England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/04/2010

Mr Justice Walker :

Introduction

1. The claimant, whom I shall refer to as "Conan", suffers from disabilities associated with cerebral palsy. His cognitive disabilities are such that he brings these proceedings as a protected party acting by his mother and litigation friend, Anita Jones ("Ms Jones"). Conan was Ms Jones's second child. He is now 26, having been born on Wednesday 3 August 1983. No doctor was present at the birth. This absence of medical help was a cause of grievance to Conan's parents. They describe seeking help from the on call doctor at their local surgery at around 6 a.m. and 7 a.m. that day, and being told merely that Ms Jones should calm down as she was far too early in his pregnancy to be giving birth.
2. Conan was delivered by his father, Kenneth Ingram ("Mr Ingram"). His birth took place around 8 a.m. in the bedroom of the home that Ms Jones and Mr Ingram shared. It was a premature birth: Ms Jones had been pregnant for approximately 26 weeks. When delivered Conan was not breathing. Mr Ingram tried mouth to mouth resuscitation. He gave Conan two small breaths to begin with. That was unsuccessful, so he picked Conan up and slapped him on his bottom. Mr Ingram then gave Conan a further 3 or 4 small breaths. Conan suddenly gasped and started breathing for himself. An ambulance was summoned. Ms Jones and Mr Ingram lived in Barmouth, and the nearest neo-natal intensive care unit ("NICU") was at Maelor General Hospital ("MGH") in Wrexham. This involved a journey of over 50 miles on difficult roads. The ambulance stopped on the way at Dolgellau to pick up an incubator as the ambulance's incubator was not working. On arrival at MGH at 11 a.m. on Wednesday 3 August 1983 Conan was noted to be very cold and blue. Over time it emerged that Conan was suffering from a number of serious medical problems. Despite these problems he has obtained a GNVQ Level 1 in performing arts and qualifications in photography and other subjects. These achievements are a tribute both to him and to all those members of his family and caring professionals who have looked after him.
3. When these proceedings were begun Conan's disabilities were said to have been caused by the negligence of three general practitioners who were partners at the Minfor GP Surgery in Barmouth. As regards two of those doctors, however, the claim is no longer pursued. Dr Stephen Hassan, the second defendant, saw Ms Jones on visits to the ante-natal clinic held in the former local hospital in Barmouth. Far from alleging negligence on his part, Conan's parents assert that he was a competent doctor and rely upon evidence by him as to his examination of Ms Jones on Thursday 21 July 1983.
4. Dr Roger Davies was the on call GP at the Minfor surgery on the morning of Wednesday 3 August 1983. By the time these proceedings were issued he had died. The third defendants are his personal representatives. They have played no part in the proceedings before me, however, as no claim is now advanced against Dr Davies. The grievance felt by Conan's parents about Dr Davies's non-attendance is relevant background to the claim now made. It is not necessary for me to determine whether that grievance was justified. Nothing in this judgment should be taken as expressing any view either way in that regard.
5. Thus the claim is now made against the first defendant only. The first defendant is Dr Hywel Gareth Morris Williams. He was known as "Dr Gareth", and that is how I shall refer to him in this judgment. Dr Gareth was Ms Jones's GP at the Minfor surgery, but no allegation is made that he should have been present at Conan's birth. Nor is there any allegation that he should have involved himself in what happened at the ante-natal clinic. Ms Jones visited the Minfor surgery on Friday 29 July 1983, and saw Dr Gareth. He diagnosed cystitis, a diagnosis which was confirmed by subsequent laboratory analysis. The case against Dr Gareth is that he should, in addition to diagnosing cystitis, have concluded that the membranes of Ms Jones's womb either had ruptured or might have ruptured. On this I have heard oral evidence as to factual matters from Ms Jones, Mr Ingram, Dr Hassan and Dr Gareth, and I have received written evidence from the late Mr Aled Williams, the obstetrician with overall responsibility for Ms Jones's ante-natal care at MGH. I have also heard the evidence of expert GPs and obstetricians. All these witnesses were, I am sure, genuinely seeking to assist the court. As I shall explain below, however, witnesses of fact faced very great difficulties in recalling what occurred 26 years ago.
6. Thus the first main issue between the parties is whether Dr Gareth was negligent in failing to conclude, when he saw Ms Jones on Friday 29 July 1983, that the membranes of Ms Jones's womb either had ruptured or might have ruptured. Ms Jones's visit to Dr Gareth took place in between two ante-natal consultations. On Thursday 21 July 1983 Dr Hassan saw Ms Jones when she routinely attended the Barmouth ante-natal clinic. He became concerned that her uterus appeared to be larger than would have been expected for the gestation; and suspected polyhydramnios - an excess of amniotic fluid. Accordingly he referred Ms Jones to Mr Aled Williams, who saw Ms Jones on Monday 1 August 1983 at a clinic which he held in Dolgellau. Mr Aled Williams thought Ms Jones's uterus was slightly small for her dates and he suspected either a small baby, or possibly retardation of Conan's growth. It is plain that Mr Aled Williams did not consider that the membranes of Ms Jones's womb either had ruptured or might have ruptured. Mr Aled Williams was alive when these proceedings were issued. He died shortly before the trial, but was able before his death to provide a witness statement and written answers to questions about the consultation on Monday 1 August 1983. No allegation of negligence has been made against Mr Aled Williams in relation to Conan's disabilities.
7. It is common ground that if Dr Gareth had reached a conclusion that the membranes of Ms Jones's womb either had ruptured or might have ruptured then he should and would have arranged for Ms Jones to be taken immediately to hospital. Even if that had happened, and even if Ms Jones had stayed in hospital until Conan's birth, Conan would still have suffered from severe disabilities. Each side has instructed expert neonatalogists. They agree in large part on the pathological conditions underlying Conan's disabilities. As to the causative factors for those pathological conditions, they agree that at least three of them arose quite independently of any misdiagnosis by Dr Gareth, being factors which would have operated whether or not there had been a hospital delivery. The first is prematurity: Conan being born at such an early stage in the pregnancy was a cause of his disabilities. The second is the undoubted presence, correctly diagnosed by Dr Gareth, of a urinary tract infection. The third is that there were several episodes of infection in the neo-natal period, shortly after Conan was born. To these must be added a possible fourth factor: there may have been chorio-amnionitis (infection of the amniotic fluid) following premature rupture of the membranes.
8. What was it, then, about any misdiagnosis by Dr Gareth which played a part in Conan's disabilities? The expert neonatologists note that on 3 August 1983 Conan was delivered in poor condition away from paediatric care; it was 2 hours and 45 minutes before he reached hospital after a journey which involved travel in an incubator which was not operating correctly; and there was hypothermia until this was corrected at MGH. Their conclusion is that these features were causative of Conan's disabilities in this sense only: if Conan had been born in hospital there would have been a material but unquantifiable reduction in the degree of disability from which he now suffers.
9. These conclusions of the neonatologists give rise to the second main issue in the case. It is an issue of law, and arises only if I were to hold that Dr Gareth had indeed been negligent. To what extent would the consequent limited causative effect of that negligence lead to liability for Conan's disabilities? The case advanced on Conan's behalf is that the law imposes liability for the whole of those disabilities. Conversely on behalf of Dr Gareth it is said that limited causative effect of any negligence makes it appropriate for the court to impose partial liability only.
10. At the outset I expressed my indebtedness to Mr Stephen Grime QC and Mr Christopher Limb, who appeared on behalf of Conan, and Mr David Pittaway QC and Mr Conrad Hallin, who appeared on behalf of Dr Gareth. Their careful and lucid presentation of the relevant material was of great assistance to me in performing a difficult task.

Was Dr Gareth negligent?

11. What is the reason for asserting that on 29 July 1983 Dr Gareth should have concluded not only that Ms Jones had cystitis but also that the membranes of Ms Jones's womb either had ruptured or might have ruptured? Ms Jones says that about a week before Conan's birth, although she did not appreciate this at the time, her waters broke – in medical terminology, she lost amniotic fluid through a premature rupture of the membranes of the womb ("PROM"). A feature of her account in oral evidence – not found in her first witness statement in these proceedings - was that she recalled describing that loss of fluid to Dr Gareth when she saw him on Friday 29 July 1983. Dr Gareth told me that he had no recollection whatever of seeing Ms Jones on Friday 29 July 1983. The records showed that he had noted a diagnosis of cystitis, issued a prescription for an antibiotic, and sent a mid-stream urine sample to the laboratory for analysis. Before diagnosing cystitis he would have taken a history. His aim would be to get the patient to tell him what it was that was bothering her. Unfortunately one has to ask leading questions and in that regard there would be a balance to be struck. Also he would have used a dipstick to check a sample of Ms Jones's urine for protein – a positive reading would indicate infection. Commonly women with cystitis would describe frequent passing of urine and pain when passing urine. He could not think of any circumstances in which he would have written a diagnosis of cystitis if Ms Jones had indeed given him an account of loss of fluid.
12. My first task is thus to resolve what happened more than 26 years ago in the period before Conan's birth. I approach it in the way set out in the judgment of Slade LJ in Bull v Devon AHA [1993] 4 Med LR 117. At p. 126 Slade LJ said:

If, as it does, the law allows [a claimant], who is himself without fault, to bring this claim after this long lapse of time, his case cannot in my judgment be treated as prejudiced by the delay, save only in so far as the lapse of time may render more difficult the task of proving on the available evidence and on the balance of probabilities, those facts in respect of which the onus falls on the [claimant] in the trial.

13. It was established during the trial to be common ground that a woman suffering from cystitis might have no symptoms, but might equally have any or any combination of the following: frequency (often passing urine), dysuria (pain in the form of a burning sensation on passing urine), urgency (a feeling of an urgent need to pass urine), urge incontinence (an urgent need to pass urine followed by the passing of urine involuntarily) and blood in the urine. The last three of these symptoms (urgency, urge incontinence and blood in the urine) were less common than the others. It was also common ground that if Ms Jones had described incontinence to Dr Gareth then it was axiomatic that he would have needed to inquire further to establish whether it was no more than a symptom of cystitis (in the form of urge incontinence) or might indicate something else.
14. The contention on Conan's behalf is that Ms Jones told Dr Gareth of incontinence and that he did not investigate the possibility of membrane rupture. If Dr Gareth was negligent in the way now suggested then the error would have been a gross one. One possible approach might be to say that it was so gross as to be inherently unlikely - if Dr Gareth did not take the steps which would have been axiomatic on learning of incontinence, that fact of itself makes it improbable that an experienced GP such as Dr Gareth had been told anything to suggest incontinence. However even an experienced professional can make an uncharacteristic mistake. Accordingly in what follows I make my own assessment of the evidence before me without any assumption that Dr Gareth is likely to have done everything he should have done.

General criticisms of Dr Gareth's evidence

15. In 1983 Dr Gareth was an experienced and highly regarded family doctor. By November 2009, when he gave evidence before me, he had been retired for some time. He had also, sadly, become very ill. As was readily acknowledged on behalf of Conan, Dr Gareth could not possibly be expected, even if he had been in the best of health, to have any recollection of seeing Ms Jones on Friday 29 July 1983. In oral evidence Dr Gareth explained that his normal procedure when a patient came in was to ask, "What can I do for you?" I have described above his procedure for taking a history, the testing of a urine sample using a dipstick, and his explanation that in cases of cystitis women would commonly describe a history of frequency and dysuria. Dr Gareth added that he would have told Ms Jones to come back if she had continuing problems. These aspects of what Dr Gareth described as his general approach were not the subject of criticism on behalf of Conan.
16. However numerous criticisms were nonetheless made of Dr Gareth. Some of them were based on the brevity of the note he made in Ms Jones's medical records. It is convenient to examine this first. The note made by Dr Gareth on Friday 29 July 1983 was:

Cystitis Rx Penbriten x 500mg tds MSSU → LAB

17. As mentioned earlier in this judgment, the note recorded a diagnosis ("Cystitis"), a prescription for an antibiotic ("Rx Penbriten x 500 mg tds"), along with despatch of a mid-stream urine sample to the laboratory. It did not record the symptoms which had led to the diagnosis. That omission was probed in cross-examination and relied on in closing submissions for Conan as demonstrating a lack of care in attempting to obtain and clarify the relevant history. Linked with this was a suggestion that Dr Gareth's general approach may have been cut short by pressure of time in order to ensure that the urine sample could reach the railway station and be transported to the laboratory that day. This was no more than speculation, for there was no evidence as to the time when Ms Jones saw Dr Gareth. I dismiss it as having no foundation in fact. The possibility of pressure of time was deployed in cross-examination to procure answers to the effect that it would have been better to have noted certain features of the history and the result of the dipstick test. At the end of the day, however, the brevity of Dr Gareth's note does not in my view give any ground for thinking that he failed to adopt a proper approach. Dr Laurence Blonstein, the expert in general practice called on behalf of Conan, said that the history ought to have been recorded. A complete answer to this, however, was provided by Dr Gavin Young, the expert in general practice called on behalf of Dr Gareth. He explained that it was common practice for a doctor simply to write "cystitis" as a shorthand which included the presence of symptoms in the same way that "tonsillitis" was used to indicate the presence of symptoms of that condition. The most common symptoms of cystitis were frequency and dysuria. If a patient recounted one of the less common symptoms he would expect the GP to make a note of that.
18. A further set of criticisms of Dr Gareth asserted that a lack of experience of premature rupture of membranes combined with over-confidence in a hasty diagnosis led to a failure to make a careful attempt to obtain and clarify the history. In fact, however, Dr Gareth had experience of premature rupture of membranes when training in Chester. It was a well-known potential complication of pregnancy. As to the suggestion of a hasty diagnosis, I have already rejected the suggestion that the consultation was rushed to enable the sample to be put on the train that day. There is nothing in the evidence to suggest that there was any other reason for haste. Over-confidence on Dr Gareth's part was said to be consistent with an absence of consideration of any mixed or differential diagnosis. Far from being over-confident, however, Dr Gareth's approach was to send the sample for laboratory analysis. Over-confidence on his part was said to have "a resonance" with a hesitation on the part of Dr Hassan to confirm that Dr Gareth was "cautious", followed by a "far more measured answer" that Dr Gareth was "within the normal range of caution." If someone is viewed as being within the normal range of caution I do not think this view, whether given after hesitation or not, provides any support for a criticism of over-confidence. The remaining basis for asserting over-confidence relied on answers by Dr Gareth in cross-examination, many of them in the context of the criticisms I have rejected above in relation to the brevity of his entry in the medical notes. He accepted in cross-examination that if a patient said there had been frequency or dysuria, then he could have put those words down, but "I made my diagnosis and I stuck to it." In a context where he was being asked to comment on a record he had made 26 years earlier this answer appears to me unexceptional for what it was – a comment on the fact that he had not written down "frequency" or "dysuria" but had limited himself to noting the diagnosis. The simple fact was that the note made on Friday 29 July 1983 did not record any specific symptom. Subsequent cross-examination nevertheless focused on specific symptoms. Its effect was to encourage Dr Gareth to speculate about the presence or absence of particular symptoms. To my mind Dr Gareth's answers did not display over-confidence so much as tiredness and a degree of understandable confusion.
19. Two further criticisms of Dr Gareth need to be mentioned. First, the laboratory analysis identified significant growth of E. Coli in Ms Jones's urine. In relation to this particular bacterium Penbriten, the antibiotic Dr Gareth had prescribed, would not be effective. There is no record of any attempt by him to follow this up with Ms Jones. I do not think this warrants any adverse inference: cystitis can resolve itself, and Dr Gareth had told Ms Jones to come back if things did not improve. Second, on 26 October 1983 Dr Sheila Harris, the medical assistant in paediatrics at MGH, wrote to Dr Hassan about Conan. Part of the record set out in the letter was that he had been born at home with "one week of leaking membranes." This is likely to have been based on the MGH record of Conan's admission, which contained a reference to membrane rupture followed by "?? 1 week." I shall return to this letter and the MGH record later in this judgment when discussing whether, and if so when, premature rupture of the membranes occurred. For present purposes the relevant criticism of Dr Gareth is that he saw the letter when it came to the surgery but did nothing in response. He had thought it odd that the hospital had a history of leaking membranes, but did not recall discussing it with his partners and did not recollect going back and looking at the notes. In my view this criticism is unrealistic. The letter from Dr Harris would have been received in the surgery at the end of October 1983, some 3 months after Dr Gareth had seen Ms Jones. It mentioned in passing that there had been leaking of membranes, but the purpose of the letter was to inform the surgery that Conan had been discharged from MGH and to describe his medical condition during his stay in hospital. Nothing in the letter obviously called for further action by Dr Gareth.
20. The result is that the general criticisms made of Dr Gareth are in my view unfounded. They provide no basis for thinking that Dr Gareth was inclined to do anything other than listen carefully to Ms Jones's account of what had happened and clarify that account to the extent necessary.

The evidence of Ms Jones and Mr Ingram

21. If on 29 July 1983 Ms Jones had described common symptoms of cystitis with no mention of incontinence there would be no basis for alleging negligence against Dr Gareth. Accordingly the case against Dr Gareth thus only gets off the ground if Ms Jones gave Dr Gareth a history which involved some form of incontinence.
22. In oral evidence Ms Jones was adamant that she did indeed give Dr Gareth such a history. In her evidence to me she began by describing the relevant episodes of incontinence. They were three in number. A week or so before Conan's birth she was walking in the evening to her local pub to meet Mr Ingram. She met him there at about 7 pm. She said that on her way she wet herself "slightly", with no warning that this was about to happen. That was the first incident. Ms Jones said that once she arrived at the pub she went over to Mr Ingram who was standing at the bar. She said she then sat down and "water just gushed out onto the floor." She told Mr Ingram she was going home to get changed, which indeed she did. That was the second incident. It was confirmed by Mr Ingram, who told me he had stayed at the pub in order to clean up before following Ms Jones home. As to the third incident, Ms Jones said that during the night she "lost a little bit more water." She and Mr Ingram had a discussion which concluded that "I would go to the surgery".
23. Locating these events a week or so before Conan's birth would put them as occurring on or around Wednesday 27 July 1983. Ms Jones said that the next morning she arranged an appointment, which she thought was for the following day. In the period between then and seeing Dr Gareth she said she had "only a little bit more leakage." She said that there was nothing noticeable about the appearance or smell of the liquid that came out.
24. At the Minfor practice Ms Jones had been seeing Dr Hassan about her pregnancy. On 29 July 1983, however, she saw Dr Gareth. She had seen him from time to time before. She said she told Dr Gareth "I was losing water, and I had a gush of water, which was quite a bit." He had said it sounded like cystitis. She did not remember him asking her any questions. She knew now that she had provided a sample of urine, but she did not remember doing so. She said that during the period before seeing Dr Gareth she had not noticed anything abnormal when passing urine. Dr Gareth gave her a prescription for an antibiotic, Penbriten.
25. Ms Jones was due to see Mr Aled Williams, the consultant obstetrician in charge of her pregnancy, the following Monday. In the meantime she took the Penbriten prescribed by Dr Gareth. She wasn't losing as much fluid, "just a little tiny bit, I was just changing my underwear."
26. When she saw Mr Williams on Monday 1 August 1983 he gave her "the usual check up." He did not say anything to her about what he found. As she went out the door she heard him say in Welsh, "the head is big". She and Mr Williams had been speaking in English. Apart from that everything was fine about the baby.
27. Ms Jones and Mr Ingram described how on Wednesday 3 August 1983 she went into labour and Conan was born. Neither of them recalled her waters breaking as part of that process.
28. I am sure that Ms Jones was genuinely telling me what in her own mind she believed had happened 26 years previously. I am equally sure, however, that - both as regards what she said to Dr Gareth and as regards other matters relating to loss of fluid - her current belief as to what occurred is not a reliable basis on which to make detailed findings of fact.
29. When considering whether over a period of 26 years Ms Jones has accurately recollected the detail of events it is important to bear in mind that for the vast majority of that period she had no reason to focus on loss of fluid. She explained in cross-examination that when she went to solicitors in 2001 her focus had been on the events in her house when she was giving birth to Conan. She did not know that there had been any issue about premature rupture of the membranes. On both those relatively recent aspects of the history I am sure that Ms Jones is right. It would be very surprising indeed if in these circumstances Ms Jones were able to recall details of the kind she now believes she remembers in relation to loss of fluid and what she told Dr Gareth about it.
30. Next, there are significant discrepancies in the various accounts that Ms Jones and Mr Ingram have given in relation to loss of fluid. Of course some omissions and discrepancies are to be expected, particularly when seeking to recall events such a long time ago. Thus Ms Jones does not recollect giving a urine sample during her visit to the surgery on Friday 29 July 1983, although it is undoubtedly the case that she plainly did give such a sample. Mr Grime relies on this as demonstrating absence of deliberate false reconstruction. He does not need to do so, for I do not doubt that Ms Jones is honestly telling me what she believes that she can recall. The question is whether that recollection is accurate. I would not regard the failure to recollect giving a sample as of itself casting doubt on the accuracy of her belief as to things she recalls. More serious, however, are features of how her account concerning loss of fluid has changed over time. An important part of that account was the third incident, involving loss of fluid during the night at home after the second incident, the "gush", had occurred in the pub. In her first and second witness statements Ms Jones, having described liquid "gushing out" in the pub, said that "the same thing happened again" that night. However in oral evidence to me Ms Jones said that on the night in question she merely "lost a little more water." In cross-examination she described it as "just a trickle." This was something very different from the impression given in her earlier statements. For his part Mr Ingram had not mentioned the third incident in his witness statement. In his oral evidence he said that Ms Jones had had some leakage that night.
31. Thus in relation to the third incident there was a major discrepancy between Ms Jones's written and oral accounts. The written accounts, suggesting as they did another incident of "gushing", sat oddly with the omission on the part of Mr Ingram's witness statement to mention the third incident at all. In the end, however, his oral evidence matched the oral evidence of Ms Jones. I am left with the distinct impression that subconsciously Ms Jones has moved away from a previous belief which could not be sustained to a current belief which fits in with Mr Ingram's recollection.
32. There is a further and important feature of the evidence where Ms Jones's written account differed from that given by Mr Ingram. This concerned whether the loss of fluid that she described gave rise to concern about her pregnancy. Ms Jones's first witness statement said that she became concerned because she had never had experience previously of incontinence or anything of a similar nature, and that it never crossed her mind that this could possibly be associated with her pregnancy. By contrast Mr Ingram's statement said:

This occurrence concerned both of us greatly as to the way in which it might affect the pregnancy and Anita said that she would mention to the obstetrician when she saw him at an ante-natal check at the hospital in 2 or 3 days time. I recollect that I said that this was not good enough and something urgent might need to be done and Anita agreed to go and see her GP.

33. When asked about this in cross-examination Ms Jones replied that Mr Ingram's recollection was wrong. She had thought that the loss of fluid was completely unrelated to the pregnancy. For his part, in cross-examination Mr Ingram explained that he had been uncertain whether the events of the previous evening were possibly related to Ms Jones's pregnancy, and that the best thing to do was to see the GP. He had not said that this was something which might affect the baby, he had simply said that Ms Jones should see the GP and get it sorted out. She had said that she would mention it to Mr Williams, and he (Mr Ingram) had replied no, that it was best to see the GP, adding "what I wanted her to do was to see a GP, from then on we would deal with it."
34. Thus in their witness statements Ms Jones and Mr Ingram gave completely different accounts as to whether the loss of fluid that she described gave rise to concern about her pregnancy. This is not in any sense a matter for criticism of them. I have no doubt that when Ms Jones made her statement she genuinely believed – and still believes - not only that she had suffered these losses of fluid but also that at the time she had thought they were nothing to do with her pregnancy. I have no doubt that when Mr Ingram made his statement he genuinely believed that what had happened concerned both of them greatly as to the way in which it might affect the pregnancy, that he said that it was not good enough to mention it to the obstetrician when she saw him at the hospital in 2 or 3 days time, that he said that something urgent might need to be done, and that for this reason Ms Jones agreed to go and see her GP. This is an important aspect of the history, for if they both had indeed felt great concern as to the way in which loss of fluid might affect the pregnancy then that would increase the likelihood that Ms Jones did indeed raise it with the next member of the medical profession that she saw. The position when one compares the witness statements is that Ms Jones's and Mr Ingram's genuine beliefs as to presence or absence of concern about the pregnancy and what was said in this regard are inconsistent. They cannot both be right. The position must be that one or other or both of these recollections in relation to an important aspect of the history must be wrong. What it provides is a good example of how dangerous it may be to place reliance on a genuine belief held today about the position 26 years ago.
35. The really crucial aspect of Ms Jones's account concerns what she told Dr Gareth when she saw him on 29 July 1983. As mentioned earlier in this judgment, Ms Jones's first witness statement in these proceedings, signed by her on 21 January 2004, made no attempt to explain what she told Dr Gareth. Mr Grime submitted that the first statement proceeded on the implicit basis that Ms Jones described what happened and what caused her to attend her doctor. I agree that it must be implicit in her first witness statement that Ms Jones said something to Dr Gareth about why she had come to see him. The concern which arises, however, is that nothing explicit about this is found in the statement. The purpose of the statement was to set out Ms Jones's recollection. No account was given of what she said to Dr Gareth. I think it is a fair inference that when making her first statement in January 2004 Ms Jones did not have a recollection of what she actually said to Dr Gareth on Friday 29 July 1983.
36. Her second witness statement signed on 16 October 2007 said for the first time that Dr Gareth had asked her whether the fluid had a burning sensation and that she told him that it did not. Then when giving oral evidence in chief Ms Jones omitted any mention of this question by Dr Gareth, despite a specific opportunity given to her by Mr Grime to tell me if there was anything else that Dr Gareth had asked her. In cross-examination Ms Jones said that she was sure that Dr Gareth had asked her this question but she could not explain why she had omitted to mention it in evidence in chief.
37. Also in her second statement Ms Jones said that she had told Dr Gareth of the first incident (wetting herself slightly when walking down the road) and explained that she:

… had then lost quite a lot of fluid when I sat down later. I am pretty sure that I described the fluid as gushing out of me.

38. In cross-examination Ms Jones was asked about the use of the word "gush." She said she would not normally use it when describing urine. It was not her word. When it was suggested to her she had said to her solicitor, "That describes it." As Mr Grime rightly observes, this is not an account which gives rise to any criticism of Conan's legal team. It is nonetheless in my view a substantial difference between Ms Jones's second statement and her account when giving oral evidence.
39. For all these reasons I conclude that unless supported directly or indirectly by independent evidence I cannot rely on Ms Jones's recollection – at least as regards details concerning loss of fluid and what she said or did about it - in order to make findings of fact as to what occurred and when. In my view the same is true as regard Mr Ingram's account of events. He and Ms Jones are bound to have been mulling over this matter in the period since Ms Jones first saw solicitors about it in 2001. They will have been doing their best to recall what happened and when, but in a context where prior to 2001 they had had no reason to focus on loss of fluid. These conclusions do not imply criticisms of Ms Jones or Mr Ingram. It is too much to expect of any human being that they will accurately recollect in considerable detail what happened 26 years previously. It is nevertheless the experience of human nature that people may genuinely believe in a recollection which is in fact inaccurate.

Features pointing to premature rupture

40. Mr Grime recognised that in a case of such age the court might wish to test the evidence of Ms Jones and Mr Ingram by looking to see whether there were factors which support (or cast doubt upon) the account which they gave. As regards their own accounts, the events which they said had occurred a week or so before Conan's birth were graphic and particular – so much so, submitted Mr Grime, that it could not be suggested that their evidence was an uncertain description or an account so degraded by time that it was of little value. Further, Mr Grime identified four features which independently of the evidence of Ms Jones and Mr Ingram supported the case advanced on behalf of Conan that rupture of the membranes had occurred prior to 29 July 1983, with the suggested consequence that Ms Jones could not have failed to mention the consequent loss of fluid when she saw Dr Gareth.
41. I deal first with the four independent features before returning to the graphic and particular nature of the events recalled by Ms Jones and Mr Ingram. The four independent features were: (1) reduction in uterine size between 21 July and 1 August 1983; (2) explanations for premature birth; (3) reference to ruptured membranes in the MGH notes; and (4) symptoms following PROM. I examine them in that order, before turning to (5) graphic and particular events a week before birth.

(1) reduction in uterine size between 21 July and 1 August 1983

42. As noted earlier, on Thursday 21 July 1983 Dr Hassan was concerned that Ms Jones's uterus appeared to be larger than would have been expected for the gestation; and suspected an excess of amniotic fluid. By contrast Mr Aled Williams on Monday 1 August 1983 thought Ms Jones's uterus was slightly small for her dates.
43. Dr Hassan's letter of 21 July 1983 to Mr Aled Williams stated:

I would be grateful if you could see this girl again. She seems very unsure of her dates but initially stated that her last period was 4.2.83. Initially we thought that she was ahead of her dates and she had a scan on 13^th June, 1983, which showed a normal foetus at 19 weeks which would make her now 25 weeks.

Today I find her uterus to be about 30 weeks and cannot make out any features of it.

I think she must have hydramnios.

I would be grateful for your opinion.

44. Mr Aled Williams's letter of 1 August 1983 to Dr Hassan stated:

Thank you for referring [Ms Jones] whom I saw in Dolgellau today. The uterus, I thought, was slightly smaller than her dates of 24 weeks. The gestational age, as worked out from the scan and the LMP, is somewhere in early November which would make her approximately 26 weeks now. If this is so, then I thought, at 24 weeks, that we may be dealing with a small baby here, or possibly with an intra-uterine growth retardation.

I would like to see her again in 6 weeks' time and, if then, the situation is unchanged, I will ask for a scan for her.

45. Thus Dr Hassan's estimate on 21 July was that the uterine size was what one would expect at 30 weeks gestation rather than the then current gestational period which he described as 25 weeks. In oral evidence to me Dr Hassan explained that he had no recollection of the events in question. He would have arrived at 30 weeks by relating the size of the uterus to the umbilicus and the base of the ribcage. A finger's breadth under the umbilicus represented a fortnight's growth. He was familiar with this clinical method of estimating uterine size. The uterus expanded upwards from its base and he was looking to see how far it had gone. In the later stages he would expect to be able to make out some features of the foetus by palpating. In this case his letter indicated that he could not, and had thought that excess fluid was preventing him from feeling the baby. If so, it needed to be investigated by the consultant to find out why. Dr Hassan accepted that it was possible that he had been wrong. He would be surprised if he had been wrong by 5 weeks. The margin of error he would have thought would be a fortnight either side of the expected dates.
46. Mr Aled Williams's estimate on 1 August was that the uterine size was what one would expect at 24 weeks rather than the then current gestational period which he described as approximately 26 weeks. In his witness statement made on 24 March 2008 he commented on the sparsity of the material now available. There were no copies of his antenatal notes, history, or clinical findings. He could not be sure that he had been in receipt of Dr Hassan's letter of 21 July 1983. Had Ms Jones suffered a loss of amniotic fluid of the volume now suggested he would have expected the size of the uterus to have been much smaller than 24 weeks. In any event he would have questioned Ms Jones closely at interview, inspected any pads that she wore and inspected the vagina and cervix if indicated. Had there been any suspicion at all that her membranes had ruptured he would have admitted her to MGH.
47. On 27 June 2008 Mr Aled Williams signed written answers to questions asked of him on behalf of Dr Gareth. In the light of Dr Hassan's letter of 21 July 1983 he (Mr Aled Williams) felt sure that he would have enquired as to whether Ms Jones had experienced any leakage of fluid of any sort. As to how Dr Hassan's estimate could have been so different from his, Mr Aled Williams said that Ms Jones may have had a full bladder or full rectum, either of which would elevate the uterus and make it seem larger.
48. When giving evidence in chief before me Ms Jones gave a brief account of what happened when she saw Mr Aled Williams as set out above. In cross examination about the visit to see Mr Aled Williams on 1 August 1983, Ms Jones said it was just a regular check up. He had asked her to lift her blouse and had touched her on the tummy. She did not say anything about loss of fluid. He did not ask her if she had lost any fluid. She did not say anything about it because she thought it had been sorted with antibiotics. At this point in the cross-examination she was asked about what was said by Mr Ingram in relation to the concerns that he expressed to her. As described above, she maintained that she thought that the loss of fluid was completely unrelated to the pregnancy. She had not gone back to Dr Gareth. Her explanation for not doing so was that the loss of liquid had cleared up altogether. When she saw Mr Aled Williams it might have been just a trickle. It had cleared up the following day, at that stage she did not have to change her underwear. She had not mentioned it to Mr Williams because, "I thought it was just to do with my waterworks."
49. It is suggested on behalf of Conan that the explanation for the different assessments of size is that there had indeed been an excess of amniotic fluid on 21 July and that in between that date and 1 August the amniotic fluid had been lost through membrane rupture.
50. The first thing to note about the explanation advanced on behalf of Conan is that it does not of itself place the loss of amniotic fluid as being prior to Ms Jones's visit to Dr Gareth on Friday 29 July 1983. It is perfectly consistent with that loss having occurred during the evening of Friday 29 July or indeed at any other time prior to 1 August.
51. The second thing to note about this explanation is that, if it is right, a question arises as to how Mr Aled Williams could have failed to conclude that Ms Jones's membranes may have ruptured. A possibility is that, as Mr Aled Williams recognised in his witness statement, he may not have had Dr Hassan's letter of 21 July 1983 when he saw Ms Jones. I return to this aspect of the matter below.
52. The third thing to note is that the experts did not support the view that at 25 weeks' gestation one would expect to be able to make out some features of the foetus by palpating. Accordingly this part of Dr Hassan's reasoning in suspecting an excess of amniotic fluid is not relied upon on behalf of Conan.
53. The fourth thing to note is that the explanation advanced on behalf of Conan is thus dependent upon the extent to which Dr Hassan's examination on 21 July 1983 accurately reflected the size of Ms Jones's uterus. At first sight the discrepancy between Dr Hassan's estimate and Mr Aled Williams's estimate appears substantial. However the literature includes studies where methods of measurement of uterine size similar to those adopted by Dr Hassan have been shown to have a margin of error much higher than two weeks either way. Dr Buchan, the expert obstetrician called on behalf of Conan, himself said at paragraph 44 of his report, after noting the contrast between Dr Hassan's estimate and Mr Aled Williams's estimate, continued:

I think the hospital consultant would merely have thought that perhaps the GP had got his gestation estimate wrong and I would not criticise Mr Williams for failing to undertake any specific investigations on 1/8/83 because the GP had found the fundal height to be larger than expected at an earlier visit.

54. It can be said in support of Dr Hassan's estimate of 21 July 1983 that previous estimates by him on 26 May and 6 June were broadly consistent with gestational age as determined by a scan on 13 June 1983. An initial estimate on 19 May 1983 seems likely to have been 3 weeks out. At first it was thought that this estimate had been made by Dr Hassan. Shortly before oral closing submissions Mr Grime applied to admit late witness statements explaining that the entries for 19 May 1983 in relation to gestational period and size had been made by Dr Hassan's wife, Dr Hazel Martin, who at the time was a trainee GP. I permitted the statements to be adduced because it appeared to me that such points as arose in relation to them were a matter for submissions by Mr Pittaway and it was in the interests of justice for the court to have the best possible information. Mr Pittaway observes that when giving oral evidence Dr Hassan had been prepared to accept that he had been responsible for the entries for 19 May 1983. However I consider that there is no good reason to doubt the statement by Dr Hazel Martin that the relevant entries were in her handwriting, and I conclude that the estimate made on 19 May was not an estimate for which Dr Hassan had any responsibility.
55. Even if Dr Hassan had been shown to have been responsible for an estimate that was 3 weeks out on 19 May I would not have regarded this as having any significant impact on the question whether the differences in measurement on 21 July and 1 August showed that there was polyhydramnios followed by rupture of the membranes. No medical reason has been identified for Ms Jones to have experienced polyhydramnios at this time. It was acknowledged that a full bladder or rectum may have the effect described by Mr Aled Williams of elevating the uterus and making it seem larger. Other factors which may affect measurement include the size of the mother and baby and the position of the baby. For all these reasons the extent to which past estimates by Dr Hassan were or were not shown to be consistent with a scan-derived gestational age is of limited value in assessing the extent to which his estimate of 21 July 1983 did indeed indicate polyhydramnios. It matters not in this regard that he erroneously described Conan's gestational age at that time as 25 weeks when in fact it appears to have been 24 weeks. Equally the fact that Mr Aled Williams's estimate was of a uterine size which would be appropriate for somewhere between one or two weeks less than actual gestational age provides no sound basis for concluding that at that time there had been a substantial loss of amniotic fluid – not because one would expect an even greater discrepancy from gestational age (a suggestion which Mr Aled Williams made in his witness statement) but because of the inherent unreliability of estimates produced by inevitably imprecise measurement methods. The literature demonstrates that measurement methods similar to that described by Dr Hassan - and no doubt similar to whatever method was adopted by Mr Aled Williams - involve high margins of error, not just for estimates made by GPs but for those made by very experienced consultants as well. The margins of error can still be substantial when successive measurements are taken by the same practitioner. All these factors combine to demonstrate the good sense of the approach taken in paragraph 44 of Dr Buchan's report.
56. In cross-examination Dr Buchan noted that paragraph 44 in his report was predicated on Mr Aled Williams having no information about ruptured membranes. The part of paragraph 44, however, which was predicated on lack of information about ruptured membranes was the part where Dr Buchan said he would not criticise Mr Williams for failing to undertake any specific investigations on 1 August because the GP had found the fundal height to be larger than expected at an earlier visit. This does not detract from the force of Dr Buchan's opening observation, made in the context of these two substantially different measurements, that the hospital consultant would merely have thought that perhaps the GP had got his gestation estimate wrong.
57. My conclusion is that the estimates of uterine size made by Dr Hassan on 21 July 1983 and by Mr Aled Williams on 1 August 1983 would be consistent with rupture of the membranes occurring at some stage between those dates, but do not of themselves show that this in fact occurred.

(2) explanations for premature birth

58. It is urged on behalf of Conan that the court should look for an explanation for the unusual fact that he was born so early in gestation. Mr Grime submitted that the only known cause of pre-term labour which could explain Conan's premature birth was premature rupture of the membranes – premature not merely in the sense that any premature birth will necessarily involve rupture, but in the sense of rupture prior to the onset of labour.
59. In this regard it is necessary to mention an unsatisfactory aspect of the evidence of Mr Richard Porter, the expert obstetrician who gave evidence on behalf of Dr Gareth. In his original report he had said that urinary tract infections were a potent cause of pre-term labour. When he and Dr Buchan subsequently considered the matter together, however, agreement was reached that:

we do not know of any evidence that UTI [ie urinary tract infection] other than severe pyelonephritis (RP would add that this latter group would also include severe symptomatic cystitis) causes preterm labour.

60. Despite this Mr Porter took no steps to correct what had been said in his original report so as to limit his proposition to cases of severe pyelonephritis or severe symptomatic cystitis. On the contrary, in his oral evidence he said he continued to subscribe to his original position that urinary tract infections were a potent cause of pre-term labour. Under cross-examination he was compelled to accept not only that he could not support such a stance but also that the literature had not justified such a stance at the time he wrote his original report.
61. I conclude that I have no reliable evidence that Ms Jones's cystitis was of a kind known to cause premature labour. That, however, does not mean that the evidence supports a conclusion that Conan's early birth must have been caused by premature rupture of the membranes. Dr Buchan accepted in cross-examination that a paper in 1991 by Tucker and others had studied a sample population of pregnant women where 17% of pre-term births involved a birth prior to 35 weeks' gestation following premature rupture of membranes. Birth prior to 35 weeks' gestation following spontaneous onset of labour (ie without prior indication by premature rupture or otherwise) however accounted for 23% of pre-term births. In my view this demonstrates that it would be wrong for the court to accept Mr Grime's invitation to seek to identify a cause for Conan's premature birth, for in Tucker's study when one looked at births prior to 35 weeks' gestation those without any apparent cause for prematurity outnumbered those which followed premature rupture. I accept that if Ms Jones's membranes ruptured prematurely then that may have played a part in Conan's premature birth. However the literature establishes that Conan's premature birth does not of itself lead to any conclusion that there is likely to have been a premature rupture.

(3) reference to ruptured membranes in the MGH notes

62. Earlier in this judgment I observed that the MGH record of Conan's admission contained a reference to membrane rupture. Notes made in manuscript recorded that at 11 a.m. on 3 August 1983 Conan had been the subject of an emergency admission. Below this appeared a manuscript entry on two lines:

Born 8am in Barmouth at 26/32 gestation

Membrane ruptured [something crossed out] ?? 1 week

63. As also mentioned earlier, it is likely that it was on the basis of this entry that in her letter to Dr Hassan of 26 October 1983 Dr Sheila Harris of MGH stated that Conan had been born at home with "one week of leaking membranes."
64. On behalf of Conan what is said in the notes in the line beginning "Membrane ruptured …" is relied on to support an inference that Ms Jones told a member of the medical staff (or possibly but less likely a member of the nursing staff) at MGH of events which suggested to that person that a rupture of the membranes had taken place a week before Conan's birth.
65. Mr Porter was criticised for not commenting on the MGH notes in this regard. I do not accept that criticism. His expertise is in obstetrics. There was no evidence from anybody at MGH to explain whether the note was made by a member of the medical staff or the nursing staff, nor to explain the crossing out, nor to explain whether it had been written as a single entry or alternatively comprised an original entry with one or more additions – and if the latter what the additions were and whether they had been made by a nurse or someone else. Nor was there any evidence of what had been said and by whom to lead to the note being expressed in the way that it was, nor whether the rupture that the note-taker had in mind was in the nature of a "gush" or alternatively a less obvious leak, something in between, or some combination of these possibilities. Various witnesses were invited to speculate on various of these possibilities. In the absence of evidence from anyone at MGH who knew about the notes I did not find such speculation helpful.
66. Ms Jones's evidence was that at MGH she spoke to a hospital nurse and told that nurse what had happened. She had told the nurse that she had been taking antibiotics for a week since seeing the doctor and being told she had cystitis. She accepted in cross-examination that whatever she may have described to whomever spoke to her at MGH would have been what she believed to be a loss of urine.
67. The MGH notes themselves are qualified by a double question mark. It is no more than common sense to conclude that someone thought it possible but doubtful that Ms Jones's membranes had ruptured in some way a week before birth. To my mind this provides no more than slender support for the account now given by Ms Jones and Mr Ingram. In particular – among other possibilities - it seems to me that the notes would be consistent with any substantial loss of fluid having taken place after Ms Jones saw Mr Aled Williams on 1 August 1983, accompanied by an uncertain description of what had at most been thought to be trivial dampness beforehand.

(4) symptoms following PROM.

68. The suggestion on behalf of Conan is that the history given by Ms Jones fits very closely with probable events which would follow premature rupture of the membranes. By contrast it was submitted on behalf of Dr Gareth that if the account of a gush of fluid on Wednesday 27 July 1983 were accurate then there would have been a large hole from which fluid would have continued to leak.
69. Each of the experts felt able to advance scenarios in which, following a suggested "gush" on 27 July, different types of leakage would be expected to occur. I did not find these helpful. If there had indeed been a gush on 27 July Ms Jones could not be expected to recall with accuracy the precise extent to which she suffered from different types of leakage over subsequent days. As might be expected, her evidence on the point varied as to whether there was no leakage at all, or a trickle, or something else. The consistent feature was that she described no further "gush". I am wholly unable to say that this assists me one way or another in deciding whether there had in fact been a premature rupture of the membranes in the way that is now suggested.

(5) graphic and particular events a week before birth

70. It is submitted on behalf of Conan that the account of events described by each of Ms Jones and Mr Ingram as having occurred before Ms Jones saw Dr Gareth on Friday 29 July 1983 is so graphic and particular that there is no room for any mistake or misunderstanding. As to that, however, I note first that as described earlier there were significant changes in the way that these "graphic and particular" events were described. Second, I observe that Mr Ingram's recollection of both him and Ms Jones being concerned greatly as to the way in which loss of fluid might affect the pregnancy, and what was said about this, was a recollection which amply fulfils the suggested criteria of being "graphic and particular". As noted above, however, if Ms Jones is right then the graphic and particular recollection of Mr Ingram in this regard is wrong.
71. The features of this case that I have mentioned show that when one is considering what happened 26 years ago witnesses' recollections of graphic and particular events, even when the witness genuinely and strongly believes the recollection to be accurate, can be just as unreliable as their recollections of more mundane events. What weight, then, should I give to the fact that both Ms Jones and Mr Ingram recall a loss of fluid? It seems to me that in both their accounts there is one striking event – the loss of a noticeable amount of fluid in the pub – the substance of which is unlikely to have been misremembered. It is an event which I believe formed part of Ms Jones's recollection when she first gave an account of Conan's birth to solicitors, and it was they who attached significance to it. It is an event which is explicable as having arisen from a substantial loss of amniotic fluid. It is not an event which Ms Jones had had reason to focus upon before the solicitors attached significance to it.
72. As to other less striking events, as to the timing of the loss of fluid in the pub, and as to what occurred and what Ms Jones said and did before and after the loss of fluid in the pub, I have little confidence in the accuracy of Ms Jones's and Mr Ingram's recollections after all these years.

Overall analysis of evidence of premature rupture

73. While certain features of the case, including the estimates of uterine size made by Dr Hassan on 21 July 1983 and by Mr Aled Williams on 1 August 1983, would be consistent with rupture of the membranes occurring at some stage between those dates, other features of Ms Jones's visit to Mr Aled Williams, however, point strongly to there having been no substantial loss of fluid prior to that visit. A possibility that he did not have Dr Hassan's letter of 21 July 1983 was raised by Mr Aled Williams in his witness statement of 24 March 2008, but that witness statement referred to the different locations of various records and did not advert to the fact that the letter of 21 July 1983 had been sent to Dolgellau. In the normal course it could be expected to have been retained there in readiness for his regular clinic. Moreover Ms Jones's visit was not routine and it seems to me likely that in the absence of a referral letter Mr Aled Williams would have telephoned the Barmouth surgery to find out why Ms Jones had been sent. His witness statement said that in any event he would have questioned Ms Jones closely. I see no good reason to doubt this. The letter of 1 August 1983 shows that Mr Aled Williams was applying his mind to the possible implications of his measurements. It does not specifically refer to Dr Hassan's estimate of uterine size or comment about "hydramnios". However if – as on this footing would have been the case here – he had made an assessment of the position which involved the conclusion that Dr Hassan had got his estimate of uterine size wrong, he may well have thought it unnecessary to spell this out. Having Dr Hassan's letter in front of him I am sure that Mr Aled Williams would, as he said in his written answer, have enquired as to whether Ms Jones had experienced any leakage of fluid. Even without that letter I think it likely that he would have questioned Ms Jones closely, would have elicited the diagnosis of cystitis, the reason for it, and the fact that it was being treated with Penbriten, and would have taken immediate action had there been any suggestion of loss of fluid.
74. It is also relevant in this regard that Dr Gareth described Ms Jones as "not reticent." Mr Grime submitted that her manner was "simple and, perhaps, somewhat bashful." Having seen her give evidence I would not describe her as bashful. The impression I gained of her when she gave evidence was that she was a forthcoming, bright and confident individual. Of course I recognise that over the years Ms Jones will have become more mature and that in her mid-twenties she may not have been as confident as she is now. Overall, however, I have no hesitation in concluding that Dr Gareth's description of her as not reticent would be applicable to her during the period preceding Conan's birth.
75. I think it likely that if Ms Jones had been losing more than minimal quantities of fluid in the week prior to seeing Mr Aled Williams she would have mentioned this to him without being asked, and I think it highly likely that if the large loss of fluid in the pub had occurred during the preceding week Ms Jones would, unprompted, have told him as much as she could about it. She suggested that she would not have done so because she did not think the loss of fluid had anything to do with her pregnancy, she had seen Dr Gareth, he had diagnosed cystitis, and the problem seemed to have cleared up. I do not doubt that this is Ms Jones's genuine belief, but I regard this recollection on her part as extremely unlikely to be accurate. Ms Jones had been pregnant before but she had no prior experience of incontinence. An unprecedented loss of more than a minimal amount of fluid during pregnancy is bound to raise concerns about the pregnancy. This would be the case whether or not leakage continued. Whatever Dr Gareth had said I think it very unlikely that Ms Jones would have been reticent about these matters when she saw Mr Aled Williams.
76. If Mr Aled Williams had been told of the loss of fluid now described by Ms Jones all agree that he would undoubtedly have admitted her to hospital without delay. All agree that undoubtedly he was not told by Ms Jones of that loss of fluid. For the reasons given above I consider not only that Mr Aled Williams is likely to have asked her about loss of fluid, but also that even if he had not asked she would have told him about the loss she now describes – if it had by then occurred.

Conclusion as to alleged negligence of Dr Gareth

77. The essential foundation for the allegations of negligence against Dr Gareth is that loss of fluid had occurred in the period before Ms Jones saw him on Friday 29 July 1983. For the reasons given above I do not consider that any loss of fluid prior to 1 August 1983 was more than minimal. On the evidence before me the likelihood is, and I find as a fact, that there was a loss of either urine or amniotic fluid in the pub but this occurred at some stage after Ms Jones saw Mr Aled Williams on Monday 1 August 1983. There may have been a minimal degree of dampness beforehand which Ms Jones regarded as trivial and for that reason did not mention either to Dr Gareth or to Mr Aled Williams.
78. How then did Ms Jones come to see Dr Gareth on Friday 29 July 1983? It is common ground that she was in fact suffering from cystitis. That does not have the medical consequence that she must have been experiencing symptoms of it. It does have the medical consequence that she may well have been experiencing symptoms of it. The most common of these symptoms are frequency and dysuria. Ms Jones denies experiencing these symptoms, but for the reasons given earlier I do not have confidence that her recollection is accurate. The presence of one or other or both of these symptoms is in my view, in all the circumstances of the case, the likely explanation for Ms Jones's visit to Dr Gareth on 29 July 1983.
79. In these circumstances the foundation for the allegation of negligence falls away.

Law as to extent of liability

80. My conclusion that Dr Gareth was not negligent means that it is not necessary to decide the second issue concerning the extent to which the limited causative effect of any negligence would give rise to legal liability for Conan's disabilities. Accordingly I deal with that issue only briefly.
81. The contention on behalf of Conan is that despite the limited causative effect of any negligence on the part of Dr Gareth he is nevertheless liable to pay damages in an amount which will supply full compensation for all Conan's disabilities. Mr Grime contends that this is established by the decision of the Court of Appeal in Bailey v Ministry of Defence [2009] 1 WLR 1052. At paragraph 46 Waller LJ, with whom Sedley LJ and Smith LJ agreed, said this:

46. … I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. … If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. 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.

82. As explained at the outset of this judgment, the expert neonatologists are agreed that the factors which operated on Conan as a result of the alleged negligence meant that he lost the benefit of what would have been would have been a material but unquantifiable reduction in the degree of disability from which he now suffers. Mr Grime submits that it follows that in the present case, as in Bailey, there are indivisible but different causes with the result that the claimant succeeds in full.
83. The written closing submissions on behalf of Dr Gareth included an assertion that in Bailey there was a failure to draw the Court of Appeal's attention to a proposition that the defendant is only liable to the extent of his material contribution and to cases supporting that proposition. I do not consider that it is open to me as a first-instance judge to decline to apply Bailey on such a ground.
84. However Mr Pittaway also advanced a different ground upon which he urged that the principle in Bailey did not apply to the present case. It was this: the damage to Conan was not properly characterised as indivisible. The principle in Bailey, submitted Mr Pittaway, only came into play in a case where the "but for" test was not met. Here, however, hypoxia and hypothermia were associated with the assumed breach of duty, and it could be said on behalf of Conan that the "but for" test was met. In those circumstances the court should apportion the damages, and should approach apportionment as a jury question. Mr Pittaway initially suggested that the best assessment would be to award Conan one third, or alternatively one half, of the full quantum of damage. At the end of his oral submissions Mr Pittaway resiled from the suggestion that one third would suffice. Instead he suggested that it would be appropriate to split liability down the middle. This would reflect the fact that there were other significant causes. One could not be more precise than that. If the court were not to take such an approach, it would cause an injustice to Dr Gareth, who would be required to pay in full for damage when we know he was not responsible for the full extent of the damage and other causes of that damage are known.
85. I am prepared to assume without deciding that the principle in Bailey is limited in the way that Mr Pittaway suggests. Even if that were right, however, I cannot conclude that the present case involves divisible causes of damage. The experts' joint view was that all causal factors made an unquantifiable material contribution to Conan's disability. It was not possible to quantify the extent to which his disabilities would have been avoided or mitigated if he had been born in hospital. All that could be said was that if he had been born in hospital there would have been a material reduction in his disability.
86. In reality it seemed to me that Mr Pittaway's attempt to distinguish Bailey necessarily involved some sort of structure under which one could identify stages in which factors associated with prematurity (and thus not attributable to any assumed negligence) brought about some damage, factors associated with not being born in hospital (and thus attributable to the assumed negligence) brought about further damage, and subsequent factors associated with neo-natal infection (not attributable to any assumed negligence) brought about yet further damage. The short answer is that no such structure is discernable in the explanation given by the experts of their views.
87. Accordingly if it had been necessary to determine the second issue I would have decided it in favour of Conan.

Conclusion

88. For the reasons given earlier I hold that Dr Gareth was not negligent. It follows that this claim fails. I ask the parties to seek to agree consequential orders.