England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
CHESTER DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/11/2010

Lord Justice Moses :

1. This is an application for permission to appeal against a decision of Walker J handed down on 13 April 2010 ([2010] EWHC 758). In that judgment Walker J concluded that Dr Gareth Williams (known as "Dr Gareth") had not been negligent in failing to conclude that the membranes of Ms Jones' womb either had or might have ruptured when he saw her on Friday 29 July 1983. By order of the single judge, the Right Hon Sir Scott Baker, the application for permission has been argued in full.
2. The claim was brought by Collette Ingram on behalf of her stepson, Conan Ingram. Sadly, he suffers from disabilities associated with cerebral palsy. His claim for negligence against Dr Gareth turned on the factual question whether, when his mother, Ms Jones, consulted Dr Gareth on 29 July 1983, the history she gave ought to have led Dr Gareth to diagnose or to suspect that she had suffered from premature rupture of the membranes. The claimant's case was that, if he ought to have diagnosed or suspected that condition, he would have arranged admission to hospital where delivery of the claimant would have occurred in far better conditions than at his birth at home. He might then, so the claim asserts, have avoided hypoxia which was one of the causes of his present disability.
3. The essential fact which the claimant had to prove was that his mother had given Dr Gareth a history of incontinence (see judgment, paragraph 21). He lost because he did not establish that fact.
4. The claimant sought to prove that Ms Jones had sustained premature rupture of the membranes before the visit to Dr Gareth. But it must be recalled that he did so for the purpose of showing that, if such a rupture had occurred before that visit, it was more likely that Ms Jones had given a history of incontinence.
5. Ms Jones gave evidence that she had given Dr Gareth a history of some form of incontinence. The claimant's case was that, prior to the consultation with Dr Gareth on 19 July 1983, his mother suffered three episodes of incontinence, either on Wednesday 27 July 1983 or the following day. His mother said she had wet herself "slightly" on her way to a local pub in the evening to meet her then partner, Mr Ingram. When she sat down in the pub "water just gushed out onto the floor". She said that after she had returned home, she had "lost a little bit more water" during the night.
6. The judge concluded that, unless supported directly or indirectly by independent evidence, he could not rely on Ms Jones' recollection in relation to the loss of fluid and what she said or did about it (see judgment, paragraph 39). He gave a number of reasons why he reached that conclusion which are not, by themselves, impugned.
7. First, the events she was describing were 26 years old at the time of the hearing before Walker J. She had had no reason to focus on the loss of fluid during most of that period. When she first went to solicitors in 2001 she was concerned primarily with the events in her house when she gave birth to Conan. She had not thought that any issue would arise about premature rupture of the membranes. In those circumstances it would have been very surprising if she could recall details of the kind of which she gave in evidence (Judgment, paragraph 29). Second, there were discrepancies in the accounts she and her partner gave as to the loss of fluid, particularly in relation to the amount she had lost in bed on the night of the incident. Third, although she was concerned at what she thought was incontinence, she said that she had never associated the loss of fluid with her pregnancy. Her partner, Mr Ingram, said that both of them were greatly concerned as to whether it would affect the pregnancy. Fourth, at her consultation with Dr Gareth he had said that her symptoms sounded like cystitis. She was prescribed an antibiotic. She was due to see a Consultant Gynaecologist, Mr Aled Williams, on 1 August 1983. Mr Williams gave her, as he described it, "the usual check up". She never suggested, and nor was there any evidence, that she told Mr Aled Williams of the loss of fluid which had occurred very shortly before. She was neither asked any question that elicited the information, nor did she give it. This failure seemed to the judge of significance. Had she suffered loss of more than minimal quantities of fluid, he thought it would have been likely that she would have mentioned it to Mr Aled Williams on 1 august 1983 (Judgment, paragraph 75). Fifth, there was no attempt to set out, in her first witness statement in January 2004, what she later recalled she had told Dr Gareth on 29 July 1983.
8. It was not suggested that the judge was not entitled to reach his conclusion as to the reliability of Ms Jones' recollection.
9. The appeal focussed on a challenge to the finding of the judge that loss of fluid did not occur before 29 July 1983 but may have occurred after Ms Jones saw Mr Williams on 1 August 1983. The judge said:-

"For the reasons given above I do not consider that any loss of fluid prior to 1 August 1983 was more than minimal. On the evidence before me the likelihood is, and I find as a fact, that there was a loss of either urine or amniotic fluid in the pub but this occurred at some stage after Ms Jones saw Mr Aled Williams on Monday 1 August 1983. There may have been a minimal degree of dampness beforehand which Ms Jones regarded as trivial, and for that reason did not mention either to Dr Gareth or Mr Aled Williams." (77)

10. The judge then went on to conclude that the reason for seeing Dr Gareth on 29 July 1983 was that Ms Jones was suffering from cystitis; there was no dispute that the sample which he took that day did show that condition.
11. It is now contended that the judge's conclusion in the passage I have cited was a conclusion which was not open to him. There was no evidence, Mr Grime QC, on behalf of the claimant, submits, that Ms Jones suffered a loss of fluid after Monday 1 August 1983: on the contrary, the evidence demonstrated that she must have suffered that earlier. Moreover, the finding that she suffered a loss of fluid after 1 August 1983 was not only unjustified on the evidence but was unfair, since the claimant had never been afforded the opportunity of dealing with such a possibility. Neither the lay witnesses nor the experts had had the chance to consider that possibility.
12. I should emphasise that the judge never did make a finding that Ms Jones suffered from premature rupture of the membranes. He set out with clarity his reasons for declining to do so. I have already recorded the fact that he could not rely on either the recollection of Ms Jones or of Mr Ingram. He went on to consider four independent features which were advanced on behalf of the claimant, as providing objective evidence of the rupture of the membranes. He rejected all four.
13. First, the claimant relied upon an apparently startling reduction in the size of the uterus between 21 July 1983 and 1 August 1983. On 21 July 1983 Dr Hassan, a member of the same practice as Dr Gareth, estimated the size of the uterus and contents to be consistent with 30 weeks gestation, compared with a previous estimate which suggested, by 21 July 1983, a period of gestation of 25 weeks. He wrote to Mr Aled Williams suggesting that Ms Jones might be suffering from an excess of amniotic fluid leading to enlargement of the uterus. When Mr Aled Williams saw Ms Jones on 1 August 1983 he took the view that her uterus was consistent with a size of 24 weeks, compared with the previously expected gestation period, as at 1 August 1983, of 26 weeks, suggesting the possibility of either a small baby or some intra-uterine growth retardation. Mr Grime QC, on behalf of the claimant, argued that the noticeable reduction in size between the two dates was evidence of a substantial loss of amniotic fluid. The judge rejected that conclusion on the basis of the unreliability of estimates produced by the imprecise measurement undertaken by Dr Hassan (see paragraphs 55 and 57 of the judgment).
14. Second, the judge rejected the suggestion that the claimant's premature birth itself was evidence of a premature rupture (judgment, paragraph 61). Third, the claimant relied upon hospital notes from Wrexham hospital written by an unknown member of the staff, but suggested to be a Senior House Officer, on 3 August 1983, which recorded "membrane ruptured ?? one week".
15. The evidence of Ms Jones was that she had spoken to a hospital nurse about her loss of fluid and mentioned that she was taking antibiotics and had been told she had cystitis. The judge declined to draw anything from the note other than it was consistent with substantial loss of fluid after Ms Jones saw Mr Aled Williams.
16. Finally, the judge declined to place any reliance upon Ms Jones' own description of her loss of fluid.
17. Mr Grime QC now contends it was not open to the judge to conclude that there had been a loss of fluid after Ms Jones' visit to Mr Aled Williams on Monday, 1 August 1983. There was, so he says, simply no evidence on which to found such a conclusion. It was wholly inconsistent with the evidence in the Wrexham hospital notes to which I have referred. If the loss of fluid had taken place after 1 August 1983 no one would have made a reference, by way of record, to a period of one week.
18. In my view, the difficulty with this ground of appeal is that the judge made no finding that Ms Jones had suffered a premature rupture of the membranes. The most he was able to conclude was that she had suffered some loss of either urine or amniotic fluid after she had seen Mr Aled Williams (judgment, paragraph 77). In my view, the claimant has no reasonable prospect of establishing that the judge was wrong so to conclude. Let me highlight again one striking feature of the case. If she had suffered the dramatic loss of fluid she describes before Monday 1 August 1983, it is most unlikely that she would either not have mentioned that to Mr Aled Williams, or that he would not have elicited that fact when seeing her. It remains an extraordinary fact that, on her own account, she made no reference to the loss of fluid to Mr Williams at all.
19. Mr Grime QC further submits that it was unfair so to conclude without giving an opportunity for the experts to comment upon the suggestion and without affording such an opportunity to Ms Jones and Mr Ingram. I do not regard such a finding as unfair. It is true that the experts were not asked to consider the likelihood of "a minimal degree of dampness" before Monday 1 August 1983 and a substantial loss of amniotic fluid after. But the judge never did find that there was a minimal degree of dampness beforehand, followed by a loss of amniotic fluid.
20. Nor was there unfairness, either to Ms Jones or Mr Ingram, since she was asked whether she had suffered the loss of fluid after she saw Dr Gareth. She denied this. She would have given the same answer, as would Mr Ingram, if it had been put to her that the loss of fluid occurred between 1 and 3 August 1983.
21. The evidential foundations on which the judge reached his conclusion of fact have not been undermined, even by Mr Grime's skilful and forceful arguments. Those foundations fully justify the conclusion of the judge that he was not satisfied there had been any loss of fluid before Ms Jones' visit to Dr Gareth. Absent any such finding, the judge inevitably concluded that he was not satisfied she had complained about loss of fluid to Dr Gareth. In those circumstances, the claim could not succeed. I do not think that there is any reasonable prospect of succeeding on appeal. In those circumstances, I would refuse permission.