England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE OLIVER-JONES QC (SITTING AS A JUDGE
OF THE HIGH COURT)
9LS90064

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2012

Lord Justice Ward:

Introduction

1. The Respondent, Nathan Popple, is 15 years old. He was born on 21st September 1997 at the Birmingham Women's Hospital managed by the appellant NHS Foundation Trust. The tragedy for all concerned in this case, for Nathan himself, for his parents and sister, and also for the midwives who attended his birth, is that Nathan suffered intra-partum asphyxia causing brain damage of the 'acute profound' or 'acute near total hypoxic' (low oxygen in the arterial blood) ischaemic (blocked or restricted blood supply) type as a result of which he now suffers severe dyskenitic or athetoid cerebral palsy.
2. Nathan has no independent mobility and is unable to sit or bear weight consistently. He has marked involuntary choreo-athetoid movements (that is, abnormal, uncontrollable, writhing movements) of all four limbs. His feeding is impaired and he is mainly fed through a gastrostomy tube. He is unable to speak and has severe communication problems. Consequently he is dependent on others for all aspects of daily living and care and will be unable to hold down remunerative or even therapeutic employment in the future. His life expectancy is reduced. Despite his severe disability, he is of normal intelligence with insight into his predicament and photographs show an apparently happy and well-cared for young man.
3. He brought a claim against the hospital alleging that there was culpable delay in his delivery as a consequence of the negligent management of his mother's labour, and that he could, and should, have been delivered earlier than he was in fact. It was contended that had he been delivered between five and ten minutes earlier than he was, then he would not have suffered this brain damage. His case was that the midwives failed to recognise a pathological fetal heart rate pattern at 14.27 on 21st November 1997, twenty-two minutes before Nathan was delivered, and, consequently, failed to expedite delivery within the following twelve to seventeen minutes, that is, by no later than 14.44 by organising urgent instrumental delivery by an obstetrician or performing an episiotomy themselves. It is alleged that the failure to recognise fetal distress and the necessity for expedited delivery arose from the negligent failure to monitor and record both fetal heart rate and maternal contractions adequately during the second stage of Nathan's mother's labour which began at 14.17 when the cervix was fully dilated. The claim alleges that spontaneous delivery was likely to have been achieved between 14.35 and 14.40 had there been an episiotomy.
4. After a nine day trial, His Honour Judge Oliver Jones QC, sitting as a Judge of the High Court, held the hospital liable and entered judgment for Nathan. Subject to the Court's approval, damages have been agreed in what may seem to the uninitiated to be the staggering sum of £5.5 million. Partly because so much is at stake both for the NHS and for Nathan, I gave permission to appeal. The judgment under appeal is seventy pages long. It is on the face of it a careful and considered judgment by a judge who heard the evidence over eight days and thus had all the advantages of a trial judge which are denied to the Court of Appeal. The appellant faces an uphill task: this is an appeal on fact only and no point of law of any importance arises. The result of the appeal is really of interest to the parties only and consequently, although I have laboured long in reading and re-reading the papers and considering the detailed submissions put to us, I hope to concentrate on the essential features.

The issues that arose

5. The first question is what was the cause of Nathan's injury? This is not in dispute. The second question is when did that injury occur? Did it occur in the immediate run up to delivery as Nathan contends or at some considerable time before birth as the hospital contends? This is the medical causation issue and this we have to resolve. The third question is whether Nathan should have been born before the injury occurred and in particular whether an episiotomy should have been performed which would have allowed Nathan to have been delivered by 14.39 or at least at some time before 14.44. This is the factual causation issue, also in dispute. Finally, the question was whether Nathan established that the midwives were in breach of the duty they unquestionably owed to him to take proper care in the management of his mother's labour. The judge's finding of negligence is no longer challenged.
6. In considering those questions the judge heard from Nathan's parents, his father having been present throughout the relevant period of his mother's labour. He heard from only two of the four midwives who were in attendance, Midwife Diane Cooke and Sister Midwife White. He did not hear from the anaesthetist who was also present, nor from the paediatric registrar nor the houseman who were on the scene within minutes of his birth. But, and more importantly, he heard from an academy of experts on both sides, namely

i) the midwifery experts, Ms Francois for the claimant and Ms Brydon for the defendant,

ii) the obstetric experts, Dr Loughna for the claimant and Mr Porter for the defendant,

iii) the clinical engineering experts, Dr Keith for the claimant and Mr Carter for the defendant, and

iv) the causation experts, being the paediatric neurologists Dr Clarke for the claimant and Dr Thomas for the defendant and the neonatologists, Dr Harding for the claimant and Dr Rennie for the defendant.

They had each reported separately, then met, sometimes twice, proffered their agreed views and were then cross-examined. It is obvious from the transcripts how thoroughly the matter was examined by this careful judge whose duty it was to disentangle detailed facts.

The first issue – what was the medical cause of the injury?

7. This was not in dispute. The hospital admitted that "the claimant's injury is likely to have been caused by an asphyxial insult causing circulatory collapse for a period of 15-20 minutes". As the judge said at [A], p.50,

"… in my judgment, no cause other than compression or occlusion of the umbilical cord has been advanced as the cause of the asphyxial insult leading to brain damage. "

That much is clear and is not challenged on the appeal but it leaves as the crucial issue: when did that 15-20 minute period commence and when did the asphyxial insult first cause damage to Nathan's brain.

The second issue - when did the asphyxial insult first cause damage to Nathan's brain?

8. Nathan's case was that he suffered brain damage during the second stage of his mother's labour. That was denied by the hospital because such a case was wholly inconsistent with the midwives' evidence that they had adequately monitored the fetal heart rate at all material times and had heard the reassuring sound of the fetal heart beating away at a rate which gave no cause for alarm nor any reason to suspect a profound bradycardia (abnormally slow heart rate). Thus the defendant's case is that the insult took place at a very much earlier stage of delivery. In order to put this part of the case into some proper perspective, it is necessary for me to set out, albeit as shortly as I can, some background to the midwives' management of mother's labour.

A précis of the progress of mother's labour and the monitoring of Nathan's fetal heart rate

9. Miss Sanderson, Nathan's mother, whom I hope may not object to my referring to her hereafter simply as "mother", referred herself to the hospital on 20th November. Fetal heart monitoring commenced at 09.45 by a cardiotocograph (CTG) which recorded the fetal heart rate and the maternal uterine contractions on a strip of chart paper. It was discontinued at 10.27, the results being entirely normal. Mother was kept on the ward overnight. Between 08.07 and 08.45 on 21 September a further CTG was performed which was again regarded as normal. By 12.45 the cervix was found to be 4 cms dilated and she was transferred to the delivery suite where CTG monitoring commenced at 13.21. The CTG monitor was running continuously from 13.21 until Nathan was delivered.
10. Mrs Cooke took over mother's care at about 13.30. Some 15 minutes later mother requested epidural anaesthesia and the anaesthetist was called and attended by 13.55. At this time, Mrs Cooke was having concerns about the CTG trace and made a note on the partogram timed at 14.00, "? fetal distress?". Needing help, she asked Sister Midwife White to attend and review the trace which showed, as she noted, "reduced variability with shallow decelerations".
11. As a result of her attendance and following a vaginal examination at 14.00 the membranes of the amniotic sac were ruptured artificially. There was then an attempt to apply a fetal scalp electrode but this was not recording well. Until the siting of the spinal epidural, the two transducers, one of which was used to monitor the fetal heart rate and the other to monitor the maternal contractions, had been secured by a 'tubigrip' around the mother's abdomen. When the fetal scalp monitoring was abandoned, the tubigrip was not replaced. The midwives had to recommence external monitoring of the fetal heart rate by manually holding an ultrasound transducer on the mother's abdomen and this is what Mrs Cooke said she did thereafter. No attempt was made to record any maternal contractions after 14.04. The ultrasound transducer used for the fetal heart detects the Doppler shift caused by the movements, not the sound, of the fetal heart, and then the monitoring machine converts the Doppler shift into the fetal heart rate which is printed onto the CTG, displayed on a digital display on the monitor and heard (if switched on) through a loudspeaker in the monitor.
12. By now the cervix was 7 cms dilated and the fetus was just above the ischial spine. Rapid progress was being made and at 14.08 Mrs Cooke again called for Sister White because she anticipated that delivery was imminent. A note on the CTG timed at 14.17 stated "confirmed second stage". By then the cervix was fully dilated at 10 cms and the fetal station was below the ischial spines at between 0 and ±1. This marked the beginning of the critical period of mother's labour which ended with Nathan's delivery at 14.49, a total period of 32 minutes only.
13. The epidural having been sited, the anaesthetist gave the mother 10 mls of Lignocaine via the epidural cannula at 14.20. Notwithstanding that she accepted that she was sharing responsibility for the care of mother with Mrs Cooke, Sister White accepted that she was unaware that the anaesthetist had administered the Lignocaine.
14. A handwritten note on the CTG recorded "vertex visible 14.20". The same note appeared in the midwifery records again under the timing of 14.20. Somewhat inconsistently with those notes, Sister White recorded in her first witness statement, "As I recall, the vertex was just visible at around 14.30 hours," but she continued:

"At that time the partogram was noted with a fetal heart rate of 138 bpm. I felt that matters were progressing quite quickly and it looked as if the second stage would be quick, as I anticipated that the head would probably crown within 1 or 2 contractions."

The judge said at [45]:

"Now that I consider Sister White's quoted evidence … [supra] to be very significant. If she was anticipating that the head would 'crown' within 1 or 2 contractions at about 14.20 and contractions were occurring at the rate of 3 or 4 every 10 minutes (although this is nowhere recorded) then she was expecting crowning (and hence delivery of the head) by 14.26. If she really meant 14.30 (or the records made by Mrs Cooke are wrong) then she anticipated crowning of the fetal head at 14.33 or 14.36."

15. The Labour and Delivery Record noted that at 14.40:

"Vertex advancing with contractions. Beryl pushing well with contractions – intermittent monitoring continued externally. Difficult to maintain contact as vertex visible – FHRR intermittently following contractions."

The word "intermittently" was later crossed out. The notes then record at 14.45 "vertex crowning" and at 14.48:

"Sr. White delivered baby's head – delivery completed by D. Cooke – cord around neck loosely x 2 – freed before delivery.

14.49 Baby's head delivered with shoulder.

14.49 Normal delivery of live baby – flat baby and pale at delivery to resuscitate with Sr White/S-M Schofield."

16. The paediatric notes begin:

"22/11/97 14.50 called to a 'flat' baby @ 14.50. Born at 14.49 – sat on perineum for 10 minutes and when fully delivered was white floppy, apnoeic [that is to say respiration was absent] with HR of 70."

Some preliminary explanation of the operation of the CTG

17. As I have said the CTG includes a trace line on the chart showing the fetal heart rate in beats per minute. Although the CTG was meant to record the actual fetal heart rate, it was common ground that the trace might include artefacts, that is to say, marks which are misleading and which may not represent the true heart rate. There was, therefore, no dispute that the CTG could show a trace which doubled or halved the true heart rate or showed the maternal pulse rather than the fetal heart rate (FHR). If the trace shows a complicated or abnormal pattern of variable deceleration, that is, the slowing of the FHR during a contraction, then that may be evidence of fetal hypoxia (subnormal content of oxygen in the arterial blood). The pattern is pathological if the base line heart rate falls below 100 bpm.
18. The obstetric experts agreed that the FHR demonstrated on the CTG commencing at about 13.27 was between 140-150 bpm until the vaginal examination and artificial rupture of the membranes at 14.01, and thereafter until 14.21 somewhat less. The midwives' attempt at continuous monitoring from 14.09 to 14.21 was "moderately well" achieved but thereafter contact of sufficient quality to maintain a printed output was lost. Quite what the CTG showed after 14.21 became a crucial issue. Looking at the CTG with my inexpert eye, I see a series of dots and squiggles, blank spaces and more dots and squiggles until there is a trace at 14.42 for 75 seconds. What it represented was critically in dispute.

The judge's conclusions as to the midwives' negligence

19. As there has been no appeal against his findings of breach of duty, I can summarise the judge's conclusions. He found that the period of profound bradycardia for a period of 15-20 minutes before his birth was either not detected or was ignored by the midwives because of a complete failure properly to monitor the fetal heart. If, which he thought to be likely, the period of bradycardia was preceded by a period of late decelerations of the fetal heart which, of itself, would have justified seeking obstetric advice, then the failure to monitor properly included the failure to properly monitor the contractions. Continuous monitoring should have been but was not carried out especially once Lignocaine had been administered at about 14.20. Sister White should have been aware that this drug had been given. The judge held that the CTG between 14.06 and 14.10, as well as between 14.13 and 14.15 demonstrated that continuous monitoring was simply not being achieved either on the paper trace or audibly. The reason why monitoring went from bad (before 14.20) to worse (after 14.20) was because Sister Midwife White, at least, wrongly believed that delivery was imminent. In those circumstances Mrs Cooke made no real effort to monitor properly or at all because she did not think she needed to do so. Importantly he found that no-one could have been reassured by the fetal heart rate because he was satisfied they could not hear it or at least could not hear it distinctly enough to be sure that it was a fetal heart rather than a maternal pulse, or what the fetal status was. In a sentence, they failed to hear a bradycardic fetal heart. Mrs Cook realised there had been a failure in the monitoring and for that reason crossed out the word "intermittently" from her notes. If Midwife Sister White had known that Lignocaine had been administered then on the fetal head having become stuck on the perineum, as it undoubtedly did, she would have called for obstetric assistance or performed an episiotomy herself to allow for delivery which she had expected probably as early as 14.20 and, in any event (on her own evidence) within one or two contractions after 14.30. For her to have been ignorant of the use of Lignocaine necessarily involved a breach of duty either on her part or on the part of those who were aware of it and should have told her. Because neither of the midwives expressed any concern about the state of the CTG trace after 14.20, and, indeed, Mrs Cook did not even look at it, that demonstrated that at the time they were expecting a quick delivery.

The judge's conclusion as to when Nathan sustained brain damage

20. First the judge had to resolve the dispute about the reliability of the 14.42 CTG trace and, if it was reliable, what it demonstrated. His conclusions as to the actual fetal heart rate pattern were analysed at [59] to [63] of his judgment which I set out here and elsewhere with the various emphases made by the judge himself.

"59. The CTG trace has been the subject of both clinical and forensic analysis by all of the experts instructed in this case. The obstetric experts, Dr Loughna and Mr Porter agree –

(a) …

(b) that continuous monitoring was indicated from 14.20 …

(c) …

(d) that the CTG is uninterpretable from 14.21 onwards.

The midwifery experts, Miss Francois and Miss Brydon also agreed that continuous monitoring was required from at least 14.20. For the period following 14.20 there was disagreement as to what the CTG showed. Miss Francois' position was the trace was abnormal/pathological from 14.20, whereas, in essence agreeing with the obstetricians, Miss Brydon's opinion was that "there is no continuous trace after 1420 hrs and therefore no trace to classify." The clinical engineering experts also agreed that "There is insufficient data to characterise the CTG between 14.21 and the end of the CTG"."

Then the judge added, and this observation is significant in the light of the way the appeal is being presented because the causation experts included Dr Rennie:

"The remaining (essentially, causation) experts offered no opinion, although they did utilise further comments by the other expert witnesses to qualify their opinions as to the timings of brain damage.

21. He continued:

60. I must say that having been told that the unanimous opinion of the obstetric and clinical engineering experts, as well as Miss Brydon, was that the CTG was uninterpretable after 14.20, I was, and remain, concerned that they all then went on to offer a variety of opinions as to what marks on the CTG trace after 14.20 were and what significance they had. It was said that their opinions represented a forensic analysis of the CTG trace, although the evidence of expert witnesses should be confined to their own particular expertise in the context of clinical practice. This forensic analysis, in my judgment, amounted to no more than an attempt to attach descriptions to fragments of trace and then to make the leap of inferring from one or more fragments what pattern there was or might have been, alternatively could not have been. I regret to say I was left unimpressed by the pages of reports and the hours of oral evidence that were devoted to this task.

61. Of course, the importance of the attempts to draw conclusions from 'the uninterpretable' is that if Nathan did sustain his brain damage in the period immediately prior to his delivery then, as is common ground, there would have been a period of profound bradycardia" [abnormally slow heart rate] "before irreversible damage occurred. Because the paediatric neurology and neonatal experts were all agreed that Nathan's condition at birth and subsequently was not only consistent with being, but likely to have been, sustained in the period immediately prior to his delivery any finding that Nathan's brain damage was sustained at some time remote from his birth, and in particular, prior to the second stage of his mother's labour, depended upon the exclusion of that necessary period of bradycardia. In my judgment, given the agreed inherent probability that the brain damage was sustained immediately before delivery, convincing evidence is required to exclude bradycardia. The point was made clearly and starkly in the Joint Memorandum … of the meeting between Dr Clarke (paediatric neurologist) and Dr Harding (neonatologist) instructed by the claimant and Dr Thomas (paediatric neurologist) and Dr Rennie (neonatologist) instructed by the defendant:

"We agree that if the court finds that the CTG cannot reliably exclude a fetal bradycardia in the 15-20 minutes in the run up to Nathan's birth, then the accurate period of 15-20 minutes (total duration of insult causing the damage Nathan suffered) was immediately before birth."

62. The need to 'reliably exclude' a fetal bradycardia, whilst clearly crucial to the issue of medical causation is also, of course, relevant to the issue of breach of duty. The existence of bradycardia would be inconsistent with the midwives' evidence that the fetal heart rate was, so far as they were concerned, reassuring or normal.

63. The issue in respect of bradycardia in the period immediately prior to delivery is, in addition, complicated by the fact that even on the Defendant's case, if brain damage had occurred at some remote time, there still has to be an explanation for the very poor, hypoxic state in which Nathan was delivered. In final submissions it was accepted that on the Defendant's case there had to be some period of bradycardia (up to, but not beyond the 10 minutes of fetal reserves) to account for Nathan's condition and this was inconsistent with the midwives' evidence in any event."

22. The judge then said that notwithstanding the reservations he had expressed as to the value of the so-called 'forensic analysis' in the circumstances of the case, he would identify the material within the CTG during the second stage of labour upon which reliance was sought to be placed. He accordingly dealt with the obstetric expert evidence seeking to interpret the CTG after 14.20 and particularly from 14.42. The midwifery expert evidence was similarly analysed as was the clinical engineering expert evidence. It should, however, be noted and remembered as this judgment develops, that the evidence of the causation experts and particularly the evidence of Dr Rennie was not subjected to this analysis and that must go to show that the judge was clearly of the mind that they, and Dr Rennie in particular, had nothing of interest to add on this subject. He concluded:

"75. I have carefully reconsidered all of the oral evidence given by the expert witnesses where it concerned issues as to the interpretation of the CTG. The positions which they had adopted in their reports remained essentially unchanged. The overwhelming feature of the evidence of all of them was their criticism of the quality of recording on the CTG, particularly after 14.20, and consequently, in my judgment, their inability to reach any reliable conclusion as to what it revealed about the fetal heart rate."

Again I ask that it be noted he could not have been including Dr Rennie among the experts assisting him on the interpretation of the CTG.

23. After dealing with the facts till [83] of his judgment he then set out his "Findings of Fact and Conclusions". At page 51 of his judgment he answered the question he had posed as to when Nathan sustained brain damage and said:

"[B](a) There is agreement that the total duration of the asphyxial insult was 15 to 20 minutes, during the first 10 minutes of which fetal reserves would have prevented brain damage viz. where the passage of oxygen from the mother to the fetus via the umbilical cord is reduced or prevented by compression or occlusion, the fetus is able to withstand the consequential hypoxia" [low oxygen in the blood] "by employing anaerobic metabolism – mobilising glycogen from liver and muscle stores to produce glucose as an energy source; however, anaerobic metabolism results in the production of large amounts of lactic acid and an increase in arterial CO2 leading to a gradual fall of pH or metabolic acidosis with an increasing base deficit.

None of the expert witnesses were able to say whether the damage was any more likely to have been the consequence of a 15 minute insult or a 20 minute insult. Dr Rennie, agreeing with Dr Harding, during her evidence-in-chief said that this 'range' was based upon biological variability and uncertainties about duration of insult in the absence of clear CTG evidence; in cross-examination she made it even clearer by stating that it was impossible to say whether all of the damage was in the 5 minutes or the 10 minutes before delivery, if damage occurred in a period immediately before delivery (as opposed to a more remote time of up to 3 days). She told me that "a good CTG would be able to identify bradycardia. If that were the case then we would know whether the period was 15 or 20 minutes. It would follow that we would also know how much of the period before birth was taken up by the fixed period of fetal reserves. Therefore we would know precisely where within the 5 to 10 minute period the damage occurred in this case. We had no fixed point to work from."

(b) Again, all of the expert witnesses were in agreement that the most likely explanation for Nathan's injuries was that the 15 to 20 minutes of acute, profound hypoxic ischaemia occurred immediately prior to birth, that is in the period between 14.29 and 14.49. In the Joint Memorandum of the causation expert witnesses, and subject only to the caveat of there being an inconsistency of the fetal heart rate of 110-130 in the final 90 seconds of trace on the CTG, they agree that "that the injurious process is likely to have occurred 5-10 minutes before birth." Neither Dr Harding's nor Dr Clarke's reports countenance the possibility of brain damage having occurred in anything but the 15-20 minutes prior to Nathan's delivery, indeed Dr Clarke was "at a loss to know the significance of the point in the Defence "that neonatal encephalopathy commenced almost immediately"; he asked rhetorically, "Is the Defence therefore implying that the brain damaging insult occurred earlier in labour?"; it was not clear to him that this was being alleged. Nor did Dr Harding deal directly with the issue in her report. In my judgment this was because, on the basis of the pleaded case of the Defendant (which was all they had at the time), the case ultimately presented had not been spelt out. In her report, Dr Rennie had considered that:

"There are two possible explanations for the damage in this case. The first is that the damage occurred in the run-up to delivery (the Claimant's case) and hence would have been avoided by delivery (as is alleged) by 14.35 – birth taking place at 14.49. The second is that the damage took place at another time, because the fetal heart rate was normal until 5 minutes before birth and hence there was 'not enough' time for this kind of damage to occur".

Having then gone on to consider whether primary apnoea [absence of respiration] might explain Nathan's condition at birth and whether the CTG was misleading, she nonetheless concluded that:

"On the balance of probability I think Nathan Popple probably acquired his disability as a result of a short period of 'acute profound' hypoxic ischaemia close to the time of his birth at 14.49 on 21st November 1997. I have discussed the reasons for and against the damage being in the immediate pre-birth period above." (my [i.e. the judge's] emphasis added).

Dr Thomas also concluded that:

"The post natal clinical information available in particular Nathan's immediate condition after birth, suggests he was subjected to hypoxic-ishaemia just prior to his birth.

In particular Dr Thomas pointed to the fact that:

"The presence of a significant discrepancy in pH between umbilical arterial and venous samples suggests acute cord compression or occlusion as the sentinel event leading to a hypoxic ischaemic insult."

The only caveat raised by anyone, and in the Joint Memorandum, was as to what was allegedly shown on the CTG trace at 14.42.

(c) As was agreed, if I find that the CTG trace cannot reliably exclude a fetal bradycardia in the 15-20 minutes in the run up to Nathan's birth, then the aggregate period of 15-20 minutes WAS immediately before birth. It was not suggested by the causation experts that I need consider anything else. However, I am invited by Mr Westcott QC to take the evidence of the midwives, that the fetal heart rate was always 'reassuring', into account as well because this evidence is wholly inconsistent with the existence of bradycardia persisting at less than 80 bpm for the last 15-20 minutes of labour.

(d) I am quite satisfied that the CTG does not "reliably exclude" a fetal bradycardia. In my judgment, as foreshadowed in my earlier comments, I was unimpressed by the investigation and speculation as to what the CTG showed, or might show, after 14.20 in particular (and, indeed before that time). As was observed, in my judgment accurately, by Dr Harding and Dr Clarke in the supplementary Joint Memorandum all the obstetric experts have emphasised extreme difficulty in reliably interpreting the CTG traces due to poor quality and, indeed, the obstetric experts in their meeting recorded "The CTG is uninterpretable from 14.21 onwards. If the court accepts that this is so, it remains our opinion that all other information indicates asphyxia insult in the last 15-20 minutes before delivery."

I do accept that this is so!

Dr Rennie, in particular, confirmed this conclusion, having considered the CTG evidence herself. However, notwithstanding such impressive support for my finding (particularly from the Defendant's own expert witness, whom, I should say, I found to be the most impressive of all witnesses), it is necessary to set out supplemental reasoning for this important finding of fact as to when the damage was sustained."

24. His first supplemental reason [at (e)] was that it was not possible for him reliably (his emphasis which I would adopt) to exclude an artefactual trace at 14.42 or, for that matter, in respect of any of the trace marks after 14.20 in particular. There were indeed undisputed examples of artefactual traces on the CTG whether as random marks from rogue movements of the transducer, or as doubling or halving of fetal heart rates or as maternal pulse. He added:

"In particular, the evidence does not reliably exclude the 'good trace' for 90 seconds at 14.42 from being a doubling of a bradycardic fetal heart, nor, despite the evidence that the maternal heart beat would be likely to show some variability, is a maternal heart rate reliably excluded at this time not least because the actual quality of the particular section is itself unreliable and clinically uninterpretable."

25. His second reason [at (f)] was that he was quite satisfied that the midwives did not hear the allegedly reassuring normal and therefore non-bradycardic fetal heart rate that they said they had heard. He rejected their evidence that they did.
26. The third reason [at (g)] was that on any view and as was common ground, the defence case for a remote hypoxic ischaemic insult required a period of bradycardia for up to 10 minutes (namely exhaustion of the fetal reserves but no additional damage) before delivery in any event, given Nathan's very poor condition at birth. He said:

"Not only is there no evidence of that bradycardia (which would, in any case, be required to support the Defendant's alternative case) but it demonstrates the unreliability, indeed, as I find, inaccuracy of the midwives' account of a reassuring fetal heart up to delivery."

27. His fourth reason [at (h)] was that there was no evidence at all which satisfactorily explained why Nathan did not take first breath until he was 15 minutes old. To sustain the case for a remote intrapartum hypoxic ischaemic insult, the defendant needed to explain why this period was so long. He said:

"It is entirely consistent with the Claimant's case on causation (as is agreed); it is not consistent with primary apnoea. The only suggestion was that Nathan had been over-vigorously resuscitated …; however, as I have already observed, there was not a scrap of evidence to support this; indeed, neither of the attending paediatricians gave evidence in the case."

28. The fifth and final reason [at (i)] was this:

"Finally, as I have repeatedly observed, all of the expert witnesses agree that the probability is that the damage did in fact occur immediately before birth. Nathan's condition fits the model normally used [in] cases such as this. For that probability to be displaced would, in my judgment, require convincing evidence. It is not a matter of reversal of the burden of proof but rather whether there is any compelling, internally consistent, evidence that demonstrates that the model is probably wrong. At the end of the evidence there was, in my judgment, no more than a mere, and "remote possibility that the damage occurred remotely" (per Dr Harding). None of the expert witnesses have positively supported the remote damage hypothesis."

29. So the judge's conclusion was this [at (j)]:

"It follows that I reject Mr Westcott QC's submissions that 'the fetal heart rate was manifestly not 80 bpm or less throughout this (15-20) minute period'. Such a conclusion could only be reached if, as was agreed by the expert witnesses, such a rate could be reliably excluded. To the extent that expert witnesses have relied upon what was said by the midwives in their witness statements, I find that such reliance was misplaced and that the evidence of both Mrs Cooke and Sister White was wholly unreliable (for reasons which I will expand upon when dealing with breach of duty). Finally, to the extent that any of the experts sought to give weight to any features of the CTG after 14.20 by way of 'forensic analysis', I reject that approach and prefer to reach my judgment on the basis of their clinical assessment; this was, universally, that the relevant period of the trace was fragmentary, unreliable, of poor quality and uninterpretable."

The appeal against these findings

30. One is tempted to ask how can Mr David Westcott QC challenge those findings and those conclusions, or put another way, who on earth gave permission to appeal? But let me try to do justice to Mr Westcott's sustained and detailed, and as such, impressive submissions.

The first ground of appeal

31. The first ground of appeal is this:

"The learned judge's determination that the respondent's injury occurred in the period immediately before birth was unsupported by the evidence and wrong. It was a conclusion to which he could not reasonably have come because:

(a) it depended upon a finding that the CTG trace … did not reliably exclude a fetal bradycardia (at a heart rate of less than 80 bpm) which lasted throughout the period of 15-20 minutes before birth;

(b) that finding is insupportable upon analysis of the judgment because:

(i) the learned judge misunderstood the opinion of Dr Rennie, upon whose supposed support for his finding he principally relied;

(ii) the 'supplementary' reasoning to which he referred is insufficient to justify his finding."

32. Let me look, and look quite broadly, at the suggestion that the judge's findings were unsupported by the evidence. We start with the agreement, recorded at [B](a) of the judgment, that the total duration of the asphyxial insult was 15-20 minutes. What the judge had to decide was when that 15-20 minutes occurred. Was it immediately before the birth at 14.49 or was it at some time much earlier in the mother's labour? The judge found at [b] (see [23] above) that "all of the expert witnesses were in agreement that the most likely explanation for Nathan's injuries was that the 15-20 minutes of acute, profound hypoxic ischaemia occurred immediately prior to birth, that is in the period between 14.29 and 14.49". Mr Westcott, for the appellant, does not challenge that. Of the two explanations that was indeed the more likely. The alternative was a mere possibility. So said all of the neurology/neonatal experts who agreed that it was possible that the claimant's injury occurred at some other time but that from the paediatric point of view that was not likely. As the judge rightly recorded at the end of [b], the only caveat was the CTG trace at 14.42. So he reasoned at (c) that if he found that the CTG trace could not reliably exclude a fatal bradycardia in the 15-20 minutes in the run up to Nathan's birth, then the injury did occur immediately before birth and the claimant would succeed. He had expressed the same view earlier in his judgment at [61]:

"61. … In my judgment, given the agreed inherent probability that the brain damage was sustained immediately before delivery, convincing evidence is required to exclude bradycardia."

Mr Westcott does not challenge that approach. He agrees that convincing evidence is needed to displace the probability that the injury was occurring in the late 15-20 minutes of delivery. So the interpretation of the CTG at 14.42 becomes crucial.

33. At (d) the judge expressed his conclusion about that: he was quite satisfied that the CTG did not reliably exclude a fetal bradycardia. He pointed out that his conclusion had been foreshadowed by his earlier comments, a reference back to [59] and [60]. AT [59] he had set out the relevant experts' views, saying at [60] that "the unanimous opinion of the obstetric and clinical engineering experts, as well as Mrs Brydon, was that the CTG was uninterpretable after 14.20". His conclusion was expressed at [75]:

"The overwhelming feature of the evidence of all of them was their criticism of the quality of recording on the CTG, particularly after 14.20, and consequently, in my judgment, their inability to reach any reliable conclusion as to what it revealed about the fetal heart rate."

There was a strong body of evidence to support that conclusion. Mr Westcott simply cannot say that the judge's conclusion was "unsupported by the evidence and wrong." Mr Westcott had therefore to direct his attack first at the judge's alleged misunderstanding of the opinion of Dr Rennie and secondly at the insufficiency of the supplemental reasoning.

Did the judge misunderstand Dr Rennie's evidence?

34. That calls for a closer examination of paragraph [d] ([23] above) of the judgment. This paragraph answers the question: does the CTG reliably exclude a fetal bradycardia? The structure of his answer is to repeat how he was unimpressed by the investigation and speculation as to what the CTG showed or might show after 14.20. He was not impressed by the expert's "forensic analysis of the CTG trace" which he had deprecated and dismissed in paragraphs [60] to [75] of his judgment. He agreed with the observation of the paediatric neurologists, Dr Harding and Dr Clarke, that "all the obstetric experts have emphasised extreme difficulty in reliably interpreting the CTG traces due to poor quality" and, indeed, the obstetric experts in their meeting recorded "the CTG is uninterpretable from 14.21 onwards." Their opinion, which was conditional on the court accepting that the trace was uninterpretable, was that all other information indicated asphyxial insult in the last 15-20 minutes before delivery. He did accept that the CTG was unreliable. This was the crucial finding in this paragraph. It also follows that he also accepted their conclusion that the injury occurred in these last minutes of delivery.
35. When he continued, "Dr Rennie, in particular, confirmed this conclusion", the conclusion to which he was referring was Dr Rennie's (along with the other experts') conclusion that the injury had occurred at this late stage and not at any much earlier stage. The judge's analysis up to this point seems to me to be admirably clear, logical and correct. But he added the words upon which Mr Westcott seizes, "Dr Rennie, in particular, confirmed this conclusion having considered the CTG evidence herself" (his emphasis added.) Taking the language at face value, the judge was wrong: Dr Rennie never considered the CTG evidence herself in the sense that she never expressed any view about the reliability of the various traces on the CTG chart after 14.20 and in particular expressed no view about the vital trace at 14.42. Of course she saw the CTG but deferred to others as to what it could tell us. So does this error undermine the whole edifice of this careful judgment? That is Mr Westcott's case: the judge's finding of the timing of the injury "is insupportable because the learned Judge misunderstood the opinion of Dr Rennie." When considering the renewed application for permission to appeal I felt that, given the large sum of money involved, I had no option but to say it raised a real, and not a fanciful ground of appeal. Chickens have a nasty habit of coming home to roost and here I am writing the lead judgment. Many would say, "Serves him right!".
36. Whether or not the judge misunderstood Dr Rennie can only be decided after reading the judgment as a whole, the judgment being the culmination of a long trial during which, it seems to me from my reading of the transcripts, the judge was taking conspicuous care. Dr Rennie, a consultant in neonatal medicine, was one of the defendant's causation experts. She first reported in November 2010 on the basis of the midwives' statements that they heard reassuring fetal heart beats and the technical report of Mr Carter concerning the CTG to the effect that the 14.42 recording was of good quality, was a true recording of the FHR and was not an inadvertent recording of the maternal heart rate.
37. She reported that there were two possible explanations for the damage in this case. The first was that the damage occurred in the run-up to delivery, the second being that the damage took place at some other time, because the fetal heart rate was normal until 5 minutes before birth and hence there was "not enough" time for this kind of damage to occur.
38. The judge quoted this observation at [B](b) of his judgment showing he was well aware of this report. Dr Rennie discussed the two alternatives and took note of the fact that Nathan was born in a poor condition and took a long time to commence breathing at all, although his first carbon dioxide level was very low and hence it was possible that carbon dioxide was blown off "by vigorous artificial ventilation" delaying the onset of his first breath, she said:

"One possible explanation for Nathan's condition after birth was that vigorous artificial ventilation "blew off" carbon dioxide and hence he took a long time to take his first breath: babies who are hypo-carbic are not stimulated to gasp. The first carbon dioxide level in his blood was low, lending some support to this hypothesis (although it is also possible that the low result reflected a respiratory correction for metabolic acidosis, as discussed).

It can be difficult to distinguish between primary and terminal apnoea clinically. If the court finds that Mr Carter's view (and that of the midwives) is correct, namely that Nathan's heart rate was in the normal range until 5 minutes before birth, then his condition at birth would have been that of primary apnoea – in other words he had not taken his last)" [or does she mean "first"] "gasp. In this situation I would expect that he would have established respiration again very quickly once offered resuscitation, which he did not. However, if his carbon dioxide levels were low then this might explain the long duration of time between birth and Nathan's first gasp. The period of circulatory collapse would then not be sufficient to account for 'acute near-total damage' at this time, although there is no other easily identifiable epoch during which the damage could have occurred.

The alternative explanation is that in fact the CTG, and the heart beat sounds it produced, was in fact misleading in some way and that there was the circulatory collapse during the time for which the CTG had to be held on by hand and in the immediate run-up to Nathan's birth. The cord pH would then be considered to represent a paradoxically normal venous cord pH (which can be seen in the cases of acute terminal cord occlusion). This would fit with Nathan's state at birth and his prolonged time to first gasp, and would fit with the metabolic acidosis and with respiratory correction (low carbon dioxide level) on the first blood gas. In this situation I would agree with the particulars of claim that if Nathan had been delivered by 14.35 he would not have acquired permanent brain injury. …

On balance of probability I think Nathan Popple probably acquired his disability as a result of a short period of 'acute profound' hypoxic ischaemia close to the time of his birth at 14.49 on 21st November 1997. I have discussed the reasons for and against the damage being in his immediate pre-birth above. If the court decides that it is probable that the damage occurred in the run up to delivery (because the fetal heart rates were in fact misleading in some way), then I would agree with the particulars of claim, namely that if Nathan had been delivered by 14.35 he would not have acquired brain damage."

She was making it plain that much depended on the court's view of the evidence put before her, namely, the midwives and Mr Carter, the defendant's clinical engineer.

39. When the causation experts first met their agreed view was, as the judge noted:

"We agree that if the Court finds that the CTG cannot reliably exclude a fetal bradycardia in the 15-20 minutes in the run up to Nathan's birth, then the aggregate period of 15-20 minutes was immediately before birth."

Their conclusion is conditional upon the court's finding on the reliability of the CTG. There is no attempt by the causation experts to express a view about the CTG themselves.

40. The causation experts met again. The conclusion of the claimant's experts, Dr Clarke and Dr Harding, was quoted in the critical passage of the judgment at the centre of this ground of appeal. The judge cannot have missed the earlier comments by Dr Rennie and Dr Thomas, who said this at that second meeting of those experts:

"… if the CTG from 14:21 was fetal then a plausible explanation for Nathan's condition at birth was that he was in fact in primary apnoea following a short non-damaging, period of asphyxia. As stated in JR's report it can be difficult to distinguish between primary and terminal apnoea at birth, and Nathan's heart beat was restored very quickly after birth. The time at which Nathan took his first gasp was long (15 minutes) for primary apnoea – however if he was in primary apnoea at birth the explanation for this delay could have been overenthusiastic "bag and mask" ventilation leading to hypocarbia (low carbon dioxide levels reduce respiratory drive in the newborn …). The first neonatal blood gas result did show a low carbon dioxide level which would be consistent with this hypothesis."

41. It is as clear as a pikestaff that Dr Rennie was putting forward alternative theories each of which depended upon the court finding whether or not the CTG was reliable. She made no attempt in those reports to express any view of her own about its reliability. The important point is that the judge fully understood that she was making no such comment. He devoted paragraphs [58]-[76] in the discussion of "The Sources of Evidence as to What the Fetal Heart Pattern Actually Was." At [59] he noted that the CTG trace had been the subject of both clinical and forensic analysis by all of the experts instructed in this case. But the experts to whom he was referring were the obstetric experts, Dr Loughna and Mr Porter, the midwifery experts, Ms Francois and Ms Brydon and the clinical engineering experts, Dr Keith and Mr Carter. The causation experts, including Dr Rennie, did not feature in this part of the judge's analysis because they had offered no relevant opinion. The judge made that very point at the end of [59] of his judgment. I drew attention to it when reciting paragraph 59 (see [20] above). He could not have been under any illusion at all that Dr Rennie herself was pronouncing on the reliability of the CTG. The judge was fully alive to the point that the causation experts were expressing views which were totally dependent upon his eventual finding as to whether or not the CTG could reliably exclude a fetal bradycardia.
42. Nor could the judge have been under any misapprehension after hearing Dr Rennie give her evidence. We have a transcript of it and I have looked at it carefully, more than once. She explained the two alternatives to the judge in her evidence-in-chief. She was asked to look at the CTG as we can see on page 81 of the transcript of her evidence (T4 at 1311 in our bundle). Mr Westcott put this to her:

"Mr Westcott: 1441/1442, if that is a fetal trace, is the fetal heart demonstrating a terminal bradycardia?

A. That is not for me to say."

That is clear enough. A page later she says:

"My reference to a bradycardia of 6 or 7 minutes is based on the fact or information that I have that there is no information about the fetal heart rate after 14.43 whether or not this, whatever or not the CTG represents which is not for me to develop."

Again she is disclaiming any expertise about the CTG. On the next page in answer to the judge at line 13:

"… So let me make a note. What you are saying is such information as there is which you say is not for you to interpret?

A. No.

Q. Because if it were, for example, a doubling that ---

A. Correct.

Q. Then it could be?

A. Correct. If my Lord asks me to disregard that information I would say there was a bradycardia, if it was wholly disregarded. It is for my Lord to say."

Under cross-examination she said, "I have not studied the CTGs."

43. In the light of all of that, I simply cannot believe that the judge meant to say that he was reinforced in his conclusion that the baby was injured in the minutes before birth because of the consideration that Dr Rennie had given to the CTG evidence. Against the context of her reports, her evidence and his own careful analysis he simply could not have meant what his words literally convey. I would accept his protest when refusing permission to appeal:

"I did not, as submitted, misunderstand Dr Rennie's expert opinion. Having found facts I then applied Dr Rennie's opinion in the light thereof."

Exactly.

44. If there is doubt about what he meant, I think it is dispelled by the next sentence, "However, notwithstanding such impressive support for my finding (particularly from the defendant's own expert witness, whom, I should say, I found to be the most impressive of all witnesses), it is necessary to set out supplemental reasoning …" The impressive support to which it seems to me he was referring was the support from all the experts, not just Dr Rennie, for his conclusion, made in the light of the CTG's unreliability, that the injury occurred in the last minutes before delivery. Dr Rennie had throughout thought that to be the probable explanation of Nathan's injury. She was impressive because she was the expert who most clearly identified and grappled with the alternative explanation for Nathan's injury. She was the one who gave close examination to his poor condition at birth and examined the alternatives in the light of his failure to take his first breath for 15 minutes. I am not surprised he found her an impressive witness.
45. The penultimate paragraph of his judgment makes the point:

"Where it has been necessary for me to do so I have made particular findings as to the expert and other evidence which I accept and that which I reject, with reasons therefore. However, the expert opinion in this case has always been subject to my findings of fact both as to what the midwives knew and did, or did not know or do, and what conclusions I reached as to the value of the CTG and other contemporaneous notes. As a result, much of the expert opinion has fallen away as my conclusions as to matters of fact have crystallized. This is not a case where there has been a polarisation of expert opinion such as would require me to reject the evidence of one wholly in favour of another. I have already commented that, of all the witnesses in this case, Dr. Rennie was the most impressive. I say that not to flatter her or to detract from the undoubted expertise of all the expert witnesses, but because it was her careful analysis of the probability of damage having been suffered immediately before birth, notwithstanding such evidence as there was said to be to the contrary, that finally persuaded me that this was, in fact, the case."

46. Even if, as we like to say, "The learned judge uncharacteristically failed to express himself with his usual felicity", I would regard Homer's nodding as wholly immaterial. There was ample other evidence for the judge to come to the conclusion he did. For the alternative theory to prevail, there would have to be evidence of "over-enthusiastic 'bag and mask' ventilation" or "vigorous artificial ventilation" which blew off carbon dioxide because Dr Rennie's alternative theory was predicated on this. As the judge found at [A], there was simply no evidence of that at all. He gave this lack of evidence as the third and fourth supplemental reasons for his concluding the injury was in the last minutes before birth (see (g) and (h) at [26] and [27] above). The insuperable difficulty for the defendant was that it chose not to call the anaesthetist who was present at all relevant times or the paediatricians who attended within a minute or so of the birth and the midwives themselves gave no evidence of any vigorous artificial ventilation. The alternative theory founders for the want of evidence to support it. Only one explanation for Nathan's injury remained, namely, an asphyxia insult causing a circulatory collapse minutes before his birth.

Are the judge's supplemental reasons insufficient to justify his finding?

47. The first of those reasons was that an artefactual trace at 14.42, or for that matter at any time after 14.20, could not be reliably excluded. The judge found that a doubling of a bradycardic fetal heart or a maternal heart rate could not be reliably excluded "not least because the actual quality of the particular section is itself unreliable and clinically uninterpretable", see (B)(e) at [24] above. The complaint is that he wrongly disregarded the trace after 14.20; failed to have regard to the fact that until the trial started it was not suggested that the 14.42 trace was unreliable and failed to have regard to the evidence and in particular to the changes in the evidence of Dr Keith and Dr Loughna.
48. Although this ground of appeal is directed at paragraph [B](e) of the judgment, it would be wrong not to read it in its context. The context here is the opening sentences of the preceding paragraph (d) where the judge said:

"I am quite satisfied that the CTG does not "reliably exclude" a fetal bradycardia. In my judgment, and as foreshadowed in my earlier comments, I was unimpressed by the investigation and speculation as to what the CTG showed, or might show, after 14.20 in particular (and, indeed before that time)."

49. That foreshadowing was a reference back to paragraphs [59] to [75] of his judgment ([20] to[22] above). There the judge was considering what the fetal heart pattern "actually" was. That was his word, but I add the emphasis.
50. It is apparent from [60] that he accepted "the unanimous opinion of the obstetric and clinical engineering experts as well as Ms Brydon that the CTG was uninterpretable". Their evidence, recited by him at [59], was to the effect that

(1) the obstetric experts Dr Loughna and Mr Porter jointly agreed that the CTG was "uninterpretable from 14.21 onwards".

(2) The clinical engineers, Dr Keith and Mr Carter, agreed that "There was insufficient data to characterise the CTG between 14.21 and the end of the CTG."

(3) Ms Brydon was of the opinion that "The CTG from 14.27 hrs is not of sufficient technical quality to allow interpretation, except for a brief period between 14.42 and 14.44 when the trace is possible to interpret and shows a rate between 100 bpm and 130 bpm." Nonetheless her conclusion was that "Given the condition of the baby at birth it may be that the monitor detected a fetal bradycardia and doubled the rate to produce a sound that mimicked a normal fetal heart rate." When the midwifery experts met Ms Brydon's position was simply that "there is no continuous trace to interpret" and she queried whether the trace at 14.42 "is actually fetal". Once again this is my emphasis. Ms Francois considered the trace to be "abnormal/pathological from 14.20 hrs".

51. In the light of that evidence it is no surprise to me that the judge reached the conclusion he did at [75] that having carefully reconsidered all of the oral evidence (my emphasis) and noted that the positions they had adopted in their reports had remained essentially unchanged, the overwhelming feature was their criticism of the quality of the recording, particularly after 14.20 and consequently their inability to reach any reliable conclusion as to what it revealed about the fetal heart rate.
52. In my judgment he was fully entitled, having analysed their reports and heard their oral evidence, to come to that conclusion and to reject the "forensic analysis" of fragments of the trace which he rightly considered amounted to an unreliable attempt to infer what pattern there was or might have been or could have been. The point had been made by the judge himself in the course of the cross-examination of Mr Carter (our reference T3.1083.15):

"Judge Oliver-Jones: What no-one has done yet, could easily be done and I am not suggesting it can be done at this moment, is to add up the total amount of time during that period from 14.21 to the end of the trace, during which there is any significant mark, I mean anything other than a dot. One could do that and it would only come to a few minutes altogether. One only needs to look very briefly at it, I've not done the exercise and it is probably no more than 5 or 6 minutes out of a total of 30 minutes in effect.

A. That is correct. There is a danger ----

Q. That is the really where you're unable to characterise comes from?

A. Yes.

Q. Because you have so little even cumulatively?

A. Yes, there is a danger of over-interpreting.

Q. Over-interpreting, yes."

Mr Carter was the appellant's own witness.

53. I do not see how the judge's reasoning can be faulted. The attempts to analyse or interpret the various traces after 14.21, including the vital traces at 14.42 must in the light of all the evidence be of dubious value and quite insufficient to provide "reliable" or "convincing" evidence that the probability of the injury occurring in the last minutes before birth was to be displaced by the more remote possibility of the injury occurring much earlier in time.
54. Mr Westcott complains that the judge failed to review the oral evidence. He may not have set it out but he expressly said that he had "carefully reconsidered all of the oral evidence" and I cannot possibly find that he ignored it. What he made of it was a matter for him and cannot be challenged on this appeal.
55. Mr Westcott nevertheless picks out two aspects of the oral evidence which he submits undermine the judgment. The first is the evidence of Dr Keith and the second is the evidence of Dr Loughna.

The evidence of Dr Keith

56. In his written report he had expressed the view that:

"184. The recording of the fetal heart rate from 14:00 until delivery is not of a sufficient quality to confirm fetal wellbeing.

…

227. It is not possible to be certain from the CTG that it was indeed the fetal heart rate that was being recorded at this time [from 14:00 until delivery at 14:49]. It could have been the maternal rate …"

In the joint report which followed his meeting with Mr Carter they agreed this:

"CTG between 14:21 to end of CTG

FHR derived by ultrasound. Poor quality recording. Occasional pick up of rates at 80-90 bpm and between 120-150 bpm.

Insufficient data recorded to characterise FHR features.

Good quality recording in the final 90s of the CTG showing FHR increasing from 110 to 130 bpm before falling back to 98 bpm. There was no base line variability."

Asked to agree what the probable status of the fetus was from 1327 hrs, they replied:

"There is insufficient data to characterise the CTG between 14.21 and the end of the CTG."

57. Like the judge, I find it difficult to reconcile the two references to there being insufficient data to characterise the CTG with there being "good quality recording in the final 90s of the CTG." How then did Dr Keith deal with this apparent inconsistency?
58. He was examined in chief by Mr Sweeting who in conclusion asked this (T3.964):

"Mr Sweeting: … is there anything in the report that you want to correct at this stage?

A. Not so much correct, I mean I had listened to the evidence as presented over the last few days and there has been quite a big focus on the feature at 14.42. I think I dealt with this in my report but I think it might have been helpful when Michael Carter and myself discussed this end part of the trace if we had actually speculated in the joint report on what the origin of that feature perhaps was.

Judge Oliver-Jones: This is the little mountain, [the judge's description of the shape of the relevant trace.]

A. Yes, the little mountain.

Q. That is how I have described it myself.

Mr Sweeting: I am sure you are going to be invited to speculate or to answer questions about that so I do not think I will do it at this stage in chief. …"

59. I have read the transcript of the cross-examination and do not see that Mr Westcott sought to elucidate matters any further. Mr Sweeting had no re-examination but asked whether his Lordship had any questions. He did and a lot more evidence was given. The judge's response was this (T3.996):

"Judge Oliver-Jones: I have a question which no-one has asked. You know the question I am going to ask.

Mr Westcott: I do.

Judge Oliver-Jones: Why should I do not ask it (sic)?

A. I know.

Mr Westcott (?): Well because the parties have the management of their cases.

Judge Oliver-Jones: No, I am the trial judge. I have to make a decision and I need to have an answer. I can't just leave it because otherwise when I deal with it, as I will with each mark on this piece of paper, I want to be able to deal with it.

Mr Sweeting (?): I understand that, my Lord, the position that we adopt is that the evidence about it is agreed.

Judge Oliver-Jones: To me there is an inconsistency in two sentences. Now if there is not, fine. It seems to me that there is an inconsistency. I am going to ask.

…

Judge Oliver-Jones: … I want you to look at page 349 CTG between 14.21 to end of CTG where you have five lines of writing. [This is a reference to the Joint Report and the five lines quoted above at [56] beginning "FHR derived by ultrasound" and ending "there was no baseline variability."] The line says that there is insufficient data recorded between those times to characterise fetal heart rate features right? That is what you both agree.

A. Correct.

Q. In your next sentence you say there is a fetal heart rate feature at 14.42/43. Now that seems to me to be an inconsistency. That little mountain, as I have referred to it, at the end, increasing from 110 to 130 before falling back to 98 beats per minute, that is what you have agreed in this report. That sentence, if you are agreed that it shows fetal heart rate, is inconsistent with the previous sentence which suggests that between 14.21 and the end of the CTG the data is insufficient to characterise fetal heart features. Do you agree with me that there is an inconsistency or have I misunderstood?

A. From my point of view we did not, Michael Carter and I, did not actually speculate on what the origin of that mark might be and it is my position----

Q. You did. No you told me what it is. You told me that it is fetal heart rate.

A. No, I do not believe it is …

Q. It says so, "FHR" stands for fetal heart rate.

A. That is what is recorded on the chart but what is the origin of that result?

Q. Well, the fetal heart presumably?

A. But it is the fetal heart doubled? Or is it the maternal rate?

Q. No, that is not the fetal heart if it is maternal.

A. It is on the fetal heart rate ---

Q. It could be doubled certainly, it could be trebled, perhaps you do not have trebling, I do not know.

A. It is on the fetal heart rate scale but nobody could tell you with any certainty what the origin that produced that mark is.

Q. All I want to know is is it a fetal heart record?

A. In my opinion you could not say that.

Q. You have said it?

A. No.

Mr Westcott (?): For the first time."

Mr Westcott was clearly unhappy because since the matter had not been raised in examination-in-chief, he was resting content with the agreed Joint Report but after some discussion with the judge he said (T3.1000):

"Mr Westcott (?): Given that the matter has now been raised and that my Lord has made it clear that it is of moment to you may I investigate it with the witness?

Judge Oliver-Jones: I think you better had …"

Thirty-seven pages of cross-examination and re-examination followed.

60. I can pick out some of it.

"Mr Westcott: [at T3.1002] … What I am trying to identify, Dr Keith, is that there is not a distinction between the line that says there is insufficient data recorded to characterise fetal heart rate features, no inconsistency between that and describing a portion of trace which lasts for 90 seconds as being, for example, of good quality, increasing from 110 to 130 before falling back to 98. That is just descriptive.

A. It is inconsistent if one is assuming that those marks are fetal heart in origin. Certainly the fetal heart rate recorder thought that that was what it was measuring because that is what it printed and that does not necessarily---

Q. So did you?

A. No, no.

Judge Oliver-Jones: You have written good quality recording in the final 90 seconds of the CTG showing fetal heart rate increasing from 110 to 130 and back to 98, that is what you have described it as.

A. That is exactly what the machine printed.

Q. You are saying it is fetal heart rate, you are not saying it is maternal heart rate or a halving or a doubling or ---

Mr Westcott: It was your job to help us understand it, was it not?

A. It is absolutely impossible to say on a 90 second bit of recording what the origin of that recording is. It is just impossible.

Judge Oliver-Jones: In that case it is not possible to say what the origin of any other mark on this trace is.

A. Absolutely. When you start monitoring you start with two positions of scepticism. First of all the first position of scepticism is signal source and the second position of scepticism is fetal-wellbeing. You have to look at how the trace unfolds before you can actually say, yes, I have the fetal heart rate and then you have to look at it further as it unfolds to say whether you are reassured about what you are seeing. You cannot immediately tell, especially in the absence of a contraction or anything where you have corroborating information, when you have isolated recording you cannot tell what the origin of that mark is.

Q. Then why did you say in your report it shows fetal heart rate, both of you agreeing?

A. That is what is printed on the fetal rate scale by the fetal heart rate recorder. That is what I am saying. I think we should have been asked specifically to deal with the point about what the likely origin of the mark was.

Q. Or of any other mark for that matter?"

61. Later at T3.1011.24 Dr Keith said:

"I think that with 90 seconds it is impossible to know what the origin of that mark is. It could be fetal, it could be double fetal, it could be maternal. There is no way of knowing. Unless one has other corroborating information it is impossible to say what the origin of the mark is."

62. Perhaps the last piece of revealing cross-examination is this (T3.1017):

"Mr Westcott: But now he is seeking to resile from it [that the Joint Report refers to fetal heart rate].

Judge Oliver-Jones: Well, I wonder if he is.

A. I have been very clear in my own mind all the way through, so, you know, if a different interpretation has been formed I am sorry about that.

Q. What you are saying is, well, what you are saying is, it's origin is probably fetal but you cannot say what its character is, is that what you are saying?

A. I am not even sure I can go that far.

Q. Well, you have gone that far in the joint report and if you want to resile from the joint report you will have to give me a good explanation as to why you agreed in the first place and I have not heard that yet.

A. The markings on the trace were obviously made by the recorder that thought it was monitoring fetal heart rate with those rates.

Q. Yes.

A. The actual movements that led up to those markings is the area that I can't say with any degree of certainty what they are. Fetal, double or maternal ---"

63. One should set alongside that evidence the evidence given by Mr Carter. Cross-examined by Mr Sweeting, he said this (T3.1050):

"Q. Your view as expressed in the joint report was that from 14.20 to the end of the CTG there was insufficient on the printed CTG to characterise the fetal heart rate?

A. Yes.

Q. That means, does it not, that when you look at the entry for about 14.42, there is insufficient to characterise the base line.

A. That is a feature. Characterisation is pushing the features of the CTG into either normal, suspicious or pathological, abnormal.

...

Q. I was asking you about the mark on the CTG trace that begins in fact at 14.41/45 I think and then goes through to 14.43. I asked you what the base line was?

A. You cannot say what the base line is and that is why it was described in the memorandum as increasing from 110 bpm to 130 bpm before falling back to 98 bpm. There is insufficient there to characterise what the base line was.

Q. Right, I think in fact that is what Dr Keith said, that what you could say about this is it lasted 90 seconds. It rose from 110 up to 130 and then went down again I think to 100 is it?

Judge Oliver-Jones: 98

Mr Sweeting: 98, yes.

A. That is correct.

Q. And that is really about it?

A. Yes.

Q. You can also comment on the lack of variability because the line, perhaps to put it in rather vernacular terms, does not have a lot of squiggles on it?

A. That is correct.

Judge Oliver-Jones: But that is not base line variability because there is no base line, is there?

A. It is on the line which is here and you expect fluctuations on that line throughout.

Q. Yes, well, if there was no variability it would have been better?

A. Yes.

Q. Do we have this right, because it is words again and the precise use of them. I have now got two versions of the use of the word, characterise means categorise?

A. Yes.

Q. As normal, suspicious or abnormal?

A. That is my understanding.

Q. That is what you are saying, insufficient data recorded to characterise, so you cannot say that any of the data shows anything normal, suspicious or abnormal?

A. There is insufficient data to say it."

64. It may be useful to see how Mr Carter dealt with other traces on the CTG and how he dealt with the artefacts of halving, doubling and a maternal heart rate. I pick out (and hope I do not cherry-pick) these examples:

At T.4.1054:

"Mr Sweeting: What I am suggesting to you, Mr Carter, is that given the position Nathan was in so far as his heart rate was concerned at birth, which was a matter of some 5 minutes after this particular portion of the CTG, an explanation of what we see at 14.42, one possible explanation is that the CTG has recorded a doubling.

A. That is a speculation -----

Q. Possible?

A. Possible, yes.

…"

At T4.1058:

"Q. (by Mr Sweeting): Then at 14.08 we have a little section where there is a recording very much lower down on the trace at about, I think, 60 going up to 70/80?

A. Yes.

Q. Dr Keith expressed the view that that probably was picking up maternal heart rate at that stage, would you agree with that?

A. I looked at that in my report and my conclusions were that it was on balance a halving of the fetal heart rate. It is possible that it was a maternal heart rate but because it was half the upper rate it was more likely in my opinion to be a halving heart rate.

…"

At T3.1074:

"Q. You need, do you not, to monitor continuously and effectively in order to know what the base line is?

A. You do.

Q. And in order to be able to say with confidence that it is not pathological and that it is not suspicious?

A. Yes.

Judge Oliver-Jones: That is what you and Dr Keith are agreed you cannot do. You cannot characterise the fetal heart rate?

A. From this trace?

Q. From this trace.

A. Yes.

…

Q. It is also in the normal range at this point in labour for maternal heart rate, yes?

A. At what point?

Q. This point on the recording, 14.42, yes?

A. It is possible.

Q. Possible. It would also be consistent with doubling if the fetal heart rate was, as it was at birth, around 70?

A. It is possible with the rider that I explained earlier that it is likely to halve, if it was a doubling artefact you would get artefactual variability super-imposed on that recording.

Judge Oliver-Jones: In fact it would be lower than that, would it not, because that trace never gets anywhere near 140. The highest point on that trace is 130 which if it was a doubling would mean 65 and the lowest point on the trace is 100 which would be 50 at the very end. So you are looking at actually between 50 and 65, those are the extremes.

Mr Sweeting: Yes.

Judge Oliver-Jones: If that is a doubling, that would be severe bradycardia, would it not?

A. It would.

…"

At T3.1083/4 there was the exchange with the judge which I set out at [52] above where Mr Carter spoke of the danger of over-interpreting. It seems to me the following question and answer summarise his position (T3.1086):

"Q. So far as the trace is concerned I think your final point on it here is that in your view there is insufficient data to determine whether the fetal heart rate patterns were pathological from 14.27. You simply can't tell?

A. Yes."

65. I have cited these swathes of the evidence in order to show how the parties' witnesses dealt with the important question of characterising the CTG not just for the 90 or so seconds at 14.42 but at other earlier stages after the midwives were carrying out manual intermittent monitoring. On any view, much of the chart was uninterpretable – there were just a number of dots and squiggles. It was, it seems to me as I read the transcripts, common ground that at least some of this was artefactual, doubling or halving, or maternal. The focus was put, and had to be put, on 14.42. Was this a reliable FHR trace? Dr Keith did have to clarify what he meant. It was open to the judge to find he had changed his opinion and withdrawn what Mr Westcott had clearly thought was a vital admission that this was actually (the judge's word) a fetal heart beat. I agree that the judge could have dealt with it and perhaps, to be wise, even should have dealt with it if it was so central to Mr Westcott's case. Nonetheless I reject Mr Westcott's sustained argument that the judge's failure to deal with these points fatally undermines his judgment. I am quite satisfied that he did not need to deal with any of this detailed evidence of what the various traces revealed or did not reveal or might or might not have revealed. He was entitled to treat all of this evidence as unhelpful and he did so treat it. As he said at [B](j):

"Finally, to the extent that any of the experts sought to give weight to any features of the CTG after 14.20 by way of 'forensic analysis', I reject that approach and prefer to reach my judgment on the basis of their clinical assessment; this was, universally, that the relevant period of the trace was fragmentary, unreliable, of poor quality and uninterpretable."

This was no more than a reiteration of the conclusion he had already reached at [75] of his judgment ([22] above) that the experts, and that included Dr Keith, were unable to reach any reliable conclusion as to what the CTG revealed about the fetal heart rate. That was his reason for finding for the claimant and he did not need to deal specifically with other arguments which fell by the wayside once he reached that conclusion. For the same reason he was not obliged to deal with the detail of Dr Loughna's evidence.

Dr Loughna's evidence

66. Once again the appellant's case is that the judge was wrong to have said at [75] of his judgment that the position which the experts had adopted in their reports remained "essentially unchanged" when in fact not only Dr Keith but Dr Loughna had introduced in their oral evidence for the first time doubt as to the reliability of the fetal trace. Dr Loughna's written report said of the trace at 14.42 that:

"[It] is suggestive of the onset of a terminal bradycardia but there is no record of the fetal heart rate on the CTG after about 14.43."

Mr Westcott submits she back-tracked under cross-examination. To be fair to her, she did however record in her report that "the CTG is of very poor quality". In the Joint Report she and Mr Porter were asked what they made of the trace from about 14.09 onwards and their joint reply was that "the CTG is uninterpretable from 14.21 onwards." Later they repeated their view that the CTG was uninterpretable at 14.21. Then when asked whether the trace at 14.42 is suggestive of the onset of a terminal bradycardia her reply was:

"Considers that this fragment has the characteristics of the beginning of a terminal bradycardia with absent variability." I have added the emphasis.

67. I have read the whole of her cross-examination. There are a number of significant passages in it. Very early on at T2.393 she is asked:

"Q. The other thing that is fair, is it not, is that one should not assess variability over a very narrow timescale, a very narrow range, you need to assess it over a decent period of the trace?

A. You would assess a fetal heart rate on a CTG trace over a period of time. Second to second or even minute to minute assessment is not particularly helpful, so you will always look over a period of time. The standard for assessing of a fetal heart rate will be a period of 10 to 20 minutes in clinical terms."

Mr Westcott later at T3.429 drew her attention to the trace at 14.25 and suggested that the rest of that 2 ½ minutes of marking was artefactual and she agreed that it could well be. She added, "In fact, all of this could be artefactual. That is from 14:20 onwards." Mr Westcott pressed her about that particular trace and this exchange occurs:

"Q. But I am asking you to agree with me that that [14.22-14.24½] probably is?

A. I do not see what that is any more likely to be artefact that any of the rest of it, because it is so poor.

Q. I do not see the difference, for example, between that and the trace at 14:29.

A. There is not much difference. It is just that it is more continuous.

Q. What about 14:42?

A. 14:42 is where there is definitely a minute and a bit of continuous line. While we do not know exactly what that represents we know that it is continuous.

Q. Alright.

A. As I have said, clinically this is uninterpretable. It is in a forensic way that I am being asked to look at it."

I have added the emphasis to "forensic", because that is the way the judge was also viewing it.

68. She thereafter repeatedly expresses the same views about the last 19 minutes of the trace. By way of example at p. 433 she says:

"What that means is that in the last 19 minutes before delivery it is very, very difficult to interpret the CTG."

At 434 she says:

"It is the most difficult bit to interpret".

At 437,

"The whole trace is extremely difficult from 14:20."

Then at 441 another passage which would have struck a chord with the judge,

"I have been asked forensically to dissect it and have done my best, but clinically I would say it is uninterpretable."

It seems to me that far from the judge having ignored her evidence he seems wholeheartedly to have embraced it.

69. The passages upon Mr Westcott relies begin at p. 465:

"Mr Westcott: … We are in paragraph 30 of your report "The trace at 14:42 is suggestive of the onset of a terminal bradycardia, but there is no record of the fetal heart trace on the CTG after about 14:43. Your opinion, reviewing this trace was that the 90 seconds or so of the trace that we see at 14:41:05 to 14:43 was the fetal heart rate, was it not?

A. That is an assumption, yes.

Q. Why is it an assumption? It is what you consider to be ---

A. I said it is suggestive of, it would fit with but easily that could be something else. That could be a maternal heart rate, but the sort of pattern is the sort of thing that you see. That is why I said that that is what it was suggestive of, but I quite deliberately said "suggestive of".

…

Q. When you saw the joint statement from the two engineers … when you saw that they said …, "good quality recording in the final 90 seconds of the CTG showing fetal heart rate increasing from 110 to 130 before falling back to 98, there was no base line variability", you cannot be surprised. They took the same view as you did, did they not?

A. Yes, but it could be the fetal heart rate.

Q. Not that it could be?

A. I said it could be, they have said they think it was.

Q. They did not say it could be. You took the trace and what you said was that that bit of the trace was suggestive of something happening next?

A. It was suggestive, yes.

Q. But it could only be suggestive of something happening next if it was a fetal heart rate?

A. Yes. But if I thought it definitely was the fetal trace I would not have said it was suggestive of, I would have said that it represented the start of terminal bradycardia."

70. We see some clue to the judge's developing understanding of the case at p.469.

"Judge Oliver-Jones: I understand all that is being said about why it might or might not be maternal pulse, but what I do not understand is what features of that bit of tracing are suggestive of a terminal bradycardia.

A. It is the complete lack of variability as the line is going down, as it is decelerating.

Q. I see.

A. I would not be at all surprised to see that continue down but it is only suggestive. We do not have enough tracing to say that it actually represents anything.

Q. The remainder makes sense. So what you are saying is that if that is a fetal heart rate then it has no variability at all?

A. Correct. This is one of the problems implicit in minute by minute dissection of a trace that you cannot interpret.

Q. That is why, I think, probably I was having the problem that is why I look at things much more simply than you."

71. Where the judge rejected expert evidence (e.g. he found in favour of Dr Keith and against Mr Carter as to whether or not there would be an audible sound if there was no trace and, as we shall see later, he rejected Ms Brydon's opinion that an episiotomy can or only should be performed when the head had crowned), he said so; in all other respects as he said in the penultimate paragraph of his judgment, this is not a case where there was a polarisation of expert opinion such as would require him to reject the evidence of one wholly in favour of another. So far as the evidence of Dr Loughna is concerned, the extract I have set out, and there are many others to like effect, seem to me to justify the judge's rejection of all forensic expressions of opinion and to accept their clinical interpretation that the trace from 14.20 was uninterpretable. It does not seem to me that in those circumstances he needed to go further to dissect the evidence of the witnesses and deal with the various challenges Mr Westcott has advanced in this appeal. His judgment is fully reasoned: the clinical view of the experts was that the trace was uninterpretable, therefore it was unreliable and consequently it could not displace the overwhelming view of the causation experts that Nathan suffered his injury in the last moments before his birth.

The other supplemental reasons

72. The judge also relied upon the fact that, as he found, the midwives did not hear a reassuring trace, that there was no evidence of the hypoxia required for the defendant's analysis; that there was no evidence of why Nathan took 15 minutes to breathe and the inherent probability that the damage occurred in the run up to delivery. Those reasons may not have great bearing on the issue of timing of the injury but since they cumulatively destroy the foundation upon which the alternative case rested, they are powerful support for the only conclusion that was then open to the judge namely that the injury did indeed occur as Nathan's case alleged.

The second ground of appeal

73. The appellant submits that the judge's determination on the issue of factual causation, namely that Nathan should, in the absence of negligence, have been born before the injury would have occurred, was unsupported by the evidence and was wrong. It was one to which he could not reasonably have come because he erred in identifying the time by which the respondent would have had to have been born to have avoided injury as 14.44 when he ought to have found it was 14.41½ , he should not have concluded that an episiotomy could have been cut before 14.35 but he ought to have concluded that it could properly have been cut as late as 14.41 and he ought to have found that even if an episiotomy had been effected, delivery would still not have been achieved before 14.44.
74. The judge's findings on factual causation were these:

"[B](k) As I have already said the causation experts, and particularly Dr. Rennie, were unwilling to accept that any particular time within the bracket of 5 minutes (or as I prefer to describe it 'the block of 5 minutes') was more likely than any other for the onset of irreversible brain damage, although, it should be noted, even when fetal reserves were exhausted, the sustaining of brain damage was described as a 'process' rather than as a single event … Mr Sweeting QC submitted that the inability of the clinicians to identify when the bradycardia began, and thus when fetal reserves were exhausted and damage occurred, is entirely a consequence of the failure to monitor properly in circumstances where continuous monitoring was mandatory. He went on to submit that medical science is only able to provide a bracket working backwards from the known time of birth and that, on any view, Nathan would have been saved from 5 minutes of damaging hypoxia had he been delivered by 14.44 at the latest. In this event, he added, relying upon Bailey v. Ministry of Defence [2008] EWCA Civ 883 at paragraph 46, this was plainly a material contribution to damage which was more than negligible. Mr Westcott QC submitted that I should simply fix upon a point midway through the 5 minute period as representing the probable latest point at which Nathan could probably have been delivered without any damage (viz at 14.41½). I am not attracted to Mr. Westcott QC's attempt to provide an attractive compromise because, to do so contradicts the intention of the expert witnesses agreement. This was to make it clear that 14.44 was just as likely as 14.39. In these circumstances I find that Mr Sweeting's submission is the proper approach. The result is that only if I find as a matter of factual causation that Nathan would probably not have been delivered until after 14.44 will the claim fail on causation, because any negligence which I find there was, had, until 14.44, either wholly caused or alternatively (for up to 5 minutes before that time) materially contributed to the brain damage.

[C] Were Nathan's Injuries Avoidable and, if so, how and when?

(a) The trite answer to this question is that, as already explained, it is just as likely that Nathan's injuries were avoidable if he had been delivered by 14.44 as by 14.39. The real issue that needs to be considered here, is whether the actual time of delivery at 14.49 could have been expedited and, if so, to what earlier time. If that earlier time is prior to 14.39 then the argument there has been as to medical causation, disappears. If that earlier time falls within the period 14.39 to 14.44 then the claimant will have established factual causation for the reasons given at the end of the preceding section of this judgment.

(b) There are only two candidates for the achievement of delivery earlier than 14.49. The first is instrumental delivery, requiring the attendance of an obstetrician. The second is an episiotomy which was capable of achieving an immediate delivery. The timings for both, or either, are dependent upon my findings as to how labour was being managed and what the midwives knew or ought to have known about the condition of the fetus as labour proceeded."

75. The judge went on to find that the midwives were in breach of their duty in failing to monitor and so he concluded:

"(j) Apart from monitoring the fetal heart and maternal contractions properly, as I have found they failed to do, what else should the midwives have done? Given the absence of any reliable indication of the state of the fetus because of the monitoring failures, and given the belief which I am satisfied there was that delivery was imminent as early as 14.20, and given the undoubted failure of the fetal head to progress from that time, and finally, given Sister Midwife White's evidence that, at the latest at 14.30, she expected delivery within one or two contractions, then I am satisfied that an episiotomy should have been performed by no later than 14.35 and that Nathan would have been delivered then or shortly thereafter - and, in any event, before 14.39. I am equally satisfied that before 14.30 obstetric assistance should have been sought and that this would have achieved the same result. I have reached this conclusion not on the basis that there were late decelerations that should have provoked this (although, as a matter of fact there probably were - as I have already found) but on the basis that continuous fetal monitoring had not been in place since 14.00, that there had been a suspicion of fetal distress at that time, that Mrs Cooke had twice considered it necessary to summon assistance and that the anticipated quick delivery had not occurred as Sister Midwife White had anticipated. …

(k) Finally, I need to deal specifically with the contention that an episiotomy should not, or could not, be undertaken before the head had crowned. I regret that I must reject Ms Brydon's opinion that an episiotomy can/should only be performed when the head has crowned. Not only is this not supported by what is said in Mayes' text, but it was not supported by the obstetric expert evidence. In my judgment, given that the fetal head is distending the perineum ('on the perineum') an episiotomy is capable of being performed and likely to be effective in facilitating delivery when there is an indication for it. In this case I have set out in the immediately preceding paragraph what, in my judgment, the indications were. It was not a matter of there being a single indication, but rather, a combination of factors which, together, demanded intervention.

[E] Were Nathan's injuries caused or materially contributed to by any negligence on the part of those responsible for his mother's care during labour?

(a) It follows from my findings of fact so far as breach of duty is concerned, and, in particular, from my finding of a negligent failure to deliver Nathan by either episiotomy or instrumentally if necessary (with an episiotomy), and my findings as to the timing of that failure, that Nathan's injuries were caused by that negligence. Even if it could be maintained, which in my judgment it can not be, that delivery by episiotomy could reasonably have been delayed until as late at 14.44, then the negligence would have materially contributed to Nathan's injuries."

What is the latest time for Nathan to have been born unscathed?

76. The causation experts agreed that Nathan must have suffered a period of either 15 or 20 minutes of hypoxia, the first 10 minutes of which would not have caused him any injury because he would have been protected by fetal reserves. The causation experts agreed that "Nathan would need to have been delivered between 1439 and 1444 in order to have avoided brain injury." In the light of that evidence, the judge had to find, as he did, that the latest time for safe delivery was 14.44.
77. Mr Westcott repeats on this appeal the submission rejected by the judge that the balance of probabilities requires a finding that damage began to be occasioned to the fetus at the mid-point between the two alternative times offered by the expert witnesses, that is to say at 14.41½. I reject that argument as the judge did. The expert evidence was that medical science could not be more accurate and that it was, therefore, just as probable that Nathan would have been delivered without any damage at 14.39 as it is if he had been born at 14.44. In the light of the evidence that there was a likelihood of damage beginning to be suffered at 14.39, then for my part I cannot see how that evidence can be overlooked by advancing the clock to split the difference.
78. I agree with Mr Sweeting that all of the damage might have been done in the last five minutes before delivery, i.e. after 14.44, if the overall duration of the insult was 15 minutes. Some damage might have occurred during the five minute period prior to 14.44 if the overall duration of the insult was 20 minutes, but there would still have been damage in the entire last five minutes from which Nathan would have been saved had he been delivered by 14.44. It was not possible to say how much, if any, damage occurred prior to 14.44, whereas all of the period thereafter must have been damaging. Thus, on any view, a failure to deliver by 14.44 either caused the damage in its entirety or made a material and probably preponderant contribution to it.
79. The rule established by Bailey v Ministry of Defence [2008] EWCA Civ 883 is, per Waller LJ at [46]:

"In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed."

Here the negligent failure to deliver Nathan before 14.44 caused all the damage if this was a 15 minute insult. Medical science cannot establish whether it was a 15 minute insult or a 20 minute insult. If it did take 20 minutes, the damage done in the last five minutes must have made a contribution to the overall harm which was more than minimal. I cannot see why the Bailey principle does not apply.

Could an episiotomy have saved Nathan?

80. Mr Westcott submits that the judge was wrong to have concluded that an episiotomy should have been performed no later than by 14.35 and that Nathan would have been delivered then or shortly thereafter – and, in any event, before 14.39. He accepts that the judge found against the defendant's case advanced at the trial that an episiotomy should not have been done before crowning at 14.45. He rejected Ms Brydon's opinion because that was not supported by what was said in the leading textbook, Mayes, which, in the copy provided for us by Mr Sweeting, gives this indication for an episiotomy:

"The indications for episiotomy should be mainly for fetal complications, which include the following:

To speed delivery when the fetal head is on the perineum and there is evidence of fetal distress."

So the judge held that when the fetal head is distending the perineum ('on the perineum'), an episiotomy is capable of being performed and is likely to be effective in facilitating delivery where there is an indication for it. In his view a combination of factors together demanded intervention. There is no appeal against those findings.

81. Nevertheless Mr Westcott submits that the judge made no findings as to when the head was on the perineum. He submits that it came on the perineum at 14.35. He calculates that by taking the time of crowning, according to the notes, as 14.45 and the evidence of the midwives that they had expected crowning to take place after 3 or 4 contractions. 3 or 4 contractions take about 10 minutes so 3 or 4 contractions before crowning would have put the head on the perineum 10 minutes earlier, namely at 14.35. Dr Loughna gave this evidence in answer to questions put by the judge at T2.525:

"Judge Oliver-Jones: … The perineum is being stretched.

A. Yes.

Q. It is under tension.

A. Yes.

Q. Is the evidence 3 to 4 contractions?

A. 3 to 4 contractions, yes.

Q. So during that period, which has to be assessed to be about 10 minutes, an episiotomy could have been performed?

A. Yes.

Q. Reasonably?

A. Yes."

So Mr Westcott argues that if the first contraction when the head came right down was at 14.35, then the second contraction would be at 14.38, assuming about 3 to 4 minutes a contraction, then the 3rd would be at 14.41 and the 4th would be at 14.44. If the episiotomy cut was made at 14.41, delivery could not have been before 14.44, whereas if the episiotomy cut was at 14.44, then delivery would not have been before 14.47. Thus Nathan would have been delivered at a later time than the judge's time of delivery which he fixed at 14.39. I understand the arithmetic but the difficulty I find with Mr Westcott's submission is that the judge did not proceed upon those assumptions but as he said at (j):

"… given Sister Midwife White's evidence that, at the latest at 14.30, she expected delivery within one or two contractions, then I am satisfied that an episiotomy should have been performed by no later than 14.35 and that Nathan would have been delivered then or shortly thereafter - and, in any event, before 14.39."

82. So for me the question which first has to be determined is whether or not it was open to the judge to proceed on the basis of Sister Midwife White's evidence or was he obliged to work backwards from the time of crowning. In my judgment he was entitled to prefer to start from the midwife's evidence. The judge had dealt with Sister Midwife White's evidence earlier in his judgment:

"45. At paragraphs 17 and 18 of her first witness statement she [Sister White] said this:

"As I recall, the vertex was just visible at around 14.30 hours. At that time the partogram was noted with a fetal heart rate of 138 bpm. I felt that matters were progressing quite quickly and it looked as if the second stage would be quick, as I anticipated that the head would probably crown within 1 or 2 contractions" (my emphasis added).

It appears that this recollection, if truly something which she remembered when making her statement, is inconsistent with the apparently contemporaneous note made on the face of the CTG paper. That handwritten note states "Vertex visible 14.20". The same note appears in the midwifery records, again under the timing of '14.20', although this (unlike the CTG entry) appears to have been altered from '14.25' to '14.20'.

I make it clear now that I consider Sister White's quoted evidence at paragraphs 17 and 18 (supra) to be very significant. If she was anticipating that the head would 'crown' within one or two contractions at about 14.20 and contractions were occurring at a rate of 3 or 4 every 10 minutes (although this is nowhere recorded) then she was expecting crowning (and hence delivery of the head) by 14.26. If she really meant 14.30 (or the records made by Mrs. Cooke are wrong) then she anticipated crowning of the fetal head at 14.33 or 14.36. However, there is a further, apparently inconsistent, statement at paragraph 20 of her first witness statement where she said:

"At around 14.45 the head had not crowned as I had anticipated over the last 3-4 contractions. Progress had slowed. At that stage I put on my gloves to find out whether or not an episiotomy would be required to deliver the head."

In this statement she was suggesting anticipated crowning 19 minutes later than the time she identified by reference to the vertex showing. It is in this context that the information given to the paediatrician who attended after Nathan's delivery that the fetal head had "sat on the perineum for 10 minutes" is significant for the conclusions to which I will come hereafter."

On the basis of that evidence the judge was entitled to find that, giving the defendant the benefit of the doubt, he would act on the vertex becoming visible at 14.30, rather than 14.20 as recorded in the notes. The judge was simply accepting this midwife's evidence and he should not be criticised for doing so.

83. He had made the same point at (f) of his judgment saying:

"It was a startling feature of the case that, despite her undoubted presence, Sister Midwife White was unaware that Lignocaine had been administered. If she had known then clearly, in the absence of progress and, indeed, the fetal head becoming stuck on the perineum (as it undoubtedly did), then I am quite satisfied that she would have called for obstetric assistance or performed an episiotomy herself to allow for the delivery which she had expected, in my judgment, probably as early as 14.20 and, in any event (on her own evidence) within one or two contractions after 14.30."

Again I do not see how those findings of fact can be overturned. It may be pertinent to reconstruct what was happening in the delivery room. Mrs Cooke summoned Sister White because she was "a little concerned" about what she could see on the CTG trace at 13.35. She recorded on the partogram at 14.00 "? Fetal distress". She summoned Sister White for a second time at 14.08 because she anticipated that delivery was imminent. When Sister White arrived she found the anaesthetist using the midwife's trolley so she ran to find another because she anticipated that delivery appeared likely to follow "quickly". As already set out, the notes record the vertex of Nathan's head being visible at 14.20. This shows there was some concern about the progress of delivery. One then has to factor into the scene the ignorance of the midwives that the baby was indeed in fetal distress which would have been demonstrated had there been proper monitoring. Had they been aware of that fact, there can be no doubt that these midwives would have acted swiftly to save the fetus from unnecessary and undue distress and would have been anxious to ensure delivery just as soon as possibly it could be facilitated.

84. The expert evidence of Dr Loughna is important in this regard. She said (T2.533):

"The witness: What I am saying is that if the head is distending the perineum, as from the description from the midwives I had understood it to be, such that they anticipated delivery within the next contraction, over 3 to 4 contractions, an episiotomy after the 1st or 2nd of those 3 to 4 contractions would have effected delivery, if there was a bradycardia.

Judge Oliver-Jones: Yes.

Mr Westcott: So what you contemplate is the decision to effect an episiotomy after one or two of those contractions?

A. When the midwife thought that the head was going to deliver on the next contraction."

At T2.4545 there was this important evidence:

"A. If it was a bradycardia, you would have that first contraction when the head came right down and you thought it might go and then the second one, where nothing happens, you would probably do your episiotomy on the second but you could do it on the third.

Q. Thank you. Probably on the second but you could do it on the third if it was a bradycardia?

A. Yes."

85. If the judge was right to accept the midwives' evidence that they expected crowning within 3 or 4 contractions of 14.30 then, if they had known of the bradycardia, then, if contractions were 3 or 4 in 10 minutes, say every 3 minutes, then the 2nd contraction would be at 14.33 when the episiotomy would probably have been done leading to birth at 14.36 and even if one waited to the second contraction, delivery should have followed by 14.39. On that basis there was no error in the judge's approach.
86. One should not overlook the judge's explanation for his conclusion. He said:

I have reached this conclusion not on the basis that there were late decelerations that should have provoked this [an episiotomy or calling for obstetric assistance] (although, as a matter of fact there probably were - as I have already found) but on the basis that continuous fetal monitoring had not been in place since 14.00, that there had been a suspicion of fetal distress at that time, that Mrs Cooke had twice considered it necessary to summon assistance and that the anticipated quick delivery had not occurred as Sister Midwife White had anticipated."

87. Finally one should note the judge's finding that:

"Even if it could be maintained, which in my judgment it cannot be, that delivery by episiotomy could reasonably have been delayed until as late at 14.44, then the negligence would have materially contributed to Nathan's injuries."

Conclusion

88. I have agonised over this case and have borne in mind Mr Westcott's detailed submissions, even if I have not dealt with each and every one of them in this judgment. Having done so I am totally satisfied that the judgment cannot be faulted and consequently I would dismiss this appeal.

Lord Justice Longmore:

89. I agree.

Lord Justice Richards:

90. I also agree.