England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Queens Bench Division
In the High Court of Justice
Mr Justice Wilkie
HQ03X01801

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/11/2005

Lord Justice Waller :

Introduction

1. This, as all have recognised, is a tragic case. Hamish Thompson was born on 1^st November 1997. He was given vaccinations on 29^th December 1997 one of which was intended to immunise him against contracting polio. Within a few weeks, from the very vaccine he was given, he contracted a vaccine strain of polio (VAPP). He is now severely disabled. On 29^th December 1997 Hamish's parents were concerned as to whether Hamish should be vaccinated on that day being concerned about a boil on Hamish's backside. Dr Bradford a general practitioner advised that the immunisation could proceed on that day. That advice by his judgment given on 3^rd November 2004, Wilkie J held was proper advice. However the judge went on to hold that there were certain matters about which the doctor should have informed the parents in relation to which "fault" was established. He further held that if they had been informed of those matters, they would not in fact have proceeded with the vaccination on that day, pending the boil clearing up. He also held that, although no doctor could have foreseen that the existence of the boil, or more accurately the lancing of the boil, might provide a greater potential for Hamish contracting polio than existed in any case where a baby was vaccinated, factually it was the boil via which polio had been contracted. On that basis he held that the defendant was liable in damages for the injury flowing from the contracting of polio from the vaccine.
2. Doctor Bradford appeals against the judge's finding of liability. He challenges the finding that he breached any relevant duty. He challenges in any event the factual findings either that the parents would in fact have postponed the vaccination or that polio was contracted via the wound left by the lancing of the boil. Even if those challenges fail, he challenges the judge's finding that any "fault" found was causative of the damage suffered. Hamish cross-appeals against the judge's finding that Dr Bradford was not negligent to advise that immunisation could proceed.

The facts

3. The facts are fully set out in the judge's judgment, and I will try to summarise them without the necessity of explaining such disputes as arose and were resolved by the judge.
4. Hamish was born on 1^st November 1997. Mrs Tighe, the health visitor, visited first on 12^th November and left a booklet entitled "Personal Child Health Record". On that occasion she discussed immunisation with Hamish's mother. The booklet contained information about the reasons for immunisation, the very limited circumstances in which a child should not be immunised, and the circumstances in which the child should receive immunisation notwithstanding the fact that the child may be unwell with a cold or taking medicine such as antibiotics. The book also contained a timetable for immunisations including the specific date of 29^th December for Hamish's two month immunisations for diphtheria, tetanus, whooping cough, polio and Hib.
5. On 19^th November Mrs Tighe made a second visit. She made certain checks which were satisfactory except she noted Hamish had a sticky eye, but she also accepted that Mrs Thompson drew her attention to the fact Hamish had developed a large spot on his left buttock. Mrs Tighe advised Mrs Thompson to keep an eye on that spot and after two or three weeks this spot cleared and faded away.
6. Almost as soon as the first spot had faded away, a second spot larger than the first began to develop on the right buttock. This was seen by a doctor on Hamish's six week check up, and the advice was to put Vaseline on it, and keep an eye on it.
7. The spot did not go away and became larger. Hamish became uncomfortable and increasingly irritable, and by 27^th December more than two weeks after the spot first appeared he became more irritable and uncomfortable. On the night of 27^th/28^th December Mrs Thompson was sufficiently concerned to contact the out of hours' doctor by telephone. That doctor, Dr Hadfield, having asked various questions, advised on the telephone that it would be alright to wait to see the nurse at Hamish's eight week check up the next day.
8. On 29^th December Mr and Mrs Thompson took Hamish to the clinic both for the eight week check up and for the purpose of having him immunised. They saw a health visitor Mrs Goulding. She found a hard inflamed area on the anal edge, and was sufficiently concerned to discuss it with Dr Grey, who without inspecting Hamish prescribed antibiotic cream. Mrs Goulding advised Mrs Thompson to apply the antibiotic cream and if there was no improvement to come back within two or three days to see the doctor. Mr and Mrs Thompson asked whether they should proceed with the immunisation and Mrs Goulding indicated they should.
9. Mr and Mrs Thompson then took Hamish to the practice nurse, Mrs Dallimore, who was to undertake the immunisation. She asked whether Hamish was well and the Thompsons explained the history of the first spot and the new boil. At the trial Mrs Dallimore, because she had misread her notes, suggested that there was some discussion about Hamish's hip. Her refusal to accept that she had misread her notes made a bad impression on the judge, as did the fact that Dr Bradford adopted her error.
10. Mrs Dallimore was sufficiently concerned about the boil to indicate it should be seen by one of the doctors. Dr Grey was unavailable and Dr Bradford came to examine Hamish.
11. Dr Bradford asked questions designed to elicit whether Hamish was "systemically unwell". Dr Bradford was acting in accordance with the guidance given to GPs in what is known as "The Green Book". He was quite properly seeking to ascertain whether there were any contraindications to immunisation. Relevant advice in the "Green Book" was as follows:-

"7.2 General Contraindications

7.2.1 If an individual is suffering from an acute illness, immunisation should be postponed until recovery has occurred. Minor infections without fever or systemic upset are not reasons to postpone immunisation. Antibody responses and incidence of adverse reactions were the same in children with or without acute mild illness, when given MMR vaccine. The acute illnesses were upper respiratory tract infection, diarrhoea or otitis media.

7.6 The following conditions are NOT contraindications to immunisation

e. Contact with an infections disease.

g. Treatment with antibiotics or locally-acting (e.g. topical or inhaled) steroids.

7.7 Other contraindication issues

7.7.7 Surgery is not a contraindication to immunisation, nor is recent immunisation a contraindication to anaesthesia or surgery. Recent receipt of OPV does not contraindicate tonsillectomy. In the United States, where recent OPV administration has never been considered a contraindication for tonsillectomy, there has been no recorded case of vaccine associated poliomyelitis following this procedure."

12. He was provided by the Thompsons with the history including the calling of the duty doctor on the night of 27^th/28^th. He found that Hamish did not have a fever. Hamish did not exhibit distress or irritability save when Dr Bradford pressed the boil gently to express some pus which was to be subjected to analysis. He diagnosed a possible perianal abscess and prescribed a course of oral flucloxacillin suspension to be taken 4 times daily, and indicated that they should revert to him if in a couple of days the abscess did not resolve.
13. Mr and Mrs Thompson raised with Dr Bradford whether in the light of his examination and their concerns they should proceed with vaccination that day. Dr Bradford told them there was no reason not to go on with immunisation that day using, as the judge found, an inappropriate phrase in giving that advice.
14. It is common ground that Dr Bradford did not go into the question whether the immunisation should be postponed. It is common ground that he did not do that which a competent GP should have done which was to explain (i) that Hamish's presentation of a recurring perianal abscess was unusual, and (ii) that the perianal abscess may have required surgery. It is however important to emphasise that the reason why a competent GP should have provided this information, [if it should have been provided in the context of advising whether the immunisation should proceed as opposed to advice limited to the treatment of the boil (a matter to which I shall return below)], was not because any GP would have thought there was a risk of Hamish contracting polio from the vaccine via an unusual abscess or surgery. It was because if Hamish had the vaccinations, and then within a short time had surgery, first it might be very uncomfortable for Hamish, if he were to suffer a reaction to one or other of the vaccinations to have the discomfort of surgery all at the same time; or possibly because the vaccinations, might be rendered ineffective – I stress - in the sense of failing to immunise not actually causing VAPP.
15. Dr Isaac, the expert called on behalf of Hamish, accepted the accuracy of the following question and answer from the Education Health Guide which sums up the position:-

"Can I give immunisation if the baby is a bit irritable and the mother thinks he is starting a cold. Answer: The reason we do not immunise an acutely unwell baby is not because it is dangerous but rather that it is adding insult to injury for the child. Also should his condition worsen it is difficult for a doctor to distinguish between his initial illness and the reaction to the injection"

16. Dr Norfolk, the expert called on behalf of Hamish, in answers on which Mr Spencer QC places great reliance in supporting his cross appeal, put it this way when being asked whether he would have advised postponement once (as happened) Hamish's boil got worse:-

"I certainly wouldn't vaccinate in those circumstances, my Lord, no. The child is going to be going through an operation, he's going to be feeling poorly from the operation, potentially and again it's this concept that the vaccine might cause a febrile reaction and might make the child more unreasonable, so in those circumstances I would say that on that particular day, when he felt surgery was indicated here and now, I would certainly recommend that you defer vaccination. I would say that that is covered by the general contra-indication – not because there is danger, serious danger of ill-health, but just out of deference to the child's general well-being." See page 647.

Then later at page 649

Q. No I understand, it is just that if, on 1^st January he had presented as he did, then you would not, on that occasion, have recommended? A. Not because I felt I would be doing any harm, but simply the child was going to be going through enough.

Q. Yes, I understand, because he was going to go through an operation? A. Yes."

17. Hamish was, in the result, vaccinated on 29^th December. By 1^st January far from resolving, the abscess became much larger and more inflamed. Hamish was taken to hospital where a surgeon having been told of the vaccination, lanced the boil and then packed the wound. The wound was dressed regularly, and by 7^th January Hamish appeared to be recovering, but unhappily on 8^th January Hamish developed a high temperature, and over the next few days Hamish was acutely ill. Eventually he was diagnosed as having contracted polio subsequently confirmed as "VAPP".

Was Dr Bradford negligent in advising that there was no reason not to proceed with immunisation on 29^th December?

18. This is the issue which the judge decided in favour of Dr Bradford, and which was the subject of the cross appeal. Even in this context the question arises whether it was a relevant breach of duty if it were established. Let me start with a quotation from the judgment of Beldam LJ in Brown v Lewisham and North Southwark Health Authority [1999] Lloyds Reports Medical 110 at 117 with which Morritt and Mantell LJJ agreed:-

"Mr Francis' argument assumed that, as the first defendant had admitted a breach of duty, it remained only for the plaintiff to prove a causal connection with the damage he had suffered. In the light of my view that no such connection has been shown, it is unnecessary to say whether this assumption is correct but I would certainly question it. It was said that, if a defendant is in breach of duty, it is no defence that the plaintiff suffers damage in an unforeseeable way; the defendant has to take the plaintiff as he finds him provided that the damage is the same time. The paradigm example is the plaintiff with the eggshell skull. So, Mr Francis argued, the first defendant had to take Mr Brown with his undetected DVT and his rare but not unforeseeable reaction to heparin. The doctor's duty was to take care for the health of his patient. If he is in breach of that duty it does not matter that injury to health occurs in an unforeseeable way.

For the purpose of analysis it may sometimes be important to be more precise in the definition of duty. A doctor is obliged to exercise the care and skill of a competent doctor. He must take care in the examination, diagnosis and treatment of his patient's condition to prevent injury to his health from risks which a competent practitioner would foresee as likely to result from his failure to do so. He is not a clairvoyant nor if he tells his patient that he can find nothing wrong is he liable if his patient has a condition which was not discoverable by competent examination. The public policy of limiting the liability of tortfeasors by the control mechanism of foreseeability seems to me as necessary in cases of medical as in any other type of negligence. I do not see on what policy ground it would be fair or just to hold a doctor to be in breach of duty who failed to diagnose an asymptomatic and undectectable illness merely because he was at fault in the management of a correctly diagnosed but unrelated condition. In short it must be shown that the injury suffered by the patient is within the risk from which it was the doctor's duty to protect him. If it is not, the breach is not a relevant breach of duty. Whilst it may be said that this analysis is not more than a different approach to the facts of the case, I do not wish to be thought to have accepted without question Mr Francis's major premise.

For this reason I would dismiss the appeal."

19. Although the above appears to be strictly obiter, it seems to me accurately to reflect the law. It seems to me with respect to the judge that he did not grapple with the relevance of foreseeability to the advice the doctor was accused of failing to give, either at this stage of his judgment or at the stage where he found "fault". The case brought against Dr Bradford relates to Hamish's contraction of VAPP. The only relevant breach of duty is one that would render the doctor liable for that state of affairs. If Dr Bradford was in breach of duty in failing to advise postponement of the vaccinations, all that he could reasonably foresee from any such breach of duty was the discomfort that Hamish might suffer from an adverse reaction to the vaccinations occurring at the same time as a need for surgery on the boil, or possibly a weakness in the effect of the vaccinations; it was common ground that what neither he nor any competent GP could have foreseen was any increase in the risk of Hamish contracting VAPP ( if, and that itself is in issue, there was as it turned out an increase in that risk). Sympathetic as one may feel with the position of Hamish and his parents, it would in my view be imposing a quite unfair duty on Dr Bradford to hold that he should be liable for the consequences of Hamish contracting VAPP through a failure to advise postponement, when no competent GP could foresee the contracting of VAPP as a consequence of that failure. All that could reasonably be foreseen as flowing from that failure, would be some discomfort to Hamish or some possibility that the vaccination would not be effective (but not in the sense of causing VAPP).
20. Thus in my view even if Dr Bradford should have advised postponement, that breach of duty would not be a relevant breach of duty so far as the condition of Hamish is concerned.
21. In fact the judge held that the condition of Hamish, as diagnosed by Dr Bradford on that day, was not such as to render Dr Bradford in breach of any duty when he advised that immunisation should take place. What he held was as follows :-

"26. In my judgment Dr Bradford's diagnosis and prescription of treatment for Hamish was that of a reasonable and competent GP acting conscientiously. Furthermore, in my judgment, the view to which he came that the possible perianal abscess constituted a local infection rather than an acute illness and that there was no underlying systemic disturbance was a conclusion to which a reasonably competent doctor could have come. Whilst the very recent history described by Mr and Mrs Thompson was consistent with a systemic illness, his examination of Hamish on the day led him reasonably to believe that the symptoms described did not evidence any underlying systemic illness but rather were the natural effects of an uncomfortable boil. It therefore follows that, in my judgment, Dr Bradford in concluding that there were no contra-indications to immunisation came to a conclusion to which a reasonably competent GP could have come. Therefore he was entitled to advise Mr and Mrs Thompson to proceed that day with the immunisation."

22. As Mr Spencer recognised it is not possible to challenge the judge's finding that Dr Bradford's conclusion that the "possible perianal abscess constituted a local infection rather than an acute illness and that there was no underlying systemic disturbance" was one to which a reasonably competent doctor could have come. Mr Spencer also recognised that Dr Bradford's analysis that there were thus no contraindications to immunisation as per the Green Book was one to which a reasonably competent GP could reach. But his submission was that simply because it was reasonable for Dr Bradford to conclude there were no contraindications, it did not necessarily follow that Dr Bradford was entitled to advise that vaccination should proceed. The submission is that since Dr Isaac was of the view that "the cautionary principle should have prevailed", the judge should have explored this issue and the conflict between the experts on it.
23. It seems to me that the judge did explore this issue as paragraph 25 of his judgment indicates. It further seems to me that the judge was right in the view he formed supported as it was by Dr Norfolk. Thus I would dismiss the cross-appeal.

Was the failure to inform the Thompsons that the perianal abscess was unusual and that surgery might be needed a relevant breach of duty?

24. It is not disputed that there was a failure to inform of the unusual nature of the perianal abscess, and that surgery might be needed. Indeed ultimately it can be said it was not in issue that the failure was in the context of providing the parents with the choice of whether to proceed with the vaccinations on that day, as opposed to a failure limited to the treatment of the abscess alone. But there are some unsatisfactory features as to the way that came about. There was no very clearly pleaded case of a failure to provide information other than in the context of an allegation that there was an increased risk of Hamish contracting polio [see paragraph 13 of the particulars of claim page 26]. Furthermore the case was not apparently opened on any basis other than in the context of an allegation that the parents should have been warned of an increased risk [see the opening statement page 26]. But the case that a doctor should have foreseen an increased risk had to be abandoned in the light of the advice of both experts, Dr Isaac and Dr Norfolk [see for example their joint report page 403]. But the joint views of the experts also gave the following answer to the following question.

"16. Should the Defendant have given Hamish's parents the choice whether to proceed with the immunisation or postpone it?

We are agreed yes."

25. The expansion of that answer was in the following terms:- "In relation to Question 16, the Claimant asks the following:-

(1) What information should a reasonably competent General Practitioner have given to Mr and Mrs Thompson before they were to exercise their choice as to whether to proceed with the immunisation of Hamish or postpone it?

i. In answering this question, please could the experts consider for each of the following matters whether a reasonably competent General Practitioner should have considered providing information to Mr and Mrs Thompson of that matter, namely:

1. Hamish's presentation of a recurrent perianal abscess was unusual;

2. The recurrent perianal abscess may have required surgery;

3. The General Practitioner did not know of additional risks from giving the immunisations in Hamish's particular circumstances, but that there may have been additional risks;

4. The General Practitioner was to start treating the perianal abscess with antibiotics;

5. The vaccinations could reasonably have been deferred for a week or two or more.

ii. If the answer to any of the above is "no", could the expert(s) please explain why not?

Dr Issac feels that a reasonably competent GP should have advised the parents of 1-5 above.

Dr Norfolk feels that a reasonably competent GP would have discussed 1, 2 and 4. With respect to 3, a GP would be expected to know only about the contraindications to immunisation detailed in the Green Book and would not be expected to discuss hypothetical or unknown risks associated with conditions that are not listed in the Green Book. With respect to 5, a GP should encourage immunisation in the absence of contraindications. The danger of deferring vaccinations for a week or two in the absence of contraindication is that further subsequent deferral might be deemed necessary for similar reasons and immunisation will be unduly delayed. It is desirable to get babies immunised in the shortest possible time."

26. Dr Norfolk, when he gave evidence, at first suggested that his assent to the view that information should have been provided as to the unusual nature of the abscess and as to the possible necessity for surgery was based on the fact that such information related to the treatment of the abscess alone and not to any decision of the parents as to whether to proceed with the immunisation. This it should be said was consistent with Dr Bradford's evidence that any discussion with the parents of possible surgery would have related to the management of the abscess, and not to whether it was appropriate to immunise [see page 530/39].
27. When it was pointed out to Dr Norfolk by the judge how question 16 had been framed and what he was thus in the joint opinion apparently assenting to, he clearly wished to resile from that answer, and from any assent that the information should have been supplied in the context of the parents choice to go ahead with the immunisation as opposed to the treatment of the abscess alone. But in a lengthy passage of examination by the judge Dr Norfolk ultimately confirmed that the information should have been supplied in the context of the parents' choice as to whether immunisation should go ahead as question 16 indicated. [see in particular Day 3 page 653 transcript bundle].
28. I am troubled as to whether it really was Dr Norfolk's view that this information should have been supplied other than in the context of the treatment of the abscess alone. I am not sure he really had understood question 16 as relating to an allegation of negligence in relation to the supply of information relating to postponing immunisation, that not being a clearly pleaded case. If it related to the treatment of the abscess alone, it would follow that on that basis it was an irrelevant breach of duty. But, and this is the important point, even if it was to be supplied in the context of whether the parents would choose to continue with the immunisation, no competent doctor would have contemplated any risk from that failure other than some further discomfort if there was a reaction to the vaccination. In my view on that basis in any event the breach of duty was not a relevant breach of duty.
29. It was not sufficient to hold, as the judge did, that there was "fault", and then move straight to the questions of factual causation i.e. whether the parents if given the choice would have postponed, and whether if there had been a postponement Hamish would in fact have contracted VAPP or would have had a reduced chance of doing so.
30. I can summarise my view in this way. For the reasons already given when discussing the duty to advise, the important question was and is whether there was a relevant breach of duty. That depends on what Dr Bradford could reasonably have foreseen as the consequences of his failure to explain. Viewing Dr Norfolk's assent most favourably in favour of Hamish, neither he nor any competent GP could have foreseen that, if Dr Bradford failed to explain the unusual nature of the perianal ulcer and the risk of surgery, and if that failure led to there not being a postponement, the result would be a contraction of VAPP or even an increased risk in the contraction of VAPP. The maximum any competent GP could have foreseen was that if Hamish had an adverse reaction to the vaccination he would have a greater degree of discomfort as a result of possible surgery.
31. In my view, accordingly, the judge should have found that there was no relevant breach of duty by Dr Bradford.

Would the Thompsons have postponed if provided with the information?

32. On the view expressed above, this point does not arise, and I should take the point shortly. It is a point on which Rix LJ refused permission to appeal on the basis that it was a discrete question of fact, but we allowed Mr Grace QC to argue the point and I would grant permission to appeal.
33. Despite the judge's conclusion in paragraph 32, and Rix LJ's view, I have serious doubts as to whether the judge's conclusion is realistic. The Thompsons were anxious, u nsurprisingly, but they were seeking the advice of the medical profession whether they should go ahead with immunisation. They got the firm advice of Dr Bradford, in addition to that of Mrs Goulding, that they should go ahead. Unless what Dr Bradford was meant to indicate in providing information was that there could be a serious risk to Hamish's health, in which event it is difficult to conclude that he could be advising to go ahead anyway, I find it difficult to think that the Thompsons would not have accepted the advice. It would indeed have been the responsible thing to do as parents.

Did Hamish contract VAPP as a result of the wound from the boil?

34. Again, as a result of the conclusion reached so far, this issue does not arise. The judge's view was that once any fault had been established the question was whether, as a matter of fact, Hamish suffered injury from the fact that the vaccination was not postponed, and that it was important to resolve a difference of medical opinion with far reaching effects. VAPP, as was common ground and as found by the judge, is happily exceedingly rare. It is not precisely known why a very small number of vaccinees catch polio from the vaccine itself. In the preponderance of vaccinees the strains of polio virus from the vaccine reverts to a neuro virulent form which appears in those who contract the full disease. Prof Madeley's evidence was that the most likely route of infection in Hamish's case was the route which he suggested occurred normally in the few cases where vaccinees contracted VAPP i.e. the virus having reverted to full virulence through a back mutation spread from the gut, (Peyers patch cells, in which the mutation had taken place), either through the blood stream (vyremia), or via nerves supplying the gut. Prof Banatvala's theory was that the route of the infection was via the surgical wound left after the lancing of the abscess. That theory had various possibilities: first that because the lancing involved muscle damage, polio was "provoked", this involving the theory that any muscle damage wherever it occurred and not just round the anus might have that effect, via some mechanism internal to the body. This theory he supported with a paper published by Strebel in 1995, which reported that 31 children in Rumania had developed paralytic polio following the administration of an oral vaccine, of whom 27 had received one or more intra muscular injections. Second, but less likely, was that the virus had entered via the open wound via damaged muscle cells or open blood vessels. Prof Madeley accepted the possibility of Prof Banatvala's theories but said "although it would be difficult to say that the putative routes/mechanisms provided by the perianal abscess were not feasible, the direct route (i.e. Prof Madeley's suggested route) which is known to obtain, even in the absence of any wound in the vicinity, makes this considerably more likely."
35. If Prof Banatvala's first theory supported by the Strebel paper were right, and indeed if the judge's finding is right, then the Green Book which suggests that "surgery" is not a contraindication would be inaccurate. That appears to be a matter of some concern, although we were told that since the decision has been made to go over to IPV from OPV the importance is less.
36. Obviously the judge's views are entitled to respect because he heard the witnesses. There are however some valid criticisms of his reasoning e.g. his reliance, in preferring Prof Banatvala, on the proposition that direct entry into perianal nerve endings would by-pass any immunoglobulins to polio virus that were present, when according to Prof Madeley direct entry into the peripheral nerves of the gut would also by-pass the immune system. His theory also depended on there being muscle damage, and the judge appeared to accept that there was muscle damage on the basis of the joint statements of the surgeons that damage "would be minimal" [page 426] and although there were no notes to support the existence of any muscle damage [page 427].
37. I do not think it would right for this court to enter further into a review of the judge's findings on this aspect in the light of the fact that the issue now does not affect the result of the appeal. Perhaps more importantly it seems to me that the question of whether the Green Book should be amended is a matter for the experts in this area, and I do not think that the view of this court will assist experts who have to consider that question.

Conclusion

38. For the reasons I have given I would allow the appeal.

Lord Justice Jonathan Parker :

39. I agree

Sir Christopher Staughton :

40. I also agree