England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(Application of Applicantfor Permission to Appeal)

		Royal Courts of Justice Strand London WC2 Tuesday, 30th April 2002

1. LORD JUSTICE THORPE: On 30th July 2001 AP was taken by his parents to the Leicester Royal Infirmary. AP was scarcely a year old, having been born on 23rd August 2000. On admission, his parents explained that he had tumbled from his cot having pulled himself up on the bars and overbalanced and fallen from the height of the cot.
2. He was detained in the hospital and discharged on the following day. However, it seems that there was a readmission on 1st August and a second discharge on the 2nd August. More seriously, on 20th August, he was taken by his parents in the middle of the day to the general practitioner's surgery in Leicester where he was obviously quite seriously ill. A readmission to the Leicester Royal Infirmary was arranged. A CT scan revealed a right-sided subdural haematoma. He was transferred to the Birmingham Children's Hospital later that day for treatment.
3. Between 30th July and 20th August there had been a number of medical consultations which might have been indicative of some clinical deterioration but which might equally have been indicative only of some sort of minor infection. Equally, within that three week period, the parents asserted a number of minor traumas which might have come into the reckoning in any attempt to understand how this baby had required admission on two separate occasions for relatively severe injury.
4. The judge who subsequently investigated this story, HHJ Hall, in the Leicester County Court, made no very clear finding as to what were the causes of these medical consultations over the intervening three weeks, but he did clearly discount the minor traumas reported by the parents as being insignificant.
5. Following the admission to the Birmingham Children's Hospital there was a deterioration in AP's condition which resulted in a successful shunt operation to drain off the subdural blood conducted by the consultant neurosurgeon, Mr Sgouros on 22nd August. That operation was entirely successful.
6. On admission, and indeed subsequently, AP had been treated by Dr Moy, a senior and distinguished consultant community paediatrician. Between his admission and his operation he was examined by the consultant paediatric ophthalmologist, Mr Willshaw, who found retinal haemorrhages in his right eye, affecting both the superficial nerve fibre layer of the retina and the deeper layers of the retina. There was no clear sign of haemorrhaging in the left eye. Those retinal signs had disappeared by 25th August.
7. Obviously, a history of this sort requires the closest investigation, and the local authority, the Leicestershire County Council, in due course obtained expert evidence from the team at the Birmingham Children's Hospital, that is to say Dr Moy, Mr Sgouros, and Mr Willshaw. Subsequently, there was a reference to Nottingham for forensic second opinion. Mr Sgouros was strongly supportive of the parents. He was of the view that the condition that he had treated in August was derived from the injury sustained in July. Dr Moy, perhaps because of the subsequent surgical intervention, hardly expressed an independent opinion. He essentially deferred to Mr Sgouros.
8. A was meeting of experts subsequently arranged, which took place on 13th December. Mr Willshaw was prevented from contributing to that meeting as a result of some sort of breakdown in the telephone link-up. Accordingly, the local authority sought clarification of his position in a letter written on the following day. One of the questions posed in the letter of inquiry was this:

"Is there any significance in the fact that the retinal haemorrhages were in the right eye but not the left?" Mr Willshaw's answer in his letter of 19th December was as follows:

"There is no significance in the fact that the retinal haemorrhages were unilateral. We and others have documented children in whom just purely unilateral haemorrhages were caused by violent shaking."

9. At the meeting of the experts on 13th December, Mr Sgouros had advanced the contention that the condition for which he had operated on 22nd August was the consequence of a re-bleed caused by raised intracranial pressure. Perhaps, because of the fragmented nature of the communication, the letter from Mr Willshaw of 19th December hardly brings out his clear opinion that unilateral, as opposed to bilateral, retinal haemorrhage was inconsistent with a theory of re-bleed caused by raised intracranial pressure.
10. That opinion, however, clearly emerged from his oral evidence, which was given on the second day of what proved to be a fragmented trial: the judge hearing three days of evidence in January and a fourth day of evidence in February, before handing down his reserved judgment on 27th February. To take a step back in the history, the local authority were obviously troubled by Mr Sgouros' opinion. After all, the coincidence of two such serious admissions, coupled with the presence of a retinal haemorrhage on the second admission, was clearly indicative, if not diagnostic, of non-accidental injury.
11. The referral to Nottingham was a jointly instructed referral on behalf of the local authority, the parents, and guardian ad litem, although it was agreed between the parties that the local authority's solicitor should be the lead solicitor for the purposes of communication with the experts. The further opinions from Nottingham included the consultant neurosurgeon, Mr Vloeberghs, who contested Mr Sgouros' explanation and theory. His firm view was that the haematomas were not connected with the injury of 30th July. If a possible explanation had been advanced for the injury of 30th July, there was no explanation for the injury of 20th August. That was satisfactorily credible. Therefore, in his opinion, certainly the second injury must have a non-accidental cause.
12. His position was supported by Dr McConachie, a consultant paediatric neuroradiologist at Nottingham. He recorded, on the CT scans taken at Leicester and Birmingham in August, a lesser and independent haematoma in the left hemisphere of the brain. That, he said, was quite inconsistent with the theory of a secondary bleed caused by raised intracranial pressure. They two hemispheres are separately sealed and blood could not have seeped from the right to the left hemisphere.
13. Dr Willshaw's oral evidence was significant, not only for his opinion that a unilateral retinal haemorrhage was inconsistent with the possibility of re-bleed caused by raised intracranial pressure. He also stated that had there been a re-bleed caused by raised intracranial pressure that would have been evidenced by swelling of the optic nerve itself, which on his examination was simply not present.
14. The other aspect of the trial itself which needs to be emphasised is that when Dr McConachie came to give his evidence, the essential equipment to enable him to demonstrate the significant feature of the CT scan indicative of blood in the left hemisphere was simply not there in court. Accordingly, he was unable to demonstrate to the judge and to the other experts what it was that he found of significance on the CT. The equipment was, however, made available when the two neurosurgeons, Mr Sgouros and Mr Vloeberghs, came to give their evidence. They were able to demonstrate to the judge something on the CT scan which might have been indicative of some secondary haemorrhage, but they certainly were not able to detect any such in the left hemisphere. Instead of arranging for Dr McConachie to return to court to give further evidence with the aid of the relevant equipment, a letter was sent to him asking him whether he would reconsider his position in the light of the evidence that had been given by the two neurosurgeons. He simply responded in writing. His response, however, is in very clear terms. He said that he understood that the case had been adjourned part-heard, and that he had received a summary of Mr Sgouros' evidence. He then added:

"I am not sure how I can usefully add to my opinions already expressed in my medical report and during cross-examination in Court. I can only reiterate that there is clearly a left sided posterior interhemispheric subdural haematoma on both the scan [taken] at Leicester Royal Infirmary on 20/8/01 and that obtained at Birmingham Children's Hospital on 22/8/01. There is a clear hyperdense stripe to the left side of the falx cerebi, most notable on section 17 (Birmingham Children's Hospital 22/8/01), but also apparent on adjacent sections above and below this. The presence of high density blood on both sides of the falx gives the impression of a so-called 'pseudodelta sign' where the superior sagittal sinus is outlined by the acute subdural haematomas on both sides and the skull posteriorly.

Although, in my opinion, the radiological evidence of a left posterior interhemispheric subdural haematoma is clear, the signs are subtle and I can understand how they may be easily overlooked by those who are not experts in Neuroradiology."

15. The judge's reserved judgment is brief in relation to a four-day trial that had contained a lot of quite complex expert evidence. On page 1 he recited the background to the hearing and cited at length from the well-known speech of Lord Nicholls in the case of In re H & R (Minors) (1996) AC 563 in which Lord Nicholls gives clear guidance as to the standard of proof that must be satisfied before grave findings can be made against parents who stand charged with grave physical injury to their children. He then recites the relevant history immediately prior to the first admission and throughout the three weeks between the two admissions. He also recites carefully the history of the treatment at the Birmingham Children's Hospital before coming to the medical evidence that he had heard. He summarises the evidence of Mr Sgouros and of Dr McConachie and Mr Vloeberghs. He refers relatively briefly to the evidence of Mr Willshaw.
16. But what of the judge's conclusions? It is difficult to see precisely what the judge had concluded on a number of central issues that stood out from the evidence, both of the experts and of the parents, which it was his duty to resolve. He said almost despairingly, as I read it, on the penultimate page of his judgment:

"In short, rather than being helped by the expert medical evidence in this case I was positively hindered by it...

I have striven here to see my way through the impenetrable mass of conflicting evidence to attempt to come to a view but have to say that at the end of the case am unable to come to a view sufficient to satisfy the necessary burden of proof."

17. He then said that there were a number of factors impinging on the decision which also weighed in the balance. He listed them as follows. Firstly, he said that Mr Sgouros was the treating clinician who had spoken on occasion to the parents. There cannot be any doubt about that. The significance of those statements is, however, not entirely clear to me. Secondly, he mentioned that the mechanism of the July injury advanced by the parents was said by the experts to have been a possibility but one to be tempered by the fact that AP had never climbed up on anything before, and that there were doubts as to whether he was truly able to do so on that occasion. He continued:

"The possibility of such a mechanism, combined with the history of AP's subsequent presentations for medical treatment over the time between then and the second injury is such that there is some indication that he was unwell for some part of that period. The presence of the otitis media ... perhaps confused the picture for those treating him at the time. The absence of CT scans from that presentation at Leicester Royal Infirmary on 31 July has not assisted this case however understandable the reasons are why they were not taken."

18. The thrust of that paragraph seems to me to express judicial misgiving as to the plausibility of the parents' explanation for the admission in July.
19. He then comes to his third point, where he says:

"There is a considerable background of alleged neglect of AP on the part of the carers none of which was before the court during the hearing and about which I have heard no evidence and am not in a position to make any judgment either as to those matters or as to the way in which they might have shown a propensity or tendency on the part of one or other of the parents to behave in a way which was harming of AP. In coming to my decision about the alleged non accidental injury I am somewhat hampered in not having a full picture of these parents in the round but can only try the case on the evidence with which I am presented. This is the more so, given the fact that there is on the evidence a history of domestic violence which is minimised by both but which on that which I heard was, I find, significantly more than either of them conceded. In my view, this was a stormy, tempestuous and violent relationship in which both mother and father used physical violence of one form or another to and against each other."

20. That third paragraph contains the bulk of the judicial assessment of the parents' testimony.
21. In the final paragraph of the judgment, the judge repeated that he had not been satisfied to the standard required by the authority in the House of Lords, and he concluded with these sentences:

"I have to say that I am very suspicious that these injuries were of that quality and that the injuries sustained by AP on both 31 July and 20 August were at a time when AP was in their care. Suspicion is not enough, however, and on all the facts of this case and upon performing the balancing exercise taking into account all the facts, I find that the Local Authority has not satisfied me to the relevant standard that these injuries were non accidental."

22. The local authority sought the judge's permission to appeal, which he refused. Accordingly, application was lodged with this court and an order made for oral hearing on notice with appeal to follow if permission granted.
23. It has been possible to expedite this hearing to ensure that the timetable in the county court for the disposal hearing will not be derailed.
24. The case for the local authority was succinctly summarised in a skeleton argument dated 2nd April, settled by Mr Maskrey QC and Mrs Connolly. The guardian ad litem has also filed a skeleton by Mr Rodgers. His skeleton explains that since this is an appeal in relation to a fact-finding exercise, the guardian does not seek to make any oral submissions. He accepts the view of the judge that the medical issues gave rise to complex problems, but certainly not to impenetrable problems.
25. The guardian supports the position taken by the local authority, and further submits that the key to the resolution of the expert evidence lay in the evidence of Mr Willshaw, the only consultant ophthalmologist called whose analysis on the key issue of retinal haemorrhages was clear and convincing. The guardian's submissions conclude that should the appeal succeed, then this court should substitute its decision rather than remit the case. As the guardian submits, the relevant evidence is all available to this court since we have not only the expert opinion in writing, but we also have a summary of the meeting of experts on 13th December and a transcript of all the oral evidence.
26. Mr Maskrey in his submissions says that the judge's essential task was to resolve this single question: did the fresh blood found in the brain on 20th August represent injury incurred shortly before that date, or a re-bleed consequent upon an injury sustained on 30th July, for which an explanation had been proffered? He further submits that it was the duty of the judge to make clear findings on the evidence and, secondly, to support those findings with clear reasons. Thirdly, from those reasons it was incumbent on the judge to move to consistent conclusions.
27. Mr Maskrey submits that the judge simply failed in those essential tasks. He made very few clear findings as to the value of the expert contributions. Inferentially, he must have accepted the opinion of Mr Sgouros insofar as he rejected the views of Mr Vloeberghs, Mr Willshaw and Dr McConachie. He omits either express finding or clear reasoning. Equally, Mr Maskrey submits that it is unclear what the judge really made of the parents' evidence. Mr Maskrey points out that their evidence filled 50 pages of transcript. They not only dealt with the immediate history prior to admissions, but they also dealt with the social history within the family to the extent that they gave their evidence in relation to issues of domestic violence. It was only evidence as to parental neglect that was left out of the equation. Seemingly, the judge accepted their evidence as to the mechanism of the cot fall. But then he, as I have demonstrated, rejected their evidence in relation to domestic violence and rejected, certainly in its consequence, their evidence as to minor traumas between the two admissions. He relies on authority both in the sphere of Children Act split hearings, the case of Re B [2001] FLR at page 334 and, in civil litigation, the case of Glicksman v Redbridge Healthcare NHS Trust (2001) 63 BMLR 109.
28. Of course Mr Maskrey's submissions focus clearly on the evidence of Dr McConachie and Mr Willshaw. The judge simply failed to deal with the compelling points that they were advancing. He emphasised that when the judge came to the evidence of Dr McConachie he seemed to do no more than to record that Dr McConachie had been unable to demonstrate in the courtroom what he drew from the CT scan, since the wrong equipment had been provided by the local authority. He went to say:

"Given that this was one of those cases [that is to say a case in which there was a difficult dispute between experts] it is singularly unfortunate that Mr McConachie was unable to demonstrate his point better through no fault of his own."

29. What is lacking from the paragraph is either a clear indication that the judge had understood the force and consequence of Dr McConachie's point, or alternatively any explanation as to why the judge had not arranged for him to be recalled at a time when the relevant equipment was available.
30. Equally, in relation to Mr Willshaw, the judge had nothing more to say than that he had not been helped by the disagreement on the presence or otherwise of blood in the interhemispheric fissure, or the disagreement about the way in which pressure can track from one side of the brain to the other, or the time that this might take. He refers to the fact that Mr Willshaw had not attended the experts' meeting, and merely summarised his evidence by saying that he had described the three mechanisms of the way in which retinal haemorrhages can be caused. He continued:

"Having said that, while he favours acceleration/deceleration as the most likely cause he cannot rule out other mechanisms."

31. Again, Mr Maskrey submits that those two paragraphs certainly do not demonstrate that the judge had sufficiently understood the crucial significance of Mr Willshaw's evidence.
32. Miss Scriven QC, who has argued this case with her customary professionalism, has emphasised that this was not a case in which there was any inconsistency within the accounts offered by the parents, either in their police statements or in their statements within these proceedings. She submits that this was a case of major and irreconcilable conflict of medical evidence and, accordingly, the judge was perfectly entitled to conclude that it was not proven to his satisfaction.
33. As to Dr McConachie, she says that the judge was right to evaluate him as he did, given that two neurosurgeons had been quite unable to see any sign of a bleed in the left hemisphere and, further, that within the papers there were reports from three experts in paediatric radiology, one in Leicester and two in Birmingham: they had all looked at the CT scans contemporaneously and none of them had seen any sign of this left hemisphere bleed.
34. As to Mr Willshaw, she says that the theory he advanced was first heard in the witness box and, further, his evidence showed at its conclusion first that Mr Sgouros' mechanism of raised intracranial pressure could not be ruled out as an explanation for the retinal haemorrhage, and secondly that during his cross-examination by counsel for the parents, he had conceded that when he had first investigated and examined AP he had entertained the possibility of retinal haemorrhage in the left eye as well as the right.
35. Accordingly, Miss Scriven says that there is so much medical uncertainty that the judge was right to have reached the conclusion he did. Alternatively, if he was wrong, then, given the importance of the issue to the future of the parents and the future of the child, this court should remit for retrial; a retrial at which Dr McConachie would be able to give his evidence with the aid of the appropriate equipment; a retrial at which Mr Willshaw's opinion as to the significance of unilateral retinal haemorrhages could be met by the parents with due notice and proper preparation.
36. Mr Maskrey, in his reply, reminded us that although the two neurosurgeons had not observed evidence of haematoma in the left hemisphere, they had both agreed that there was something in the nature of a secondary haemorrhage, somewhere within the CT scan. Secondly, he submits that the three paediatric radiologists who examined the CT scans contemporaneously were treating radiologists and were, accordingly, only interested in features that had some clinical impact. The significance of a left hemisphere haemorrhage would have been purely diagnostic.
37. As to Miss Scriven's submissions on the retinal aspects, Mr Maskrey convincingly demonstrates that the possibility of a left eye retinal haemorrhage was considered by Mr Willshaw only fleetingly for the purposes of his initial clinical report, and, even within that report, dismissed. It got no further resurrection. Mr Sgouros, who understood the significance of unilateral as opposed to bilateral haemorrhage, had himself examined AP and had never suggested bilateral haemorrhage. He had, in many respects, deferred to his colleague, Mr Willshaw, in the sphere of ophthalmology.
38. On those submissions, it is possible to reach unhesitating conclusions. I accept Mr Maskrey's definition of the judge's essential task. Equally, I accept his submission as to the judge's essential duty. It is plain from the authority of Glicksman v Redbridge Healthcare Trust that it is incumbent on the judge to state clearly his findings as to any crucial expert opinion or diagnosis, and any findings must be fully reasoned.
39. In this case, it is apparent to me that the judge has failed to deal properly with the medical expert evidence. In fairness to him, it was undoubtedly complex. But the judgment gives no indication that the judge has properly understood that the resolution of the essential conflict between the two neurosurgeons lay in the incidental but relevant opinions of Dr McConachie and Mr Willshaw. If he was not to resolve the conflict in Mr Vloeberghs' favour by reliance on those two opinions, it was at the very least incumbent on him to explain carefully and persuasively how it was that he was able to reject the opinion of each, or otherwise explain why each was not a major contributor to the resolution of the neurosurgical dispute.
40. I am equally concerned at the manner in which the judge dealt with the evidence of the parents. Surely it was essential in a case of this sort, where the parents had testified at length, for him to have made plain assessments of their credibility, and their responsibility and reliability as parents. There is a flavour of abdication which seems to me to characterise this judgment and which leaves the parties and the court at sea when it approaches the second stage of the split trial, namely the disposal.
41. By way of generalisation, it does seem to me that these split hearings, unless very carefully planned, prepared and conducted, lead to a degree of unnecessary business in this court. This is not the first case that we have had recently in which there seems to have been uncertainty as to the role of the parents at the fact-finding preliminary hearing, and the value to be attached to their oral evidence. It does seem to me that it is vital for the judge to give the parents the fullest opportunity of participation at the fact-finding preliminary trial and to rest considerable weight on their evidence, and the impression that he forms of each of them.
42. It would of course be possible for a judge to conduct a fact-finding exercise on the medical evidence alone in what would seem to me to be extreme instances. But whether or not the forensic medical evidence is the only evidence, the predominant evidence, or simply one strand within the evidence, in its assessment the judge is not exercising any discretion. He has the ordinary judicial duty to assess the expert evidence and to find the possible and probable scientific explanation for the injury or event under investigation.
43. If the forensic experts are agreed that they are unable to advance more than a range of possibilities, none of which is inherently more probable than any other, the judge must inevitably so find and then seek his conclusion in the other available evidence, such as the evidence of the social history of the family, or in his assessment of the individuals directly involved.
44. But if there is a stark conflict of medical evidence, the judge cannot decline to choose. If each contention is equally persuasive, he should either invite the parties to agree some tertiary referral to a national centre of excellence, or invite either the president of the Royal College of Paediatrics and Child Health, or the chairman of its Child Protection Committee to identify such an expert. To leave the issue unresolved renders the disposal stage problematic. How is the judge to bring into the discretionary scale the sort of suspicions that this judge voiced at the conclusion of his judgment? How are the local authority to present their case on causation? Does all then turn on the evidence of the parents?
45. I would like to make it plain that I do not believe that the medical evidence in the present appeal was anywhere near irreconcilable, as Miss Scriven submitted. It may have been complex, but properly analysed there was only one tenable judicial conclusion. Plainly, the balance tipped heavily down for Mr Vloeberghs' diagnosis, once Mr Sgouros' contribution was analysed in the light of the opinion of the only paediatric ophthalmologist and the only paediatric neuroradiologist to testify.
46. So the extraordinarily, unattractive option of ordering a retrial simply does not arise in my judgment. It is not only open to this court but it is incumbent on this court to substitute for the judge's doubt and uncertainty the clear conclusion that the local authority had established, on the expert evidence, the case that they sought to prove.
47. I would allow the appeal and substitute an order to that effect.
48. LORD JUSTICE BUXTON: I agree. The contention that the injuries presented on 20th August 2001 could have been attributable to an incident of minor trauma following on the injuries that were presented at the end of July was never a persuasive suggestion. It was completely ruled out as a possibility in the evidence, for instance, by Dr McConachie; and the judge himself found, in the passage my Lord has already referred to, that there was no evidence at all, or at least no evidence that he felt able to act on, that any such identifiable event had occurred.
49. Once that possible explanation for the injuries presented on 20th August had been ruled out by the judge himself, it was necessary then to look with care and in detail at the other possible explanation that had been put forward. As my Lord has said, the crucial witnesses as to that possibility, or that event, were Dr McConachie and Mr Willshaw. They gave evidence about matters that fell uniquely within their sphere of expertise. Their specific expertise in those areas was, as I understand it, never challenged, and certainly in the case of Dr McConachie more than one witness, when finding Dr McConachie's views put to him, acknowledged that he was the expert in the field in question. Their evidence was only met on the part of Mr Sgouros by what, with all respect to him, can only be described as speculation or supposition in fields that were well acknowledged not to be his own.
50. In dealing with these two witnesses the judge, I have to say, did not analyse, as he should have done, (and I quite accept that it is easier, sitting here now, to see that that was his task rather than as it might have appeared in the hurly-burly of the trial) but he did not analyse, as he should have done, the logical relevance of what the witnesses had to say, and had to say in very firm terms.
51. So far as Dr McConachie is concerned, the judge was far too impressed by, and devoted far too much time to, the difficulty that occurred in the course of a trial when, because of absence of equipment, Dr McConachie was not able actually to demonstrate on a light machine the views that he had formed on the basis of the CT scan. My Lord has already quoted the passage, but the judge went on to say in respect of the absence of equipment:

"This is much to be deprecated and it is the responsibility of those bringing the case to make available that which is required by the witnesses who are to be called to assist the court."

52. That raises a suspicion that it is a statement to the effect that the defect, if defect it was, must redound to the disbenefit of the case of the party that had, as the judge understood, called Dr McConachie.
53. But, in fact, the absence of that equipment had no bearing on the judge's task at all. For Dr McConachie to be able in court to demonstrate where on the scan the left-sided haematoma was to be found could not assist the judge. It would be out of the question for the judge on inspection of the scan to substitute his own view for that of the doctor.
54. Similarly, the witnesses who expressed scepticism about this evidence had the benefit of Dr McConachie's explanation, albeit not by means of a light box, of where the haematoma was to be found. It was for them, bringing such expertise as they had to the task, to state why they disagreed. They were not handicapped in that task by not having Dr McConachie standing there in front of them delivering a lecture; the nature of which could, presumably, for expert doctors, be as well conveyed, as it was, on paper, rather than face-to-face.
55. I fear that that difficulty caused Dr McConachie's evidence not to be given the weight it should have been accorded. The judge ended that passage by saying:

"...it is singularly unfortunate that Mr Conachie was unable to demonstrate his point better through no fault of his own."

56. Again, as if that in some way undermined Dr McConachie's report. Then he went on to say:

"Query also when the left sided haematoma (if it existed) was incurred and the nature of the blood within it."

57. The last passage is, if I may say so with respect, obscure, but it seems to be a reference to the way in which the haematoma had occurred, on the basis that it existed at all. But Dr McConachie had given absolutely clear evidence on that, which nobody was in a position to challenge. He was asked this on the second day at page 35F:

"Q. Yes. Help us first of all, the haematoma on the left side how did that assist you in...

A. Well we've no explanation for it really. It cannot have been caused by the original injury or the rebleeding into the right sided haematoma and I've concluded that there must have been some other injury to have caused it that we're not aware of."

58. Then he was asked:

"Q. Would a minor trauma cause a left sided haematoma in this case?

A. No, I don't think so."

59. He had so said in very strong terms in his evidence at paragraph 14.5. Also in his report he had said, in the clearest possible way, that seepage (if that is the right word) could not have caused the left-sided haematoma. He said this at paragraph 14.2:

"Furthermore, re-haemorrhage into the right convexity subdural haematoma could not account for development of an acute subdural haematoma in the left side of the interhemispheric fissure, a completely separate, discontinuous compartment."

60. There was no evidence to offset that view.
61. When Mr Sgouros was asked about that, he effectively declined to answer the question, and I do not criticise him for that. But he declined to answer the question because he said that his view was that there had been no such left-sided haematoma and, therefore, how it could have occurred really was not something he could comment on. But there was nobody who could or did challenge the etiology put forward by Dr McConachie once he had identified how that left-sided haematoma arose. As I say, that evidence was not really addressed by the judge, possibly because he was distracted by this problem about the light box.
62. That evidence from Dr McConachie was in itself, in my judgement conclusive. But it was supported in a completely separate but equally conclusive demonstration of the case by the evidence of Mr Willshaw, which he set out in the passages that my Lord has already quoted, but I will repeat:

"If you had raised intracranial pressure then that rise in pressure is transmitted equally to the two optic nerves and so in that case it becomes much less likely theoretically and in practice it is much less common to see haemorrhage on one side only. So what you usually get in that circumstance if the intracranial pressure has gone up is that you see bulging of the nerve that we talked about, so-called papilledema and you see the haemorrhages equally in each eye. I can only assume the difference is if a child is shaken or banged that somehow or other the force transmission affects one eye more than the other but it is evenly distributed throughout all the contents of the cranial cavity."

63. Again, the judge seems to have been unduly influenced, or had his attention distracted, by a practical difficulty that, in the event, again had no actual significance: that was the absence of Mr Willshaw from the experts' meeting in December 2001. He describes Mr Willshaw's evidence extremely briefly after that. Effectively, he says, it had not been discussed with the other experts; and he ends with the point that Mr Willshaw did accept at the end of his evidence that other mechanisms, that is to say intracranial pressure, could not be ruled out as a possible cause of the retinal haemorrhage; though he favoured acceleration/deceleration, that is to say non-accidental intervention through external pressure, as the most likely cause. It is true that Mr Willshaw was persuaded to say that at the end of his evidence, but the overwhelming burden of the whole of his evidence was that the intracranial pressure really could not explain what had occurred.
64. There is another feature in Mr Willshaw's evidence which does not seem to have been identified and is of some importance, that he was quite clear that the haemorrhages that he identified had occurred quite shortly before he examined the child after it was presented on 20th August. That is another matter, as it seems to me, that was of importance in trying to determine why the child was in the condition that he was.
65. I do not doubt that this was a difficult case, made the more difficult by the disagreement between the neurologists. But, in the face of that disagreement, the secondary but crucial evidence, which is all one way, had to be analysed by the judge and given weight. The judge regrettably did not do that. When weight is given to that evidence as a whole, I have no doubt whatsoever that the right course for this court is that which my Lord has proposed, and with which I agree for the reasons that he gives as well as those that I have ventured to add as a footnote. I would allow this appeal.
66. MR JUSTICE JACKSON: I agree with both judgments which have just been delivered.
67. Towards the end of his judgment in the Leicester County Court, Judge Hall said this:

"Given the nature of the dispute, it is very important to examine the medical evidence to see if the court can be satisfied to the necessary standard. That is not to say that it should be taken as a truism in every case where highly experienced experts within the same field disagree on matters relating to their specialism, the court should avoid the responsibility inevitably placed upon it on assessing which medical view it prefers. I have striven here to see my way through the impenetrable mass of conflicting evidence to attempt to come to a view but have to say that at the end of the case am unable to come to a view sufficient to satisfy the necessary burden of proof."

68. In my view, this was not the proper approach to the expert evidence in the present case. That evidence, though voluminous, was capable of rational analysis. Upon such analysis, the expert evidence points very strongly indeed towards the conclusion that AP suffered some violent incident shortly before his admission to hospital on 20th August 2001.
69. In this short judgment, let me mention three crucial factors. (1) A spontaneous re-bleed arising from the injury on 30th July could not have caused the left interhemispheric subdural haematoma which was present in late August. (2) A spontaneous re-bleed arising from the injury on 30th July could not account for the encephalopathy which AP suffered in late August. (3) The retinal haemorrhages which Mr Willshaw found when examining AP on 21st August were strongly indicative of a recent incident of violence.
70. The account given by AP's parents of events leading up to the hospital admission of 20th August 2001 does not reveal any incident or event which could account for AP's condition as found upon admission. The only possible conclusion in all the circumstances of this case is that AP sustained some traumatic event on or about 20th August which the parents failed to disclose in their evidence to the Leicester County Court.
71. The judge ought to have held that AP suffered a non-accidental injury on or about 20th August 2001. That was the finding which the local authority urged the county court to make and that is the finding which the local authority urges this court to make.
72. In my judgment, such a finding must now be substituted by this court.
Appeal allowed. Public Funding Assessment.