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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester, M60 9DJ
		04/12/2017

Mr Justice King:

1. This has come before me as a trial on liability and causation only.
2. It is a claim in negligence for damages for personal injury and consequential losses arising out of the Claimant being born at the Defendant's hospital in March 2008 with serious brain injury. He was born by vaginal breech delivery at 05.57 on 26 March 2008. It was common ground between the parties that the Claimant was injured as a result of the events surrounding his delivery. The Claimant was injured by a period of near total hypoxic ischaemia following collapse of his circulation at about 05.40. Circulation was restored at about 10 minutes of age that is at 06.07 when his Apgar score reached 5 out of 10. The period of the Claimant's collapse lasted a total of 27 minutes. If he had been exposed to only 10 minutes of circulatory collapse he is likely to have been undamaged.
3. The Defendant by paragraph 16 of its defence has accepted that 'the Claimant would probably have been spared if he had been delivered by caesarean section before 05.50.'
4. The allegations of breach of duty do not concern the vaginal delivery which gave rise to the injury. The acute profound hypoxia accounting for the brain injury was the result of cord compression associated with the vaginal breech delivery. The Claimant's vaginal delivery was undoubtedly complicated, as Mr McCullough QC submitted, by a combination of (i) a very rapid labour and (ii) the Claimant being in a breech presentation which had not been diagnosed before the labour started. It is not suggested either of these complications could reasonably have been foreseen before the Claimant's mother was admitted in labour.
5. Rather the one and only breach of duty of care alleged, is in failing to invite or advise the Claimant's mother, Ellen Welsby, to come into hospital when what has become known as the first telephone call, was made to the midwifery unit by the Claimant's paternal grandmother (Joan Makin) who passed the phone to the mother to speak to the midwife directly. This call was at about 4.00 am on the 26^th of March 2008.
6. The identity of this midwife has never been ascertained. The Defendant says there is no midwifery or other record of the contents of any such call but it was not their practice at the time to log such communications or record the advice given, if any. The Defendant prays in aid as an explanation for the inability to track down the midwife, that the existence of this call was only first brought to their attention in 2012 by a letter from the Claimant's solicitors dated 14 February 2012 and with its significance only being identified for the first time in the draft particulars of claim served on the 28^th of September 2012. The Claimant says, to the contrary, the hospital was put on notice of such a call and its effect upon the parents, by the matters raised by Allan Makin (the mother's partner and the Claimant's father) at a meeting on 7^th of April 2008 between the parents and the consultant Dr Williams. These are set out in the Dr Williams' recorded notes of this meeting although not referred to in any of the letters subsequently sent to the parents by Dr Williams. Among other things this is recorded in the notes:

'Ellen's Partner

…the midwives tried to discourage them from coming in when he initially called at 0400 HR'. Would this have changed anything?'

7. The significance, if any, of the failure of the Defendant to identify the midwife concerned, and hence to be able to call any evidence from her as to the nature and purpose of the first call and any advice given, is a matter to which I shall return but for present purposes of this overview of the case as it developed before me, it is sufficient to record that the Defendant (having discovered and disclosed its telephone call records) does not now challenge that the two telephone calls spoken of by the parents did occur (the first at about 04.00am, the second at just before 04.40am), or challenge the account given in evidence by the parents and grandparent of the two calls - although still making the general point that all witnesses were having to recall in evidence events of many years ago.
8. The witness statements of the parents and grandparent are each dated in 2015 although an earlier version of a statement from the mother from 2011 was produced in the course of the hearing before me. As indicated, the first detailed letter before action on behalf of the Claimant was sent only in 2012.
9. I will review in more detail the evidence of the parents and the grandmother as to the circumstances leading to this call and its contents, later into this judgment. In summary the hospital were told that the mother's waters had broken, she was in pain, her contractions/pain were at 5 minutes intervals lasting 30 seconds and, according to Allan Makin, the mother wanted to come into the hospital. The advice given was in effect that the Claimant's mother should stay at home, put on a pad, walk around and call back in half an hour.
10. That first call on the now disclosed telephone call records, began at 03.59.44 with a ring time of 8 seconds and a talk time of 2 minutes and 11 seconds. It accordingly finished at about two minutes past four in the morning (04.02.03) or just before 4.02 (04.01.55) if the ring time is already incorporated in the record (which is not entirely clear).
11. In the events which happened the Claimant's mother and father did not go to the hospital until after a second phone call to the midwifery unit made (on the call records) at 04.38.22 with a ring time of 20 seconds and a talk time of 3 minutes and 1 second, meaning it finished at about 04.41.53 if the ring time is an extra - - or 04.41.33 if the ring time is already incorporated.
12. There was a gap therefore between the two calls of just under 40 minutes. (39 minutes and 28 seconds, ignoring the ring times).
13. This second call was made by the Claimant's father who notwithstanding the advice still being given by the midwife to stay at home, told the hospital he was bringing the mother in immediately as she was in such pain. By this time, according to the Claimant's mother, the pain had worsened considerably and she was now in constant pain. She was herself in too much pain to speak directly with the midwife. The evidence of Allan Makin was that by this time Ellen's pain had got progressively worse and the time between each contraction had reduced so that by the time of the second call they were approximately 2 minutes apart. Labour was progressing rapidly.
14. Mr Makin described in his witness statement, confirmed in his oral evidence, that after that second call, he took Ellen downstairs. At this point her mobility was worse because of the pain, 'so it took a few minutes to get down the stairs and into the car' Ellen's bag was already packed since she was passed her due date, 'so we just got Ellen downstairs and into the car, picked up the bag and we set off immediately to the hospital'.
15. Although Mr Makin's times cannot be wholly accurate at this stage of his narrative (he for example says they left the house at approximately 4.40am when it is known that the second call was only finishing around this time), it is known (see below) that the Claimant was in the delivery unit being assessed by a midwife by 5.00 am. So Mr Makin's description of arriving at the hospital at approximately 4.55am is likely to be about right. He described the hospital as being only a few miles away; that the maternity section of the hospital had its own entrance; that he pulled up his car outside the unit doors and helped Ellen out of the car. His own mother was with him. She opened the doors and the three of them went into the maternity unit whereupon the midwives (without any waiting it seems) took Ellen and him into a room where she was examined by one of them. At this stage he said 'there appeared to be no panic on the part of the midwives and they seemed to be following a routine'.
16. What happened thereafter has been reconstructed in part by the midwifery authors of the contemporaneous medical notes relating to the mother's admission to the CDS (the central delivery station) and in part by the attending Registrar Dr Dhanaliwala (Dr. D) from the retrospective notes written up later on the day by her. She also had the benefit of a statement she made to the hospital on the 12 of September 2008 which gives an account which as regards the sequence of events is not on all fours with either set of notes.
17. At the time Dr. D was a relatively inexperienced junior doctor employed at the hospital as an ST2, that is as a second year specialist trainee. She had been in post for about 7 months. She was an SHO on the middle grade rota filling a Registrar role. Although she had experience of working in obstetrics and gynaecology in the previous four years, up to March 2008 she had experience of relatively few breech vaginal deliveries, a total of 5-6 (some 2-3 of which she said had performed unsupervised in India during her 2001 – 2003 Graduate Diploma training in Obstetrics and Gynaecology).
18. The midwifery notes are in these terms (any emphasis is that of this court). These are the notes of Midwife McCourt (now Hobin) who gave evidence to the court.

'26/3/08

05.00 Ellen admitted to CDS from home with history of regular contractions since SRM at 03.30, clear liquor drained. Now contracting 4.10, strong and long lasting, given Entonox to use as distressed: started to use well.

BP 120/82, P = 88bpm, temp= 37oC, on abdominal palpation fundus = term (T+) longitudinal lie, difficult to determine presentation due to regular contractions, FHR = 140bpm, consent to perform vaginal examination (VE) :(05.05) external genitalia + vagina = NAD cervix feels fully dilated, feels could be breech with extended legs but not certain at level of ischial spines (inserted text), will ask co-ordinator to check, Ellen ok for this. MW J Hulme (05.10) now in room to check, agrees with my VE, will bleep Reg to attend. Explained findings, signed (MW) J McCourt

05.15 FHR =150bpm. Dr Dhanaliwala (Reg) now present…Scan confirmed breech presentation, discussed possible modes of delivery…performed VE: confirmed full dilatation, breech now descended to + 2 and viable if parted labia, due to these findings + Ellen now pushing to go per vaginal delivery. Ellen + Allan OK with this. Signed (RM) J McCourt

05.20 CTG (cardiotocograph) commenced, MW F.Cook in room. FHR= 140bpm, contracting 4:10 long and strong. Coping well, continues to use Entonox signed RM McCourt

O5.25 see partogram also. Breech now visible at height of contraction, FHR= 137bpm, pushing well. Signed (RM) J McCourt'

19. In summary therefore these midwifery notes disclose that the Claimant's mother arrived in the CDS at 5.00, that is some 18 and a half minutes or so (18 minutes and 27 seconds to be precise) after the end of the second phone call (taking that to be 04.41.33). She was in established labour, contractions being 4:10 strong. She gave a history of a SRM (spontaneous rupture of membrane) at 03.30 with drained clear liquor. Midwife McCourt recorded that it was difficult to determine presentation as the mother was distressed and due to the frequency of contractions and the foetal heart rate. A vaginal examination (v/e) was carried out by mid-wife McCourt at 5.05: the cervix was fully dilated; the presenting part was thought to be an extended breech with extending legs and at the level of ischial spines but the midwife was not certain. She was to ask the co-ordinator to check; That check i.e. a further vaginal examination, was carried out by senior midwife Hulme who was now in the room and who agreed with the findings. This is recorded as being at 5.10. The registrar was bleeped to attend immediately. It follows that the Registrar must have bleeped at around 05.10.
20. At this point in the narrative according to the evidence of mid wife Hulme she would have gone to set up theatre because 'it was standard practice for a patient with a breech presentation who was fully dilated and aiming for a vaginal delivery to set up theatre just in case caesarean section was decided upon', but not because a decision to go for a caesarean section had been made. In support of no such decision having been made she relied upon the absence of any record to this effect in the notes. As she put in her witness statement 'If a decision had been made this would have been documented and the decision timed. This is because we had targets from decision time to delivery'.
21. The midwifery notes appear to show that the Registrar Dr. D was present by 5.15, some 15 minutes after the mother had first been admitted to the delivery unit. She performed a scan which confirmed the breech presentation and discussed the various modes of delivery with the mother. She then carried out another vaginal examination which not only confirmed full dilatation but that the breech was below the ischial spines by + 2cms. This vaginal examination and its results are recorded on the notes as happening at 05.15. It must follow in my judgment that the registrar must have arrived before 05.15, that is at some time between 05.10 when she was bleeped and 05.15 when the v/e was carried out since she performed a scan before that v/e and indeed she said in evidence that she had begun her discussions with the parents about modes of delivery before performing that v/e timed at 05.15.
22. That Dr. D arrived before 05.15 would appear to be confirmed by Dr. D's own evidence to the court in the form of her witness statement of 9^th of July 2015 in which she remembered she was immediately available and attended Ms Welsby within a minute or two of receiving midwife Cook's call. Further before she carried out the vaginal examination she took a brief history from Ms Welsby, which (as confirmed by her reconstructed note) indicated there were no identified problems or risk factors antenatally, and further examined her abdominally and further carried out an ultrasound scan which confirmed the breech presentation.
23. Although there is a dispute as to when precisely the registrar arrived in the unit, how long a discussion as to different modes occurred, what precise recommendations were made, whether a decision to go for a caesarean section (CS) had been made before the vaginal examination which discovered the descending breech was now below the spines (which was the evidence of the parents with the midwifery and the registrar's evidence being to the contrary) there is no dispute that as at 05.15 and the discovery of the breech below the ischial spines, that a caesarean section was no longer a viable option.
24. Allan Makin recalls that the doctor, before the critical v/e revealing the extended descend, had recommended a CS and he and his partner had got the impression that she was keen for them to have a CS and that this was the safest option; that he and Ellen had looked at each other and straight away agreed to have a CS; that the preparations for moving Ellen to theatre were under way with the doctor speaking to the midwives, but that after the doctor had carried what on his (and indeed on mother's) evidence was a second vaginal examination, she then explained that the CS was too dangerous because the baby was too far down the birthing canal and they would have to pull him up back by the head which was too much of a risk. 'It was too late to have a CS and Ellen needed to deliver the baby vaginally'.
25. This at least is confirmed by the midwifery notes entry:

'0515 FHR =150bpm. Dr Dhanaliwala (reg) now present…Scan confirmed breech presentation, discussed possible modes of delivery…performed VE: confirmed full dilation, breech now descended to + 2 and viable if parted labia, due to these findings + Ellen now pushing to go per vaginal delivery. Ellen + Allan OK with this….

26/03/08 05.20 CTG (cardiotocograph) commenced, MW F.Cook in room. FHR = 140bpm, contracting 4:10 long and strong, coping well, continues to use Entonox signed JM McCourt'

26. The retrospective note written up by Dr. D was in part in these terms:

'written in retrospect

26/03/08 asked to review in view of undiagnosed breech presentation at 5.10….

Breech presentation confirmed by USS

v/e by MW – fully dilated and breech at spines.

05.00

Discussed with Ellen and partner Allan about risks of vaginal breech delivery…caesarean section at full dilatation.

Ellen using Entonox and pushing actively while discussing risks and benefits of both

v/e at 05.15 – Fully dilated breech at +2 station and Ellen actively pushing during examination

Breech visible on parting labia….

...Explained to Ellen that breech was climbing and caesarean section would be (extremely – crossed out) difficult and discussion/decision made to proceed with vaginal breech delivery.

05.25 Breech visible at height of contraction'

27. So it was that the vaginal delivery proceeded and on any view by 5.20 when mid wife Cook was in the room there was no question of a CS. However it is of note that in a statement dated 2^nd September 2008, Midwife Cook had stated the following, confirming the steps which had already been taken before any prospect of a CS had disappeared, that is before the v/e at 05.15, that is the setting up of the operating theatre and contacting the necessary support team to attend (the anaesthetist, the ODP (the Operating Department Practitioner), the SHO. (The emphasis is the emphasis of the court):

'05.15 hours Dr Dhanaliwala scanned Ellen and also confirmed that the baby was in breech presentation. Ellen's cervix was fully dilated. Midwife J Hulme went to set theatre and I contacted the anaesthetist ODP (Operating Department Practitioner) and SHO to attend. Meanwhile Dr Dhanaliwala was speaking to Ellen and her partner about the situation

I entered the room at approximately 5.20 hours. Ellen was using the Entonox and contracting frequently and strongly. The CTG was in progress showing a foetal heart rate of 140ppm…for actual times I have had to refer to the notes on the partogram, as I cannot recall specific times of events A decision had been made to aim for a vaginal breech delivery'

28. I shall later into this judgment have to consider the evidence on the role of the Consultant in any CS procedure in a breech presentation but I record at once that Dr. D's evidence was that a CS cannot be carried out without the agreement by the consultant but in the events which happened she had not got as far as contacting the consultant before a CS became an unrealistic option. It emerged in evidence she did contact the consultant after the event. No evidence was called by the Defendant from the consultant on duty on call at the time.
29. Although there are areas of factual dispute in the history I have set out, in particular whether there was ever a determined decision made to proceed with a CS, my task on the critical issues arising on liability and causation, has been aided by the concessions made in closing submissions by Mr McCullough to this effect:

i) As to the factual issue as to what was said during the first call to the (unidentified) midwife, 'in the light of the factual evidence heard, the Defendant does not suggest the family's account of the conversation should be rejected' and 'the Defendant is prepared to proceed on the basis that their account of what occurred in relation to this call should be accepted'

ii) On the factual dispute whether a decision to proceed to CS had in fact been made before Dr. D's v/e at 05.15 (the defence case being as already indicated, contrary to the parents' evidence, that no decision to proceed to c/s had been made relying not only on the evidence of the midwives and Dr. D, but the absence of any record of such decision in the notes): 'nevertheless, in the light of the evidence heard, D would accept on the balance of probabilities that EW would have elected to have a CS on the basis of advice likely to have been given by Dr. D at earlier admission' and again 'Nonetheless the Defendant accepts that – on the balance of probabilities - EW would probably have elected for CS if there had been a discussion about alternatives modes of delivery before 05.15 hours, given Dr. D's evidence as to how the counselling sessions would have proceeded. On this basis the factual dispute identified above falls away'.

30. The upshot of the above analysis is that (i) 05.15 is the time when it is known, from the v/e undertaken at that time by the Registrar, that the breech had descended below the ischial spines by +2cm which meant a CS could not be performed; (ii) so long as the breech had not so descended and was still at the level of the ischial spines (as it was at 05.05 and 05.05 according to the recorded v/e carried out by first midwife McCourt and then midwife Hulme who following her v/e had gone off to set up the theatre 'just in case a caesarean section was decided upon'), a CS was still viable; (iii) the likelihood is that had Dr. D seen the Claimant's mother earlier, she would have counselled in the same way as she did when she arrived following being bleeped at 05.10, as regards modes of delivery, namely that a CS was the safest option for baby; (iv) the further likelihood is that the mother would have elected to go for a C/S which would have been proceeded with had it still been viable (see again (ii) above).
31. As regards Mr McCullough's reference in his above concession to 'given Dr. D's evidence as to how the counselling sessions would have proceeded' this a reference to the following which includes Dr. D's evidence on whether the discussion took place before the v/e at 05.15 and what that discussion amounted to.
32. Before she came into the witness box Dr. D had made a litigation witness statement dated 09.07.15, many years of course after the events of March 2008'. She made clear in that statement that she had been assisted in the recalling of events by access to two sources: i) the material medical records to which I have already referred which included the contemporaneous midwifery notes, and her own hand written retrospective notes which she confirmed were written up following the delivery of the Claimant and completion of suturing, at a time within about an hour of the delivery. Delivery had been at 05.57. Dr. D surmised that the notes were written at about 06.40; (ii) the report she wrote to the hospital dated 12 of August 2008.
33. The notes in (i) undoubtedly suggest that Dr. D had a discussion with the parents about the benefits and risks of vaginal breech delivery/caesarean section at full dilatation, before Dr. D conducted the v/e at 05.15 which revealed the critical breech descent. As I have already concluded, this would have to mean that Dr. D arrived before 05.15 (the time of the v/e) and had a discussion of some kind.
34. The report in (ii) suggests that the discussion came after the v/e. This report is in these terms:

'At 05.15 I was asked to review Ellen Welsby to check the fetal presentation. I took a brief history and performed an ultrasound scan which confirmed a breech presentation. A cardiotocogram was in progress and this showed a fetal heart rate of 140 beats per minute. I then proceeded to perform a vaginal examination which revealed a fully dilated cervix and an extended breech presenting at 2cm below. I discussed my findings and explained the risks and benefits of both vaginal breech delivery and caesarean section to Ellen and her partner. Ellen was actively pushing during the discussion and the breech was visible at the introitus. In view of the advanced progress in labour, I explained that a caesarean section at that stage would be difficult. On the basis of our discussion, Ellen agreed to proceed with a vaginal breech delivery at 05.25hrs'

35. In her witness statement Dr. D expressed herself in this way (again any emphasis is the emphasis of the court)

'8. I can see from reading my notes that at 05.10 hours...I was asked by Midwife Cook to attend and review Ellen Welsby, in view of the previously undiagnosed breech presentation that had been found. Midwife Cook was the co-ordinating midwife. I believe I attended Ms Welsby within a minute or two of receiving Midwife Cook's call. I remember I was immediately available.

9. I can recall that Ms Welsby was in one of the rooms close to theatre and opposite the midwives' station. My recollection is that both Midwife McCourt and Midwife Francis Cook were also present in the room when I arrived.

10. The information that I have recorded about Ms Welsby and her pregnancy was given to me by Midwife McCourt who was looking after Ms Welsby.

11. I took a brief history from Ms Welsby. I would have asked if she had any problems during the pregnancy and I recorded she was low risk antenatally. This means that she confirmed to me that there were no identified problems or other risk factors antenatally. I then examined Ms Welsby abdominally. My notes confirm an average size baby with the breech descending and the head in the epigastric region. The breech presentation was confirmed by ultrasound scan.

12. I was advised by Midwife McCourt that when she carried out a vaginal examination at 05:05.Miss Welsby was fully dilated with breech at the spines.

13. I recall I also discussed with Ms Welsby and her partner Allan the risks of a vaginal breech delivery compared to a caesarean section at full dilatation. This conversation continued before during and after I carried out the vaginal examination described below. Before the vaginal conversation it was in more general terms and then my advice became more focused and specific after I had done this examination, in light of my findings. During my discussion I have recorded that Ms Welsby was using Entonox and pushing actively. That is also my recollection of events.

14. I performed a vaginal examination at 05.15. I found that Ms Welsby was fully dilated with the breech at +2 station and Ms Welsby was actively pushing during the examination. The breech was visible on parting the labia.

15. I have recorded that a CTG commenced. It recorded a baseline of 140 beats per minute…

16. During the discussion of the risks and benefits of a vaginal delivery the labour was progressing rapidly. I was still in the process of explaining the risks and benefits when my findings on the vaginal examination made it apparent that a caesarean section was no longer a realistic option. This was because the breech was 'climbing'. This means the baby was descending and Ms Welsby was close to delivery. A caesarean section would have been difficult because the baby was too low down to bring him back safely for caesarean section. I explained this as concisely as I could (given the speed with which the labour was advancing) to Ms Welsby and her partner. At 05.25 Ms Welsby agreed to proceed with vaginal delivery. This was the decision we made together, with her readily accepting my advice.

17. I do not recall asking Midwife Hulme to set up the theatre. In these circumstances I would expect the midwife to do this automatically just in case a caesarean section was decided upon. That would be standard practice. At no point was a decision made (either by me or Ms Welsby) to proceed to perform a caesarean section in this instance. As explained, this was an option being discussed initially but after the findings at the vaginal examination I performed at 05.15 I did not consider this remained a viable option. I advised Ms Welsby accordingly and she agreed to proceed to a vaginal delivery.

18. I was unable to inform the Consultant as Ellen was progressing in labour and delivery was imminent and I had to make preparations for the delivery…'

36. When Dr. D came to give evidence in chief she asked to clarify what she had said in her September 2008 report which suggested that the discussion had come after the vaginal examination. She stated that having looked at the medical records she thought that she had had the discussion first and then performed the v/e. She then confirmed that which she had said at paragraph 13 of her witness statement correctly set out the position as to timings of the discussion and the v/e. After the v/e it was quite clear that Ms Welsby was to proceed with a vaginal delivery.
37. Under cross examination Dr. D was pressed as to what the discussion would have been as to the pros and cons of the two procedures. She accepted that part of the general pre v/e discussion, was informing, based on the conclusions of a large trial of which she was aware, that as far as the baby was concerned, CS was a better outcome for morbidity and mortality in the neonatal and perinatal period with the risks being for the mother. As the Claimant's obstetric expert, Dr Kyle was to explain, that trial published in 2000 concerned CSs planned before labour, but was a 'hot topic in 2008' and in her experience 'inexperienced registrars' such as Dr. D, as distinct from a more senior doctor, were much more likely to make a decision for a CS in a breech presentation diagnosed in labour. In her responses in the joint meeting with the Defendant's obstetric expert Dr Johnston, Dr Kyle said this was because 'they can proceed to caesarean section easily, when a more senior obstetrician/Consultant may not be available to supervise or conduct the vaginal breech delivery'.
38. Further, Dr. D accepted that if mother's recollection was (which in evidence to the court it was) that she the doctor was saying a CS was better for the baby, that would be correct. She accepted that she would have given the Claimant's mother the choice of a CS if events had not overtaken, and that it would have been a matter for maternal choice. She accepted that after the v/e findings, she would not have been putting any 'pros' in respect of a CS. She was overtaken by events.
39. What Dr. D was not able to assist the court with, notwithstanding being given a number of opportunities, was what else she would have said as to the pros and cons in labour beyond what the breech trial suggested. She could not remember. The likelihood in my judgment is that as Miss Gumbel submitted, the advice she gave was restricted to the results of the trial as there was no clear basis for giving any advice about the position when labour was unplanned. I accept that this fits in with the parents' recollection as to the limits of what they were told and, according to them, as to their immediate decision for a CS.
40. As indicated it is not necessary for me to determine the factual dispute as to whether a determined decision for a CS had been made before events prevented any such decision being put into effect. However it has been necessary for me to consider the extent of the advice Dr. D would have given had she seen the mother earlier. In my judgment it is likely even then to have been no longer and not in any more depth than the advice I find she did give when she saw the parents on the 28^th March.
41. Further as to the likelihood of what would have happened, it was not seriously challenged by the time of final submissions that on the balance of probabilities on the evidence given by both mother and father, had they been invited to come into hospital or given the option to come in during the first telephone call, they would have proceeded immediately to hospital. I accept this to be the case.

Findings as to circumstances and contents of the first call

42. The combined effect of the evidence, which I accept, of the Claimant's family, that is of his grandmother (Joan Makin), his mother (Ellen Welsby) and his father (Allan Makin) as to the circumstances which led to the first phone call and what was said amounts to the following. Any emphasis is the emphasis of the court.
43. His mother, Ellen Welsby, was some 19 years of age. Her due date was the 25^th of March 2008. This was her first child. She had been advised at the antenatal clinic as to what she should do if her waters broke. Her understanding was that she was to call the hospital unit and let them know what had happened and be ready to tell the hospital the rate of contractions when they telephoned; and that she would be advised to attend the hospital. Her expectation from what she had been told at the clinic was that in these circumstances she should come into the hospital.
44. At 3.30am the mother woke in bed having had a very strong contraction. She sat up in bed and felt her waters break. As Miss Gumbel reminded me these events are corroborated by the Note in the hospital notes made by Midwife McCourt when the mother did eventually attend hospital. She recorded at 05.00 the history given by the mother as being '…history of regular contractions since SRM (spontaneous rupture of membrane) at 03.30 clear liquor drained.' The pain she was feeling at the time was quite frequent and strong. Her partner Allan, the father, rang his mother who lived nearby who came round straight away. Her evidence was that Ellen appeared to be in a lot of pain and given her waters had broken they decided to call the hospital maternity unit. Ellen's witness statement evidence was that the call was 'to tell them that my waters had broken and I had gone into labour in order to ask for advice'.
45. The Grandmother's evidence (given though her witness statement dated 1^st June 2015) served under the Civil Evidence Act 1995) was that she herself rang the delivery unit and told them that Ellen was in labour, her waters had broken and her contractions/pains were at most 5 minutes apart. The midwife insisted on speaking to Ellen, directly so the phone was passed to her.
46. Ellen's evidence was that the midwife asked whether it was her first baby which she said it was, that the midwife asked about the pain and she, Ellen, told her that her waters had broken and she was in a lot of pain. Ellen's evidence in her witness statement which she adopted in her evidence to the court continued in these terms (at para.10):

'..The contractions at that time were probably about 5 minutes apart. The lady I was talking to seemed disinterested. She said I should stay at home a bit longer. I said 'but my waters have broken'; she said to put a pad on and to walk about for 30 minutes and then ring back and tell them what had happened'.

47. In oral evidence Ellen said 'disinterested' in the above passage should read 'uninterested'.
48. Allan Makin, the father and partner, who was 22 years of age at the time, in his witness statement of 5^th of June 2015, adopted in evidence to the court, described the circumstances of the first telephone call in these terms:

'10. At approximately 3.30am Ellen woke me up and told me that her waters had broken and that she was now in very serious pain. I decided to ring my mother…I remember after putting the phone down, timing Ellen's contractions as instructed during antenatal classes. I noted that the contractions were lasting for 30 seconds, with 5 minutes between each contraction.

11. Within 10 minutes of speaking to my mother she was at our house along with my dad and sister, and we decided to telephone the Royal Bolton Hospital. My mother made the phone call to the hospital at about 04.00am. She explained to the midwife that Ellen's waters had broken and contractions were lasting 30 seconds, with 5 minutes in between each contraction. My mother asked whether we should bring Ellen into the hospital. The midwife said she wanted to speak to Ellen. Ellen explained to the midwife that her waters were broken and that she wanted to go to hospital. However the hospital were reluctant for us to come in at that stage. Ellen recounted to us the phone call immediately after it had happened and said they had told Ellen to stay home for the time being. They asked her what colour the water was when her waters broke but apart from that advised Ellen to put on a sanitary towel and wait for 30 minutes before phoning the hospital back. They also asked her to explain the colour of the water which would be on the sanitary towel when she made the call'.

49. In addition to the above, under cross examination, Ellen Welsby was asked about the level of pain she was under at the time of the first call given that she did not ring back a second time for nearly 40 minutes. The suggestion was made that the reason she phoned the first time was that she was unsure whether her waters had broken, to which she replied that she told the midwife that there was a large quantity of water. She herself could not tell what colour it was (difficult to see on the bed sheet and it was on the bathroom floor) but she felt the midwife was not taking her seriously: she was a 19 year old girl unnecessarily panicking and being overdramatic and the advice was to stay at home. She explained that as regards the timing of the contractions this was by reference to her telling Allan when the pain came and went and when it returned. These timings were undertaken while she was getting dressed and she was dressed by the time of the first call. To the suggestion that there was less urgency about coming in at the time of the first call compared to the second, she said at that time she could walk around (which she was doing) but it was still painful and 'we were ready to come in'.
50. Under cross examination, Allan Makin was pressed on why if the pain was so bad at 03.30 and it was clear the waters broken then, why they waited until 04.00 to call the hospital. His reply was they did not phone until sure it was the right thing to do. He accepted that 'now in very serious pain' at 03.30 was something of an exaggeration. They were starting to get ready to go in and measuring the contractions to tell the hospital. He called his mother first, but by 04.00 they had felt this was the time to phone. He accepted that they had been reassured by the advice to wait 30 minutes and ring back, 'we thought we were getting conflicting advice; we thought we would go along with advice to stay at home'.
51. I should also add that under questioning during oral evidence Ellen Welsby (and indeed Allan Makin) described what Mr McCullough referred to as a dramatic account of her waters breaking at 03.30, describing a gush or a pop making the bed sheet wet with water and the floor becoming equally wet, which had never previously appeared in any pleading or witness statement. However I have no reason to reject this part of their evidence. Mr McCullough concedes that the family account of what happened in the first phone call should be accepted. I equally accept their account of events leading up to that phone call and what happened thereafter. I do not consider any of the family were seeking to mislead me or giving exaggerated evidence (apart from that conceded by Mr Makin referred to above).

The evidence of Midwife Shelagh Tomlinson

52. As indicated no evidence was called by the Defendant from the unidentified midwife who took the first call (or indeed there second call). Rather the Defendant put in evidence a Civil Evidence Act witness statement of a Shelagh Tomlinson (dated 11 August 2015) who in March 2008 was working full time at the Bolton Hospital as a senior midwife/matron and as a supervisor of midwives. She herself had worked full time at the Bolton Hospital throughout her entire working career but explained she had no personal knowledge of the Claimant or the events of March 2008 with which this case is concerned (albeit she says it was possible but unlikely that she was the midwife who took first the call for which there were no recorded notes). However she had read paragraph 4.4 of the Particulars of Claim which 'sets out what Ms Welsby understands was said'.
53. She explains the purpose of her statement in these terms:

para 3: '...to assist the Court in explaining the role of the midwife who would have taken the grandmother's call to the hospital on 23 March 2008 at 04.00;

para 10: '...to assist in respect of that telephone call, specifically to advise about the normal practice of a midwife receiving that call at that time'.

54. As to any Guideline, Ms Tomlinson annexed a copy of 'the' Guideline 'in place at the time'. This is several pages long but Ms Tomlinson stated that the 'relevant section' was para 1.1. which is in these terms:

'The woman who suspects her membranes have ruptured needs to have her own and her fetus' well being assessed. It is usual for her to be invited to the Maternity Unit for this to take place'.

55. Although both in submission and through the Defendant obstetric expert evidence, the Defendant sought to undermine the relevance of this guideline for present purposes by reference to its title, namely 'Guidelines For the Care of a Woman with Pre-Labour Rupture of Membranes (at Term)' highlighting that it was concerned only with pre-labour rupture (whereas the Claimant was reporting being in labour), I consider there is force in Miss Gumbel's submission that the Defendant has chosen through Ms Tomlinson to introduce this Guideline in the context of the present claim, Midwife Tomlinson apparently relies upon it as the protocol which would govern the situation in this case.
56. Further in this context it is not without significance that in its letter of Response (to the served draft particulars of claim) of 11 March 2013 sent at a time when the Defendant was not acknowledging that the phone call had ever been made, the Defendant responded as follows (any emphasis is that of this court):

'(reference to the pleaded allegation that the grandmother telephoned at about 04.00). This is denied. At the time of this delivery telephone calls were not formally logged…We are advised by the Obstetrics Department that had the call been made as alleged, Miss Welsby (given her membranes had ruptured) would have been invited to attend the Unit to be assessed'

57. Similarly the served Defence at para 13.2 pleads (emphasis again of this court):

'Even on the factual account alleged, it is denied that the Defendant was in any breach of duty; neither the fact (a) the Claimant's mother had ruptured her membranes spontaneously; nor (b) that she was contracting regularly required her to be told to attend hospital. Rather it is likely that the Claimant's mother would be given the option of attending if she wished to, but told it was not necessary at that stage if she took the steps suggested on the Claimant's account'

58. I shall return to these aspects of the evidence and the pleadings when I come to give my findings on breach of duty but it is necessary to complete my summary of Ms Tomlinson's evidence as set out in her witness statement. She in fact proffers an opinion as to why nonetheless and notwithstanding the Guideline to which she refers, Ms Welsby was not invited in (or even given the option of attending if she so wished), suggesting that this was because of uncertainty in the recipient midwife's mind as to whether Ms Welsby's membranes had in fact ruptured.
59. This opinion emerges in this way. At paragraph 13 she sets out a series of questions. She says that in 2008 the procedure of the phone call would be to ask these questions of the mother (or any partner/or relative with her) the aim of which was to try and ascertain whether the membrane had ruptured and whether the mother was in labour. These questions were first what time did the waters break? and did the waters break with a trickle or a gush?, these being to get an idea whether there had been a spontaneous rupture of membranes or if this was a leakage of urine; Then questions going to the start time of contractions and their frequency. Then questions going to the painfulness of each contraction; Finally questions going to whether there was any evidence of abnormality or antenatal problems (have you felt your baby move? has this been a normal pregnancy so far?).
60. Ms Tomlinson then (at paragraph 14) states that 'if whoever was taking the call was not sure if the membranes had ruptured then the usual practice would have been to advise the woman to put a pad in place and leave it for about 30-60 minutes and to call back sooner if there were any changes or she had any concerns. This would be to check whether this was a leakage of urine or if the membranes had ruptured. If it was urine then he pad would usually remain dry'. If not, it is probable the membranes had ruptured'. Ms Tomlinson then states that if the woman called back after 30-60 minutes and advised that the pad was damp, 'the usual practice would be to ask her to make her way into the hospital at that time'.
61. Ms Tomlinson's conjecture as to doubt in the midwife's mind in this particular case as to whether the membranes were ruptured, is to be found in the final paragraph of her statement:

'I have read through the Particulars of Claim. Based on my understanding of practice in the unit at this time, I would infer from the advice which is said to have been given, that there was doubt in the midwife's mind as to whether the membranes had ruptured. That would be a very common situation. When the further call was made it is likely that either it was felt that labour had become established by then and so she was asked to come in, or the mother wanted to come into the hospital'.

62. The difficulty with all this evidence as the questions to be asked and the inferences to be drawn from the pleaded case, is that there has been no evidence called from the actual midwife as to the advice she gave and why. I accept Mr McCullough's point that there is no pleaded case on a negligent omission to ask relevant questions, and there is no evidence either way whether any of these questions were asked beyond the now accepted accounts of the family of what occurred in this phone call, but the court in my judgment when determining the issue of breach of duty has to proceed on the basis of what is known on the accepted evidence was told to the midwife in the 04.00 call and not on the basis of any exercise of the drawing of inferences as to what may or may not have been in the mind of the recipient midwife from whom the court has not heard.
63. That exercise would be a dangerous one from the Defendant's standpoint in any event since on the evidence of the mother and her partner as to the breaking of her waters at 03.30 which I have accepted and which chimes with the history given recorded in the medical notes at 05.00, it might be difficult to characterise any such doubt as a justified one. It seems to me that the court when assessing the issue of breach of duty, has to proceed on the basis that the family (and Ellen Welsby in particular) were clearly informing the hospital that her waters had broken, that is there had been a spontaneous rupture of the membrane. See again Ellen Welsby's now accepted evidence that when in the first phone call she was told to stay at home 'a bit longer' she responded 'but my waters have broken'.

The critical issues on liability and causation

64. By the end of the hearing, the court was left with two issues to resolve:

i) First, Breach of Duty, that is breach of the owed duty of care;

ii) Secondly, Factual Causation.

Breach of duty

65. As to breach of duty, Miss Gumbel on behalf of the Claimant formulated the critical question as being 'was the Defendant in breach of duty in failing to invite or advise the Claimant's mother to come into hospital when the first phone call was made?'. Mr McCullough's formulation was in these terms: 'was it acceptable practice for the midwife at 04.00 to advise applying a pad, walking around, and calling back in 30 minutes rather than inviting EW (Ellen Welsby) to come into hospital?'
66. It is common ground that in determining the issue of breach of duty, the test to be applied as regard the advice the midwife gave over the telephone in that first call is the Bolam test (see by McNair J in Bolam v Friern Hospital Management [1957] 1 WLR 582) namely in the context of midwifery advice, whether that advice accorded with the practice accepted as proper at the time by a responsible and reasonable body of midwifes. This is subject to the gloss put on that test by the House of Lords in Bolitho v City and Hackney HA [1998] AC 232, that 'the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate such opinion has a logical basis' (Lord Browne-Wilkinson at page 242) and 'if in rare case it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible'. (Page 243).
67. Miss Gumbel's submission was that the advice given had to be in accordance with the Bolam test but it must also be supportable as a matter of common sense in accordance with the test in Bolitho. I would not disagree with Miss Gumbel if by 'common sense' is meant 'logic'.
68. On the issue of breach of duty I heard two competing midwifery expert opinions. For the Claimant that of Charlene Francois; for the Defendant that of Susan Brydon. Both of the obstetric experts gave their respective opinions on this use (Dr Kyle for the Claimant; Dr Johnston for the Defendant) although it was accepted that on this they had to defer to the expertise of the midwives.
69. As the final submissions developed it became clear to me that the issue on breach of duty was not whether the Claimant's mother should have been advised to attend hospital on an urgent basis, that is advised that it was necessary for her to attend at once, but whether in the circumstances known to exist at the time of the call (on the findings of the court) and that which is known was communicated to the midwife (on the findings of the court) she should have been at least have been invited to attend hospital albeit being told it was not necessary or urgent. (It is as I have already accepted the case that if she had given such advice the probabilities are she would have attended immediately). This is in contradistinction to that which she was told, namely she should not come in but put on a pad, wait 30 minutes and ring back. I have no doubt on the evidence of the family, that the Claimant was positively discouraged from attending hospital (see again for example the note as to what Allan Makin raised at the meeting with the Consultant Dr Williams). The advice given in my judgment was in effect 'do not come in' as distinct from 'you may come in if you want to albeit it is not necessary' and it is this advice which has to be judged on the issue of breach of duty.
70. I consider there is force in Miss Gumbel's submission that Miss Brydon's expert evidence in effect amounts to this: On the question whether the mother should have been be invited in, everything depends on the reasonableness of clinical assessment/ judgment of the midwife. There are so many variables in the circumstances which might prevail at the time and 'everything will depend on what is reported' but there are circumstances where in the context of a young woman with no history of abnormality and hence an assumed low risk pregnancy who rings in and says her waters have broken and is contracting no more than 2 in 10 minutes (although 2-3 in 10 minutes and slightly longer than 30 minutes would be different), it is reasonable for a midwife to make the clinical assessment that it is not necessary for the mother to come until labour is established (by stronger and more regular contractions) and so 'advise' that she should stay at home, and if there was uncertainty in the mother as to whether the membranes had ruptured, (the words used by Miss Brydon in her Response to Q(1)(a) of the joint meeting agenda) 'it was reasonable advice that she should put a pad on and ring back in half an hour'.
71. Miss Brydon's opinion was in effect that on her understanding of the information given by the mother to the midwife there was no reason for the midwife to consider that the mother had to come in.
72. The difficulty however with all this is that in this case there has been no evidence called by the Defendant as to the reasons why the particular midwife made the decision she did to advise the mother in the way she did and hence there is in truth nothing factually for the experts to work on as to what was operating on the mind of the midwife, in assessing the reasonableness of the midwife's line of reasoning and her ultimate clinical judgment. The suggestion put forward by Ms Tomlinson that there was uncertainty as to whether the membranes had ruptured is, as Miss Gumbel submitted, factually wrong on the evidence which this court has accepted. As I have already said, it seems to me that the court when assessing the issue of breach of duty, has to proceed on the basis that the family (and Ellen Welsby in particular) were clearly informing the hospital that her waters had broken and that there had been a spontaneous rupture of the membrane. See again Ellen Welsby's now accepted evidence that when in the first phone call she was told to stay at home 'a bit longer' she responded 'but my waters have broken'.
73. Moreover although Miss Brydon's evidence clearly was that where (as she would say here) the reported contractions at 04.00 were not sufficient evidence of established labour, it was, absent any other complications, not necessary for a mother to be invited in immediately and that if this was the midwife's line of reasoning in this case, her judgment did not fall below the standard, she did not, in my judgment, answer satisfactorily the question put to her of whether the mother in the context of the facts of this particular case, should have at least been given the option of coming in if she wished to do so, and not positively discouraged from coming in, and if not why not. I emphasise 'in the context of the facts of this case' since one of these facts was a 19 year old mother in a lot of pain whose waters had broken and who said she wanted to come in (and who based on what she had been told in the antenatal clinic was expecting that she should come in).
74. Miss Brydon's response was in effect one connected with the convenience of the Delivery Unit and the danger of the mother coming in too early and having to be sent home again to await the onset of established labour. The point was made – which I accept – that the rapid progress of labour in this case was unusual in a first labour (SRM at 03.30 to full dilatation when admitted at 05.00) and could not have been predicted from the history of contractions given in the first call (2:10 lasting 30 seconds).
75. However, it is of note in my judgment that at one stage in her evidence Miss Brydon did concede that if the membranes were ruptured, the mother should be invited to come in at some stage but it was all a question of timing. As McCullough fairly reminded me, Miss Brydon's evidence, based she said on her own practice as well as what she said was her broader experience of others, was that she accepted that a report of ruptured membranes will require to be checked at hospital 'at some point…usually 4 hours, although practice varies widely' and that woman in the early stages of labour would generally be advised to stay at home for a short period of time if the reported contractions did not indicate established labour. I emphasise however the use of the term 'generally' and that none of this opinion addresses the situation of a mother in a lot of pain who clearly wants to come in.
76. Moreover whether or not the evidence before me established the Defendant was in breach of practice in 2008 in not keeping records of telephone calls and noting their contents (Miss Francois was silent on this issue and Miss Brydon conceded it would be breach of practice now in 2016 but common practice in 2008 not to do so,) the fact is no records were kept and the lack of evidence as to what was said (other than that of the family), and the lack of evidence from the material midwives who took the calls, has to be laid at the door of the Defendant. The issue of the first call and the family being positively discouraged by the midwives was raised at the 2008 meeting with the consultant but no investigation was undertaken at that time by the Defendant as to that call or the midwives concerned. The issue raised by Mr Makin ('would this have changed anything?') was not addressed by the Defendant at the time. I do not consider that the Defendant can escape responsibility by the cri de coeur that this was not obviously a 'complaint' but a query made in the context of a wide range of questions being asked. It was an issue clearly raised and it fell to be addressed.
77. I accept in these circumstances that the court should judge the Claimant's case benevolently and the Defendants' case critically on what was said in the telephone call concerned and the line of reasoning of the midwives in not inviting the Claimant's mother into hospital. In this context the Claimant is entitled to rely on the approach of Longmore LJ in Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 at para 19 and that of MacDuff J in the case of The Executors of the Estate of John Raggatt (deceased) v Kings College Hospital NHS Foundation trust and Others [2016] EWHC 1604 (QB), at para 131 to which I was referred.

Conclusions on breach of Duty

My conclusions are these.

78. In order to assess the acceptability of the advice given, the court having found on the evidence what that advice was (including the finding that mother was positively told not to come in and positively discouraged from doing so) has to assess it against the facts as the court finds them to be prevailing at the time, and critically assess in the context of those facts the rival expert evidence on what was acceptable practice.
79. The cumulative effect of these facts are as Miss Gumbel submitted (her written closing submissions:

a) The mother had a SRM at 03.30; she was clear in that first call that her membranes had ruptured (the comment 'but my waters have broken' in response to the suggestion that she should wait half an hour and ring back underline this);

b) The mother was only 19 years of age;

c) The Claimant's mother was in significant pain and contracting.

d) The Claimant's mother and her family were concerned enough about the Claimant's mother's condition to ring the hospital at 4.00am;

e) The Claimant's mother was wanting to come into hospital and was asking to come in.

80. I am satisfied that set against these facts the advice which was given, which was that the Claimant's mother should not come in with a clear positive discouragement from coming in, fell below any acceptable standard of competent care which in these circumstances required that the mother in that first call should have been issued at the very least with an invitation to come into the hospital to be assessed and checked out when she was ready to do so. The advice given was below the standard of any reasonable responsible midwife. Breach of Duty has been established.
81. I reach this conclusion based on the expert evidence of Miss Francois supported by Dr Kyle and notwithstanding the expert evidence of Miss Brydon (herself supported by Dr Johnston). And I so conclude notwithstanding Mr McCullough's challenge to Miss Francois expertise as someone with much less "hands on experience" compared with that of Miss Brydon.
82. I found Miss Brydon's evidence unsatisfactory and not convincing for the reasons I have already given, that is it did not satisfactorily address the issue of whether the Claimant's mother on the circumstances I have identified should at least have been invited in if she so wished. There was no factual evidence to support the postulated proposition that there was uncertainty as to whether the membranes had in fact ruptured. Dr Johnston's proffered opinion in support suffered from a like failure to take on board the finding of this court on the evidence placed before it, that there was as a matter of fact on this particular occasion no uncertainty as to whether the mother's waters had broken.
83. Miss Francois' evidence in contrast was clear and in my judgment, notwithstanding Mr McCullough's submission to the contrary, logically based on what the mother was reporting in particular the clear history of membrane rupture, namely that the mother should have been invited in to be checked and to determine a plan. Miss Francois accepted that admission to hospital did not need to be expressed as urgent but the invitation needed to be extended. Her opinion was that any woman who complained of ruptured membranes needed to be invited in although in the absence of any abnormality this would be without specifying any time and albeit her expectation was that most women would come in within 30 minutes. This was because of the risk of 'ascending infection' following rupture.
84. Dr Kyle considered this mother needed to be invited into hospital as she had ruptured membranes, was starting to labour with painful contractions, was only 19, and needed support and reassurance when she rang the hospital at 04:00 expecting such support, and expecting and wanting to be invited into hospital.
85. It is true that Miss Francois and Dr Kyle gave different reasons why this mother should have been invited in albeit not on an urgent basis, but as Miss Gumbel submitted the effect of the evidence was the same. Miss Francois concentrated on the existence of membrane rupture, although conceding she could point to no text book or guidance in support of her view, and conceded that the contractions as timed and described by the family would not in themselves constitute a reason to advise coming in at the time of the call. Dr Kyle did not herself consider that the reported rupture of the membranes required a woman to be advised to come in immediately (but then neither did Miss Francois absent any abnormality). Her view was based on the additional factor, namely the strength and frequency of the contractions and the pain being experienced, which required the 19 year old mother to be invited in to be assessed, supported and reassured. She conceded that any assessment of the strength of the contractions was a matter of midwifery clinical judgment but as I have indicated there was no evidence called which went to the clinical judgment formed by the particular midwife who took the 4.00am call. What is known is the mother was saying, among other things, that she was in a lot of pain and wanted to come in.
86. I have of course considered the criticisms Mr McCullough made of the evidence of Miss Francois which he said was bizarre and illogical in so far as it required a woman with ruptures to come in straight away to avoid the risk of ascending infection but without giving any timescale. But in my judgment this criticism misses the point that in the context of this case where the mother was clearly wanting to come in and was giving a clear history of her waters having broken and painful contractions, this particular mother needed to have an invitation extended to her in order to be checked out and to provide support and reassurance. Any midwifery opinion that it was in this context reasonable and responsible practice not so to do, does not in truth withstand logical analysis. This is so in my judgment even if, which I accept, there was no evidence that the risk of infection required immediate attendance.
87. Based on all the evidence I have heard both as to the facts surrounding the call and the expert evidence, I am satisfied that the only competent advice was to invite the mother to come in but to leave it to her how urgently she came in. It seems to me to be both logical and reasonable to leave it to the mother as she is probably the best judge of how well she is coping and whether she wants pain relief and reassurance.
88. I should add that I agree with Miss Gumbel that support for the proposition that competent care required the mother to be invited into hospital does come from the Defendant's letter of Response ('We are advised by the Obstetrics Department that had the call been made as alleged, Miss Welsby (given her membranes had ruptured) would have been invited to attend the Unit to be assessed') and the pleaded defence ('Rather it is likely that the Claimant's mother would be given the option of attending if she wished to, but told it was not necessary at that stage if she took the steps suggested on the Claimant's account') in the passages I have already identified.
89. The Protocol referred to by Ms Tomlinson, if it applied to the present case as she seems to suggest, further supports the view that the Claimant's mother should have been invited in to be assessed. Under the Protocol the woman who (pre-labour) merely suspects her membranes have ruptured needs to have her own and her fetus' well being assessed' and 'it is usual for such a woman to be invited to the Maternity Unit for this to take place'. I accept however that the terms of this pre-labour protocol although introduced into evidence by the Defendant's own witness, is not, and has not been in itself decisive of the question of breach of duty.

Factual Causation

90. I turn to the issue of factual causation, that is proof that the injury sustained by the Claimant was caused by the breach of duty of care found by the court. That breach as I have identified lay in the failure in the first telephone call to invite the Claimant mother to attend hospital.
91. As already indicated there was ultimately little dispute between the parties that had mother been so invited she and her partner would have left immediately for the hospital and I have so found. To succeed on liability accordingly the Claimant has to establish on the balance of probabilities that if his mother had come into hospital earlier, immediately following the first call, he would have been spared the permanent injury he did sustain. This is a question of fact. I have already identified the concession by the Defendant that the Claimant would probably have been spared if he had been delivered by caesarean section before 05.50. The court accordingly has to determine on the evidence what on the balance of probabilities would have happened as regards the Claimant's mother undergoing a CS had she come in earlier.
92. It is now accepted by the Defendant that had the mother come in earlier the likelihood is she would have elected to have a CS on the basis of the advice likely to have been given by Dr. D. The critical issue has become one of the likely timings of that election and the steps likely to have been taken to put that election into effect. Such an election would only have been put into effect if a CS was still a viable option. It is not in dispute that once the breech had descended below the ischial spines, as was the position demonstrated on the v/e at or about 05.15, a CS was no longer viable but it is equally known that it was still viable at 05.05 and 05.10. (See my analysis at paragraph 30 above). On the evidence I have already considered, any plan for a CS would have had to have been abandoned unless, as Mr McCullough submitted, the Claimant's mother was in theatre and a spinal anaesthetic started (not just sited), by 05.15 at the latest (Mr McCullough would argue in fact a time between 05.10 and 05.15). On any view any final pre anaesthetic/operative vaginal examination in theatre - the final check before implementing the spinal anaesthetic – would have to have been carried out before 05.15 if any decision to proceed to CS was to be maintained.
93. However I am equally satisfied on the evidence that had the anaesthetic been started by then, although it would take up to 10-15 minutes to have full effect, the CS would have been proceeded with Dr Kyle's evidence which I accept was that once the anaesthetic is 'in' the mother will lose any pressure or urge to push 'so you are then very committed to doing CS'. And had it proceeded with by that time (following the starting of the anaesthetic) I accept the likelihood is that delivery would have been achieved by the 05.50. In other words I accept Miss Gumbel's submission that:

'If the spinal anaesthetic had been administered before the breech descended to +2 at 05.15 it would then have been too late to carry out delivery by anything other than caesarean section'

94. Mr McCullough reminded me of Dr Johnston's evidence that even after the administration of anaesthetic there is a likelihood that the attending consultant faced with a hazardous and invidious decision would have elected to perform a challenging vaginal delivery, rather than proceed with an extremely difficult caesarean section. I do not however regard this evidence of assistance. It would have been different had this evidence come from the on duty consultant herself but as I have said the Defendant called no consultant evidence.
95. So the critical question for the court to determine on factual causation is whether the Claimant has established on the balance of probabilities that following the likely decision made for a CS, the Claimant's mother would have been in theatre and the spinal anaesthetic begun to be administered before 05.15.
96. The starting point on this issue is the evidence the court has as to what in fact happened following the end of the second phone call and the arrival of the mother in the delivery unit at 05.00. The relevant evidence is that contained in the hospital records and the evidence of the midwives and the Registrar which I have already set out.
97. There was also the evidence of Dr. D as to what the process was which she would have followed had a decision to proceed to caesarean section. In her witness statements she said as follows:

'21. I have been asked to explain the process that would have followed if a decision had been made to proceed to caesarean section…I would have called the consultant to advise about labour and we would have had a discussion about whether the consultant agreed to proceed to caesarean section . A caesarean section cannot be carried out without agreement by the consultant.

22. If the consultant had agreed to attend for caesarean section I would have requested her to attend for the caesarean section, as Ms Welsby was fully dilated and with a breech presentation. I would have expected her to arrive in about 20 to 30 minutes after this request.

23. In the meantime the labour ward co-ordinator would have arranged for the theatre to be set up and called the anaesthetist, OPD (Operating Department Practitioner) and the scrub nurse. In this case the scrub nurse would have been one of the midwives.

24. Miss Welsby would have been cannulated, her bloods taken, and her consent obtained for a caesarean section. She would have been reviewed by the anaesthetist prior to transfer to theatre. She would then have been transferred to theatre. She would have had a spinal anaesthetic. The spinal block takes about 15 minutes to become effective.

25. I would have carried out a repeat vaginal examination once Ms Welsby was in theatre to check whether there had been any progress in labour…

26. This would have been a category 2 caesarean section as the CTG trace was normal. This would mean a target of a timescale from decision to caesarean section to delivery within an hour. As explained above that decision would have been revisited if the breech had descended too far to perform a caesarean safely.'

98. One can see from the above that the process between the decision to proceed to a CS and the arrival of the mother in the theatre involved i) the Registrar calling the consultant (who on Dr. D's later evidence was at home on call), explaining the clinical position to her, seeking her agreement to the CS, and asking her to attend ii) the obtaining of written consent from the mother and the preparation of the mother – involving her being cannulated, bloods taken, and gowned ii) the simultaneous preparation of the theatre which would already have been put into play along with the calling of the necessary support – the anaesthetist, the ODP and the scrub nurse (to which the evidence of the Midwives referred) (iii) the review of the anaesthetist prior to transfer to theatre (iv) the transfer of the mother on a trolley to the theatre which was, on the evidence was 'close by'. Midwife McCourt had said it was for her a minute's journey.
99. Dr. D's evidence was explored in cross examination. Miss Gumbel put to her that on the evidence of the midwives it would have taken about 15 minutes from the time the decision to go for a CS was made, to achieve the above steps, that is to achieve transfer to theatre. It was submitted to me that she agreed with this proposition and further agreed that this was not 'rushing time' (in line with evidence given by the midwives) rather it was 'getting on with it time', Dr. D having agreed that that she would have got on with it once mother who was progressing quickly said she wanted CS. I was sufficiently concerned to ensure my note of her evidence was correct that I asked the parties to supply an agreed note of her evidence. I was helpfully supplied with the Defendant's Note with amendments reflecting the Claimant's note. This amended note coincides with my own note. It contains the following important interchange between Dr. D and Miss Gumbel:

'LAG: you've said that it would have been a category 2? In this situation mother was progressing quickly and if she had said she wanted CS, if progress was quick, wasn't it important to ensure that CS done quickly?

Dr D: you would do as quickly as possible, but when categorising there is no immediate threat to mother/baby. I would have categorised it as cat 2.

LAG: but would have done as quickly as possible. You would not have waited an hour?....

LAG: 04.35 scenario. You would have been getting in with it as quickly as you could?

Dr D: I would not have been rushing her into theatre. I would not have categorised her as category 1 because you would then need to give a GA. There was no rush to just wheel her into theatre; there would have been time to take a proper consent and for the anaesthetist to have a proper discussion with her.

LAG: The timings given are in the context of getting in with it. The timings you have been giving are not rushing things.

Dr D: Yes

Judge: 'the 15 minutes are not rushing times. Did the witness agree or not?

Dr D: Agreed'

100. Earlier in her evidence she had said that it could take longer than 15 minutes. Mr McCullough moreover submitted that her answers had been taken out of context and were in answers to question put on a scenario which she was asked to assume – the 04.35 scenario – that Dr. D would have attended and assessed at 04.35 when this was at odds with the evidence of the obstetric experts who had put the Registrar's likely arrival time within a later bracket (Dr Kyle: O4.40 to 04.50 ; Dr Johnston 04.40 – 04.50);
101. At another stage in her evidence Dr. D accepted also that if the consultant had agreed to the CS in the telephone call, and the consultant were not there when she got to theatre she could have carried out the final v/e herself and then asked for the anaesthetic to be administered, without waiting for the consultant to arrive. I shall return to this aspect of her evidence when considering the expert evidence on timings.
102. These are all matters to which I shall return when giving my overall conclusion on the effect of Dr. D's evidence and my overall conclusions on factual causation.

Timings

103. The Claimant's case on timings as expressed in Miss Gumbel's written closing submissions was that;

(i) the Claimant's mother would have attended hospital immediately after the first phone call (which is to be taken as ending at 04.1.55).

(ii) she would have reached the hospital delivery unit in the same sort of time as she had when departing after the second phone call, that is some 18 and a half minutes or so (18 minutes 27 seconds); that is at 04.20.22 or thereabouts.

(iii) following examinations by the midwives in the same sequence and timings as in the events which happened after 05.00, (see my analysis at paragraph 19 above), she would have been found to be in labour with an undiagnosed breech presentation;

(iv) she would have been seen by the doctor within about 15 minutes as she was when she attended after the second phone call that is at about 04.35. This became known as the '04.35' scenario;

(v) She would have been offered and requested a caesarean section shortly thereafter – about 5 minutes later – to allow for the discussion between the doctor and the Claimant's mother; that is by 04.40;

(vi) thereafter in accordance with the sequence of events described by Dr. D, the Claimant's mother would have been administered a spinal anaesthetic before 05.15.

104. The Defendant's case on timings is that you cannot just transpose the timings applicable to the events it is known did occur once the mother arrived in the delivery unit at 05.00, to the position when it is likely the mother would have arrived in the delivery unit after the first phone call. A mathematical approach might suggest that each event which we know did occur (such as the first midwife v/e; the second midwife v/e; the Dr v/e) would have occurred some 39 and a half minutes earlier but this it was submitted was not a sensible approach to timings. The likelihood of timings had to be judged against an assessment of the actual circumstances and clinical situation which would have unfolded after arrival at hospital.
105. Although it is accepted that the mother would have been seen more or less immediately by the midwives on arrival, the pace of assessment leading to any first v/e would, on the Defendant's case, have been less speedy, and upon the arrival of the registrar, the time taken by the registrar to assess the mother and foetus (the history; the abdominal examination the ultra sound scan; the likely v/e) and to discuss and advise on the pros and cons of modes of delivery before any CS decision was made, would have taken longer. In evidence Dr Johnston suggested the mode of delivery discussion alone would take at least 10 minutes, an assessment ultimately agreed to by Dr Kyle, although Dr Kyle did not concede that this discussion would have been after the initial assessments. She made the observation that the discussion process on the evidence of Dr. D was occurring during the doctor's assessment, scan and vaginal examination. The Claimants 'best case scenario' namely that the Registrar would have arrived and discussed matters and a decision for CS made by 15/20 mins from his mothers arrival at the delivery unit, is says the Defendant, totally unrealistic.
106. Equally any assessment of the likely timings after any decision for CS was made, has to consider the steps which had to be taken before the Claimant's mother could be in a position in theatre to have the anaesthetic administered. As indicated, on Dr. D's own evidence for example she would have had to call her consultant, discuss matters with her and obtain her agreement. She would ask her to attend which could take between 20 minutes and 30 minutes. The Defendant's case again is that there could be no realistic basis on which all the steps for a CS could have been taken to achieve a pre-spinal anaesthetic v/e by 05.15, let alone the administration of the anaesthetic by that time.
107. The Defendant in supports of its submissions relies heavily on the expert evidence of the obstetric experts both of whom gave opinions on the likely timings of events that would have followed had there been earlier admission. Both experts at their joint meeting set out in detail their suggested timings in response to questions under a number of headings (Q2(a): In so far as it falls within your expertise to comment, by what time is it likely that she would have arrived at hospital? (b) How long after arrival would Ms Welsby have been examined by a midwife? (c) What would the probable findings have been at that time? (d) What course of events, with timings, would have followed, including consideration of any further midwifery assessment, medical attendance, examination and decision – making? In addressing this question, you are entitled to take into account the course of events following admission which in fact occurred to the extent they are relevant to the reconstruction of events on this alternative basis; (e) what advice would have been given about mode of delivery? Q3 (Assuming…that Miss Welsby would have been offered and requested delivery by caesarean section… (a) by what time would such request be likely to have been made? (b) What course of events is likely to have followed thereafter, with timings, including any transfers and all preparatory steps? Please consider the degree of urgency that would properly have applied.
108. The responses given were explored in cross examination. Mr McCullough submits that the effect of cross examination was that Dr Johnston confirmed and explained her evidence whereas Dr Kyle significantly revised hers, and failed in particular to take account of the time required for the registrar's assessment of and discussion with the mother before any decision to elect for a CS was made, or of Dr. D's evidence as to the steps which would be required to be taken thereafter including the calling and attendance of the consultant or of her evidence as to categorisation. Categorisation refers to the urgency with which a CS is characterised or classified. Dr Johnston produced an article from the Journal of the Royal Society of Medicine dated July 2000 which explained what was described as a new classification. Mr McCullough submitted that Dr Kyle's timings proceeded on a false assumption that on earlier admission this would have been a category 1 'crash' CS for which the qualifying criterion is 'immediate threat to life of mother or foetus' and which has a 'decision to delivery' time of 30 minutes, whereas the true position was, as Dr. D had expressly stated in her witness statement, that this would on earlier admission have been treated as a category 2 ('maternal or fetal compromise which is not life threatening') with a target time based on 60-75 minutes. So the submission was made that the court should proceed on the basis that any preparations for a CS following earlier admission would have been with a target in mind of delivery in about an hour from the time of decision.
109. Under cross examination, Dr Kyle ultimately agreed with the conclusions of Dr Johnston in her response to the final question 3(d) 'is it likely that delivery would in fact have taken place by caesarean section? if so by what time?'; Dr Kyle had originally responded: 'at the latest by 05.20'; at the end of cross examination she said she agreed with Dr Johnston's response – No by the time appropriate preparations had been made it would have been clear that delivery was imminent and caesarean section would have been abandoned and vaginal birth would have occurred as happened any way; 'although Dr Kyle added the qualification 'But at least the Consultant would have been in by then'.
110. Dr Johnston's response agreed to in this way by Dr Kyle, had been preceded by this analysis of what would have happened:

'TJ: Once a decision was reached to perform a caesarean section there would need to be a telephone discussion with the consultant on call, the consent form would need to be signed, IV access established and bloods sent for FBC and group and save, the theatre team and anaesthetist would need to be contacted and transfer to theatre effected. Anaesthetic review would need to occur prior to giving any anaesthetic. It is highly probable that by the time these steps had been completed that Ms Welsby would have been demonstrating signs of second stage and a vaginal examination would have been repeated prior to administration of any anaesthetic, which would have revealed that the breech was descending and that caesarean section was no longer a viable option. There was no indication to perform caesarean section as a category one delivery (immediate threat to the life of mother or baby), and it would have been performed as a category two delivery.'

111. This analysis itself had followed Dr Johnston's responses to the earlier questions, opining that the Claimant's mother would have arrived at hospital between 04.24 and 04.35; that a vaginal examination would likely thereafter to have been performed no earlier than 04.35 and likely up to 04.40; that midwife Hulme would have repeated the v/e between 04.35 and 04.45 following which Dr. D would have been present by 04.40 and 04.50, following which (as actually happened) she would have performed an ultra sound scan to confirm the breech present action and likely to have repeated the v/e, all of which was likely to have taken until at least 04.50 and likely nearer 05.00; followed by a likely discussion of the pros and cons of modes of delivery taking at least 10 minutes, taking the time to 05.00 at the earliest and likely nearer 05.10 when the election to go for CS would have occurred.
112. Miss Gumbel sought to persuade me, by reference to the detail in the cross examination of Dr Kyle and her re-examination of Dr Kyle, that the agreement of Dr Kyle was on a scenario to Dr Johnston's final response, ((a)) which was not likely to be this case on the evidence of Dr. D, namely the consultant was awaited to assess the mode of delivery before a decision was made as to CS; whereas the scenario ((b)) described by Dr. D in her evidence (and this I accept was the case) was that the consultant on the phone had agreed to the CS and said to the registrar 'to go ahead' (see paragraph 22 of Dr. D's witness statement) but was called to attend because the Claimant's mother had chosen a CS for a breech delivery and the Registrar needed a more experienced doctor to carry it out. On this scenario Dr. D on her own evidence would not have waited for the consultant before carrying out the final v/e. On the situation described by Dr. D she would have asked for the administration of the anaesthetic before the consultant arrived if she had done a final v/e in theatre, and it remained viable to do so.
113. I accept that there were two such scenarios put to Dr Kyle. At one stage in cross examinations she said:

'If the consultant was 20-30 minutes away he would not have got there in that time, it was working on the basis where the registrar is proceeding. That happens…

That's the difficulty I can't comment on that (to the question of the court whether you would expect the consultant to carry out the v/e). I don't know why there wasn't a statement from the consultant. It's really what that discussion with the registrar and consultant (would have been)…if consultant said she's adamant, get in and get going and I'll be in, the VE and the anaesthetic would have been done by the reg…If they had said waited it would be the opposite'.

114. Having considered the cross examination and re-examination of Dr Kyle I accept that she was only agreeing with Dr Johnston by reference to scenario (a).
115. More important, however is the evidence of Dr. D herself describing what the position would have been had a decision to proceed to a CS been made earlier, which was based on scenario (b).
116. I say this because I agree with Miss Gumbel that in determining the question of fact as to 'what would have happened' on the balance of probabilities, the court can obtain only limited assistance from the expert evidence. The issue is not whether it would have been negligent for events to have taken longer (see again Bolitho) but what is likely to have happened given it would have been the same registrar, Dr. D who would have been called to attend and the same midwives in charge of the Claimant's mother when she arrived.
117. On this issue I agree that the best evidence must be the timings described by Dr. D and the midwives – this is the best guide to what would have happened. The court has to consider how long Dr. D would have done things doing the things she describes in order to achieve the mothers choice of a CS. As Miss Gumbel expressed matters, if Dr. D would have agreed to carry out a caesarean section and would have done so in sufficiently timely fashion to transfer the mother to the theatre and ask for the spinal block to be administered prior to the breech descending at 05.15, it is not necessary for the Claimant to show it would have been a breach of duty not to achieve delivery in this time scale. The test is not whether a reasonable body of medical opinion would have achieved the transfer to theatre in time but whether this doctor in this unit would have done so in the particular circumstances presented. And again in so far as the expert evidence is relevant, I agree that this has to be viewed in the light of the fact that the experts accepted they were not familiar with the unit in which Dr. D worked. I accept that the transfer time, for example, from delivery suite to the operating theatre will vary considerably from one unit to another as will the practice in terms of calling in a consultant. The policy of this particular unit in setting up the theatre and support preparations for a CS before any decision was made, was not one with which the experts were familiar. I accept that it is the evidence of Dr. D and the midwives which is the relevant evidence on these matters. And it is to be noted that the Defendant called no evidence from the consultant on call-duty that day.
118. Further I accept that the Defendant's reliance on 'brackets of time' suggested by the experts for various steps to be taken, would only be relevant to the court determining the longest period in which the events could reasonably have been performed not in assessing the period in which this particular Doctor, Dr. D, would actually have achieved them. That as I have said, depends on the court's assessment of Dr. D's evidence to this court and that of the midwives.
119. What I did find helpful in the obstetric expert evidence, was as to what the probable clinical situation would have been on a first midwife vaginal examination of the Claimant's mother following earlier admission to the delivery unit. Both agreed that given the mother was fully dilated at 05.05 it is likely a vaginal examination at the times each considered was the likely time of that first examination (Dr Kyle 04.25-04.35; Dr Johnston 04.30 – 04.40) would have revealed the cervix to be approaching (greater than 5cm) but not at full dilatation, breech presentation (still high) and absent membranes which meant that it is likely a confirmatory examination would have been called for and carried out by the other mid wife, and thereafter the Registrar called to attend as in the events which happened.

Conclusions on Factual Causation:

120. I accept Miss Gumbel's overall submission that, in the absence of evidence from the midwives who took the calls or the consultant who would have been called in, the court should, on the question of factual causation, look benevolently on the Claimant's reconstruction of events – the Claimant has had to reconstruct on the basis of as such evidence as is available. I accept that the evidence of how fast action was taken on admission and how fast the preparations for a CS were expected to take place as described by the clinical team, are the best measure as to what would have occurred. In this regard I have carefully considered the totality of the evidence of the midwives and that of Dr. D and of course the content of there medical notes. The prior question as to when the Claimant's mother would have been likely to have reached the delivery unit had she left home immediately after the first call, is to be determined by the court's assessment of the Claimant's family evidence to which I have referred.
121. Based on this evidence, I make the following findings on the critical issues I have to determine, as to 'what would have happened' on the balance of probabilities had the Claimant's mother been invited to attend in the first phone call:

(i) the mother would have left home immediately to attend the hospital and she would have reached the delivery unit for assessment by the midwives in the same sort of time as she did when she left after the second phone call that is within about 18 and half minutes (18 minutes 27 seconds on the purely mathematical analysis); This would mean an arrival in the unit at about 04.20 or thereabouts. The precise figure contended for by the Claimant was of course 04.20.22. There is no evidential basis for concluding that the family would have come in any less quickly than they did after the second call. There may be some force in the argument that there would have been less urgency but set against that is the evidence the Claimant's mother was more mobile and she was moreover dressed, packed and ready to come in. The family evidence was that they would have managed the journey slightly faster if the Claimant had not been in such pain;

(ii) the circumstances on arrival and sequence of events as regards the assessments and examinations of the midwives, and the bleeping of the Registrar to attend, would have been similar to that pertaining at 05.00; see my observations at paragraph 119 above as to the likely clinical findings – namely that the Claimant would have been found to be in labour with a undiagnosed breech presentation;

(iii) notwithstanding the Defendant's submission that the pace of these assessments and examinations would have been less speedy I do not agree. I consider the time taken would likely to be the same as occurred following arrival at 05.00; The evidence of Mr Makin was that the midwives at 05.00 were not in any panic and seemed to be following a routine. As Miss Gumbel submitted, that routine involved achieving a considerable lot in a five minute period culminating in the first v/e of midwife McCourt at 05.05. According to the medical record, she took a history of the rupture of the membranes being at 03.30; assessed the frequency of contractions as being 4:10; assessed the strength of the contractions -+ long lasting; gave the mother a mask with gas and air (Entonox) and observed 'she started to use it well'; took and recorded the mother's blood pressure (120/82); took and recorded her pulse (88bpm); took and recorded her temperature (37 degrees C); did an abdominal palpitation and recorded the size of the fundus (term + 1), the lie was longitudinal but it was difficult to determine the presentation; listened to the baby's heart by auscultation of the transducer from the CTG machine and recorded it as 140bpm. All of these steps were taken before consent was sought for a vaginal examination.

(iv) the likelihood is therefore that a first v/e would have been performed 5 minutes after arrival in the delivery unit (at about 04.25) and if, as is likely, a second vaginal examination was necessary for confirmation of the breech presentation, this is likely to have taken a further 5 minutes (to about 04.30 in line with the v/e of midwife Hulme at the recorded time of 05.10);

(v) upon the confirmation of the breech presentation, the same steps as at 05.10 would, in accordance with policy of this particular delivery unit, (confirmed by the midwives' evidence) have been taken immediately to: (a) prepare the theatre (b) notify the anaesthetist, OPD and SHO; and further to bleep the Registrar, Dr. D, to attend;

(vi) Dr. D would have responded to that bleep and attended as she had following the later bleep, within a minute or two; The latest she would have attended would have been 5 minutes after that bleep or 15 minutes after the arrival of mother in the delivery unit, but it is likely to have been slightly less; See my analysis of what occurred on the evidence after 05.10 in paras 21 and 22 above. There is no evidential basis to consider that Dr. D would have responded differently at this earlier time. This would mean Dr. D arriving at about 04.35.

(vii) the discussions which Dr. D is likely to have undertaken with the mother and father as to the pros and cons of the modes of delivery before the likely decision to elect for a CS, are not likely to have been as long as 10 minutes as contended for by the experts (evidence based on the discussions they would have had with the mother). As indicated on the midwife note, in the 5 minutes which occurred between 05.15 and 05.20 Dr. D had carried out the scan confirming the breech presentation, discussed the possible modes of delivery with the parents, carried out a v/e and then had a second discussion as to the only viable option now that the breech had descended. I have already found that it is likely that any advice which Dr. D would have given on this earlier occasion as to the pros and cons of CS versus vaginal delivery, would have been no longer and in no greater depth than the very limited advice she gave (limited to the results of the trial) when she saw the parents on 28 March. (See paragraphs 39 and 40 above)'.

(viii) it is likely that just as Dr. D was able in 5 minutes to achieve all that she did by way of examination and discussion with the mother on the 28^th of March leading to an agreement as to mode of delivery, it would have taken no more than 5 minutes to achieve the same result (albeit the choice of mode would have been different) had she seen the Claimant earlier; In other words the likelihood is that the decision to elect for a CS would have been made by the Claimant's mother no later than about 04.40;

(ix) the likelihood is that Dr. D would have achieved the position of the Claimant being ready for transfer to the operating theatre with all preparations completed, by 15 minutes from the CS decision, that is by about 04.55. This is the issue of the 'no rush 15 minutes' to which I have referred. I have considered the cumulative effect of the answers given by Dr. D and the midwives. I repeat I have heard no evidence from the consultant who would have been contacted by Dr. D. On the balance of probabilities I do find that 15 minutes would have been the likely time taken for all the steps to be achieved to which I have referred (see paragraph 98 above) including Dr. D obtaining the consent of the consultant to 'go ahead' but excluding the transfer time itself. Of course there must always be the possibility that things might not have gone smoothly and midwife McCourt's evidence confirming the 15 minutes was by reference to everything going smoothly Dr. D herself said at one stage it could take longer. However, I am concerned not with possibilities but with the likelihoods on the balance of probabilities based in the evidence before me. I should make clear that I did not find the issue as to categorisation, helpful on this issue. Whatever her categorisation of the procedure, Dr. D's evidence was that she would in this case have got on with the procedure as quickly as possible although not rushing to do so and she expressly agreed the 15 minutes referred to, was the 'not rushing time' for the necessary steps to be taken. Her evidence was in effect that she would have endeavoured to comply with the wishes of the Claimant's mother to have a caesarean section and would have got on with the preparations in a timely fashion.

(x) if 3 minutes is allowed for the transfer to theatre which I consider is a reasonable assessment of what would have been likely on such evidence as I have of where the theatre was located close by to the assessment room, the likelihood is that the Claimant would have arrived in the operating theatre just before 05.00. Again on the evidence of Dr. D, if the consultant had not yet arrived – and the court heard no evidence from the consultant herself as to how long she would have taken – the likelihood is that, she, Dr. D, would at this time have carried out the final v/e herself to check progress, and given a CS was, on the evidence, still viable at this time, the breech not having descended below the ischial spines she would then have asked for the anaesthetic to be administered.

122. Even if the consultant did not arrive until later (on the 20-30 minute scenario starting from her agreeing to come in for the CS), this does nonetheless mean in my judgment that on the balance of probabilities the mother would have been in theatre and the spinal anaesthetic would have been started to be administered before 05.15, that is at around 05.00 or not long thereafter, and delivery would have been achieved before 05.50 meaning the Claimant would have been spared his injuries.
123. It follows accordingly that I find the Claimant succeeds on the issue of factual causation.

Final conclusion

124. For the reasons I have given the Claimant succeeds on liability + causation. I invite the parties to make submissions as to the form of order to be made.