement on the Appendix was itself inconsistent with that submission.

Maternal weight

Under this heading Mr Redfern’s essential point was that Mrs Morris’s weight gain, as recorded on the Card, over the latter period of her pregnancy was insufficient and thus suspicious. A rule of thumb, it will be recalled, is half a kilo a week. Up to 24 March 1987 there was nothing unusual. On that date a weight of 58.6 kilos was recorded at the hospital, and a few days later, on 27 March, Dr Cushing recorded 58 kilos at his surgery. On 28 April at the hospital Dr El-Kasabi recorded 59.8 kilos. That was only 1.2 kilos above the weight, five weeks earlier, on 24 March, a growth of only a quarter rather than a half kilo per week. Then both on 6 and 13 May Dr Cushing recorded 60 kilos. Over the seven week period from 24 March to 13 May Mrs Morris had put on only 1.4 kilos or 0.2 kilos per week. No weight measure is recorded for 19 or 20 May, but if it had been it may not have risen at all, for on 22 May Dr Cushing records a drop to 59 kilos, on 29 May he records 60.5 kilos, on 2 June the hospital records 60.4 kilos and on 5 June Dr Cushing records 61 kilos. Mr Redfern submits that the weekly gain of only 0.2 kilos between 24 March and 13 May (those measurements being both on Dr Cushing’s scales), or the gain of only 1.6 kilos or 0.16 kilos per week between 24 March and 2 June (those measurements being both on the hospital’s scales), having been apparent on the Card, were an indicator of IUGR and called for a scan.

A grave difficulty for Mr Redfern at trial, apart from the evidence of the defence experts, was the fact that neither Mr Hare nor Mr Johnson (experts for Christopher) made any criticism of maternal weight in their detailed reports for trial. The judge found that “the clear inference is that these experts did not then consider that her weight increases gave any grounds for suspecting that there was anything wrong with Christopher” (at para 54). Moreover at trial Mr Hare relied only on fundal height as justifying a scan, and agreed that Mrs Morris’s weight gain was satisfactory (B4.1358). In his examination in chief, Mr Johnson agreed with Mr Hare’s evidence (B4. 1378). The sole basis of the maternal weight point arose from a comment volunteered by Professor Taylor in his evidence in chief, while explaining why weight gain was satisfactory, that “if you look at the overall pattern of weight gain, it’s roughly a half kilo a week” (at B4.1511). In cross-examination, Mr Redfern pressed Professor Taylor with the figures I have set out above. Nevertheless, Professor Taylor’s response was that “the truth of the matter is that if you look at this weight gain overall in the last trimester, it falls within the normal range” (B4.1527).

The judge was impressed by Professor Taylor, and he was entitled to be. Professor Taylor said that weight could vary from measurement to measurement for a number of reasons among which were different scales, full and empty bladders and bowels, and natural variation, but that the overall trend, which was always upwards, was satisfactory and reassuring. The judge accepted this evidence and, as far as it went, it was supported by the evidence of not only Mr Mackenzie, but also that of Mr Hare and Mr Johnson.

The judge said that there were seven reasons which individually or cumulatively led to the rejection of Mr Redfern’s submission regarding the factor of maternal weight. I have already mentioned most of those reasons in my own way in para 56 above. To them can be added, as the judge’s sixth reason, the reassuring signs discussed above in the context of fundal weight.

In their joint response dated 2 May 2003 to the supplementary report of Mr Hare and Mr Johnson, Professor Taylor and Mr MacKenzie wrote as follows:

“There were no clinical indications of IUGR in late pregnancy. Mrs Morris had none of the problems that are sometimes associated with intrauterine malnutrition, the fundal height was at least equivalent to the gestational dates as determined by the early scans, she was gaining weight satisfactorily and the liquor volume was normal.

There was therefore no reason to order a scan on 28/4/87, nor on 19/5/87 – either to assess gestation or to check growth.

It was noted that there was a discrepancy between the menstrual dates and the information provided from the first two scans and the latter were accepted as correct. There was no evidence of ruptured membranes and CTG trace was reactive. An earlier vaginal examination had shown that the cervix was tightly closed.

The decision to allow her to go home was entirely rational. It is one that we both would have taken without hesitation on the information that was then available to us.

For these reasons, we believe that speculation about what might have been found had a scan to assess fetal growth been performed at that time or at a later date, is an interesting academic exercise but no more.”

In a case where the judge erred, albeit at a later stage of his judgment, in finding that Christopher was not suffering from IUGR, I have considered the judge’s rejection of the case in negligence with considerable anxiety. I have been particularly concerned about the possibility that in the judge’s mind the absence of IUGR may have albeit subconsciously led him to misjudge the elements of the issue of negligence. In considering that possibility I have, I hope with retained objectivity, reminded myself of the perplexity of Christopher’s parents who may well wonder how a judgment containing such a serious, and in one sense fundamental, error can survive on appeal. However, the issue as I see it is whether that error has undermined the finding of no negligence. In the final analysis, and with every feeling of sympathy for Christopher and his parents, I cannot justify to myself the conclusion that it did. The hospital and Mr Bedford, did not on 19 and 20 May 1987, know the future. Should they have suspected enough to require a scan? Despite the helpful, effective and troubling submissions of Mr Redfern, I have concluded that the judge was right, essentially for the reasons he gave, in his resolution of this first issue of negligence. It was not as though the evidence of Professor Taylor and Mr MacKenzie was affected by a denial of IUGR. Unlike Dr Meire and the judge, they were of the view, in the light of the outcome, that Christopher was suffering from IUGR. For that reason as well, in the light of the essential issue on this appeal, their professional expert views on the question of negligence can be accorded proper respect. It follows that this appeal must fail, whatever the outcome of the remaining issues.

Issue B and the finding of no disclosure

The judge decided this issue on the basis of his finding that Christopher was not suffering from IUGR. In the light of Mr Coghlan’s concession that the judge was here in error, the judge’s conclusion on this issue can not stand. Moreover, in the light of his other findings as to what a scan would have revealed, and what a further scan a fortnight later would have confirmed, it can be safely concluded that, if there had been a scan on 19/20 May 1987, then Christopher’s condition would have been revealed. At the very least, if the appeal for a new trial were still alive, this issue would support that request. As it is, however, in the absence of negligence, this issue cannot affect the appeal, which, as I have already said, must fail.

Issue C and the finding of no different treatment

This issue would only arise if, contrary to the judge’s and my view on the negligence issue, there had been negligence in not performing a scan on Mrs Morris. On that basis, contrary to the judge who found no IUGR, I would have said that IUGR would have been revealed, say on 20 May, and confirmed by a further scan two weeks later on 2 June 1987: as the experts agreed. The question would then arise: what treatment would on that hypothesis have been followed, and would anything different have been done in the care and management of Mrs Morris’s pregnancy?

In the joint report of the obstetric experts dated 14 May 2003 the answer given as to the question of treatment (answer 9) was that Mr Hare and Mr Johnson (the claimant’s experts) said that, on the diagnosis of IUGR, there would have been “close monitoring of the fetus and delivery by term”. Professor Taylor said he would have performed regular CTG traces, with induction of labour when the cervix was ripe; if there was a deterioration in the CTG traces he would have recommended a caesarean section. Mr MacKenzie was the only expert to say that he would have managed labour as it was managed.

The judge reminded himself of these answers but decided this issue in line with Mr Mackenzie’s response. He gave five reasons. (1) Mr Redfern had not suggested treatment otherwise than by close monitoring. (2) There was no allegation that Christopher did not receive close monitoring. (3) Close monitoring would have revealed only reassuring signs and appropriate growth. (4) In the light of (3), Mr MacKenzie’s evidence was cogent and convincing. (5) Mrs Morris made no complaint in the interim, such as about Christopher’s kicking. Therefore, Christopher would not have been born any earlier than he was.

Mr Redfern submitted that these reasons were unsatisfactory. In the first place, the central date for the EDD was 5 June and not 8 June 1987. Secondly, the real choice of treatment, had IUGR been detected, would have been Mr Bedford’s, and his evidence, which was not mentioned by the judge, was in line with the experts other than Mr MacKenzie, viz close monitoring by daily urine samples and by CTGs. He also said “I would have considered delivering the baby between 38 weeks’ gestation and term” (B4.1283). He accepted that he did not monitor Mrs Morris in this way precisely because there was no reason to do so in the absence of IUGR. Next, Mr Hare said in evidence that if IUGR had been revealed on 20 May, then, depending on the level of abnormality, he would have contemplated inducing an immediate delivery (there being no danger of prematurity at 38 weeks) or else close monitoring followed by delivery a few days later (B4. 1343). In any event he would not have permitted delivery to go beyond term in the sense of 5 June (B4.1351). As for Mr Johnson, he gave similar evidence: “what you would do is keep a very close eye on Mrs Morris in the interim. You would ask her to keep a foetal movement chart. You would ask her to come up and have regular CTG traces and, if you had the facilities, we would have asked for a proper bio-physical profile” (B4.1410). Professor Taylor gave detailed evidence (at B4.1514/5): when the second scan (2 June) confirmed IUGR, he would have been worried that the placenta was not performing well; he would have wanted to do CTG traces every day and if the trace was not normal, he would want to induce labour immediately. “I would rupture the membranes and I would watch very, very carefully indeed for the first sign of deterioration in the trace and be prepared to do a caesarean section…There would be circumstances – particularly today when our threshold for caesarean section is much lower – I think there a lot of people who would go straight and say…‘Let’s do a caesarean section now’.” As for 1987, it would depend, but he might go a day or two before 5 June, but “I wouldn’t go a day or two after that calculated date”.

As Mr Redfern submitted, it was Mr MacKenzie alone who was out on a limb. His evidence did not distinguish adequately if at all between (a) what the first or second scan would have revealed, and (b) what treatment would have been mandated if a diagnosis of IUGR had been made. It may be recalled that Mr MacKenzie had been alone in suggesting that even if a scan had been performed on 20 May, no abdominal circumference measurement would have been taken and IUGR (even if it were there) would not have been revealed (evidence which the judge had already rejected). In examination in chief, however, he was asked to assume that the 2 June scan would have shown reduced fetal girth but he interpolated into the question the further assumption that other fetal measurements were reassuring, as to which he commented “Which they would have been”. On that basis he said that it would be sensible if Mrs Morris did not go too far beyond her EDD of 5 June and then said he saw no reason to intervene before the actual delivery date of 8 June (at B41429).

Mr Coghlan’s submissions on this issue went essentially in support of the reasons expressed by the judge. He also pointed to the answer in the joint report of the obstetric experts which had defined term as one week either side of the EDD.

In my judgment, however, Mr Redfern was correct to submit that the judge accepted Mr MacKenzie’s evidence against the preponderance of the views of the three other experts, including the detailed testimony of Professor Taylor. I cannot find where Mr MacKenzie was cross-examined on his evidence about treatment and I do not think he was – either because of oversight or because his views were never clearly expressed free of his scepticism about scans revealing a worrying case of IUGR. However, it is clear from the evidence of the other three experts that, if IUGR had been revealed, it would have been taken very seriously and Mrs Morris would have been closely monitored. In these circumstances I cannot, with respect, regard the judge’s five reasons as satisfactory. As to the first (1), “close monitoring” will suffice as a label for Mr Redfern’s case, but for the content beneath that label one needs to go to the evidence. That the judge did not have that evidence sufficiently in mind is demonstrated by his second reason (2), which was that there was no allegation that Mrs Morris did not receive close monitoring. On the contrary, it was common ground that she did not: if IUGR had been diagnosed, she would have received close monitoring. As it was, because IUGR was not diagnosed, she received standard care for a patient not suffering from a worrying condition. The third reason (3), that close monitoring would have revealed reassuring signs, comes close to withdrawing the hypothesis on which the whole of this Issue C had to be conducted, which was that IUGR had been revealed by scanning. As Mr Redfern observed, when finally a CGT trace was taken during labour on 8 June, there was abnormal tachycardia. However, we do not know what daily CTGs or other means of close monitoring would have revealed at an earlier time. The fourth reason (4) was that Mr MacKenzie’s evidence was convincing, at any rate in the light of the reassuring signs that would have been revealed by close monitoring. But Mrs Morris was not closely monitored, we cannot say what close monitoring would have revealed, and Mr MacKenzie’s evidence was not only against the weight of the evidence as a whole but undermined by his reluctance to address the hypothesis of IUGR without scepticism. The fifth reason (5) is factually inaccurate. On 2 June 1987 Mrs Morris did tell the hospital that Christopher’s kicking had tailed off and she was given a kick-chart to help her monitor it. She found doing so difficult, but it was her evidence that it was not what it had been.

In these circumstances, I do not believe that the judge’s finding under Issue C could stand as expressed in his judgment. If, therefore, I had been satisfied under Issue A that the judge’s finding of no negligence could not be supported in the light of his error about IUGR being absent, I would not have been deterred from the necessity of a new trial by the judge’s additional finding that treatment would have remained the same.

However, that is very far from saying that Christopher’s case on treatment would be likely to succeed. This is an aspect of causation. A claimant must prove not only negligence, but that the negligence caused the damage. Causation cannot be proved if the negligence consists in a failure to diagnose a condition, but it cannot be shown on the balance of probability that correct diagnosis would have changed the treatment in such a way as to improve the outcome or avoid the damage suffered. When I consider the general difficulty of that aspect of proof, necessarily premised on hypothetical circumstances, I fear that Mr Redfern, even if he got as far as proving negligence, which in my judgment he has not, would find grave difficulty in showing that different treatment would have changed the outcome. I have in mind cases such as Wilsher v. Essex Health Authority [1988] AC 1074, itself referred to in Bolitho at 239G; and see, for example, Clerk & Lindsell, 2000, 18^th ed, at para 2-18. It is true that in Fairchild v. Glenhaven Funeral Services [2003] 1 AC 32 the strict rule of proof of causation has been relaxed in a limited class of case (cf Clerk & Lindsell, Supplement to 18^th ed, at paras 2-13ff), but I doubt that such relaxation applies to the present situation. However, such matters were not debated before us; and to a certain extent the question of causation was subsumed within the last issue, Issue D. I will therefore turn to that.

Issue D and failure to prove causation

This issue loomed large at trial and gave rise to complex and detailed evidence from three paediatric experts, Dr Smith (for Christopher), and Dr Emmerson and Dr Rosenbloom (for the hospital). The judge understandably said that, since he had already decided that the claim must fail on other grounds, he would deal with this last issue more briefly than he would otherwise have done. Even so, it occupied 21 out of his 88 paragraphs.

I should say straightway that I will deal with the issue in outline only, first for the reason given by the judge, namely that it is not decisive, but secondly because it seems to me that if, on the contrary, I had held that the issue of negligence needed to be retried, I would have agreed – despite real scepticism about the reach of Christopher’s case on causation (see para 70 above) - with Mr Redfern’s submission that the judge’s conclusion on this issue too is undermined by his error regarding IUGR.

Moreover, on this appeal Mr Coghlan has helpfully simplified the argument with a document, used as a forensic tool, headed “The Alternative Mechanisms”, which encapsulates the core of the argument on either side. This demonstrates that both IUGR and hypoxic ischaemia were common to the mechanisms of damage put forward by both parties. In essence it was common ground that the underlying problem lay in some placental dysfunction (the cause of which has never been identified) which caused both asymmetrical growth retardation within the womb (IUGR) and hypoxic ischaemia. The difference between the parties is that while Christopher’s case is that the hypoxic ischaemia damaged the brain of the fetus while still in the womb, as properly oxygenated blood failed to reach the watershed regions of the brain, the hospital’s case is that the hypoxic ischaemia in turn caused a sludging of the blood (polycythaemia) which together with low blood sugar (hypoglycaemia) caused similar brain damage but only after birth. Mr Coghlan’s document is annexed to this judgment as Annex 2.

Polycythaemia, referred to as a sludging of the blood, is itself caused by the lack of oxygen (hypoxia) caused by placental dysfunction. The fetus’s blood compensates for the lack of oxygen by increasing red blood cells in the attempt to carry more oxygen and nutrition to the fetus because red cells are the oxygen-carrying cells in the blood. Thus the polycythaemia begins while the fetus is still in the womb, but it is the hospital’s case that it became particularly dangerous after birth as a result of the constriction of the blood vessels at that time (albeit that last factor was not mentioned by the judge). The hospital also relies strongly on Christopher’s good Apgar scores at birth, the fact that he was born in good condition, and the fact that his fitting only started at 9.30 pm, some 14 hours after birth.

It follows that the critical difference between the parties, as described on this appeal, is that Christopher’s case was that his brain damage was caused in utero only shortly, ie one or two days, before birth, so that close monitoring and induced delivery or delivery by caesarean section would have prevented the damage occurring; whereas the hospital’s case was that the damage only occurred after birth, and as a result of physical changes after birth, and was not contributed to in any material way by the continuation of the pregnancy down to 8 June. I would emphasise that last clause, even though it was not in itself closely examined in the submissions of counsel, because, given that it was common ground on this appeal that Christopher was suffering from IUGR and hypoxic ischaemia (caused themselves by some placental dysfunction) while he was still in the womb, it follows that on the hypothesis on which this last issue is reached the hospital would not escape liability unless the damage was not only caused after birth but was also materially unconnected with the pre-birth pathology.

There was a subsequent MRI scan of the damage suffered in Christopher’s brain. Although there were at trial competing submissions as to what inferences could be drawn from the results of this scan, Mr Redfern accepted in this court that those results were consistent with both parties’ mechanisms of damage. Mr Coghlan did not submit otherwise. Therefore no assistance is to be derived for either party from that quarter.

It follows that, on an attempt to express the argument between the parties under this Issue D at its most simplified level: the intuitive strength of Christopher’s case was that he was suffering from placental dysfunction significant enough to cause IUGR and hypoxic ischaemia within the womb, also that Dr Stevens, the consultant paediatrician who attended Christopher from 9.30 am on the morning of his birth, considered that “we are dealing with hypoxic encephalopathy which has occurred in utero complicated by post-natal hypoglycaemia, polycythaemia”; whereas the intuitive strength of the hospital’s case was that Christopher was born in good condition and did not commence fitting until a significant period after delivery.

From those points on, the dispute between the experts proceeded with mounting complexity. Statistics were deployed on Christopher’s behalf, but the condition in question was sufficiently rare to make them a difficult ground for reliance, and the judge was not impressed by them. Dr Smith explained that in his clinical experience brain damaged babies could survive labour and be born in apparent good condition, because the brain damage in question did not impair the cardio-respiratory functions controlled by the brain-stem; but the judge said that Dr Smith was unable to describe to his satisfaction the precise mechanism by which Christopher’s good Apgar scores and his period before fitting could have occurred. On the other side, while the theoretical possibility of the hospital’s case was acknowledged, their paediatric experts had to concede that medical literature provided not a single clinical case in support of their theory.

The judge dealt with the experts’ conflicting evidence in passages headed respectively “The Claimant’s Criticisms of the Defendant’s case on Causation” and “The Defendant’s Criticisms of the Claimant’s Case on Causation”. In the end, he preferred the evidence of Dr Emmerson and Dr Rosenbloom, the defence experts, over the evidence of Dr Smith and the clinical opinion of Dr Stevens. He put his conclusion in this way:

“86.

At the end of the day, it is clear that Christopher’s injuries when considered in the light of his delivery and his condition at birth do not fit into any recognised pattern or show how and when he sustained his tragic injuries. This presents me with a difficult problem but I was favourably impressed by the views of Dr Rosenbloom and Dr Emmerson that two matters of considerable significance in ascertaining how and when Christopher suffered his brain damage are first, the way in which Christopher came through labour and second, his good condition at birth with his fits only starting [fourteen] hours later. Indeed, Dr Rosenbloom emerged unscathed from cross-examination on these issues, as did Dr Emmerson who expressed similar views, both of which I found logically attractive and decisive.

87.

Thus I am satisfied that Dr Rosenbloom and Dr Emmerson are correct in their conclusion that Christopher did not suffer from damaging hypoxic damage in the period of two or five days before delivery but excluding labour.”

The judge heard the witnesses, and as far as that goes his preference for the evidence of the defence experts can hardly be disputed. I would also agree that the factors which the judge relied upon are intuitively persuasive. The question arises, however, whether in balancing the evidence that he heard the judge had sufficiently in mind the dangers and consequences of Christopher’s condition in utero. After all, the question for him at this stage was: assuming a placental dysfunction serious enough to cause IUGR, and in that context hypoxic ischaemia as well, was any material brain damage caused in utero in the days leading up to delivery; and even if the damage (or most of it) did occur post delivery, was it still due to a longer than necessary period of chronic hypoxic ischaemia (and polycythaemia) within the womb?

Mr Redfern submits that once the judge removed IUGR from his consideration in balancing the rival cases on causation the scales were immediately upset against the claimant’s mechanism of damage. The nature, extent and severity of the IUGR would be an essential component in determining whether the damage was more likely to have been caused in utero by chronic partial hypoxic ischaemia or after delivery by polycythaemia. In this connection Mr Redfern stressed evidence before the court as to how placental dysfunction causes both IUGR and hypoxic ischaemia, namely by depriving the fetus of the nutrients, blood and oxygen which it needs for its proper growth. In effect, he submits, the IUGR is a symptom of the severity of the condition. It was only after delivery that the fetus’s deprivations due to the placental dysfunction could be addressed.

If I consider the judge’s treatment of Issue D from that point of view, bearing in mind his error in finding no IUGR, I am concerned by a number of features. Both in fact and in the necessary logic of his judgment, the presence of IUGR was a premise of Issue D. It was so in fact, because all the paediatric experts considered that it was present as a key element to both cases on causation. It was so in logic, because there was no need to consider causation save on the hypothesis that IUGR was present. Nevertheless, the judge no where under Issue D mentions IUGR at all. He had previously introduced Issue C by stating expressly that he was considering the question of treatment on the hypothesis, contrary to his judgment, that IUGR would have been revealed. He made no such statement under Issue D. Should it therefore be assumed that such a hypothesis is implicit? It would be natural to do so, if some recognition of the presence of IUGR had occurred where one might expect to find it, such as for instance in the judge’s description of the rival mechanisms (cf Annex 2). The judge deals with this at para 69 of his judgment, but in terms which avoids any mention of IUGR. Thus he speaks of four steps, viz (1) placental dysfunction, (2) hypoxia, (3) “a small weakened fetus and fetal mechanisms which compensated for the lack of oxygen by increasing red blood cells”, causing (4) polycythaemia. Thus a “small weakened fetus” is acknowledged, but not IUGR. This appears to reflect Mr Coghlan’s written closing submissions at para 36 (the prototype of Annex 2) where the third factor is described as a “small weakened fetus” with a footnote as follows: “which the paediatricians refer to as ‘IUGR’ – presumably meaning an abnormally small fetus as a result of deprivation of nutrients including blood”. Why did the judge not refer to IUGR, since it was common ground to all the paediatric evidence? It is as though the judge, having been persuaded by Mr Coghlan’s reliance on Dr Meire’s evidence to find no IUGR, felt unwilling to acknowledge at this point a condition as severe as IUGR.

I am also concerned as to whether the judge understood the problem of causation as at any rate it has been explained to this court. The paediatricians met on 28 November 2002 and signed a joint report dated 19 December 2002. The defendant’s question 10 asked:

“10.

By when, at the latest, would the claimant have had to be delivered to avoid the cause or sequence of events described in answer to questions 8 and 9?”

The respective answers to questions 8 and 9 stated the parties’ competing cases on causation, namely damage in the last days of pregnancy caused by hypoxic ischaemia on the one side, and damage in the 24 hours after birth caused by polycythaemia on the other. Dr Emmerson’s and Dr Rosenbloom’s answer to question 10 was as follows:

“We believe the baby would have avoided his ischaemic post natal injury if delivered at a time when he was less affected by IUGR and was likely to be less polycythaemic. We would be guided by expert obstetric opinion on this as per our answer to Question 16 of the claimants questions. It is possible that delivery of the order of three weeks earlier would have avoided his injury but we would wish to reconsider this point following receipt of the minute of the obstetricians meeting.”

This answer seems to me to be saying a number of things. First, it acknowledges that in theory the less the IUGR and the less polycythaemic the fetus, the greater the chance of avoiding injury by reason of the defence case mechanism. Secondly, there is an inference that vice versa is also true. Thirdly, it acknowledges that the harm of IUGR and of polycythaemia is time functional. Fourthly, it attempts to put a specific time on the safety of the new born baby, and that time is three weeks before 8 June, viz 17 May, before Mrs Morris’s visit to hospital on 19/20 May. Fifthly, this is saying not that after 17 May Christopher was doomed to post-natal damage by polycythaemia, but that before 17 May Christopher would be safe. Sixthly, the time specific suggestion is only put in terms of a possibility (“It is possible”) and contingently on further information from the obstetricians. In the result, the matter was not revisited.

Nevertheless, at trial, for reasons which the submissions on appeal have not made clear to me, both Mr Coghlan and the judge fixed on this answer as supporting the critical definition of the hospital’s case on causation. Thus in his closing written submissions (at para 35, the opening paragraph under this issue) Mr Coghlan described “The central point” in these terms:

“it is the D’s contention that if C had been born up to 3 weeks earlier, the outcome would probably have been the same – ie he would still have suffered from the brain damage, probably to the same extent, which he now suffers from.”

The judge (at para 67) adopted that formulation, as a statement of the hospital’s case, almost word for word. Thus the defence case on causation was not formulated in terms of damage after birth, but in terms of the (probable) inevitability of damage from a time prior to the alleged negligence. That is still consistent with damage occurring after birth, but it muddies the waters somewhat, because if damage after birth is practically inevitable from an earlier time, then, dependent on that time, the fact that the damage occurs after birth does not free the hospital from causal responsibility for the care of the pregnancy. It is perhaps for this reason, but otherwise I know not for what reason, that the judge in his next paragraph (para 68) goes on to explain the relevance of the three week point, not in terms of the time from which the effect of polycytaemia will make Christopher’s injury inevitable after birth, but in terms of the time before which the damage had already occurred, for he said:

“As I have explained, it is not now contended that the defendant should have delivered Christopher before 20 May 1987 and so it is not now disputed that if the defendant’s paediatric experts are correct, the claim must fail. The reason for that conclusion is that if the defendant’s paediatric experts are correct even if the defendant had been negligent in failing to require an ultrasound scan of Mrs Morris on 19 or 20 May 1987 and 14 days thereafter, this would not have caused or contributed to Christopher’s brain injuries because if the defendant’s paediatric experts are correct, then in those circumstances he would already have suffered his serious brain injuries and nothing done thereafter could have affected this outcome.” [my emphasis]

That is, I regret to say, a fundamental misstatement of what we in this court have been told is and was the hospital’s case on causation. It suggests that the judge may have failed fully to understand this issue. It is perfectly true that the judge thereafter goes on to describe and evaluate the competing mechanisms in terms of brain damage before and after birth respectively, and to prefer the latter explanation: but the critical question is when and how were the causes of that post-birth injury set in motion. Therefore, even if the citation which I have emphasised above is to be glossed as a mistaken way of expressing the thought that “he would have already been destined to suffer his serious brain injuries and nothing done thereafter could have affected this outcome”, the problems would still arise as to (1) whether such a case was seriously advanced by the experts in evidence; and (2) why, if the post-birth injury was set irretrievably in motion 3 weeks before delivery, there have not been many clinical cases of post-birth injury caused by polycythemia recorded in the medical literature (instead of none). After all, placental dysfunction, IUGR and hypoxic ischaemia are not so rare, as I understand the matter, as on that hypothesis (of the three week inevitability) to explain the absence of any clinical literature. As to (1), nothing Mr Coghlan has told or shown us on appeal has gainsaid Mr Redfern’s submission that the possibility mentioned in the answer cited above was not taken forward. And in any event, as I have mentioned in para 85 above (“fifthly…”) that answer did not support the proposition accepted by the judge even as I have reformulated it.

Conclusion

For all these reasons, including the judge’s reasoning on the linked question of treatment, I would conclude, that if I had been satisfied that the judge’s finding of no negligence was undermined by his error regarding IUGR, I would not have been deterred by the judge’s further answers to Issues C and D from thinking that a new trial would be necessary. Of course, after all these years, a new trial would in itself be a disaster for all concerned. But in fairness to Christopher and his parents, I do not think that it could have been avoided. As it is, however, for the reasons contained above under Issue A, I am satisfied that the judge’s finding of no negligence was right, and was not influenced by the error which he expressed in the course of dealing with issue B. It follows that this appeal must fail.

Finally, as Silber J did at the close of his judgment, I would express my own sense of sorrow for Christopher and his parents at the outcome, for all that the facts of the case and legal principle have mandated my conclusion. Not every tragic case of injury arises out of negligence. The judge said that he had read with admiration the statements of Christopher’s parents which demonstrated the very impressive way in which they and their other children have helped Christopher; and I can join in those sentiments. I would also express my appreciation of the skill with which Mr Redfern and those supporting him have argued this appeal on Christopher’s behalf.

Carnwath LJ :

This has been a sad and disturbing case. No-one could leave it without the strongest feelings of both sympathy and admiration for Christopher and his parents. One’s instinctive reaction is that something must have gone seriously wrong during the pre-natal care, for which the hospital must bear responsibility. However, fixing responsibility depends on proving negligence. By the end of the trial the case as presented to the judge turned solely on the events of 19/20^th May 1987. We must give credit to the experienced legal and medical team representing Christopher for abandoning the wider allegations, which they felt unable in the end to support. But it leaves the case on a very narrow footing.

On that basis, I see no answer to Rix LJ’s careful analysis of the judge’s findings on the issue of negligence (Issue A). I bear in mind, in particular, that Mrs Morris’ admission on that occasion was due to symptoms (suspected spontaneous rupture of the membranes) which in themselves required urgent attention, but had nothing to do with the problems which caused the later damage. Nor, on the evidence which the judge accepted, was there anything to put the medical staff on notice of those potential problems; other indications were, as he found, reassuring. In assessing the hospital’s conduct on that occasion, one must avoid the wisdom of hindsight.

For that reason, I also would dismiss the appeal. I share Rix LJ’s concern as to the judge’s apparent error on the IUGR point, and I also see force in his criticisms of the reasoning on the issues C and D. I agree with him, however, that they do not undermine his conclusion on the liability issue. Since that is enough to determine the appeal, and in view of the difficult medical and causation questions raised by the other issues, I prefer to express no concluded view on them.

Potter LJ:

I am grateful to Rix LJ for his masterly exposition and analysis of the difficult and troubling issues in this appeal. I agree with his judgment.

Annex 1

SUMMARY OF CO-OPERATION CARD AND OTHER INFORMATION RELATING TO MRS. JACINTA MORRIS’ PREGNANCY AS AGREED BY OBSTETRICIANS AS AGREED BY COUNSEL

Annex 2

THE ALTERNATIVE MECHANISMS

(SEE Joint Meeting of Paediatricians at 2.490 ff)

Defendant’s case:

Claimant’s case: