England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HH Judge Simpkiss
BN304960

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/11/2007

Lady Justice Smith :

Introduction

1. This is an appeal by Mrs Jennifer Louise Rhodes-Hampton from the order made by HH Judge Simpkiss in the Brighton County Court on 15 November 2006. The judge rejected the appellant's claim for damages sustained in the course of her employment with the respondent, Worthing & Southlands Hospitals NHS Trust. On a renewed application, May LJ and I granted permission to appeal on limited grounds.

History

2. From April 2000, the appellant was employed by the respondent as a midwife at Worthing Hospital. On 20 August 2000, she was working at the hospital and was sent to the delivery suite where she was asked to take over the care of Mrs L, a patient who had been admitted that morning in the early stages of labour. Mrs L was a very large patient. The notes we have do not record her weight but we have been told that she was obese. During the course of labour, a decision was taken to carry out an emergency caesarean section. Mrs L was anxious and distressed while being prepared for the operation. The baby was delivered successfully in an operating theatre which was adjacent to the delivery suite and was used only for obstetric cases. In attendance was a 'scrub nurse' Nurse Collins and an operative department assistant (ODA). After the operation, the patient was wheeled into the adjacent recovery room by the anaesthetist, Nurse Collins and the appellant. Within a few moments, Nurse Collins had left and the only members of staff remaining in the recovery room were the appellant and the anaesthetist, Dr Haraharan.
3. Dr Haraharan asked the appellant to put the patient on to a cardiac monitor but the appellant, who had not been trained as a recovery nurse, told him that she did not know how to do so. He expressed some dissatisfaction at that. The appellant began her obstetric duties, attending to the patient's wound and other matters. After a short while, the patient ejected the Guedel airway which had remained in place until then. The patient still had a catheter in place and a drip inserted into each hand. Soon afterwards, the patient showed signs of post-anaesthetic confusion. She began to groan and tried to sit up, shouting 'I need to pee, I need to pee, help me'. She then sat up fully and swung her legs over the edge of the bed, on the side where the appellant was standing. The appellant stood in front of her in order to prevent her from falling from the bed. The patient punched the appellant twice, once in the breast and once in the abdomen. Although these injuries were painful, they did not result in lasting damage and the appellant did not sue in respect of them. The appellant tried to calm the patient, explaining that she had a catheter in place and did not need to pass urine. The patient became somewhat calmer and lay down.
4. Meanwhile, Dr Haraharan had remained at the head of the bed and had not moved to assist the appellant. When the patient lay down, he began to speak to her in a reassuring way. The appellant resumed her obstetric duties. She also went to check on the condition of the baby. She then returned to the patient's bedside. During all this time, Mrs L remained fidgety and slightly agitated and was calling out. About 4 to 5 minutes after the earlier incident, Mrs L began to 'thrash about' again. She became increasingly agitated and was shouting that she wanted 'a pee' and needed help. She then rolled over onto her right side and swung her left leg across, kicking the appellant in the abdomen. The appellant took a step back but she was worried that the patient might roll off the bed. She was also concerned about the patient's catheter and that she had a drip inserted into each hand. So the appellant moved back towards the patient to prevent her from falling. The patient then grabbed the appellant's wrist and rolled back over, pulling the appellant with her. The appellant's hips struck the side of the bed and she felt a pain in her back and down her right leg. She had suffered the injury for which she was later to claim damages.
5. At about this moment, Nurse Collins entered the room and came to assist. She was followed by the ODA and a maternity assistant. Between them, everyone present managed to calm the patient and the anaesthetist gave her a sedative. Cot sides were then fitted to the bed and raised into position.

The Proceedings

6. The appellant pleaded a number of allegations, not all of which are relevant to this appeal. So far as is relevant, she alleged first that the respondent had failed to provide a safe system of work and a protocol of safe practice for the recovery suite. Second, it was alleged that there were insufficient properly trained staff present in the recovery room. Reliance was placed on guidelines published by the Association of Anaesthetists which required the presence of at least two staff trained in recovery procedures to be present during the recovery phase. Third, it was alleged that the respondent should have fitted cot sides to the bed used in the recovery room. The bed in use was not so fitted, contrary to the practice in the main operating suites within the hospital. Fourth, it was alleged that the anaesthetist had been negligent in failing to react properly or at all to Mrs L's first outburst of violent agitation by calling for the assistance of more staff or by calling for cot sides to be fitted or by instructing the appellant as to how she should react or by providing assistance himself.
7. The defence denied that the patient had been wheeled into the recovery room for the purpose of recovery from anaesthetic. It was averred that the patient was 'sufficiently' recovered from the anaesthetic while in the operating theatre before being taken into the recovery room. Both the alleged incidents of violence were denied. The appellant had not been obliged to approach the patient to prevent her falling from the bed. The appellant had not been dragged across the bed.
8. All the allegations of negligence and breach of duty were denied. Of particular relevance to this appeal, it was averred that the respondent had in place reasonable and appropriate systems and protocols as necessary and the risk to the appellant of injury during the course of her employment was reduced to the lowest practicable level. As to the adequacy of the staff present, it was alleged that there were four members of staff present within the recovery room or alternatively in the adjacent operating theatre from where they could be summoned. Also, it was alleged that, in any event, there were three other members of staff present in the recovery room and that the appellant was not left alone with the anaesthetist. As to cot sides, it was alleged that these were available if required and it was at the discretion of the nursing staff, including the appellant, as to whether or not to use them. As for anaesthetist, his actions were entirely appropriate. The appellant could have called for cot sides and did not need instruction as to how to react as she was very experienced. The anaesthetist did not stand back and offer no help. In any event, there were at least three other members of staff available in the recovery room at the time.
9. By amendment, it was alleged that, if the respondent were to be held primarily liable for the injury, the appellant had contributed to it by her own negligence in failing to ask for cot sides to be fitted, failing to inform the anaesthetist that she was not sufficiently trained to be left with the patient, failing to call for assistance, failing to locate (and use) the emergency button and failing to react properly to the first incident by calling for assistance etc.
10. Following a case management hearing, witness statements and expert reports were exchanged. In preparation for the trial, it appears that the judge read all the materials.

The Hearing

11. The appellant gave evidence, giving her account as I have set out above. In due course, it was accepted by the judge. A witness, Ms Michelle Anscombe, a former employee of the respondent, spoke of the practices usually followed at the hospital. The judge accepted her evidence, save in so far as it comprised opinion. Her factual evidence included a statement that the usual procedure following a general anaesthetic in the obstetric suite of this hospital was for the scrub nurse to remain with the patient during recovery and that there were usually others present such as the anaesthetist's assistant and a maternity assistant.
12. The appellant put in a statement from Mr L but he was abroad and was not called to give oral evidence. He confirmed that the only people present with his wife in the recovery room were the anaesthetist and the midwife. He said that when he was allowed into the recovery room, his wife was not fully conscious. He confirmed that she went into what he called 'a fit of rage'. She was thrashing about violently. She was calmed down but after a few minutes she 'blew up again'. She was shouting and she kicked the midwife, knocking her across the room. The midwife went back and Mrs L pulled her across the bed. Another nurse (Nurse Collins) came in while his wife was still struggling and she got kicked as well. Other people then came in and it took at least four people to hold Mrs L down. He, Mr L, assisted.
13. The experts for both sides were then called: Dr Bernard Norman for the appellant and Dr Alastair McCrirrick for the respondent. Both were consultant anaesthetists. After that, counsel for the respondent announced that he did not intend to call any other evidence. The appellant's counsel put in the statement of Nurse Collins. This provided some assistance to the appellant's case, in that Nurse Collins said that Mrs L was a large lady with an apparently fiery personality and that she had asked, even before the operation took place, whether cot sides were to be fitted to the bed. In other respects, the statement was not helpful in that Nurse Collins' account of events did not tally with the appellant's. There was no evidence at all from Dr Haraharan. In effect, the respondent's pleaded case on the facts had collapsed and it was inevitable that the appellant's account of events would be accepted. The respondent's case depended upon the adequacy of the systems it had in place to deal with foreseeable emergencies in the recovery room.

The Judgment

14. After outlining the background facts, the judge expressed his opinions about the important witnesses. He said that the appellant was a truthful witness but that she had a tendency to tailor her evidence to bolster her case. This he said was because she had suffered an injury and had sought to find an explanation other than that it was an unforeseen and unavoidable accident. This observation presaged the judge's eventual finding that this was an unforeseen and unavoidable accident. However, bolstered or not, the judge accepted the bones of the appellant's account. As to the expert witnesses, the judge expressed no preference, confining himself to the observation that both of them appeared slightly partisan.
15. The judge then set out the issues that he had to decide. The first (a) related to whether Mr L had warned a member of staff that Mrs L was or might be 'allergic' to anaesthetic. The judge found that, even if he had, this episode of post-anaesthetic confusion was not caused by any allergic reaction. There is no appeal against that and I shall say no more about it. The other issues were set out as follows:

"(b) Should cot sides have been fitted to the bed in which Mrs (L) was recovering from the anaesthetic? If so was this, or the failure to have them readily accessible, a breach of the hospital's duty to the (appellant)? Was her injury caused by this breach?

(c) Was it a breach of duty to the (appellant) to leave her in the recovery room with the anaesthetist alone or should she have been accompanied by trained recovery nurses or given proper training herself? If so did this cause her injury?

(d) Was it a breach of duty not to ensure that the (appellant) was informed of the position of the emergency call button and, if so, did this failure cause her injury?

(e) Was the response of the anaesthetist a breach of the duty to the (appellant) and, if so, did this breach cause her injury?"

16. In respect of (b) and the issue of whether cot sides should have been fitted to the bed, the judge noted that both experts had said that it was acceptable for cot sides not to be fitted to the bed provided that they were readily available and that there were sufficient staff available to fit them. He said that cot sides were designed to protect both patients and staff; if a patient were in danger of falling out of bed, it was foreseeable that staff might be injured while preventing this. He held that it was a matter of judgment whether and when cot sides should be utilised but rejected the suggestion advanced by Dr McCrirrick that there was any real 'downside' to using them in a recovery room where the patient was under supervision. Indeed, as he observed, they were fitted very shortly after the incident in this case, which strongly suggested that there was no 'downside' to their use in the present case.
17. The judge reviewed the appellant's evidence about cot sides. She had said that she was surprised that there were no cot sides fitted to the bed; she had been used to seeing them in other parts of the hospital. She said that, if they had been fitted, she would have raised them after the first incident of violence, unless the anaesthetist had told her not to. However, the judge said that that was not the real issue because it was not a breach of duty not to keep them fitted at all times. There would be no breach of duty if the cot sides were immediately available and could be fitted with the minimum of delay. So, the real question was whether they were immediately available. The judge found that they were not and that the respondent was in breach of duty in that regard. He held, however, that this breach had not been causative of the appellant's injury. That was because the accident had happened too quickly. Only if the respondent ought to have ensured that the cot sides were fitted after the first incident would their lack of immediate availability have been causative of the injury.
18. The judge then went on to consider whether the respondent was to blame for the fact that the cot sides were not fitted after the first incident and held that they were not. The basis of this decision, which he explained at a later stage of his judgment, was that the claimant was a very experienced midwife and that it was up to her to decide whether to call for the cot sides to be fitted. She had not done so.
19. The judge then turned to issue (c), namely whether it was a breach of duty to leave the appellant alone in the recovery room with the anaesthetist, whether there should have been trained recovery staff present and, if so, whether this caused her injury.
20. The judge recorded the appellant's evidence that she had virtually no experience at all of patients recovering from general anaesthesia. She had been involved with caesarean sections performed under regional anaesthesia (epidural) but only once with a patient who had had a general anaesthetic. On that occasion, there had been plenty of staff present including a recovery nurse at all times. The judge accepted that the appellant was not a member of the recovery staff. She had not been trained in recovery procedures. Nor was she trained as an assistant to the anaesthetist. He accepted Dr Norman's evidence that it was good practice to have at least two members of recovery staff present during recovery. Although the judge did not expressly say so, he appears to have accepted that this good practice had not been complied with on this occasion. However, he considered that the purpose of the good practice was for the benefit of the patient and not for the safety of members of staff. He continued (at the end of paragraph 49):

"What was reasonably necessary for the (appellant's) protection was that there was adequate backup immediately available if the patient became confused. Even (if) extra or trained staff had been in the room, it would not have been reasonable for them to have been alongside the bed."

50. In my judgment, the real question to be answered is whether the (appellant's) training and experience were adequate to enable her to deal with the issue that arose when the first incident occurred, namely whether to call for back-up and for the fitting of cot sides. ….. The (appellant) was aware that Mrs (L) was agitated and also that she was prone to violence, having been struck by her at least twice. She was also aware of the facility of cot sides and that they could be put on the bed and expresses surprise in her statement that they were not already fitted. In her own evidence, she 'hoped that she had won the day' which I interpret as meaning that she was not certain that there would not be another incident. She was not a junior midwife and was used to dealing with difficult situations. In my judgment, she was well able to decide that cot sides should be fitted if she had thought that they would assist or that they were necessary in order to avoid the risk to her from further violence. ….. Nor has it been proved that there wasn't sufficient staff available to attend while they were found and fitted.

51. I therefore conclude that it was not a breach of the (respondent's) duty to the (appellant) to leave her alone with the anaesthetist and, even if it had been, it would not have made any difference to the decision to fit cot sides or call for assistance. The (appellant) was just as able to make that decision.

52. Furthermore, so far as the decision to fit cot sides was concerned, the presence of the anaesthetist should have provided quite enough experience and expertise to plug any gaps in the (appellant's) training as he would have considerable experience of the recovery of patients and potential problems. The (appellant) made the decision not to fit cot sides and it was a judgment which she considered reasonable in the circumstances. I do not accept her evidence that she did not call for help because it would have been futile to do so. It never occurred to her that it was necessary. Nor do I accept that she was reticent about speaking up because she deferred to the anaesthetist. She could easily have asked him but I think it more likely that, if she had thought more needed to be done, then she would have taken that step herself, perhaps informing the anaesthetist of what she was proposing first."

21. The judge then dealt with the fourth issue, whether the appellant had been told where the emergency buzzer was situated. He held that it was her responsibility to find out where the buzzer was. In any event, she had not thought of using it. No issue arises on this in this appeal.
22. Finally, the judge dealt with the position of the anaesthetist. He held that the second incident had happened so quickly that there was nothing that he could have done to prevent the injury to the claimant. He observed that other staff had appeared almost immediately once the incident occurred. As for the allegation that the anaesthetist should have appreciated the risk following the first incident and have called for cot sides or for additional staff, he considered that the appellant was in just as good a position to do these things as Dr Haraharan. The appellant had formed the view that these things were not necessary. The anaesthetist was not in breach of duty for failing to come to a different conclusion.
23. He concluded by saying that the respondent had not been breach of any duty and, even if it was, he was not satisfied that the accident would have been avoided.

The Appeal

24. Mr Charles Taylor, who appeared for the appellant in this court and below, argued three main points. First, he submitted that the judge had been wrong to hold that the requirement of good practice that there should be at least two recovery staff present during recovery was solely for the benefit of the patient. He accepted that the presence of such staff was important for the safety and welfare of the patient but submitted that it was also necessary for the welfare of the staff. It was foreseeable that a patient might suffer from confusion during recovery and might behave in an unpredictable way which could endanger her own safety. In those circumstances, staff would be put at risk in seeking to ensure that the patient was not injured. A system of work which provided a reasonable degree of safety for the staff ought to have ensured that there was present a sufficient number of appropriately trained staff. There had not been in this case. It was not sufficient that other people could have been summoned. There should have been more actually present. The normal complement should have been the anaesthetist (if he considered that his presence was still required, which presumably he did), two recovery nurses and the midwife, whose responsibility was to manage the baby and to attend to the patient's obstetric needs.
25. Mr Roger Harris, for the respondent, submitted that the judge's conclusions were unassailable. The need for the presence of trained recovery staff was solely for the purpose of ensuring that appropriate action would be taken in the event of a respiratory crisis. Any nurse or midwife could properly be expected to deal with the problems created by a distressed or confused patient. Special recovery training was not required. It was therefore entirely reasonable (so far as the appellant's safety was concerned) for the respondent to arrange that the appellant and the anaesthetist should be alone with the patient. In the course of argument, Mr Harris accepted that this arrangement meant that, if the patient suddenly became confused and was in danger of falling from the bed or causing other self injury, the sole nurse present, (in this case the midwife) would be expected to act as a human cot side to prevent the patient from falling. He submitted that that did not give rise to an unacceptable risk of injury. There was a risk, he accepted, but not all risks could be eradicated. When asked whether there was a foreseeable risk that a patient recovering from anaesthetic might become confused, he accepted that there was, although he said that the risk was small. He also accepted that there was statistical evidence that patients who were anxious or distressed before the anaesthetic were more likely to be anxious afterwards than those who had not been so before hand. He accepted too that there had been expert evidence that, if a patient had one episode of post-anaesthetic confusion, there was a risk that he or she might have another.
26. Mr Taylor's second point related to the use of cot sides. He submitted that the judge ought to have held that there was no good reason why cot sides were not kept in place on this bed, in the lowered position. That was the practice elsewhere in the hospital and was in accord with the appellant's observations at other hospitals. There was no conceivable disadvantage in such a practice. If cot sides had been fitted, the appellant would have raised them after the first incident of violence and her more serious injury would probably have been avoided.
27. Mr Harris submitted that the judge had been entitled to hold that it was acceptable practice for the cot sides not to be kept in place on the bed, provided that they were immediately available. He acknowledged that the judge had found that they were not immediately available. However, the appellant had not satisfied the judge that there were not sufficient people available to find and fit the cot sides, so there had been no breach of duty.
28. Mr Taylor's third point related to the role of the anaesthetist and the judge's holding that he had not been in breach of duty in failing to call for cot sides to be fitted or for more staff to attend. Mr Taylor submitted that indeed that was the anaesthetist's responsibility. First, there was a marked difference in status. He was an experienced anaesthetist. The court was told that he was a consultant although I note that he did not say this in his (unadmitted) statement. The appellant was a midwife and had been employed at the hospital for only four to five months. It was the first time she had worked in this obstetric suite. He was the one in a position of natural authority. There was evidence before the judge that staff relationships in hospitals are hierarchical, although not as rigidly hierarchical as they used to be. It would be natural for the appellant to defer to him. Second, the anaesthetist knew that the appellant was not an experienced recovery nurse. He had asked her to fit a cardiac monitor and she had said that she did not know how to do it. Third, the anaesthetist was the one who must be taken to have known that there was a risk that the patient might become confused. The appellant had neither the training nor the experience to know that. He was the one who would know that, if the patient had one episode of confusion, it was foreseeable that she might have another. The appellant would not know that and in fact she had given evidence that, at the end of the first episode, it did not occur to her that there might be another episode. Given these factors, submitted Mr Taylor, the anaesthetist should have taken charge of the situation. First, he should have prevented Nurse Collins from leaving when she did but, more importantly, he should have realised, when the first episode of confusion and violence occurred that the situation was dangerous. He should have either summoned more staff or asked for the cot sides to be fitted or both. Had he done so, this accident would probably have been avoided.
29. Mr Harris submitted that the judge's conclusions were correct. The anaesthetist had been entitled to conclude, as the appellant herself had done, that the patient had calmed down and that there was no need for any particular steps to be taken. It was wholly unexpected that the patient should have erupted for a second time. Mr Harris also supported the judge's conclusion that taking either of the steps contended for would not have avoided the accident.

Discussion and Conclusions

30. On reading this judgment, my first reaction was that it is carefully and closely argued. Nonetheless, I must confess to having had an immediate concern at the result, namely that a midwife, with no previous experience of handling a patient recovering from general anaesthesia, should be held to have been effectively responsible for the management decisions affecting not only the patient's safety (which is not material to the present appeal) but also her own safety.
31. I turn to the first of Mr Taylor's submissions, although it seems to me that all three issues are inter-related. The first issue related to the staffing levels in the recovery room on this occasion. Was the judge right to hold that the requirements of good practice that there should be two 'recovery-trained' nurses were designed to ensure only the safety of the patient in a respiratory or other crisis? In my view, he probably would have been right to say that the requirement was designed primarily or mainly for the benefit of patients. However, that is not the end of the matter. If it is foreseeable that a patient might suffer from post-anaesthetic confusion, which might endanger her own safety, it is also foreseeable that any member of staff present will seek to prevent harm to the patient and might, in so doing, endanger him or herself. In such an episode, it is also foreseeable that, unless the patient is restrained, a member of staff might be assaulted. If such a foreseeable risk exists, the reasonable employer should have a system of work which will reduce the risk to employees to a reasonable level. So it seems to me that the requirement of good practice that there should be at least two recovery staff present is probably not designed solely for the benefit of the patient. It is probably also designed to ensure that, if an episode occurs which might endanger staff as well as the patient, there are sufficient staff present to handle the situation appropriately. I can see that the need for recovery staff may arise mainly from the need for the particular skills they have in relation to cardiac or respiratory crises and that special recovery training is not necessary for the purpose of ensuring that a patient does not fall out of bed, pull out her drips or assault anyone. However, a trained recovery nurse is likely to have a greater appreciation of the risks of post-anaesthetic confusion than a nurse without that training or experience. So my view would be that the requirement of good practice to have two recovery staff present was designed not only for the benefit of the patient but also for the benefit of staff; it was a recognition that incidents might occur which would put staff at risk of injury if there were not enough people present to handle the situation and that recovery staff would be better able to foresee and deal with those incidents than those without that special training. That was the effect of the evidence of Dr Norman from which Dr McCrirrick did not dissent.
32. However, I would agree with the judge that, in any event, a failure to follow a requirement of good practice does not necessarily amount to negligence. The judge took the view (based on the evidence of Dr McCrirrick) that it was acceptable for the patient to be looked after by two members of staff, providing that additional people were on hand to be called in the event of need. The judge held that there were other members of staff in the operating theatre. That, to my mind, is an end to the staffing point when considered in isolation. However, as I will explain, I do not think that the staffing point can be considered in isolation either from the issue relating to cot sides or from the issue of the anaesthetist's duty to manage the situation.
33. I turn to consider the question of cot sides. Both experts agreed that it was not wrong or bad practice not to keep the cot sides in situ at all times provided that they were immediately available and could be fitted without delay. I confess that it seems to me rather pointless to keep the cot sides off the bed. It would seem sensible to have the cot sides in place all the time, particularly if the bed is to be used as a trolley, as apparently this one was. That was the practice in the main operating suites in this hospital and no evidence was given to justify a different practice or policy in the obstetric operating suite. Indeed, it is difficult to think of any justification. No one suggested that cot sides when fitted but not raised caused any inconvenience to anyone and, as the judge himself observed, if fitted, they could be raised into position in a matter of seconds whereas, if they had to be fitted, a significant time would be required before they could be used. Dr McCrirrick pointed out that, if cot sides were not fitted and were required, for example if a patient became agitated, one member of staff who could otherwise stay at the bedside and help to keep the patient in bed and to restrain her would have to leave the bedside to fetch the cot sides.
34. As a matter of common sense, it seems to me that good practice would require that the cot sides should be fitted at all times, ready to be raised into position if required. However, considered as a free-standing issue, on the basis of the evidence before him, the judge was certainly entitled to hold that it would be acceptable for the respondent to keep the cot sides in an adjacent room. Dr McCrirrick's evidence on this issue, which the judge largely accepted, was that such a practice was only satisfactory only if there were enough staff present to look after the patient while someone went off to fetch and fit the cot sides. It was clear from his evidence that he contemplated that there should be about four members of staff at the bedside controlling the patient during an episode of post-anaesthetic confusion so that one could safely be released to fetch the cot sides.
35. It seems to me that Dr McCrirrick's evidence serves to underline the dangerousness of the situation which was allowed to develop in this recovery room. The bed had no cot sides fitted and there were only two members of staff present. The patient had one episode of confusion in which she was violent. Yet no help was summoned and the cot sides were not fetched. When the patient had a second episode of confusion and violence, the appellant was at risk when she attempted to ensure that the patient did not hurt herself.
36. It seems to me that the crux of this case arises from Mr Taylor's third submission and the judge's finding that it was the appellant's responsibility to make the decisions relating to the management of this patient. I accept that the judge formed the view that the appellant was a robust personality who would not have hesitated to give orders if she had thought it necessary. Even so, it seems to me that the overall responsibility for the management of this patient lay with the anaesthetist. Mr Harris accepted that that was so. The suggestion that any nurse (let alone this midwife) should be in charge of the management of a patient while in the presence of the doctor responsible for that patient's care seems to me to run counter to ordinary hospital practice. The evidence of Dr McCrirrick, when discussing how emergencies during recovery should be managed, said that he (as an anaesthetist) might well elect not to use cot sides but to have the patient restrained by a sufficient number of staff. It was plain from everything that he said that, in his presence, he would be the one making the decisions. Yet the judge held that it was the appellant's responsibility to decide whether more staff should be summoned and whether cot sides should be fitted. He acknowledged only that she might tell the anaesthetist what she proposed to do. Moreover, he so held even though he had accepted that the appellant had no previous experience of patients recovering from general anaesthesia.
37. In my view, the judge fell into error at this stage of his judgment. He failed to ask himself what the anaesthetist should have done. Of course, the judge had no evidence from the anaesthetist to say what he had done and why. But he should have considered the anaesthetist's responsibility bearing in mind the evidence he had received from the two experts. Had he done so, he would have accepted that Dr Haraharan was in overall charge of the management of the patient. He would have inferred that, as an experienced anaesthetist, he was accustomed to dealing with patients who suffered from post-anaesthetic confusion. He would have inferred that the doctor would have known that, even though she appeared to have settled from the first episode of confusion there was a risk that the patient might have a second episode. The judge would have noted that the doctor had seen the patient punch the appellant twice during the first episode. He would have been aware of the risk that further violence might occur if there were a second episode of confusion. In my view, the judge would have been driven to the conclusion that it was the duty of the anaesthetist to take appropriate management decisions immediately after the first episode. Those management decisions would certainly have entailed the summoning of more staff and would, in my view, have included detailing someone to fetch and fit the cot sides. About four to five minutes elapsed between the two incidents of violence and, in my view, there was ample time to make these arrangements. If these things had been done, the anaesthetist would have been able to give appropriate directions if and when a further episode occurred.
38. I would conclude therefore that the judge erred in his assessment of the role and responsibility of the anaesthetist and should have held that his failure to make precautionary arrangements was negligent. In my view, the judge also erred in holding that the appellant was equally capable of deciding what should be done. In my judgment, she plainly was not. She might well be a robust personality and capable of stating her views but the fact is that she did not have the training or experience to equip her for taking the kind of decisions which the judge thought she was capable of taking. For that reason, I would reject the submission advanced by Mr Harris that, if this court were to find that the anaesthetist had been negligent, the appellant herself had also been negligent. In my judgment, she was not. She found herself in a situation with which she was unfamiliar and ill-equipped and, even after she had been assaulted for the first time, she did not appreciate that there was a danger that the patient might erupt for a second time. When the patient did erupt, the appellant did her best to protect the patient from harm. In so doing, she was exposed to the risk of injury because proper precautions had not been taken by the anaesthetist. In my view, she should not be held at all responsible for what happened.
39. I turn finally to deal with the issue of causation. In the final sentence of his judgment, the judge said that he was not satisfied that the accident would have been avoided even if any of the precautions had been taken. He did not explain his reasons for so holding and I am not sure what the scope of that remark. He had earlier said that only if there had been a duty to take precautions after the first incident would a breach of duty have been causative. That is the basis on which I consider the respondent was liable. So probably there is no real issue on causation. In any event, it seems to me that a failure to arrange for more staff to attend and/or to fit cot sides must have been causative of this injury. It seems to me to be obvious that, had cot sides been in position and/or had there been an adequate number of staff present, there would have been no need for the appellant to make her single-handed attempt to protect Mrs L. If she were involved at all, it would have been in concert with others. I cannot say with certainty that she would not have been injured but it seems to me that the dangers of her being injured would have been reduced to the extent that I can say with confidence that she would probably not have been.
40. For those reasons, I would allow this appeal and hold that the respondent is liable to compensate the appellant for her injuries. The case should be listed before a district judge for directions as to determination of quantum of damage.

Lady Justice Arden : I agree.

Lord Justice Ward : I also agree.