Supreme Court of Ireland Decisions

36

Denham J.
Geoghegan J.
Kearns J

The plaintiff was born on the 4th May, 1990 in Limerick Maternity Hospital at a gestational age of 39 weeks and 1 day. She brings these proceedings through her mother and next friend, Kathleen Quinn, with whom she resides at Fortanne, O’Callahans Mills, County Clare. The first named respondent has or had responsibility for the Limerick Maternity Hospital at the material time. The second named respondent is a consultant obstetrician and gynaecologist who had responsibility for the obstetric management of the plaintiff’s gestation and subsequent delivery. When Anne Marie was born she had severe brain damage attributable to a condition subsequently diagnosed as periventricular leukomalacia (PVL). The basis of her case against the defendants in the High Court was that she ought to have been delivered not later than week 35 of her gestation, in which case it was contended the plaintiff would have avoided all, or substantially all, of the brain damage which occurred.

The defendants ultimately did not dispute that there had been negligence in the management of the pregnancy and that the plaintiff should have been delivered earlier than she was. However, the defendants contended that the plaintiff’s brain damage was sustained as a result of an acute episode which occurred between 28-30 weeks of the pregnancy and that the outcome would not have been any different had she been delivered at any earlier time than she was.

The hearing before O’Sullivan J. was spread over a period of 17 days between the 13th May and 16th July, 2003, following which judgment was delivered on the 14th October, 2003. It had been agreed between parties that the trial should deal only with the issues of breach of duty, causation and life expectancy – the issue of damages (if any) being postponed until these issues were decided. In delivering judgment, O’Sullivan J. dismissed the plaintiff’s claim and on the 31st October, 2003, awarded costs in favour of the defendants.

The plaintiff’s mother is an insulin-dependant diabetic who was diagnosed as such in 1988 and her pregnancy is thus agreed to have been a ‘high risk’ pregnancy. She consulted her general practitioner regularly during the pregnancy and also attended at the first named defendant’s diabetic clinic in Limerick Regional Hospital. She was weighed regularly and her blood sugar levels noted. Some high blood sugar readings were recorded on the 7th September, 1989, along with some hypoglycaemic episodes. A change in insulin regime was put in place in September, and an incident of vaginal bleeding was noted on the 25th October. There was also a recorded weight loss of 2 kilos between 3rd October and 2nd November.

On the 7th November, 1989 (at 14 weeks gestation), the plaintiff’s mother attended the second named defendant for the first time. She had been referred by her general practitioner and saw the second named defendant on four subsequent occasions thereafter, those dates being the 2nd January, 1990 (22 weeks gestation), the 27th February, 1990 (29 ½ weeks gestation), the 10th April, 1990 (36 weeks gestation) and the 1st May, 1990 (39 weeks gestation).

On the 2nd March, 1999 (at 30 weeks gestation), her general practitioner noted a drop in weight and queried “IUGR” (Intra Uterine Growth Restriction). This possibility was not further explored. On the 27th April, 1990, the general practitioner noted that despite a gestation of 38 weeks and 1 day that the fundus equalled 34 weeks. This was the first time that a discrepancy was noted between gestation and fundal height.

The plaintiff’s mother made a further visit to the second named defendant on the 1st May, 1990 (at 39 weeks gestation), and he recorded a reduction in weight but did not note any discrepancy between the height of the fundus and gestation. No ultra-sound scans were at any time undertaken. On the 3rd May, 1990, the second named defendant suggested that the plaintiff’s mother be admitted to Limerick Maternity Hospital and she was admitted there on the 4th May, 1990, at a point when gestation was at 39 weeks and 1 day.

A foetal heart monitor (CTG) was attached the reading from which was flat, meaning there was no base line variability and no accelerations. Delivery by caesarean section was ordered and at delivery there was a finding of “grossly diminished liquor volume” (oligohydramnios), liquor being the fluid surrounding the foetus in the uterus. At birth, the plaintiff’s weight was 2.09 kilos with a head circumference of 30.5 cm. She was grossly and symmetrically growth retarded, her birth weight and head circumference being well below the third centile for the date of gestation.

She was a very ill child who had poor activity and a poor cry. At 1 minute the plaintiff’s Apgar score was 3 and was 6 at 5 minutes. She developed respiratory problems and had poor colour, with twitching and chronic activity. Within 12 hours of birth the plaintiff suffered epileptic-type seizures. It became evident that the plaintiff had suffered major brain damage and a diagnosis of PVL followed.

A CT scan of the plaintiff’s brain was performed on the 28th May, 1990, and a further CT scan was performed on the 7th June, 1990. Some 10 years later an MRI scan of the plaintiff’s brain was carried out on the 28th June, 2000.

While multiple grounds of appeal have been advanced on behalf of the plaintiff, her case can be fairly summarised in the following way. The plaintiff alleges that her difficulties evolved as part of a unitary pathological process, namely, placental insufficiency (most probably linked to maternal diabetes), which caused a chronic hypoxic ischaemia in utero. This led to a gradual deprivation of oxygen and vital nutrients from before the 28th week which continued up to birth at 39 weeks and 1 day. An important feature of the early stages of this process on the plaintiff’s case was the suggestion that a compensatory mechanism known as “brain sparing” would have operated. Under this process, the brain would have been preferentially favoured by shunting of the available blood and oxygen supply at the expense of other organs during the initial period of chronic placental insufficiency, but this process could not have continued beyond 35 weeks. Had there been proper scanning and other monitoring, the fact that there was IUGR. would have been detected at around 30 weeks and this in turn would, it was contended, have led to delivery between the 32nd and 35th week of gestation thereby avoiding the catastrophic and irreparable damage caused to the plaintiff’s brain thereafter and in the neo-natal period. The witnesses for the defendants, however, denied that the plaintiff’s PVL was caused by a lengthy process which was continuing up to the time of delivery and denied that it was the result of placental insufficiency. They contended that there was an acute, relatively brief insult at 28 weeks to 30 weeks which caused catastrophic brain damage, and that the growth retardation was either caused by the same insult or resulted from the brain damage which occurred at that time. The defendants ultimately accepted during the trial that there was a period of placental dysfunction during the 3 to 4 weeks prior to delivery, but denied that this was connected with the plaintiff’s brain damage. In making their case, the defendants relied in particular on the information subsequently yielded up by the MRI scan. The MRI scan was the subject of detailed investigation and evidence by Professor Olaf Flodmark, a distinguished consultant neuroradiologist from Stockholm who was retained on behalf of the defendants, whose evidence as to the timing of the injury at 28 to 30 weeks was to prove decisive in the decision ultimately arrived at by the trial judge.

Both Professor Flodmark and Dr. King, a consultant paediatric neurologist who was also called for the defendants, disputed that any significant injury occurred later on in the pregnancy, and more particularly in the last 4 weeks of gestation, or that significant injury was caused either on the day of delivery or in the neo-natal period. The plaintiff’s experts, who included two consultant obstetricians, namely, Dr. Peter Buchan and Mr. Roger Clements, consultant paediatric neurologist Professor Alan Hill, consultant neo-natal paediatrician Professor Peter Fleming and paediatrician Professor Alan Lucas were collectively of the view that there was an ongoing progressive process taking place as a result of placental insufficiency which, via the mechanism of hypoxic ischaemia, contributed to the plaintiff’s brain damage during the pregnancy and was combined with an acute hypoxic ischaemic event at the time of delivery with episodes of hypoglycaemia postnatally. The defendants admitted only during the closing submissions that they had been negligent in not delivering the plaintiff/appellant at an earlier time. In the course of the appeal before this Court, Mr. Murray McGrath, senior counsel for the defendants, accepted that this admission necessarily meant that the defendants had been negligent in the management of the pregnancy and had failed to carry out appropriate scanning or monitoring of the plaintiff’s gestation.

The critical issues therefore which the judgment of the learned trial judge addressed were:-
(a) The nature of the insult which caused the PVL
(b) The timing of that insult.

In resolving that conflict, it was clear that the trial judge had to deal with conflicting evidence from both sides with regard to a medical condition (i.e. PVL) which is multi-factorial, poorly understood and the subject-matter of widely diverging scientific and medical understanding, notably in term of its precipitating cause. Having taken considerable time for reflection, O’Sullivan J. held that the plaintiff had failed to establish, on the balance of probability, that she would have avoided her catastophic injuries had she been delivered by the 35th week of gestation and he accordingly dismissed the claim.

Arguments of the Parties on Appeal

Mr. McCullough, senior counsel for the plaintiff, contended that the trial judge in arriving at his decision had accepted the obstetric evidence led on behalf of the plaintiff, to which there was no countervailing evidence, which was to the effect that a unitary pathological process had taken place in the medical condition of the foetus, whereby placental insufficiency caused hypoxic ischaemia which went on progressively from 28 weeks to birth. Having so found and concluded, counsel argued that the trial judge logically should not have set that finding at naught by ultimately preferring, as he did, the radiological evidence adduced on behalf of the defendants to determine the nature and timing of the injury. Furthermore, counsel submitted, the weight of the evidence was such that preference ultimately had to be given to the obstetrical evidence for a number of reasons. Firstly, the child did not die in utero, as one would have expected if a major insult had taken place at 28 weeks. Secondly, the radiological evidence was accepted by the defendants’ experts to be consistent with the case made on behalf of the plaintiff, even though it may have been less likely.

Once that concession as to consistency had been made, Mr. McCullough argued, the radiological evidence was no longer a bar to a finding by the trial judge in favour of the plaintiff. Having found that there was placental insufficiency ab initio, the trial judge should have given more weight to the evidence of Professor Hill (who had had regard to the fact that there was placental insufficiency) than that given to the evidence of Professor Flodmark (who did not have particular regard to the evidence of placental insufficiency).

Mr. McCullough further argued that the defendants themselves had not accepted the case on placental insufficiency until the cross-examination of their last witness, Dr. King. Up to that point, the defendants had contended for a healthy placenta and had postulated the occurrence of a single acute episode taking place for no particular reason. This, Mr. McCullough argued, was inherently improbable and was a view which the court, acting reasonably, should not have arrived at.

Mr. McCullough further criticised the trial judge for attaching undue importance to the failure of the plaintiff’s advisers to call their own radiologist, Professor Anslow, but submitted to this Court that there was nothing in his report (which had been tendered to the court during the hearing) to justify any finding that the failure to call this witness was particularly significant.

Furthermore, while Professor Flodmark had relied heavily on the fact that the MRI scan showed no damage visible to the cortex or sub-cortical area of the brain ( a fact inconsistent with late onset damage), Mr. McCullough argued that the fact that the plaintiff had had epileptic seizures suggested otherwise, so that the MRI scan should not be necessarily regarded as capable of revealing all damage to the grey matter of the brain.

Mr. McCullough further submitted that the defendant’s case was inherently improbable, because it sought to account for the plaintiff’s medical history by contending that three separate and unrelated events had occurred being:-
(a) An initial insult at 28-30 weeks
(b) Placental insufficiently occurring some 3 or 4 weeks before birth, causing hypoxic ischaemia,

and

Based on those contradictions and difficulties, Mr. McCullough suggested that the trial judge should have preferred the evidence of the plaintiff’s experts and invited this Court effectively to reverse the trial judge’s finding on causation and hold in favour of the plaintiff. Alternatively, Mr. McCullough submitted the case should be sent for retrial before another judge on the issue of causation. He urged the court not to remit the matter to the trial judge to resolve issues which, he suggested, the trial judge had failed to resolve in the course of his judgment.

Finally, he submitted that the failure on the part of the trial judge to resolve the difficult issues before him was not in accordance with the legal obligation to decide the case in favour of one party or the other and the trial was, for these various reasons, unsatisfactory and the outcome one which was not in accordance with the evidence and was a finding so unreasonable that this Court should intervene in the manner suggested.

On behalf of the respondents, Mr. McGrath contended that there was credible evidence before the trial judge such as to raise significant doubt about the correctness of the proposition advanced on behalf of the plaintiff as to causation in this case and, in particular, the timing of the injury. Furthermore, Mr. McGrath submitted that the trial judge had made a conscientious effort to resolve the issues in the case. Insofar as the trial judge may have failed to resolve those issues, Mr McGrath submitted that this Court, if disposed to intervene, should resolve the causation issue in favour of the defendants/appellants.

Notwithstanding the concession of negligence, Mr. McGrath argued that the onus of proof remained at all times on the plaintiff in respect of the issue of causation and there was no onus on the defendant to establish a particular version of causation. If the trial judge as a result of evidence adduced on behalf of the defendant was unable to decide the case on the balance of probabilities in the plaintiff’s favour he had then no option but to dismiss the claim. In any event, Mr. McGrath contended, it was clear from the judgment that the evidence called on behalf of the defendant went further and enabled the trial judge to effectively prefer the defendant’s case to that of the plaintiff.

Having regard to the expertise of Professor Flodmark, whose evidence was not contradicted by any neuroradiologist called on behalf of the plaintiff, the trial judge was entitled to attach great weight to that evidence and to act upon it. He had in addition further evidence available to him, notably evidence of the plaintiff’s reduced head size at birth. Evidence had been given at trial to suggest that growth of her head slowed markedly from about 28 weeks, meaning that brain damage had taken place at that time. Where brain damage occurs, the evidence had shown that the head ceases to grow, and it was noted in this case that at delivery the head size was appropriate to 31/32 weeks only.

The court in addition had the benefit of evidence which suggested that the condition of PVL typically occurs at 28 to 30 weeks and not after 35 weeks. There was further evidence that this condition tends not to be an ongoing or chronic process, but is more usually an acute episode. There was further evidence available from Professor Flodmark that this was a case of “Pure PVL” (where the condition exists without other complicating factors) thus rendering it very unlikely that there had been an ongoing injury beyond 35 weeks. Professor Flodmark did not accept that death of the foetus would have followed an acute injury at 28 – 30 weeks and further stated that he never saw imaging where PVL damage went on beyond 35 weeks.

Counsel argued that the evidence available from the MRI scan, described in evidence by Dr King as the “gold standard” from a diagnostic point of view, suggested clearly that the time of the plaintiff’s brain damage was at 28 weeks. Furthermore, the MRI scan of the cortical and sub-cortical areas of the brain did not show the kind of damage which would be apparent if a chronic ongoing process until birth had taken place.

In all these circumstances, Mr. McGrath argued, the trial judge had resolved an extremely difficult case in a careful and reasoned manner and had set out with great care the reasons why he favoured the evidence of the defendant’s witnesses over those called on behalf of the plaintiff. He submitted that there should be no interference with the findings and judgment arrived at by O’Sullivan J.

Legal Principles

It is important at the outset to identify some legal principles appropriate to the task of deciding the issue of causation in cases of this nature.

Firstly, it was conceded on behalf of the respondents, albeit only on the 17th day of the trial, that the defendants were negligent in not delivering Anne Marie early. In the course of submissions before this Court, Mr. McGrath has helpfully clarified that this concession may be taken as necessarily including an admission that the monitoring of this pregnancy was inadequate and that ultra-sound scans, which conceivably might have yielded information leading to an early delivery, were not in fact performed.

Nonetheless counsel on behalf of the respondents submitted that the onus of proof at all times remained on the plaintiff to establish that the admitted breach of duty actually caused the plaintiff’s injury. The respondent’s case quite simply was that all of the plaintiff’s brain damage was attributable to a severe insult to the brain which occurred, as a matter of probability, between 28 and 30 weeks of gestation and that no intervention by way of early delivery thereafter would have altered that situation. Counsel further contended that while the exact cause of the insult was not known, it resulted in the condition of periventricular leukomalacia (PVL) which Anne Marie was subsequently shown to have.

At the outset it may be said that this is not a case where any act of the respondents first triggered the particular medical condition from which the plaintiff suffers. The case is rather that they negligently failed to realise that there was a problem when indications that such was the case first became evident between 28-30 weeks and to thereafter intervene appropriately to ensure that Anne Marie was born at the earliest possible opportunity, and certainly not later than 35 weeks.

In the context of causation, however, I should immediately emphasise that it is not enough to show that the plaintiff’s condition got worse during the period from the start of the difficulties until delivery, it must further be shown that early intervention would have prevented the damage. There is no dispute in the present case that the only form of effective intervention lay in delivering the baby at the earliest possible opportunity.

Given that a difficulty for which the respondents were not responsible led to the start of the plaintiff’s difficulties, it is perhaps somewhat surprising that the case was presented to the trial judge on an “all-or-nothing” basis. No case was made along the lines that the delay in intervention meant that the plaintiff had “lost a chance” of a better outcome for which she was entitled to be compensated. Furthermore, any claim that the negligent delay “materially contributed” to the plaintiff’s condition, as distinct from bringing it about in its entirety, was expressly abandoned by the plaintiff’s advisers during the course of the trial.

On the face of it, therefore, the issue of causation fell to be dealt with on the basis that the claimant was required to discharge the burden of showing that the breach of duty of which she complains caused the damage and to do so by showing that but for the breach she would not have suffered the damage. This is known as the “but for” principle of causation which obtains in the generality of personal injury actions and is a principle long established in negligence actions at common law.

In the instant case, however, Mr. McCullough argued that the particular circumstances of this case called for a modified approach to proof of causation by reference to principle, authority, and policy. In particular he relied upon a recent decision of the House of Lords in Fairchild v. Glenhaven Funeral Services Ltd. and Others [2002] 3 All ER 305 to suggest that requirements of proof of causation could be relaxed in certain circumstances. He further relied on observations of Sopinka J. in Snell v Farrell, a decision of the Supreme Court in Canada [1990] 2 S.C.R. 311 to argue that causation could be ‘inferred’ in circumstances such as arose in the present case. These cases were, Mr. McCullough submitted, indicative of an evolving approach to issues of negligence and causation which may be said to have begun with the decision of the House of Lords in McGhee v. National Coal Board [1973] W.L.R. Vol.1(1). That case is undoubtedly a useful starting point in the consideration of this issue.

Mr. McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4 ½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The plaintiff contended that his dermatitis had been caused by his period of working in the brink kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. The trial court concluded the employers were at fault in failing to provide showers, but found against the plaintiff on the basis that the plaintiff had failed to show that the breach of duty caused or materially contributed to his injury. In allowing the appeal, the House of Lords adapted the orthodox test to meet the particular case, recognising that the plaintiff faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy. In the circumstances the House of Lords found that no distinction was to be drawn between materially increasing the risk of the plaintiff contracting the disease and making a material contribution to its occurrence.

Of the five speeches in the House of Lords, only Lord Wilberforce however advocated a reversal of the burden of proof, an issue touched upon in the course of the appeal before this Court also. Nonetheless, this decision was widely seen as ushering in a relaxation of the traditional “but for” requirement to establish causation. However, in Wilsher v. Essex Area Health Authority [1988] 2 W.L.R. 557, Lord Bridge interpreted McGhee as espousing no new principle. Instead, McGhee was explained as promoting “a robust and pragmatic” approach to the facts of a case to enable an inference of negligence to be drawn where medical or scientific expertise cannot arrive at a definitive conclusion. In giving his reasons, Lord Bridge stated at p.569:-

“The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders negligence had materially contributed to the pursuer’s injury. The decision, in my opinion is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”

“To apply the principle in McGhee v National Coal Board [1973] W.L.R.1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust; the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz. brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.

In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents.

The position, to my mind is wholly different from that in McGhee where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. Failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”

Be that as it may, Mr. McCullough noted that many Canadian cases decided after McGhee (but before Wilsher) tended to follow McGhee by adopting either the reversal of onus or the inference interpretation. Which interpretation was adopted made no practical difference because even when the latter approach was applied, the creation of the risk by the defendant’s breach of duty was deemed to have established a prima facie case, thus shifting the onus to the defendant. (Powell v. Guttman [1978], 89 D.L.R. (3d) 180 (Man. C.A.) and Letnick v. Toronto (Municipality of Metropolitan), [1988] 2 F.C. 399 (C.A.), applied the reversal of proof theory.)

A useful analysis of different approaches to causation may be found in Snell v. Farrell [1990] Can L11 70 (S.C.C.) where Sopinka J. stated as follows (at p.10):-

“The question that this Court must decide is whether the traditional approach to causation is no longer satisfactory in that plaintiffs in malpractice cases are being deprived of compensation because they cannot prove causation where it in fact exists.

Causation is an expression of the relationship which must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation to the latter out of the pocket of the former. Is the requirement that the plaintiff prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury too onerous? Is some lesser relationship sufficient to justify compensation? I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant’s conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone.”

“Some witnesses suggested that, if the burden of proof were reversed, the patient’s difficulties in obtaining and presenting his evidence would be largely overcome. It was said that doctors were in a better position to prove absence of negligence than patients were to establish liability. At the Council of Europe colloquy, however, although it was agreed that the patient was at a disadvantage when he sought to establish a claim, serious doubts were expressed on the desirability of making a radical change in the burden of proof. We share these doubts. We think that there might well be a large increase in claims, and although many would be groundless, each one would have to be investigated and answered. The result would almost certainly be an increase in defensive medicine.”

“…it is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”

He ultimately concluded, and this is the passage upon which counsel relies, that where the relevant facts are peculiarly within the knowledge of one party (or, by inference in the present case, within their ability to procure knowledge of such facts) “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. This has been expressed in terms of shifting the burden of proof.”

Sopinka J. however disliked the idea of deciding that a transfer of the onus of proof was the approach to adopt and characterised as proper an approach which involves the weighing of evidence to draw an appropriate inference in circumstances where a defendant runs the risk of an adverse inference in the absence of evidence to the contrary. He continued (at p.12):-

“The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.”

In that case, an employee had been employed at different times and for differing periods by more than one employer. He developed a condition of mesothelioma as a result of the inhalation of asbestos dust at work. The question arose whether in the circumstances he was entitled to recover damages against either employer or both of them even though unable to prove on the balance of probabilities that his condition was the result of inhaling asbestos dust during his employment by one or other or both of his employers. The claims were dismissed in the Court of Appeal but were allowed by the House of Lords. The House decided that, in certain special circumstances, the court could depart from the usual “but for” test of causal connection and treat a lesser degree of causal connection as sufficient, namely that the defendant’s breach of duty had materially contributed to causing the claimant’s disease by materially increasing the risk of the disease being contracted. In the circumstances of that case the House thought it would be just, and in accordance with common sense, to treat the conduct of both employers, in exposing the employee to a risk which he should not have been exposed, as making a material contribution to the employee contracting a condition against which it was the duty of both employers to protect. Any injustice that might be involved in imposing liability on a duty-breaking employer in such circumstances was heavily outweighed by the injustice of denying redress to the victim. Policy considerations therefore weighed in favour of allowing the employee to recover against both employers, and that conclusion followed even if one of them was not before the court.

In this course of his judgment (at p.357) Lord Hutton stated:-

“Therefore, whilst the decision taken by the house in McGhee’s case may have been based on an inference of fact, I consider that it is in the interest of justice that it should now be held as a matter of law that the approach taken by the house in McGhee’s case is one which should be followed by trial judges in cases such as the present one where the claimant can prove that the employer’s breach of duty materially increased the risk of him contracting a particular disease and the disease occurred but where in the state of existing medical knowledge he is unable to prove by medical evidence that the breach was a cause of the disease.”

“Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage”

Furthermore, the fact that the House of Lords took an exceptional course in Fairchild was expressly acknowledged to have been the case by Lord Hoffman in the course of his judgment in the recent case of Gregg (F.C.) v. Scott (House of Lords, unreported, 27 January, 2005) when he stated (at paras.84-85):-

“Academic writers have suggested that in cases of clinical negligence, the need to prove causation is too restrictive of liability. This argument has appealed to judges in some jurisdictions; in some, but not all, of the States of the United States and most recently in New South Wales and Ireland; Rufo v. Hosking (1 November 2004) (2004) NSWCA 391; Philip v. Ryan (17 December 2004) [2004] 1 I.E.S.C. 105. In the present case it is urged that Mr. Gregg has suffered a wrong and ought to have a remedy. Living for more than ten years is something of great value to him and he should be compensated for the possibility that the delay in diagnosis may have reduced his chances of doing so. In effect, the appellant submits that the exceptional rule in Fairchild should be generalised and damages awarded in all cases in which the defendant may have caused an injury and has increased the likelihood of the injury being suffered. In the present case, it is alleged that Dr. Scott may have caused a reduction in Mr. Gregg’s expectation of life and that he increased the likelihood that his life would be shortened by the disease.

It should first be noted that adopting such a rule would involve abandoning a good deal of authority. The rule which the House is asked to adopt is the very rule which it rejected in Wilsher’s case [1988] AC 1074. Yet Wilsher’s case was expressly approved by the House in Fairchild [2003] 1 AC 32. Hotson [1987] AC 750 too would have to be overruled. Furthermore, the House would be dismantling all the qualifications and restrictions with which it so recently hedged the Fairchild exception. There seem to me to be no new arguments or change of circumstances which could justify such a radical departure from precedent.”

From the review of the cases undertaken herein, I am driven to conclude that Mr. McGrath’s submissions in relation to the onus of proof and causation generally are correct and that the “but for” approach to causation must be followed by this Court. Any approach which had the effect of reversing the onus of proof, or transferring the onus of proof to the defendant, would be one of such importance, even in the few exceptional cases where it might be appropriate, that it would require a full court - or perhaps even legislation - before a change of such magnitude to existing law could take place. Nor do special circumstances arise or exist in this case to bring it within the more relaxed requirements for establishing causation which were found to exist in McGhee v. National Coal Board and Fairchild v. Glenhaven Funeral Services.

This is not a case where there were multiple defendants or where a single agency was clearly established as the cause of the plaintiff’s condition. Indeed it was noted in the evidence at trial that PVL is a multi-factorial condition which is as yet not fully understood by scientific and medical experts. Indeed it appears in this case that a round-table discussion between experts from both sides took place in London some time before the trial, which proved of considerable assistance in sharpening the focus of the evidence given at the trial. Nor is this a case where there was any deliberate obfuscation by the defendants in meeting the case, or any concealment or destruction of documents or records which were of critical importance in determining the nature of the condition from which the plaintiff suffered and the point in time at which it occurred. Both sides to the case had to employ their best endeavours to try to ascertain what had happened in this complex and difficult case. Furthermore the defendants did call evidence from two experts, one of them, Professor Flodmark, being an expert of international stature on the topic of PVL and MRI imaging in relation thereto. That being so, the inferential consequences mentioned by Sopinka, J. in Snell v. Farrell which arise when a defendant fails to adduce evidence do not arise in this case.

Besides, as has already been noted, no argument was made in the course of the trial that the normal requirements of proof on the part of the plaintiff do not apply. That being so, it is quite clear that a new case to that effect can not now be made. In Ahmed v. The Medical Council and the Attorney General [2004] 1 ILRM 372 this Court, sitting as a court of five, unanimously upheld the principle, often referred to as “the rule” in Henderson v. Henderson [1843] 3 Hare 100, to the effect that parties to litigation must bring forward their whole case and each and every point which properly belongs to the subject of litigation in the course of trial and not seek to do so at a later time. Mr. Noonan, counsel for the respondents, usefully referred the court to a restatement of that principle to be found in an Australian decision, Gavalas v. Singh [2001] V.S.C.A. 23 (22 March 2001) where the court noted:-

“As a general rule it is unusual to allow an appellant or a respondent to raise on appeal points not taken at the trial. There are fundamental policy considerations that underlie that approach.”

Decision

The jurisdiction of the Supreme Court in an appeal of this nature is as outlined by McCarthy J. when delivering the judgment of this Court in Hay v. O’Grady [1992] 2 I.R. 210 where it was stated (at p.217):-

“(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.

(3) Inference is a factor drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in ‘Gairloch,’ The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R.1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”

As to how a court of trial should approach the task of finding primary facts, Mr. McCullough pointed to the dicta of Finlay C.J. in Best v. Wellcome Foundation Ltd [1993] 3 I.R. 421 (at p.462):-

“The function which a court can and must perform in the trial of a case in order to achieve a just result is to apply common sense and a careful understanding of the logic and likelihood of events to conflicting opinions and conflicting theories concerning a matter of this kind.”

Having regard to the complete stand-off between the respective medical experts on both sides of this case, both as to causation and the timing of Anne Marie’s injury, I do not believe it was necessary for the trial judge ultimately to decide in favour of one proposition or the other. It was open to him to decide the case by holding, as he did, that the plaintiff had not discharged the burden of proof to establish, on the balance of probabilities, that the plaintiff’s injury had occurred in a manner or at a time contended for by the plaintiff’s experts. In short, while the obstetric evidence adduced on behalf of the plaintiff provided one credible explanation of events, the radiological evidence adduced on behalf of the defendants’ provided another, being one based upon scientific and objective criteria, and which the trial judge also found to be credible and which ultimately left him in a position where he was driven to the conclusion that the onus of proof had thus not been discharged.

Support for the proposition that the court of trial is not under an obligation in all cases to positively find in favour of one version over another is to be found in Rhesa Shipping Co. S.A. v. Edmunds and another [1985] 2 All ER 712.

The following passage from the speech of Lord Brandon in that case (at p.718) is particularly helpful in addressing the duty imposed by law to the process of fact finding which a judge of first instance has to perform at the conclusion of a case where alternative scenarios as to causation exist:-

“… The judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. …the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.”

Firstly, there was ample evidence to support the learned trial judge’s finding that Professor Flodmark was better qualified than Professor Hill, the plaintiff’s obstetrician, to perform the specific task of identifying and interpreting the information contained on the MRI scan and thus to decide if a major, acute brain injury occurred at 28-30 weeks. Indeed Professor Hill in the course of his evidence acknowledged that he did not have the level of experience possessed by a neuroradiologist when interpreting MRI scans and would defer to the opinion of a paediatric neuroradiologist who had experience in reading paediatric images. Professor Hill further accepted that Professor Flodmark was a paediatric neuroradiologist of the highest standing. Of course, he argued that he, unlike Professor Flodmark, could bring his clinical experience of treating patients to bear on issues relating to diagnosis, a factor which counsel suggested might be seen as compensating for any supposed disadvantage on Professor Hill’s part. However, Professor Flodmark’s evidence was to the effect that a neuroradiologist is more objective in reviewing the images to be seen on an MRI scan, a diagnostic tool which was referred to by Dr. King as the “gold standard” for diagnosis, than a clinician and that he was therefore in the best position to furnish an independent opinion not only on what the images show but also on the interpretation of those findings.

In dealing with Professor Flodmark’s opinion, the learned trial judge not only set out the reasons given by Professor Flodmark for his opinion that the insult occurred early in the appropriate time frame for PVL, but also expressed a clear preference for Professor Flodmark as the best of the expert witnesses in stating (at p.37):- “Professor Flodmark was clearly the most qualified of all the witnesses in the case to give evidence as to what precisely the radiology depicted.”

He also gave very clear reason for preferring Professor Flodmark’s evidence to that of Professor Hill. At p.44 he stated:-

“Insofar as there is a difference of opinion between Professor Hill and Professor Flodmark I prefer the latter’s opinion for three reasons, namely, the latter is the better qualified to perform the specific task of identifying precisely what information is or is not contained in images; secondly, I cannot turn a blind eye to the fact that the plaintiff procured a report from a neuroradiologist, Dr. Anslow, which was unfavourable to the case being advanced and then decided not to call him; and, thirdly, it did seem to me that Professor Hills opinion moved quite radically – radically, that is, in the narrow context of the precise issue of timing which is crucial in this case – from a first position where his view was that the injury occurred prior to the 35th week of gestation to a third position where it occurred after it. Whilst these opinions were clearly genuinely held they are – in the very specific context just refereed to – less reliable in my view than the opinion of Dr. Flodmark. I therefore see the case as one in which there is a significant difficulty for the plaintiff arising out of the radiology. There are other less serious difficulties such as the internal tensions between the evidence of Professor Fleming and Professor Hill as to when the plaintiff’s head growth as a foetus began to fall away from the norm.”

Support for that approach may be found in the following passage from the judgment of the House of Lords in R v. IRC, Ex parte T.C. Coombes & Co. (1991) 2 A.C. 283 at p.300:-

“In our legal system generally, the silence of one party in the face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances a prima facie case may become a strong or even an overwhelming case.”

The fact remains at the end of the day that the information from the MRI scan and the fact that the plaintiff had reduced head growth at birth were critical elements in the evidence which in my view justified the learned trial judge in holding that an acute early insult had occurred in this case.

In this regard, Professor Flodmark told the trial court that the MRI scan revealed a marked reduction in the amount of white matter in Anne Marie’s brain. That which remains is abnormal and shows signs of gliosis (scarring). In this particular case, there is significant loss of white matter in both the anterior, mid and posterior portion of the brain. Two small white dots are also visible in the central part of the brain called the thalamus. These are changes associated with PVL and, in particular, with more severe forms of PVL. The corpus callosum, which provides the connection between the right and left cerebral hemisphere of the brain is usually four or five times as big as it is in the plaintiff’s case. This is another feature of PVL. However, there is no evidence of any damage in the sub cortical structures, nor is there evidence of any injury to the cortex, both of which look quite normal. These findings indicate that the present case is an example of “pure PVL”. Professor Flodmark also stated that there was no evidence of any damage in the basal ganglia of the type caused by profound hypoxic ischaemia in a full term baby. In Professor Flodmark’s opinion there were no complicating features and no evidence of any additional injury except to the white matter. If any brain damage had been caused by hypoglycaemia, he would have expected to find cortical damage. There was no evidence of such damage either due to hypoxic ischemic injury or hypoglycaemia.

Professor Flodmark further gave evidence that the causes and mechanisms behind brain lesions called PVL are not fully understood. It usually arises where there is a drop of the blood supply to the brain of the foetus.

Professor Flodmark further gave evidence that PVL does not occur before 24/25 weeks and is extremely rare after 34 weeks, if indeed it ever occurs after that time. Cases of pure PVL start to occur and appear around 28 weeks. He had never seen a case where he had been convinced that PVL developed after 34/35 weeks. Even where the injury had occurred at 28/30 weeks, babies had survived in utero despite sometimes having quite extensive damage to the brain.

Asked to address the question of the timing of Anne Marie’s injury, Professor Flodmark stated that the evidence of significant damage to the anterior portion of the brain supported his opinion that the damage in this case most likely occurred between 28 and 30 gestational weeks. He also stated that this finding was supported by the CT scans, and more particularly the first scan which showed the ventricles in the plaintiff’s brain to be “generous” in size. One could also see evidence on the CT scan of some sparseness in the amount of white matter in the periventricular region. In his opinion, it would have made no difference if there had been a delivery at 35 weeks, rather than 39 weeks.

The trial judge accepted, as he was entitled to do, the evidence of Professor Flodmark on these critical matters including, in particular, the evidence in relation to the question of the timing of the injury and the extent of that injury when it first occurred. Thus the learned trial judge had ample evidence to support the view he expressed at p. 46 of his judgment:-

“In my view the better evidence on this aspect of the case shows that there was a growth retardation process probably due to placental insufficiency which commenced quite possibly some weeks before week 28 of the gestation. If that retardation process were the cause of Anne Marie’s injuries, however, and in particular if the irreversible damage to the function of her brain was caused towards the end of the growth retardation period and specifically after the 35th week of gestation one would have expected normally to find damage to the cortex and sub cortex on the M.R.I. scan but this damage does not appear. This is explained by Professors Hill and Lucas who say that the damage to the white matter is so widespread that it may be obliterating the appearance of the cortical and sub cortical damage which they acknowledge must exist in order to support their explanation of the injuries. This is a somewhat two-pronged aspect of the evidence, however, because the appearance of widespread damage in PVL cases tends to establish earlier onset (i.e. within the typical time window of 24/28 to 34/35 weeks) rather than later. It is especially so where the damage involves the anterior portion of the brain which is the case with the plaintiff’s M.R.I.”

“I am left, therefore, with two mutually inconsistent bodies of evidence neither of which wholly and satisfactorily resolves the issues in the case. It is not for me, following Finlay C.J. in the authority cited above, to set myself up as a determining authority in regarding these specialist issues, nor do I attempt to do so. I am unable in this case, however, by the application of common sense and a careful understanding of the logic and likelihood of events, to reach a conclusion that the evidence adduced by the plaintiff establishes her case on the balance of probabilities. I am unable to conclude, that is, that on the balance of probabilities that had the plaintiff been delivered by the 35th week of gestation she would have been spared all or a significant part of her injuries. In that event I must dismiss her claim.”

However, for the reasons already indicated, I would dismiss this appeal.