England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENF 96/0572/CMS1

COURT OF APPEAL (CIVIL DIVISION)

(MR JUSTICE THOMAS )

Royal Courts of Justice

The Strand

London

Wednesday 1 April 1998

B e f o r e:

LORD JUSTICE ROCH

LORD JUSTICE ALDOUS

and

LORD JUSTICE BROOKE

B E T W E E N:

PHILIP HARRY WISNIEWSKI Respondent

(A Minor )

and

CENTRAL MANCHESTER HEALTH AUTHORITY Appellant

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(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 421 4040

Official Shorthand Writers to the Court)

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MR S GRIME QC, MR N BRASLAWSKY and MR G FORRESTER (1.4.98) (instructed

by Hempsons, Manchester M2 3HR) appeared on behalf of THE APPELLANT

MR M REDFERN QC, MR A LYON and MR P A EDWARDS (1.4.98) (instructed by

Messrs Alexander Harris, Sale, Cheshire M33 6FX)

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J U D G M E N T

(As Approved by the Court )

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LORD JUSTICE BROOKE: This is an appeal by the Defendant health authority from a judgment of Thomas J sitting at Manchester on 2nd April 1996 when he directed that judgment be entered for the Plaintiff in this medical negligence action. Damages were agreed between the parties during the course of the trial, and the judge was only concerned to decide the question of liability.

At the centre of this litigation is a boy called Philip. He is now 10 years old. He was born at St Mary’s Hospital Manchester in the early hours of the morning of 15th January 1988 and he has suffered from athetoid cerebral palsy from birth. In an admirably clear judgment the judge held that he suffered irreversible damage to his brain in the 13 minutes immediately prior to his birth at 5.40 am because as he moved down the birth canal the umbilical cord was wrapped round his neck and had a knot in it. He was effectively being strangled. His mother had been admitted to hospital at 2.50 am, less than 3 hours earlier, and the judge held that if her care had not been negligently mismanaged, a doctor would have carried out an artificial rupture of the membranes (ARM) shortly after 3.40 am, and such an exercise would inevitably have disclosed the presence of a substance called meconium. This discovery would have led to the child being born by caesarean section, thus obviating the hazards of birth down the birth canal.

The Defendants’ case both at trial and in this court is essentially that there was a respectable school of medical practitioners who would not have moved immediately to investigate intervention at the sign of possible trouble which revealed itself at 3.40 am and that by the time any further trouble signs appeared it would have been too late to perform a caesarean. It is therefore said that the judge did what the House of Lords in Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 has again very recently affirmed that he must not do, which was to substitute his own assessment of what would have been an appropriate standard of care for the standard considered appropriate by a responsible body of skilled medical opinion. There are two further issues in the appeal, one connected with the judge’s positive finding, in the absence of the relevant doctor from the trial, as to what he would have done if he had attended his patient at 3.40 am, and one connected with issues of causation.

Philip’s mother had given birth to her first child, who is a healthy boy, in 1985. She had been admitted to the same hospital for four days towards the end of that pregnancy with high blood pressure. A trace of protein in her urine had indicated pre-eclampsia, but further testing had eliminated this possibility.

For her second pregnancy, when she was 31 years old, the expected date of delivery was 7th January 1988. Five days later high blood pressure was disclosed at a routine check-up and she was admitted to hospital overnight. This helped her blood pressure to return to normal. The following evening (14th January) she began to feel mild contractions, and her husband took her to St Mary’s Hospital in the early hours of 15th January, arriving there at about 2.50 am. St Mary’s is a major teaching hospital with a specialist obstetric unit.

The relevant staff on duty that night were Sister Brockbank, the midwife sister on duty, and Dr Renninson, the resident senior house officer (“SHO”) on call. No other member of the hospital’s staff figures in this story until a number of people came on the scene during the events surrounding Philip’s birth about three hours later. Sister Brockbank had qualified as a SRN in 1974 and as a midwife in 1978. She had served on the staff of this hospital since 1979 and was promoted to midwife sister in 1982. She had had a lot of practical experience as a midwife, since in an average week the hospital had 40-50 mothers in labour. Dr Renninson, on the other hand, had qualified as a doctor at Manchester University as recently as 1985. After obtaining experience at two other local hospitals as a house physician and house surgeon between August 1985 and July 1986, he had had six months experience as a SHO in obstetrics and gynaecology at one of those other hospitals, and had then come to St Mary’s Hospital as a SHO in obstetrics and gynaecology in February 1987. At the time these events took place, therefore, he had had 17 months experience in this speciality, which included 11 months experience of managing patients on delivery suites.

The Defendants faced the difficulty that the Plaintiffs’ solicitors’ letter before action was not written until over three years after Philip was born (9th April 1991), the writ was not served for another 21 months (21st March 1993), and the trial of the action started more than eight years after Philip’s birth. In those circumstances it is hardly surprising that Sister Brockbank told the judge that she could not recall what had happened prior to the actual delivery (although she did remember the delivery itself because it was so rapid) and Dr Renninson said in a written statement that he had no independent recollection of his involvement in the management of this case at all. By the time of the trial Dr Renninson had obtained an appointment at a cancer centre in Australia, and he did not return to England to give evidence at the trial, a matter which evoked adverse comment from the judge to which I will refer in due course. For the events prior to delivery Sister Brockbank was constrained to try and reconstruct the history of what had happened from the entries in the admission records and other records and from her usual practice.

Soon after Mrs Wisniewski was admitted Sister Brockbank carried out an abdominal examination. She recorded the foetus heart beat as 160 and regular and the position of the foetus as a cephalic presentation with the head 3-4/5ths palpable. The contractions were noted as irregular. At 3.05 am she carried out a vaginal examination. She recorded that the cervix was 1-2cm dilated, that the head was 3cm above the ischial spines, and that it bobbed out of the pelvis as she was making her vaginal examination. She said she would not have pushed the foetus: the head, which was in the pelvic rim and not completely free, would have just moved at her touch. She considered that Philip’s mother was a normal patient in niggling or early labour and arranged for her to be taken to the pre-delivery room.

At 3.10 am she started electronic monitoring of the foetal heart rate using a Corometric monitor. This monitor displayed a digital readout of the foetal heart beat and recorded both the heart beat and the contractions on a cardiotachograph (CTG) trace. Between 3.10 am and 3.40 am the trace showed a foetal heart rate baseline of between 170 beats per minute (bpm) and 175 bpm, rising to 180 bpm, but not dropping below 160 bpm. The trace showed that the beat to beat variability was 5 bpm, which was considered to be at the bottom end of normal.

During this period there were two early decelerations in the foetal heart rate when the rate fell to 130 bpm (at 3.23 am) and 110 bpm (at 3.40 am) although it rapidly recovered on both occasions. The Plaintiff’s case stands or falls by the contention put forward by his expert witnesses that the early deceleration identified on the CTG trace at 3.40 am called for investigative intervention at that stage and that to adopt a policy of waiting to see if there were any further indications of trouble would have been negligent.

There is a note made by Sister Brockbank in the admission record against the time of 3.40 am which stated, after noting the CTG readings:

"Dr Renninson informed. Patient to remain in (central delivery unit) - observe.

Patient may mobilise."

The judge found that Sister Brockbank went to speak to Dr Renninson at this time, and that he did not attend Mrs Wisniewski or examine her or see the CTG trace himself. Instead, he probably assented to Sister Brockbank’s advice on what to do. Sister Brockbank had told the judge that she had decided to contact Dr Renninson mainly because of the quick foetal heart beat (tachycardia) - in 1988 the normal range for a foetal heart rate was considered to be between 120 bpm and 160 bpm - but also in relation to the deceleration to 110 bpm at 3.40 am. There were some inconsistencies in her evidence, and the judge eventually held that she had failed to tell Dr Renninson about the tachycardia, since this was not expressly mentioned in Dr Renninson’s statement. He went on to hold that the Defendants were negligent in that Dr Renninson should have attended and examined Mrs Wisniewski at this time. He found that there was nothing else happening in the hospital that night which properly prevented the attendance of Dr Renninson or another doctor, or excused his failure to attend. These findings are not challenged by the Defendants on this appeal. They understandably take the view that whether this omission was caused by the midwife not telling the doctor the full story or by the doctor, on the assumption that he was told the full story, failing to attend, the result would have been the same and as the responsible health authority they would be vicariously liable in either event.

The judge also found that it was Sister Brockbank who took the decision to disconnect the electronic monitor and allow Mrs Wisniewski to walk about the ward. She said that she might have made this decision, which was the type of decision midwives often make, of her own motion or in answer to a request to go to the toilet. The judge also accepted the evidence of Mr and Mrs Wisniewski that between 3.40 am and 4.20 am, when the monitor was reconnected, Sister Brockbank did not at any time check the foetal heart rate with a stethoscope or a sonicaid. But although the judge held that the Defendants were negligent in failing to ensure continuous electronic monitoring during this period, nothing now turns on this finding because the judge held that the Plaintiff had not proved that there was any material difference in the foetal heart rate during this period, and there is no cross-appeal against this finding. At 4.20 am Sister Brockbank noted that there were 2 weak contractions every 10 minutes and that the foetal heart rate was 170 beats per minute and regular. She made no further notes until 5 am, and the judge accepted the evidence of Mr and Mrs Wisniewski that Sister Brockbank did not come and look at the trace again after the CTG was reconnected until Mr Wisniewski went and fetched her when the trace seemed to be going haywire at 5 am.

The judge found that the earliest time by which delivery by caesarean section might have been carried out, following investigation at 3.40 am, would have been 4.00 am, and the latest time 4.30 am, and that if Philip had been born by that method he would not have encountered the catastrophe which actually befell him. It was not till 4.50 am, 30 minutes after the trace had been recommenced, that the judge held that there was again evidence on the CTG of a deterioration sufficient to warrant intervention in the course of labour by an ARM. He found that the Plaintiff had failed to prove that it would have been possible to carry out a caesarean section safely, following a decision to rupture the membrane after the deceleration observed at 4.50 am, even if the ARM had been performed without taking a foetal blood sample. In the event Sister Brockbank performed an ARM at 5.20 am, and events then moved very swiftly towards the baby’s birth only 20 minutes later.

The result of this appeal therefore turns critically on the findings that ought to follow the judge’s unchallenged finding that the Defendants were negligent because Mrs Wisniewski was not examined by the SHO on duty soon after the early deceleration was noted on the CTG at 3.40 am. In one respect this court has an advantage not available to the judge, since the decision of the House of Lords in Bolitho was handed down in November 1997, long after the judgment at first instance. I will first describe the way the judge approached these additional findings before I go on to consider Mr Grime QC’s criticisms of the approach he adopted.

The judge set out in his judgment passages from the judgment of Farquharson LJ (with whom Dillon LJ agreed) in this court in Bolitho [1993] PIQR P 334, at p 342 and from the judgments of Hobhouse and Roch LJJ in Joyce v Merton, Sutton and Wandsworth HA [1995] 27 BMLR 124, at pp 155-6 and 145. The judge deduced from these cases that he had an obligation to make findings as to what Dr Renninson would have done if he had attended, and what a hypothetical competent doctor would have done in his place, and also findings as to whether, if Dr Renninson had not proceeded to rupture the membrane artificially and gone on to decide upon a caesarean section, this would have been contrary to responsible medical practice. If Dr Renninson (or a competent substitute) would probably have performed an ARM soon after 3.40 am, there would be no need to undertake the second, more complex investigation, since the Plaintiff would have proved as a fact that but for the Defendant’s negligence an ARM would have been performed which would have led inevitably to a decision to perform a caesarean section and would have avoided the hazard that in fact befell him.

On the question of what Dr Renninson himself would have done the judge adopted the following course. The Defendants’ solicitors had disclosed on 10th August 1994 a short statement signed by Dr Renninson a week earlier from an address in Cheshire, in which he made it clear that he had no recollection of his involvement in the management of this case. Apart from the question of what happened or did not happen at about 3.40 am, there was never any suggestion that he was involved again in any way until 5.27 am (13 minutes before the baby’s birth) when he was told of the presence of meconium-stained liquor associated with foetal tachycardia and he (and many others) attended the labour ward immediately. There were hints at the trial, which he was not present to refute, that he might have been asleep in the room at the hospital which is made available for this purpose for busy SHOs on call at night.

As I have said, Dr Renninson did not give evidence at the trial. A Notice under the Civil Evidence Act 1968 was served on 16th January 1996 seeking to put his written statement in evidence because he was beyond the seas: the Plaintiff’s solicitors served a counter-notice on 1st February on the grounds that he was one of only two material witnesses to the events complained of, and that the Plaintiff would be severely prejudiced by being deprived of the opportunity to cross-examine him as to the contents of his statement which directly contradicted the medical notes. On 8th February 1996 the doctor wrote a letter, which the Defendants’ solicitor exhibited to an affidavit, explaining that he was reaching the end of his medical training in gynaecological cancer surgery at the Women’s Cancer Centre in Sydney, Australia, and that he did not intend to return to England with his wife and three children until August 1996 or, possibly, August 1997. The Plaintiff’s legal advisers then made an unsuccessful application to a district judge for an order requiring Dr Renninson to return to England to give evidence at the trial. Nobody seems to have considered the possibility of arranging for Dr Renninson to give evidence by video-link, although he had said in his letter he would be happy to help in any way possible from where he was. At the close of the Defendant’s case at the trial the judge reluctantly admitted his statement as hearsay evidence although he was not willing to give its contents much weight.

The reason for this was that the judge took a dim view of Dr Renninson’s attitude, from which he was willing to make findings adverse to the Defendants. Two passages in his judgment touch on this point. At p 12 the judge said in relation to the question whether Dr Renninson attended at 3.40 am:

"Dr Renninson’s evidence was only given by way of a statement. There was no justifiable reason which explained his non attendance at the trial to give evidence and be cross-examined on his statement, and no reason why some other arrangements could not have been made had the defendants so chosen. For this reason and because his statement was equivocal on whether he attended or not, I attach little weight to his evidence on this issue. However, his statement, the circumstances of his non-attendance and the failure to submit his evidence to cross examination give rise to further consequences to which I refer at page 21"

On p 21, following a heading “What would Dr Renninson have done?”, the judge said:

"Dr Renninson’s statement does not mention that he was told of the tachycardia and I do not accept the evidence of Sister Brockbank that he was. For the reasons given, I find her an unreliable witness and her evidence as to why she contacted Dr Renninson was contradictory; she was not sufficiently concerned about Mrs Wisniewski’s condition to give him a full picture.

As I have already observed, Dr Renninson’s statement does not deal with what he might have done if he had had full information and examined the CTG trace and Mrs Wisniewski. The statement does not seek to answer the serious criticism made as to what ought to have been done.

It was submitted by Mr Redfern that I should infer from Dr Renninson’s failure to attend that he had no answer to the criticism made and that I should therefore find that he would after examination of Mrs Wisniewski and the CTG trace have concluded because of the tachycardia and decelerations that it was necessary to rupture the membrane and concluded it was safe to do so and thereafter proceeded to a caesarean section; see Chapman v Copeland (1966) 110 SJ 569; British Railways Board v Herrington [1972] AC 877 at p 930. In my judgment this is an inference that I can and should draw; there was no legitimate reason put forward by Dr Renninson for not returning to this country for the trial; furthermore there was no explanation from the defendants for not taking his evidence in Australia on commission or otherwise so he could have been cross examined and given evidence as to what he might have done. I conclude that a decision not to call him or to take his evidence in Australia was made for tactical reasons; the defendants cannot therefore complain if I draw this adverse inference against them."

If the Plaintiff is able to hold this positive finding on appeal, then there would be no need to go any further. The judge went on:

"However, it is rightly pointed out that the evidence of the actual doctor who should have attended should be treated with a degree of caution, and it is therefore right that I also find what a competent doctor would have done had he attended."

The judge then reminded himself on the way in which Mr Redfern QC had put the case for the Plaintiff. He had argued that it was clear that the foetus was distressed by 3.40 am and that the cause of this was not easy to determine. There were grave risks in allowing the delivery to continue without intervention and great benefit in rupturing the membrane and then proceeding to a caesarean section with only a small risk attached. In these circumstances he had submitted that it was negligent of a doctor to have run the grave risks inherent in non-intervention at 3.40 am and not to have ruptured the membrane and then performed a caesarean section.

The judge said he was satisfied that a competent doctor would have concluded that an ARM should be performed and that it was safe to do so and that he would have then proceeded to perform a caesarean section. He said that the only real risk that was entailed in carrying out an ARM at or shortly after 3.40 am was the possibility of a cord prolapse; there was no risk of accelerating labour at that time. Any competent assessment of that risk would have to take into account an examination to see if the cord could be felt, the position of the head (which the judge held was not free at that time), and the risk of the head moving. He said that this risk of movement could have been overcome by requiring the midwife to push the foetus down, as suggested by Mr Johnson, who was one of the Plaintiff’s expert witnesses.

Against that risk (which the judge considered to be very low) there was the evidence of distress to the foetus as evidenced by the CTG trace. The cause of that distress was not possible to determine, but there was a foreseeable and likely risk that the cause might well be one that would lead to cerebral damage (or worse) from hypoxia. It was highly desirable to see if that risk was real by rupturing the membrane to ascertain whether meconium was present.

The judge said that a competent doctor would balance these risks, and he had no doubt that the only proper course in the circumstances was to carry out an ARM.

The judge then went on to consider whether a decision to delay rupturing the membrane but to continue observation would have been consistent with an approach that would have been adopted by a responsible body of medical opinion.

On this question he was confronted, as is common in contested litigation of this type, with a conflict of expert opinion. The Plaintiff’s experts were Mr Anthony Johnson and Mr G J Jarvis, the Defendants’ experts Mr R R Macdonald and Professor E J Thomas. The judge was clearly impressed by the long periods of “hands on” experience in obstetrics and gynaecology professed by the first three of these witnesses. He described them all as eminent consultants and impressive witnesses (“most impressive”, so far as Mr Johnson was concerned), and he dismissed a challenge made by Mr Redfern to Mr Macdonald’s integrity. In addition to calling Mr Macdonald an impressive witness, the judge described him as a honest and impartial expert.

Professor Thomas’s experience had been different from the other three. He had specialised in obstetrics and gynaecology since 1984, and his “hands on” experience as a consultant was much shorter. He had first become a consultant at Newcastle General Hospital and a lecturer at Newcastle University in 1987. At the end of 1990 he had taken up a post as professor and consultant at Southampton University, and since August 1995 he had been Dean of Medicine there, so that inevitably much of his time in the eight months before the trial was taken up in administration. Apart from making an observation about the shorter length of his experience, the judge was disposed to find fault with Professor Thomas for being reluctant to criticise any conduct on the part of the Defendants even where criticism was plainly merited, and for not being prepared to give straight answers to questions. The judge described him, nevertheless, as an eminent consultant and rejected the attack Mr Redfern also made on his integrity.

In his judgment the judge set out the contrasting approaches of the two pairs of experts.

Mr Johnson and Mr Jarvis both said that if a doctor had assessed the CTG trace at 3.40 am it would have been important for him to take into account what was known about Mrs Wisniewski’s condition. She was 31 years old, eight days post term, and had had high blood pressure during both this and her earlier pregnancy. Whilst none of this evidence was in itself significant, when these factors were taken together there was a need for a doctor to be more alert because they contributed to the risk. They considered Mrs Wisniewski to be part of the way up the scale of risk, or at the low end of high risk.

They both considered that since by 3.40 am the CTG was still showing a baseline tachycardia without accelerations, this considerably raised the level of risk. Baseline tachycardia which continued for more than the 15-20 minutes that were required to see if it would settle down, was an indication of foetal distress. The first deceleration at 3.23 am (which the judge held to be an early, or Type 1 deceleration, connected with a contraction) should have alerted any doctor to keep a close eye upon the patient. After the second deceleration, which was also Type 1, at 3.40 am, accompanied as it was by the observation of baseline tachycardia for 40 minutes and the evidence of the clinical condition of the mother, they both considered that any competent obstetrician would have appreciated that the situation was serious because there were clear indications of deprivation of oxygen (hypoxia) in the blood of the foetus.

Although common causes of such hypoxia were a cord accident or obstruction, they said that it was not necessary to try and determine the cause immediately. The objective was to treat the baby there and then and worry about the cause later. The next step was therefore to conduct a further vaginal examination and then to proceed to an ARM. If a vaginal examination had been carried out at 3.40 am it would have shown it was safe to carry out an ARM since this was the best way to obtain the further information that was needed.

An ARM would have revealed whether meconium was present in the amniotic fluid and, if it was, this would be a confirmatory sign of foetal distress. Meconium is the intestinal waste expelled through the bowel, which is expelled by a foetus when distressed through anoxia (or during a breech birth, not relevant in this context). An ARM would also enable a foetal scalp electrode to be fitted and this would give a better reading of the foetal heart rate.

Mr Johnson and Mr Jarvis both accepted that there are downside risks involved in carrying out an ARM, particularly the risks of cord prolapse and of accelerating the labour. They considered that there was very little risk of accelerating labour in this case, as it had not progressed far by 3.40 am, and that there was a negligible risk of cord prolapse.

This risk depends in part on the position of the head. If the head is free and high, the risk is greater. Mr Johnson and Mr Jarvis’s belief that this risk was negligible was founded on the evidence that the head was engaged at 3.40 am and was not high in the pelvic area. The fact that Sister Brockbank had recorded 50 minutes earlier that the head bobbed out of the pelvis did not mean it was free, and they considered that the relative position of the head to the ischial spines meant it was not free. If the cord had come down, it would have been possible to feel it during the earlier vaginal examination. In any event, if the head was not engaged, Mr Johnson said that, since the baby’s head was later found to be a small one, the ARM could have been performed without risk by the midwife pushing down on the foetus, thus preventing the head from moving and eliminating the risk of cord prolapse.

Mr Johnson and Mr Jarvis went on to express their shared opinion that if an ARM had been performed, there was a 90-95% chance that meconium would have been found to be present. They based this belief on their own experience, supported as it was by the description of the meconium found at 5.20 am and by the evidence that when Philip was born there was meconium in his trachea and he was gasping. A caesarean operation would have then followed.

Mr Macdonald and Professor Thomas, on the other hand, were both of the opinion that no action apart from continued monitoring was required at 3.40 am, although Mr Macdonald would not have criticised a doctor who took the course advocated by the Plaintiff’s experts. They acknowledged that the three points mentioned about Mrs Wisniewski’s clinical condition should have been borne in mind as indications for closer supervision, although they did not regard them as significant as Mr Johnson and Mr Jarvis considered to be. The fact that she was 31 years old did not concern them because this was her second labour. Since the normal span for delivery was 7 days, she was only one day late. As her blood pressure was only slightly raised it was not relevant. There was, in their view, nothing in her clinical condition that was not within the range of normality, and none of the points that had been raised would have the effect of limiting foetal reserves.

Mr Macdonald accepted that by 3.40 am the trace was “suspicious”. He would have concluded that the foetus was being stressed for some reason and that its reserves were being taken up from the outset. However, the foetal tachycardia might have been associated with maternal anxiety, and although he would have noted it, he would not have considered it a matter of serious concern. After examination he would have been concerned, but he would have continued observation and seen what further progress there was in labour. He might have tried moving the mother’s position to see if that brought out an improvement to the trace. His aim would have been to try to work out the cause of the tachycardia, difficult though this might be.

Professor Thomas’s evidence was along the same lines. He considered that there were signs of stress present, but he said that this was normal in labour. He did not see any signs of compromise or oxygen deprivation, with the associated risk of cerebral damage. Things, in his opinion, were normal at that stage.

Mr Macdonald would not have carried out an ARM in these circumstances. When asked whether he agreed with Mr Johnson’s view about the small risk of a cord prolapse he replied:

"No, I do not. I put more emphasis on that risk, that even if you push the head into the pelvis in order to rupture the membranes the head will tend to rise again when the midwife lets go and there is a significant risk that the cord might come down. But I think my main emphasis is on the point that I would regard this trace as less serious than he did."

This opinion about the risk that the head would tend to rise again when the midwife let go was not challenged in cross-examination. He restated his opinion, even as to the later time of 4.20 am, that the trace did not demonstrate such a degree of hypoxia at that stage that more than continued observation was appropriate.

Professor Thomas’s evidence was to the same effect. He was worried about the risk of a cord prolapse. He had never come across the manoeuvre mentioned by Mr Johnson. He had never been taught to perform it, he had never performed it, and he was unaware of it from the text books he used. Although Mr Johnson’s description of it seemed logical, he was worried that if the head was unmoulded at this early stage of labour, a midwife might not actually be able to push it physically into the space that was currently available for it. This concern was not explored or challenged in cross-examination. The judge ascribed his approach to “his relatively less experience”, despite the fact that he had had 11 years experience of obstetrics and gynaecology. Professor Thomas was of the opinion that on balance he would not have ruptured the membrane but continued to monitor. If there was a deterioration, then he would have carried out a rupture of the membrane.

When analysing the effect of this evidence the judge showed that he was influenced by a passage in the judgment of Sachs LJ in Hucks v Cole [1993] 4 Med LR 393 at p 397 when he had said that a court must be vigilant to see whether the reasons given for putting a patient at risk were valid in the light of any well-known advance in medical knowledge, or whether they stemmed from a residual adherence to out-of-date ideas.

The judge said:

"In my judgment it is clearly necessary for me to analyse whether the course of treatment put forward by Mr Macdonald and Professor Thomas put the patient unnecessarily at risk and was not one that a competent doctor acting with ordinary skill and care or a responsible body of medical opinion would have followed; see the judgment of Farquharson LJ in Bolitho at p 342. I reject the submission that such an analysis takes a trial judge into the medical arena; such an analysis of medical evidence given by experts to see if a view put forward is in fact one that a responsible body of medical practitioners could hold about a clinical judgment on an individual patient is no different in this respect to a similar analysis of a judgment by an accountant, lawyer, underwriter or other professional. A judge has to be conscious of his own lack of medical knowledge and of the fact that clinical decisions are often difficult to make. However where an analysis of the expert evidence on the facts relating to a particular case shows that a decision made by a doctor and supported by experts cannot be justified as one that a responsible medical practitioner would have taken, then a judge should not preclude himself from reaching that conclusion simply because clinical judgment is involved.

For reasons I have set out in the analysis that a competent doctor should have undertaken in assessing the risks involved in deciding whether to rupture the membrane and despite the eminence of Mr Macdonald and Professor Thomas, I consider on a balance of probabilities that no doctor acting with reasonable skill and care and no responsible body of medical opinion would have reached any decision other than to rupture the membrane at or shortly after 3.40 am. The risks of not acting were too great and the downside very small."

In making this finding the judge did not of course have the advantage of the guidance now provided by the House of Lords in Bolitho. After referring to Hucks v Cole and Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296, Lord Browne-Wilkinson said at p 1160A-E:

"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are question of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman [in Maynard v West Midlands RHA [1984] 1 WLR 634, 639] makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed."

Hucks v Cole itself was unquestionably one of the rare cases which Lord Browne-Wilkinson had in mind. A general practitioner, knowing that his patient had a streptococcal infection, kept her on a course of drugs which would not kill the organism, and when that course was over failed to put her on to penicillin. Although four expert defence witnesses defended his conduct, Sachs LJ said that their reasons on examination did not really stand up to analysis.

In my judgment the present case falls unquestionably on the other side of the line, and it is quite impossible for a court to hold that the views sincerely held by Mr Macdonald (“an eminent consultant and an impressive witness”) and Professor Thomas cannot logically be supported at all. These two consultants did not regard Mrs Wisniewski as anything other than a normal patient. They noted the tachycardia (which Mr Macdonald connected with the high maternal heart rate noted by Sister Brockbank) and the two early decelerations, and they both maintained that it would be consistent with an appropriate standard of care for a doctor to continue observation for the time being, while seeking to ascertain the cause of the suspicious signs.

It is clear from their evidence that neither of them was willing to discount entirely the risk of a cord prolapse, which Mr Johnson had described as a calamitous event if it occurred. Although the baby’s head was not entirely free, it had moved when Sister Brockbank touched it, and Mr Macdonald was not convinced that Mr Johnson’s preferred expedient of having the baby’s head pushed down by the midwife was completely foolproof. He was not cross-examined about this. Professor Thomas (for all his practical and academic experience) had never heard of it, and put up theoretical concerns about it on which he was not challenged in cross-examination, and Mr Jarvis was not asked about it at all. In those circumstances, in my judgment, the judge was wrong to have concluded that any reasonably competent doctor would have resorted to this technique to eliminate the risk of cord prolapse, and the views expressed by Mr Macdonald and Professor Thomas were views which could be logically supported and held by responsible doctors. Needless to say, neither Mr Macdonald nor Professor Thomas would have been willing to countenance a situation in which no monitoring of any kind would have been conducted for the next 40 minutes, and the CTG trace would have then remained unwatched for a further 40, but there is no appeal against the judge’s somewhat benign finding that even if such monitoring had taken place between 3.40 and 4.20 am it would not have revealed anything further which would have led a doctor to perform an ARM. After 4.20 am it was not until 4.50 am that the trace displayed evidence on which immediate action should have been taken.

I will now turn to consider the judge’s finding that Dr Renninson himself would have performed an ARM if he had attended Mrs Wisniewski and conducted a vaginal examination soon after 3.40 am. Mr Grime accepted that there is a line of authority which shows that if a party does not call a witness who is not known to be unavailable and/or who has no good reason for not attending, and if the other side has adduced some evidence on a relevant matter, then in the absence of that witness a judge is entitled to draw an inference adverse to that party and to find that matter proved. On this occasion, however, he says that Dr Renninson was known to be unavailable, and there was a good reason for his unavailability; the Plaintiff had not adduced any evidence which tended to show what Dr Renninson would have done if he had attended; and so far from drawing an adverse inference the judge was willing to draw a benign inference (in the light of the view he took of the case) that this negligent doctor would have behaved in a non-negligent way if he had in fact attended.

The need for the party relying on such an inference to establish a prima facie case on the matter in question was established in McQueen v Great Western Railway Company (1875) LR 10 QB 569, where it was more likely that a servant of the railway company (rather than a member of the public) would have stolen the plaintiff’s goods from a truck in a railway siding to which the public had access, but the plaintiff did not call any evidence to show that this was what had in fact happened. In those circumstances, Cockburn CJ said at p 574:

“If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced it would not displace the prima facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witnesses who might have been called on the part of the defendant amounts to nothing."

In Chapman v Copeland (1966) 110 SJ 569 a defendant driver elected to call no evidence in a case involving a fatal road traffic accident where the plaintiff widow had adduced evidence of brake and tyre marks made by his car on the road surface, and this court was willing to infer in his absence that he had been at fault. Salmon LJ said that:

".... as the law now stood there was no obligation on the defendant at the end of the widow’s case to give evidence. However, if he chose not to do so, he could not complain if, on a very narrow balance of probability, the evidence justified the court in drawing the inference of negligence against him ... Where the defendant, quite legitimately, in a case in which there was nothing but accident mathematics, chose not to give evidence to the contrary, he could not complain."

In Herrington v British Railways Board [1972] AC 877, the other case cited by the judge, Lord Diplock applied the same principle when the plaintiffs had adduced evidence that a chainlink fence four feet high, which ran along the boundary between a railway line equipped with live electric rail and a public open space where children gathered to play, was pressed down to a height of no more than ten inches from the ground at a point where it was approached by a well-trodden path across the meadow. This state of affair was said to have existed for several weeks before a child suffered an accident on the line.

Against this background Lord Diplock said at pp 930F-931B:

"The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.

A court may take judicial notice that railway lines are regularly patrolled by linesmen and gangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence."

The need for the party who seeks to rely on an adverse inference to adduce proof on the matter in issue was repeated by the Supreme Court of Victoria in O’Donnell v Reichard [1975] VR 916 where Gillard J conducted a review of earlier English and Australian cases and said at p 920:

"Of course, patently there must be some limitation imposed upon the application of this rule. For example, any party upon whom the burden of proof on any issue is imposed must always adduce a prima facie case on such issue to go to the jury, and the failure of the other party to the litigation to call witnesses who may be expected to elucidate the matter cannot fill in any gaps in the proof required (see per Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at p 371; and Tyne v Rutherford (1963) 36 ALJR 333)."

Gillard J summed up the state of the authorities in these terms at p 921:

"Looking at the authorities from Blatch v Archer (1774) 1 Cowp 63 right up to Earle v Eastbourne District Community Hospital [1974] VR 722, it may be accepted that the effect of a party failing to call a witness who would be expected to be available to such party to give evidence for such party and who in the circumstances would have a close knowledge of the facts on a particular issue, would be to increase the weight of the proofs given on such issue by the other party and to reduce the value of the proofs on such issue given by the party failing to call the witness."

It will be noticed that Gillard J described one effect of drawing an adverse inference as being “to increase the weight of the proofs” given on the issue in question by the party in whose favour the inference is being drawn, and that in Chapman v Copeland this court was willing to uphold the judge even though the plaintiff widow had been able to adduce very little evidence to support her claim that the defendant driver had been at fault. The same approach is exemplified by the unreported case of Hughes v Liverpool City Council (Lexis transcript, 11th March 1988, CA). A tenant had sued her landlords, the Liverpool City Council, for breach of an implied covenant in her lease because the gas boiler in her flat had exploded when she tried to light the pilot light. The only evidence she could adduce to the effect that the council knew about the defect was the fact that her flat had been inspected by one of its representatives when she had taken it over two months earlier. The defendants called no evidence, and while May LJ upheld the judge in finding that the boiler would have been inspected at that time and that the defect would have been present then, he was not willing to uphold the judge’s further inference that as a result of the inspection, the defendants had been put on inquiry at that time that a repair to the boiler was needed.

He said:

"Although I have every sympathy with Mrs Hughes, I do not think that that is the correct approach in law to this matter. The learned judge had to decide this case on the evidence. He could only draw inferences from the evidence and from his findings of primary fact on that evidence. He was not, in my opinion, entitled to draw an inference or inferences from the mere failure to call a witness. The onus was on the plaintiff to make out her case. If there had been only a scintilla of evidence called on her behalf tending to support the fourth inference to which I have referred, then in the absence of any contrary evidence, because no witness was called for the defendants, the judge would have been entitled to find even that scintilla sufficient to make out the plaintiff’s claim."

In T C Coombs v IRC [1991] 2 AC 283 Lord Lowry explained at p 300 the benefit which a court may be willing to confer on a silent defendant who gives some sort of explanation for his failure to give evidence, even if it is not a very good one. He said:

"In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified."

From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.

It is therefore necessary to examine with some care the evidence adduced by the Plaintiff on the issue as to what Dr Renninson would have done if he had attended Mrs Wisniewski, and examined her, and the circumstances surrounding his failure to attend the trial to give evidence.

The Plaintiff adduced evidence to the effect that Dr Renninson was the duty doctor on call that night, and that if he had attended Mrs Wisniewski when Sister Brockbank told him about her, he would have seen the CTG trace which would have shown him that there had been flat baseline foetal tachycardia for 40 minutes and that there had been two early Type 1 decelerations and no accelerations. He would have also noted the other features of his patient’s history which I have mentioned in this judgment.

Mr Johnson told the judge, when asked what the doctor should have done, that if Dr Renninson had attended, then after absorbing all this evidence he would have told Mrs Wisniewski that he wanted to examine her abdomen and that he would then have told her he wanted to do a vaginal examination and to rupture the membranes, if appropriate. This was the standard he would expect of a reasonably competent SHO. It was not very complicated obstetrics: it was simple stuff. He would know enough to know that he needed to rupture the membranes. This was standard practice, which he would have expected on the signs and appearances he had described. Indeed, Mr Johnson went so far as to describe it as mandatory. Towards the end of his evidence he said that the care he was describing was the big typed stuff in the books we read: not something in obscure journals.

Mr Jarvis, who agreed with Mr Johnson’s evidence, spoke to the judge in terms of a doctor’s duty to obtain more information in these circumstances.

In addition to this evidence, which spoke in terms of mandatory obligations, or duties, the judge was shown two textbooks which reflected the proper approach to the situation which would have confronted Dr Renninson if he had attended his patient at 3.40 am. The first of these text books, A Textbook for Midwives by Margaret F Myles, was unequivocal in its advice to midwives. After describing how foetal distress occurs when the foetus suffers oxygen deprivation and becomes hypoxic, the 1989 edition reads at p 174:

"Signs of foetal distress. Any or all of the following may be present:

foetal tachycardia which is an early sign of oxygen deprivation

foetal tachycardia or foetal heart rate decelerations related to uterine contractions

passage of meconium-stained fluid.

Management of foetal distress. When signs of foetal distress occur the midwife must call a doctor..."

The earlier, 1964, edition had said at p 421 that a foetal heart rate of over 160 should give rise to concern and that when the rate decreases by 20 beats this indicates severe oxygen lack and is a serious sign of foetal distress.

The other textbook was called Foetal Monitoring in Practice (Gibb and Arulkumaran 1992). The passage from that book at p 16 which the judge quoted in his judgment was not wholly apt for the circumstances of the present case, because the suggested causes of a high foetal baseline heart rate of 150-160 bpm were absent here, and it was common ground that in 1988 there was not the same degree of concern about a foetal heart rate below 160 bpm. Nevertheless the text contains the same general message as Myles, and the Defendants did not adduce any textbook reference which might tend to suggest that the seriousness with which Mr Johnson and Mr Jarvis were disposed to regard the situation as shown by the CTG trace at 3.40 am was misplaced.

When I turn to consider the pre-trial development of the Plaintiff’s case, the Statement of Claim, served on 25th March, concentrated its fire particularly on the alleged failings at 3.40 am. In particular it was said that a vaginal examination should have been carried out at or about that time, and that if that had been done the membranes would have been ruptured and meconium would have shown demonstrating foetal distress and the need for a caesarean section, which should have been carried out. In the Defence, served on 15th July 1993, it was admitted and averred that the CTG was normal and demonstrated good baseline variability with occasional decelerations and that at about 3.40 am irregular contractions were noted, the CTG scan then demonstrating a rate of 160 to 170 bpm with satisfactory baseline variability and shallow decelerations. There was a general traverse of the allegations of negligence. In May 1994 the Plaintiff furnished further particulars of his claim, which included the allegation that there was a significant episode of deceleration on the trace at 3.40 am.

The Defendants were very slow in furnishing their witness statements, for which an “unless” order eventually had to be sought. Bolitho had been decided in this court by the time Dr Renninson’s statement eventually appeared (see [1993] PIQR P 334) so that the Defendants’ solicitors would or should have known that a likely issue in the case was what Dr Renninson would probably have done if he had attended his patient at 3.40 am, read her notes and seen the CTG trace (see Farquharson LJ, with whom Dillon LJ agreed, at p 342).

Dr Renninson’s statement is completely silent on this issue. He does not say whether he was told of the long period of tachycardia in the foetal heart rate, and he could not remember if he in fact saw the patient. He says that he gave instructions that the patient should remain on the labour ward and that observation should continue but that the patient could mobilise for a while. He also comments in retrospect that he would have been satisfied, if the CTG was discontinued, if the midwife had continued monitoring with a Pinnards stethoscope. But he nowhere says what he would have done if he had attended his patient.

The experts’ reports were exchanged soon after the witness statements were exchanged. The Defendants’ solicitors would by now have known of the uncompromising terms in which Mr Johnson and Mr Jarvis were expressing their opinion. Mr Johnson said that failure to carry out a vaginal examination and an ARM was well below accepted standards of care. Mr Jarvis said that he believed that the latest time that ARM should have taken place was 3.40 am, and he was equally outspoken about the standards of care Mrs Wisniewski in fact received (“I cannot believe that there is any reasonable body of clinical opinion who would have ceased monitoring at this point given the information already available”). Before the action came on for trial at the end of February 1996 the decision of this court in Joyce v Merton, Sutton and Wandsworth Health Authority [1995] 27 BMLR 124 had also been reported. Hobhouse LJ, with whom Nourse LJ agreed, made it clear in his judgment at pp 155-6 that the plaintiff could now win a case like this if he satisfied the court that the doctor who failed to attend would probably have taken the requisite action if he had attended (although he would not have been at fault if he did not). What Dr Renninson would have done if he had attended was therefore now an even more central issue in the case.

I have recited earlier in this judgment how the Defendants’ solicitors, well outside the time allowed by Order 38 Rule 21(1), served a notice under the Civil Evidence Act in relation to his statement, and what the Plaintiff’s solicitors’ reaction was to this belated notice. Because the trial went short, after quantum had been agreed, and because Professor Thomas could not attend until what would normally have been the eighth day of evidence, there was in fact a six-day break in the hearing between 28th February and 6th March. Just before this break the judge made it very clear to the Defendants that he would be likely to draw an adverse inference if Dr Renninson did not give evidence.

Mr Grime has explained to us that during the course of his discussion with the judge at that time, he believed that the effect of Farquharson LJ’s judgment in Bolitho was that the Plaintiff not only had to prove what Dr Renninson would have done if he had attended but also that he would have been negligent if he had not done it. The judge told him he wanted to indicate that he had never come across a case before where a person had chosen not to come to defend his clinical judgment. At that stage he had not been shown Dr Renninson’s letter, but he made it very clear that unless he was shown evidence that it had been rendered impossible for Dr Renninson to attend, he would be liable to draw an adverse inference.

Although they had been given this warning, the Defendants placed no further evidence about Dr Renninson’s non-appearance (other than his letter) before the judge when the trial resumed nearly a week later. So far as the judge was aware, although damages had now been agreed at £900,000, the Defendants made no effort during the break in the hearing to see if Dr Renninson could after all fly to England to give evidence or if he could give evidence by videolink from Sydney (there is a reference to the protocol which is available as a guide to the use of video-conferencing equipment in civil proceedings in the High Court in the notes to Order 38 Rule 3 in Volume 1 of the White Book).

In addition to Dr Renninson’s absence, there was also a deafening silence from the other members of the relevant medical team at the hospital. Neither the registrar who had been on call that night nor the consultant with overall responsibility for the team attended to tell the judge what the practice at that hospital was for handling situations like the one that presented itself at 3.40 am. If such evidence had tended to show that the doctors at that hospital would be likely to adopt a “wait and see” approach, it would have been much more difficult for the judge to make a finding that Dr Renninson would have adopted a different course if he had in fact attended.

In all the circumstances, in my judgment the judge was entitled to adopt the course he chose to adopt. The Plaintiff had established a prima facie, if weak, case that a doctor who attended Mrs Wisniewski at 3.40 am would probably have adopted the course which the Plaintiff’s expert witnesses had told him it was his duty to adopt, and the judge was entitled to treat Dr Renninson’s absence, in the face of a charge that his negligence had been causative of the catastrophe that befell Philip, as strengthening the case against him on that issue. It must be remembered that the first limb of the Bolitho test, as it has now been explained by Lord Browne-Wilkinson, does not require a court to make a finding of fact as to what a doctor actually did, but as to what a doctor would have done in the hypothetical situation the court is required to envisage. In those circumstances it may be easier for the Plaintiff to set up an affirmative case on that issue which is liable to be strengthened if for no good reason the doctor is unwilling to submit him/herself to questioning before the judge as to what he/she would probably have done. And in these days of videolink technology it may no longer be sufficient for defendants to rely on a doctor’s absence abroad to avoid calling him/her to give evidence.

In future it would, in my judgment, be very much better in this type of case for the Statement of Claim to include a positive averment that if the defendants had not been negligent in failing to take the action alleged, the relevant member of their staff would have acted in the manner which the plaintiff contends would have represented appropriate non-negligent practice, so that that issue is fairly and squarely on the pleadings for the defendants to answer. However, as the law was developing during the passage of this litigation, I would not discharge the judge’s finding on that account, since both Bolitho (in the Court of Appeal) and Joyce had been decided before the trial took place, and it would not have been difficult to infer how the Plaintiff would be putting his case: indeed, the Defendants were given the windfall of six extra days to think about how to defend themselves successfully while the trial was going on.

Mr Grime’s third challenge to the judgment related to causation. Put shortly, he argued that the harm which befell Philip during his passage down his mother’s birth canal (in effect, strangulation because the umbilical cord was looped round his neck and had a knot in it which gradually tightened) was quite different from the harm to which the health authority’s breach of duty had wrongfully exposed him (the risk of damage by oxygen starvation within the womb). He cited to us a number of well-known authorities on issues of causation, culminating in a passage from the speech of Lord Hoffmann in Banque Bruxelles SA v Eagle Star Insurance Company Ltd [1997] AC 191 at p 213C:

"Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful."

Some of the earlier cases to which Mr Grime referred us were reviewed by Glidewell LJ in Galoo Ltd v Bright Grahame Murray (1994) 1 WLR 1360 at pp 1369-1374, and culminated with this passage which starts at p 1374G:

"The passages which I have cited from speeches in Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B [1949] AC 196 make it clear that if a breach of contract by a defendant is to be held to entitle the plaintiff to claim damages, it must first be held to have been an ‘effective’ or ‘dominant’ cause of his loss. The test in Quinn v Burch Bros (Builders) Ltd [1966] 2 QB 370 that it is necessary to distinguish between a breach of contract which causes a loss to the plaintiff and one which merely gives the opportunity for him to sustain the loss, is helpful but still leaves the question to be answered ‘How does the court decide whether the breach of duty was the cause of the loss or merely the occasion for the loss?’.

The answer in my judgment is supplied by the Australian decisions to which I have referred, which I hold to represent the law of England as well as of Australia, in relation to a breach of a duty imposed on a defendant whether by contract or in tort in a situation analogous to breach of contract. The answer in the end is ‘By the application of the court’s common sense’."

The Australian decisions to which Glidewell LJ referred went back to dicta by Dixon CJ, Fullagar and Kitto JJ in Fitzgerald v Penn (1954) 91 CLR 268 at p 277:

"It is all ultimately a matter of common sense .... In truth the conception in question is not susceptible of reduction to a satisfactory formula."

The judge dealt with this issue quite briefly at the end of his judgment:

"It is clear that the actual mechanism that led to the hypoxia - the true knot in the cord wrapped around the neck - could not have been foreseen. A true knot in a cord is a very rare happening - perhaps 1 to 2 a year in a busy teaching hospital, although the cord being looped around the neck is much more common. Thus the particular mechanism that brought about the injury could not have been foreseen.

Mr Grime accordingly argues that even if Sister Brockbank and Dr Renninson had been negligent, no foreseeable damage occurred.

I am however satisfied that there clearly was a foreseeable risk of damage by hypoxia to Philip. The damage that occurred was caused by hypoxia and of the kind that was foreseeable; as the damage was of the kind foreseeable, it makes no difference that the precise mechanism by which the hypoxia arose was not foreseeable."

I can find no fault with this approach, and it would in my judgment be regarded as an affront to common sense, and the law would look an ass, if we reached any different conclusion. As the judge concluded, the risk to which the Defendants’ breach of duty exposed Philip was the risk of damage by hypoxia. For all we know, the harm which was showing up on the CTG was being caused by a cord accident or obstruction connected with the presence of a cord which was shortened by the presence of a loose knot and looped round his neck, and it was this harm which the Defendants should have taken steps to address. As the judge said, it makes no difference in these circumstances that the precise mechanism by which the later, much more serious hypoxia arose was not foreseeable. This was not a case of novus actus interveniens and the Defendants’ breach of duty was indeed properly categorised as the effective cause of the Plaintiff’s damage.

For these reasons I would dismiss this appeal.

LORD JUSTICE ALDOUS: I agree.

LORD JUSTICE ROCH: I also agree.

ORDER (Not part of judgment):

Appeal dismissed; respondent to have costs of appeal; legal aid taxation of respondent's costs; money in court (£315,000) to remain in court; balance of agreed damages (ie balance of £585,000) to be paid into court together with interest on that sum from 2 April 1996; monies in court to be transferred to the higher interest account; the question of a structured settlement to be listed as soon as is convenient before Thomas J; leave to appeal refused; case to be given its full title.

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