Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 25

A273/08

 

Lord Brodie

Lady Dorrian

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

in the cause

by

JACQUELINE MACLEOD and ANDREW DUNCAN MACLEOD

as legal representatives of Rowan MacLeod (AP)

Pursuers and Reclaimers;

against

HIGHLAND HEALTH BOARD

Defender and Respondents:

Act:  Gale QC, Heaney;  Drummond Miller LLP

Alt:  Stephenson QC, Dawson; Central Legal Office

7 April 2016

Introduction
[1]        The first pursuer is the mother and the second pursuer is the father of Rowan MacLeod who was born by way of Caesarean section at Raigmore Hospital, Inverness, at about 0202 hours on 2 June 1999.  They sue in the capacity of Rowan’s legal representatives.  It is their contention that Rowan suffered catastrophic perinatal injury in the form of hypoxic brain damage by reason of a period of chronic partial asphyxia before delivery and then a period of acute profound asphyxia after delivery and during resuscitation, and that this was caused by fault and negligence on the part of those responsible for the first pursuer’s care in the period of about four hours immediately preceding Rowan’s birth. 

[2]        Rowan has cerebral palsy with a quadriplegic distribution.  She is completely dependent for all activities of daily living.  She will never be able to live independently.  The sum sued for is £10.5 million.  The defender is Highland Health Board.  It is sued as having responsibility for Raigmore Hospital and for the acts and omissions of staff employed at the hospital at the material time.

[3]        The summons in the action was signeted on 16 April 2008.  The action came before the Lord Ordinary for proof, restricted to the issues of liability and causation of damage, on 30 October 2012.  Evidence was led over 22 days, concluding on 6 December 2012.  At this stage only the first pursuer represented Rowan (the second pursuer being joined in the action, also as a legal representative of Rowan by amendment in August 2015).  Following the leading of evidence, the Lord Ordinary was provided with written and oral submissions on behalf of the parties.  These were delivered over three days.  A feature of the written submissions on behalf of both parties is their length and consequent detail.  The submission for the pursuer extended over 79 pages.  The submission for the defender extended over 139 pages, in addition to which the defender provided a supplementary submission of 36 pages.  The Lord Ordinary made avizandum on 7 February 2013.  On 23 January 2014 he issued his opinion in terms of which he sustained the second and third pleas-in-law for the defender and assoilzied them from the conclusions of the summons.

[4]        The pursuers have reclaimed. 

[5]        The reclaiming motion was heard on 29 and 30 September and 1, 2, 7, 8, 9 and 13 October 2015, on which last date the court made avizandum.  The court was addressed by senior and junior counsel.  Both parties had lodged substantial written notes of argument which they adopted.

[6]        In this opinion we shall refer to the reclaimers as the pursuers (and, where appropriate, as the first and the second pursuer, respectively), and to the respondent as the defender.  Whereas at proof there was but one pursuer and all corresponding references prior to August 2015 reflect that, all references in this opinion, including those to the proof, will reflect the amended instance.

 

The pursuers’ case in brief
At proof

[7]        The pursuers’ case at proof was one of negligent delay on the part of the defender in circumstances where Rowan’s hypoxic condition in utero, as should have been apparent from properly conducted cardiotocographic (CTG) monitoring, mandated urgent delivery by Caesarean section.  The first pursuer had been admitted to the labour ward at about 1810 hours on 1 June 1999 by which time her labour had started.  However, labour did not sufficiently progress despite the administration of medication with a view to increasing the frequency of contractions.  At 0035 hours on 2 June the obstetric registrar responsible for the supervision of the first pursuer’s care (Dr Amy Sharkey) noted that the first pursuer was probably not deliverable vaginally.  At about this time (0050 or earlier) Dr Sharkey discussed the case by telephone with Dr Michael Hulse, the consultant obstetrician on call (who was then at home).  Dr Hulse instructed Dr Sharkey to perform a Caesarean section.  That decision was made on the basis of failure to progress with labour rather than by reason of foetal distress.  Accordingly, the time from decision to delivery did not have the urgency associated with an immediate or “grade 1” or “category 1” or “crash” section.  The pursuers’ contention is that had the defender’s staff proceeded with an immediate section the time between decision and delivery would have been of the order of 40 minutes.  As it was the lapse of time was of the order of an hour.

[8]        The pursuers’ case was that it was negligent not to have delivered Rowan by Caesarean section no later than 0140 on 2 June 1999.  They contended that Rowan was suffering from hypoxia in utero and that had the results of CTG monitoring prior to 0112 hours on 2 June 1999 been properly interpreted or had monitoring been continued after 0112 hours (and been properly interpreted), then Rowan’s hypoxic state would have been detected and delivery by Caesarean section would have been expedited with the result that she would not have suffered the catastrophic brain damage that she has.

 

At the reclaiming motion
[9]        At the reclaiming motion the pursuers’ submission was essentially that the Lord Ordinary’s opinion had failed to give adequate reasons for his decision, and that the absence of adequate reasons, taken with the excessive delay on the part of the Lord Ordinary in producing his opinion, meant that there had not been a fair trial of the issues and the Lord Ordinary’s interlocutor should be recalled. 

[10]      In terms of the pursuers’ written note of argument, their primary motion on recall of the Lord Ordinary’s interlocutor was for this court to uphold the pursuers’ first plea-in-law thereby finding the defender liable to make reparation to them and to fix a proof on the quantum of damages.  However at the hearing of the reclaiming motion, counsel for the pursuers departed from that position, insisting only on the alternative position in the written note of argument:  that in the event of the Lord Ordinary’s interlocutor being recalled the case should be remitted back to the Outer House for a rehearing of evidence before a different Lord Ordinary.  In the result, although the pursuers’ counsel made extensive reference to the evidence that had been led at proof and criticised the medical and nursing staff responsible for the care of the first pursuer during her labour, the court was not invited to evaluate the whole of the evidence with a view to coming to its own conclusions on fault and causation of damage. 

[11]      Thus, the overarching issues raised by the reclaiming motion were:  first, whether on the basis of the criticisms of the Lord Ordinary’s opinion advanced by the pursuers under reference to their grounds of appeal, this court was satisfied that the Lord Ordinary’s interlocutor of 23 January 2014 was open to be recalled;  and, second, whether the disposal proposed by the pursuers, that is a remit to the Outer House, was competent and appropriate.  Given the nature of argument presented, success for the pursuers in the reclaiming motion depends on acceptance of both of the propositions advanced by the pursuers:  (1) that the Lord Ordinary’s opinion is so flawed that his interlocutor might properly be recalled;  and (2) that the correct and competent disposal is a remit to the Outer House for a proof of new.  As will be apparent, given the position taken on behalf of the pursuers these propositions are to an extent interdependent. 

 

The structure of this opinion
[12]      As we have indicated, although we were not invited to come to a conclusion on the basis of what we made of the evidence, we had been provided with a transcript and extensive reference was made to the evidence with a view to providing a context for submissions.  In the course of these submissions the Lord Ordinary was severely criticised for what was said to have been a superficial treatment of the pursuers’ case and a failure to engage with the relevant medical science.  That being so, having first said something in entirely general terms about cardiotocographic monitoring of the foetal heart beat in utero, we shall begin by setting out at length what we understand to have been the factual issues in the case, before turning to the manner in which they were resolved by the Lord Ordinary.  We shall then set out the grounds of appeal and then record and discuss the submissions made to us in relation to them.  We see there to be some overlap as among the various grounds and accordingly we shall aggregate them for the purpose of discussion by reference to what appears to be the core criticism.  After summarising our opinion on the grounds of appeal, we shall address the competency of the disposal proposed by the pursuers.  Finally we shall provide a conclusion.

 

Cardiotocographic monitoring during labour
[13]      In very large part, the pursuers’ case of negligence relates to monitoring of Rowan’s heartbeat during the latter part of labour and the interpretation of the results of that monitoring.  It is therefore convenient, before going any further, to say something in general about foetal monitoring using a cardiotocograph (CTG), how the signs disclosed by such monitoring may point to a state of chronic partial asphyxia such as the pursuers aver was experienced by Rowan prior to her birth, what these signs are and how the language used to describe them and the method of interpreting them have evolved over a time period which includes the date of Rowan’s birth.  The latter point is important.  While the pursuers may be correct to say that the focus of attention should be the clinical significance of a particular pattern of signs rather than the nomenclature applied to these signs, medical knowledge as to the significance of signs is in a state of constant development and of course language is a means of encapsulating and then transmitting such knowledge.  Although CTG monitoring was a well-established technique at the time of Rowan’s birth, associated practice was in a state of evolution.  As the defender wished to emphasise, what was generally understood to be the case in 1999 was not necessarily the same as was generally understood to be the case even a few years later.

[14]      Labour is stressful for the foetus.  The authors of Gibb & Alkuraman Fetal Monitoring in Practice (first published in 1993 and described in evidence in the present case as the standard guide to foetal monitoring) repeat what we take to be an adage in obstetrical practice:  “the process of birth is the most dangerous journey an individual undertakes”.  Despite that, in the absence of an indication to the contrary, vaginal delivery is the generally preferred option over Caesarean section. 

[15]      One stress on the foetus during labour is reduction in the oxygenation of its tissues due to the contractions of the uterus.  The intake of sufficient oxygen is essential in order to generate energy and thereby maintain bodily function.  That is true for the foetus in utero as it is for the new-born infant.  In utero the foetus receives the oxygen that it requires from blood flowing to it via the umbilical cord from the placenta.  Should that mechanism be interfered with or otherwise be ineffective the degree of oxygenation of the foetus may become inadequate, a condition sometimes described as intrauterine hypoxia or, as the pleadings in the present case have it, chronic partial asphyxia.  Such insufficiency of oxygen will cause the foetus to generate energy by producing lactic acid, resulting in the foetus’s blood becoming more acidic, a condition referred to as acidosis.  The foetus can survive episodes of hypoxia without sustaining injury but where it experiences severe or prolonged hypoxic episodes its capacity to withstand further asphyxial insult becomes incrementally diminished with a consequent risk of brain injury or death.  CTG monitoring is a means of detecting changes in the foetal heart rate (FHR) and patterns formed by these changes that may point to potentially injurious foetal hypoxia.  Evidence of foetal hypoxia is an indication that delivery should be expedited, if necessary by Caesarean section. 

[16]      A CTG monitor is a machine (typically capable of being readily moved about) which measures and records FHR together with uterine contractions, by means of separate sensors, the results being presented on a continuous roll of printed graph paper (otherwise a read-out) in which FHR is recorded in the upper section and uterine contractions are recorded in the lower section, under reference to timings marked on the read-out.  The form of the read-out therefore allows changes in the FHR to be coordinated with the incidence of contractions.  With the CTG monitor which was used in the present case the paper roll runs at the rate of 1 centimetre per minute with the result that a 10 centimetre horizontal section shows activity over 10 minutes.  The pattern of rising and falling FHR in response to the incidence of contractions as represented by lines on the graph paper is referred to as a trace.  An upward sloping trace (from left to right) indicates a rise in FHR and a downward sloping trace indicates a fall in FHR.  The sensors which detect FHR and uterine contractions are in the form of thick elastic belts placed around the mother’s abdomen.  One sensor incorporates a pressure monitor to detect uterine activity, including contractions (measured in kilopascals of pressure).  The other incorporates a round flat disc which picks up and produces an electronic reading of the foetal heartbeat.

[17]      The time of commencement, duration and cessation of contractions can be ascertained, but not their strength.  In addition to the read-out, the machine emits an audible indication of the FHR, which can alert experienced practitioners to relevant changes. 

[18]      The read-out provides a permanent record of variations in FHR which can be consulted by practitioners during labour and which in the present case was lodged in court as a production and considered and discussed by witnesses while giving evidence.  The configuration of the trace is accordingly a matter of objective and readily verifiable fact.  However, exactly what is to be made of a particular trace with a view to assessing the condition of the foetus is a matter for interpretation.  In other words, although there can be no argument as to the configuration of a particular trace, practitioners may differ as to what a particular configuration indicates about the health of the foetus. 

[19]      As an indicator of foetal health the CTG trace is to be interpreted against the clinical background.  Certain features of the trace are important.  These include the baseline FHR;  accelerations or decelerations in FHR;  the variability of the baseline;  the duration and intensity of uterine contractions;  and the intervals between the first and last of a series of contractions.  However, the Lord Ordinary heard evidence that the emergence of a pattern is much more important than individual features looked at in isolation. 

[20]      The baseline is the mean level of FHR with accelerations and decelerations excluded.  It is determined over a period of 5 to 10 minutes and is expressed in beats per minute (bpm).  According to Gibb & Alkuraman the normal range of the baseline FHR at term is 110 to 150 bpm.  A baseline FHR falling below that normal range (ie less than 110 bpm) is referred to as bradycardia.  A baseline FHR above that range (ie above 150 bpm or perhaps 160 bpm) is referred to as tachycardia.  Variability is the degree to which the baseline varies, leaving out of account accelerations and deceleration.  An acceleration is a transient increase in FHR above a certain level (defined by Gibb & Alkuraman as a transient increase in heart rate of 15 bpm and lasting 15 seconds or more);  a deceleration is a similarly transient decrease in FHR.  A reactive trace is one where there is a variability of FHR within certain limits, consistent with the normal movement of the foetus.  The terms “early” or “late” applied to accelerations or decelerations relate to the extent to which these are synchronised with uterine contractions.  At one time “early” or “late” decelerations were known as “type I” or “type II” “dips”, although efforts were being made by 1999 to move away from that terminology.  In some maternity units this double classification of early and late became a tripartite one of “early”, “late” and “variable”.  Variable decelerations vary in the shape of the trace and sometimes in timing with respect to each other. 

[21]      Broadly speaking, accelerations are considered a sign of good foetal health in that they demonstrate that the foetus is responding to stimuli and displaying the integrity of the mechanisms controlling its heart (Gibb & Alkuraman).  Decelerations are normally associated with compression of the foetus, for example by a contraction.  They are usually but not invariably benign.  In determining what is the significance of a deceleration it is relevant whether it is “early” and synchronous with a contraction, or “late” and out of phase with contractions. 

[22]      Before the Lord Ordinary, reference was made to several sources of assistance in interpreting CGT traces.  Guidelines for the use of foetal monitoring were published in 1987 by the International Federation of Gynaecology and Obstetrics (FIGO).  These identified a classification system of “normal”, “suspicious” and “pathological” patterns, according to features such as heart rate, variability, decelerations and the like.  Particular stress was placed on the role of certain types of deceleration, namely severe variable or severe repetitive early decelerations, prolonged decelerations and late decelerations. 

[23]      Apart from the presence of decelerations, their shape and duration may have significance.  For example, a biphasic deceleration is one with a particular “w” shape, but also of prolonged duration.  It was described in evidence as the FHR “having dipped”, and there having been “an attempt to come back up and try again”.  A pattern of biphasic decelerations, particularly when prolonged, is open to the interpretation that the foetus is in distress.  “Shouldering” refers to a small rise prior to or after a deceleration.  The nature of the shouldering, whether it is normal, exaggerated or lost, may also aid interpretation of the trace.  A deceleration showing late recovery is one where the recovery to base level is delayed. 

[24]      As previously noted, the first edition of Gibb & Alkuraman was published in 1993.  The classification adopted there was of “normal”, “suspicious”, and “abnormal” patterns, identified using features relating to FHR, variability, and decelerations, in terms which were similar but not identical to those in the FIGO classifications, but with added emphasis on the role of the presence, or absence, of accelerations.  The second edition of Gibb & Alkuraman was published in 1997.  Again the relevant features differed in certain respects from the FIGO classification.  A standard textbook for midwives, Myles:  Textbook for Midwives (13th edition 1999) referred only to “late” and “early” decelerations, without reference to “variable” decelerations. 

[25]      The Royal College of Obstetricians and Gynaecologists Guidelines were issued in 2001 (the 2001 Guidelines).  These referred to certain features as “normal”/“abnormal” and “reassuring”/“non-reassuring”.  Decelerations were described as “early”, “late” or “variable”.  From 2001 onwards this tripartite division came to be accepted throughout the United Kingdom.  Dr Sanders, one of the defender’s experts, described the 2001 Guidelines as “a watershed in terms of changing practice”.  Dr MacPherson, who was led by the pursuers to speak to obstetrical practice in 1999, accepted that the 2001 Guidelines were published “with a view to standardising practice and language”.

[26]      Thus, the terminology used when discussing the interpretation of CTG traces has varied over time, with greater or lesser emphasis being placed at different times on particular features within the overall pattern.  When a dual rather than a tripartite classification was adopted, early decelerations were viewed as relatively benign, with late decelerations being those likely to give cause for concern.  What, as at the date of proof in this action, would be referred to as variable decelerations would once have been classified as early decelerations.  As at 1999 practice as to the classification of patterns in or features of CTG traces and their interpretation was not standardised.  As far as the present case is concerned, while that fact requires to be recognised, it may not to matter.  As the defender submitted to the Lord Ordinary, irrespective of the precise label to be attached to individual features what was important was whether staff could identify what was good or bad, normal or abnormal and reassuring or non-reassuring.  Nevertheless, when, as was the case in the proof in this action, the Lord Ordinary was considering in 2012 what had happened in 1999, he had to be conscious of the implications of “looking at 1999 events through 2012 spectacles”.  What that means is that while it is appropriate to judge what actually happened in 1999 by reference to what was the state of medical knowledge in 2012, it is not necessarily appropriate to assess what should have been apparent to practitioners in 1999 by reference to a 2012 state of knowledge.

[27]      Apart from CTG monitoring, FHR may be monitored by means of a hand-held Doppler ultrasound transducer, referred to as a “Doppler” or “Sonicaid” (a proprietary name).  It detects FHR but not contractions (if a Sonicaid is used to monitor FHR, contractions require to be assessed manually by the midwife).  A gel pad, which is part of the Sonicaid, is placed on the abdomen, and an audible signal is emitted representing the FHR.  In evidence in the present case the technique of monitoring by a hand-held Sonicaid was referred to as intermittent auscultation.  Intermittent auscultation with a Sonicaid does not produce a permanent record in the form of a trace such as is produced by a CTG machine.

[28]      In this opinion references to CTG monitoring are to monitoring using a CTG monitor as opposed to intermittent auscultation using a Sonicaid. 

 

Summary of the first pursuer’s labour and the delivery of Rowan
Up to 2200 hours on 1 June
[29]      Parties are essentially at one as to events between the admission of the first pursuer to Raigmore Hospital in the early hours of the morning of 1 June 1999 and 2200 hours that evening.

[30]      The first pursuer is an insulin-dependent diabetic (IDDM), who avers a five-year history of raised blood pressure but no other significant medical history.  Her pregnancy was classed as high risk because of her diabetes and hypertension, both of which carry recognised complications for childbirth.  The pursuer had an expected delivery date of 18 June 1999, but on 31 May she was admitted to Belford Hospital in Fort William where she had presented with contractions starting at 2000 hours.  Her blood pressure was raised and there was slight oedema of the ankles and fingers.  She was transferred to Raigmore Hospital at 0420 on 1 June.  There, CTG monitoring was commenced at 0428 and continued until about 0505.

[31]      On admission to Raigmore the foetus was in a cephalic presentation (that is head-down) with the head two fifths palpable.  Contractions were 4/10 (four times every 10 minutes – sometimes noted as 4:10).

[32]      The CTG trace on admission showed a baseline FHR of 140 bpm with good variability.  There were two accelerations, no decelerations, and the contractions were 3-4/10 throughout, indicating a normal reactive trace.  Further CTG readings were taken during the day, with normal results.  At about 1810 the pursuer was admitted to the labour ward.  A further CTG trace was commenced at 1814.  It ran continuously until about 0115 (in the pursuers’ pleadings the time at which CTG monitoring ceased is given as 0112) on 2 June, a little less than 50 minutes prior to delivery.  At 1830 a partogram (a chart comprising a single sheet on which is noted certain foetal signs and measurements) was commenced.  At 1900 the protocol for IDDM mothers was commenced.  During this period the pursuer underwent various unsuccessful procedures, including an attempt to apply a foetal scalp electrode, and a procedure designed to release the amniotic fluid from the uterus, which did not produce any liquor.  Intravenous syntocinon (administered to increase the frequency of contractions) was started at 1945, and increased at 2030, when contractions were described as moderate to moderately strong.  The rate of administration of syntocinon was again increased at 2330, and decreased at midnight.  At 2045 the pursuer was given a dose of lisinoprol to treat her elevated blood pressure.

[33]      Further readings of the CTG during the evening produced results within normal limits.  However, the pursuers aver that, on a proper interpretation, this was not so during the four hours prior to delivery and that this was due to chronic partial foetal asphyxia.

 

After 2200 hours on 1 June:  the competing versions of events
[34]      During the four hours prior to delivery the members of the defender’s staff who were responsible for the care of the first pursuer and her unborn child were Midwife Kathleen MacPherson (who took over direct care of the first pursuer from Midwife Karen Marnoch at about 2200);  Midwifery Sister Catherine Richmond (the sister in charge of the labour ward after 2200);  Dr Amy Sharkey, Obstetric Registrar and Dr Michael Hulse, Consultant Obstetrician.  The midwives and Dr Sharkey were present in and about the labour ward.  Dr Hulse was on call but at home, contactable by telephone.

[35]      It is the pursuers’ contention that the CTG trace had become suspicious at about 2200 on 1 June and that at all times after 2300 the CTG indicated a degree of possible foetal compromise that ought to have been noted by members of the midwifery and obstetric staff had they been exercising due care and skill.  It is averred that by 0035 on 2 June there had been minimal progress in the pursuer’s labour for a period of two hours.  It is averred that at that stage the midwives caring for the pursuer ought to have called for a medical review, a duty which continued throughout the period of abnormality of the trace, namely until 0112 (or 0115)when CTG monitoring ceased.  It is averred that after 2300 decelerations became increasingly late with biphasic decelerations and periods of slow recovery towards the end of the trace.  The pursuers aver that the trace at 2345 showed a FHR of 130 bpm, reduced variability and atypical decelerations, some of which were prolonged.  It is averred that when monitoring ceased at 0112 the CTG showed a baseline of 140 bpm, reduced variability, and atypical variable decelerations, some of which were late with periods of slow recovery.  Rather than increasing the syntocinon at 2330, it is averred that the midwives should have reduced it (although the pursuers’ pleadings include criticisms about the administration of syntocinon, these did not form part of the case that was put to the Lord Ordinary).

[36]      At 0035 Dr Sharkey, recorded that the trace had shown “... marked earlies throughout but otherwise reactive”.  It is averred by the pursuers that this was interpreted as meaning early decelerations, which it is averred the trace did not in fact show.  It is averred that at that time, no ordinarily competent obstetrician would have interpreted the trace in that way.  At that time Dr Sharkey noted “probably not deliverable vaginally” and discussed the case by phone with Dr Hulse, who instructed that a Caesarean section be performed.  It is averred that Dr Sharkey ought to have informed Dr Hulse of the lack of progress of labour, that the pursuer was diabetic, and of the abnormalities on the CTG trace.  Had he been given that additional information it is said that Dr Hulse should (and therefore would) have instructed an immediate (in the sense of urgent) Caesarean section.  The pursuer was transferred to theatre at 0115 and Rowan was delivered at 0202.  It is averred that Dr Sharkey should have turned off the syntocinon and ordered continuous foetal monitoring until delivery, but did not do so.  If CTG monitoring were not possible for any reason, the minimum requirement would have been intermittent auscultation using a hand-held ultrasound transducer.  It is averred that no ordinarily competent midwife dealing with a diabetic mother with high blood pressure who was failing to progress in labour would have monitored the FHR at intervals of less than five minutes whereas there was in fact no monitoring of any sort after 0112.  The pursuers refer to the time between 0112 and delivery at 0202, as “the dark period”.  On the defender’s averment that knife to skin (that is commencement of the Caesarean section) was at 0157 the last monitoring should have been at 0152.  It is averred that, as a case for an urgent section, Rowan should have been delivered within 30 minutes of the decision being made, as required by the relevant RCOG guidelines. 

[37]      There are no surviving clinical notes for the period between 0035 and 0115 when the pursuer was transferred to theatre. 

[38]      The defender disputes much of what the pursuers have to say about events after 2200 on 1 June.  It avers that neither variable nor early decelerations indicate serious foetal compromise, and that sytocinon was used consistently with a view to achieving contractions at a rate in line with the local protocol.  A review by Dr Sharkey at 2140 showed good progress in labour.  The CTG trace at 2150 showed occasional decelerations which were very brief in duration.  The trace throughout was generally reassuring and reactive.  Dr Sharkey’s review at 0035 indicated that there had been slow progress since 2215, with the foetus being in an unfavourable position for delivery.  A positive response to scalp stimulation, shown on the trace at 0040, showed that the foetus was not hypoxic.  Dr Sharkey reviewed the antenatal scans which were normal.  She called Dr Hulse at about 0050, informing him that the patient was diabetic, that the trace showed early decelerations and of her findings on vaginal examination.  Dr Hulse instruction was that a Caesarean delivery was now indicated given the first pursuer’s diabetic status and failure to progress.  Throughout the period until discontinuation of the trace there were no features requiring early delivery, or any alteration of the course of obstetric management.  The Caesarean section was undertaken not because of any concerns that the foetus was hypoxic but because of the first pursuer’s failure to progress in labour.  It was classed as an “emergency” in the sense that it was not an elective procedure.  It was not a “crash” section requiring delivery within 30 minutes of the decision and there was no clinical indication for such urgency.  Normal practice at the relevant time was to proceed to delivery within 60 to 90 minutes of the decision to carry out a Caesarean section.  Rowan was delivered within 67 minutes or less after the decision was made to carry out a section and the first pursuer’s consent being obtained.  At about the time of transfer to theatre, 0115, the baseline FHR was recorded as 130-150 with early decelerations down to 90 to 110 bpm with quick recovery.  The defender avers that CTG monitoring equipment is not routinely available in theatre, there was no indication requiring it to be transferred there and its presence makes it difficult to access the patient when preparing for a Caesarean.  The discontinuation of CTG shortly before transfer to theatre was normal practice in the context of an acceptable foetal heart pattern.  After transfer, in accordance with standard practice then and now, intermittent auscultation was carried out using a hand-held “Sonicaid” to listen to the heart whilst manually monitoring the nature of the contractions until the Caesarean was commenced.  This was, and remains, standard practice.  The volume on the Sonicaid would have been turned up to enable all present to hear the foetal heart which remained normal throughout.  Had there been any significant abnormality, delivery would have been expedited but there were no indications for this to happen.  In the absence of other adverse factors, and with a positive response to scalp stimulation, it was reasonable to assume that after withdrawal of the syntocinon, leading to a decrease in the frequency and strength of contractions, the foetal condition would improve or at least not deteriorate.  The defender claims that following transfer to theatre, midwifery observations including recording of the FHR, the timing of the epidural, knife to skin, delivery of the head and eventual delivery were made by Midwife Macpherson on a separate sheet of paper, as is common practice, but these have become detached from the principal notes and now cannot be found.

 

Rowan’s condition at birth
Clinical signs

[39]      When Rowan was delivered there was thick fresh meconium present.  Meconium is the content of the foetal digestive tract, composed of materials ingested in utero.  It is viscous and sticky, although the texture, colour and viscosity vary depending on the age of the meconium.  Rowan was in a poor condition at delivery.  Her Apgar score at 5 minutes was 0 (a new-born in optimum condition will score 10 on the Apgar scale which, as senior counsel for the pursuers explained, was developed by Dr Virginia Apgar, but the name of which is sometimes thought of as an acronym of the five vital signs which contribute to the assessment – appearance, pulse, grimace, activity and respiration).  Following birth there was a period of time before adequate perfusion was established.  Paediatric staff commenced resuscitation by means of an endotracheal tube with oxygen, but no air entry into the lungs was audible, and the heart rate remained below 60 bpm.  Adrenalin was given and cardiac massage commenced.  During resuscitation attempts meconium, or what was thought to be meconium, was removed from the hypo-pharynx by suction.  There was no evidence of a pneumothorax.  At 30 minutes after delivery Dr George Farmer, a consultant paediatrician, attended and re-intubated, after which Rowan was transferred to Neonatal Intensive Care, and attached to a ventilator.  About one hour after birth a moderate sized pneumothorax was noted.  She did not have meconium aspiration syndrome. 

 

The cause of Rowan’s condition at birth:  the pursuers’ contentions
[40]      The pursuers aver that during labour Rowan suffered chronic partial asphyxia, for which she became unable to compensate at or shortly prior to delivery.  As a result she began to gasp in utero, and, in consequence, she inhaled a plug of fresh meconium deep into her airways.  This physical obstruction prevented her from drawing air into her lungs with resulting acute asphyxia, which in turn caused the brain damage from which she suffers.  It is averred that she was covered in meconium which can be indicative of foetal distress prior to delivery.  Rowan had a gasping respiratory effort for the first ten minutes of life indicating that she was not in a state of terminal apnoea, but had entered the phase of agonal gasping (a brain stem response to hypoxia driving her body to take very deep breaths in an attempt to ventilate herself) shortly before birth.  It is averred that the findings as to Rowan’s condition in the period immediately following birth were not consistent with the blockage of the trachea by meconium occurring at or around the time of birth.  The abnormalities identified by an MRI scan are indicative of brain damage in the near term foetus, which tends to occur within ten minutes of circulatory collapse.  Continuation of collapse for longer than 25 minutes often results in death or in survival with extensive and severe brain damage.  It is accordingly averred that Rowan’s disabilities were caused by a period of chronic partial asphyxia and then a period of acute profound asphyxia shortly before delivery.

 

The cause of Rowan’s condition at birth:  the defender’s contentions
[41]      The defender avers that longstanding diabetes mellitus in the mother, particularly when associated with diabetic retinopathy and nephropathy (the likely cause of the pursuer’s hypertension) is associated with significantly higher incidents of foetal abnormality and morbidity.  At delivery, although Rowan had a heartbeat and tone, she was relatively flat and in need of resuscitation.  There was no meconium on her face or above her waist and none had been noted prior to delivery.  She had been wrapped in a towel, which would tend to smear the meconium below the waist and increase the areas upon which it would be visible.  There was no meconium on the vocal cords.  No improvement in her conditions was noted and cardiac massage was commenced, along with the administration of resuscitative drugs and fluid, and re-intubation.  During subsequent treatment meconium was suctioned from the nasogastric tube indicating its presence in her stomach, not her trachea.  The presence of meconium only in the pharynx and stomach means that Rowan could not have gasped in utero and aspirated meconium, but that she simply swallowed meconium and was able to protect her airway.  The most likely cause of the obstruction of her trachea was a bronchogenic cyst in the trachea.  It is likely that air entry was finally obtained because the final endotracheal tube was placed below the obstruction.  Failure of resuscitation due to an obstructed trachea is a rare but documented event.  Had Rowan been gasping from prolonged asphyxia it is unlikely that she would have survived for an additional 40 minutes following delivery without adequate ventilation.  It is possible that her attempts to breathe vigorously in the presence of an obstructed airway resembled agonal respirations. 

 

The pursuers’ case of negligence
[42]      For all the length of the submissions presented to the Lord Ordinary by parties, the pursuers’ case is not complex.  It is summarised by the Lord Ordinary at paragraphs [33] and [35] of his opinion as it had been summarised in paragraphs 3 to 6 and 323 to 329 of the pursuers’ written submission following the proof.  Put shortly, the pursuers’ case is that had Rowan’s condition in utero been properly monitored, her asphyxia would have been identified and she would have been delivered earlier, thus sparing her injury.  In its essentials the case consists of the following factual propositions, all of which required to be proved:  Rowan suffered catastrophic brain damage because she was deprived of oxygen during the first 30 minutes or so of her life;  she was deprived of oxygen because she was unable to breathe air into her lungs;  she was unable to breathe air into her lungs because her airway was blocked;  her airway was blocked because she had inhaled a plug of fresh meconium;  she had inhaled a plug of meconium because from a time shortly before her delivery her brain stem had driven her body to take very deep breaths in an attempt to ventilate herself (agonal gasping);  the process of agonal gasping was a reaction to and the endpoint of the progressive state of chronic partial asphyxia which had developed during the last four hours of Rowan’s time in utero;  notwithstanding her partial asphyxia Rowan would not have reached the stage of agonal gasping had she been delivered by Caesarean section at any time up to a few minutes before 0202 on 2 June;  and the fact that she was not delivered earlier was due to a negligent failure on the part of those responsible for her and the first pursuer’s care to detect the signs of chronic partial asphyxia mandating Caesarean section which were or would have been disclosed by properly interpreted CTG monitoring during the four hours prior to Rowan’s birth.  The pursuers acknowledge that a decision had been taken to proceed by way of Caesarean delivery by reason of failure to progress in labour during a telephone discussion between Dr Sharkey and Dr Hulse at about 0050 or a little earlier on 2 June and that preparation for carrying out the section inevitably took time.  However, the procedure agreed at about 0050 was not a “crash” (or “category 1”) section.  In other words reducing time to delivery to a minimum was not the priority.  It is the pursuers’ case that the time period from decision to delivery was capable of being expedited and should have been expedited had the CTG trace over the period 0050 to 0115 been properly interpreted.  Had the decision to delivery time been expedited Rowan would not have suffered brain damage.

[43]      Whereas a case based on the administration of syntocinon had featured in evidence, as the Lord Ordinary notes at paragraph [147] of his opinion, it was not insisted upon. 

[44]      As counsel for the defender emphasised in their submission to this court, a necessary consequence of the nature of the pursuers’ case was that, given the acceptance that Rowan did not sustain brain injury in utero but rather due to the delay in resuscitating her during the first 30 to 40 minutes of life, any fault during the first pursuer’s labour had to be sufficiently connected with the failure of resuscitation after delivery.  Otherwise the pursuers could not succeed. 

[45]      In presenting their submissions to the Lord Ordinary, the pursuers compressed the questions of fact in the case into three high-level issues:

A.        Was Rowan asphyxiated because her trachea was blocked with inhaled meconium?

B.         Was the meconium drawn down into her trachea because Rowan gasped in the final few minutes before she was delivered?

C.        By when ought those responsible for managing the labour, in the exercise of ordinary skill, taking ordinary care, have delivered Rowan?

[46]      The pursuers provided their proposed answers to issue C.  In summarising their four cases of fault (described by reference to what they described as four key moments where had the staff not been negligent Rowan’s brain damage would have been avoided).  These were: 

(1)        From just after 2300 Midwife MacPherson, had she been exercising ordinary skill and taking ordinary care, ought, given the already suspicious trace and the other risks, to have brought Dr Sharkey's attention to the CTG trace.  And Dr Sharkey, had she been exercising ordinary skill and taking ordinary care, would have spoken to Dr Hulse and accurately described the trace and clinical situation.  There would then have been decision to go to Caesarean section.  Rowan would have been delivered long before she was.

(2)        At 0035 [on 2 June] Dr Sharkey, had she been exercising ordinary skill and taking ordinary care, would have given Dr Hulse an accurate description of the clinical situation and trace.  Had she done so, Dr Hulse would have instructed her to expedite a Caesarean section (in other words undertake a “crash” section).  Rowan would then have been delivered early enough not to be injured.

(3)        At 0115, the midwives attending, had they been exercising ordinary skill and taking ordinary care, would have brought the last section of CTG to Dr Sharkey 's attention.  Had they done so steps would have been taken to speed up the process of moving to theatre and delivery and Rowan would have been born early enough not to be injured.

(4)        After 0115, the court should infer that Rowan 's condition in utero got progressively worse.  Had there been continuous CTG, as, in the exercise of reasonable care, there ought to have been, Rowan’s worsening condition would have been seen by midwives and obstetrician of ordinary skill exercising ordinary care and delivery would have been expedited.  Rowan would have been born at least two or three minutes before she was.  The same would have been the case had there been frequent, competent intermittent auscultation. 

 

The witnesses led at proof
[47]      There were thirteen witnesses led for the pursuers.  Of these nine had had involvement with the events of 1 and 2 June 1999:  the first pursuer;  the second pursuer;  Midwife Karen Marnoch;  Midwife Kathleen MacPherson;  Midwifery Sister Catherine Richmond;  Dr Amy Sharkey;  Dr Rajendra Kumar Alit, a registrar who attended after delivery;  Dr Michael Hulse;  and Dr George Farmer, the consultant paediatrician who attended after delivery.  The other four witnesses were led as experts.  They were Mrs Jean McConville, midwife;  Professor Tim Draycott, consultant obstetrician;  Dr Hilary MacPherson, consultant obstetrician and gynaecologist;  and Prof Benjamin Stenson, consultant neonatologist.

[48]      There were four witnesses led for the defender.  One, Staff Midwife and Neonatal Nurse Sandra Muir Mackenzie spoke to matters of fact (entries made in Rowan's records when she was in the Special Care Baby Unit).  The other witnesses were led as experts.  They were Professor James Walker, Professor of Obstetrics and Gynaecology;  Dr Julia Sanders, consultant midwife;  and Dr Jonathan Coutts, consultant neonatologist and respiratory paediatrician.

 

Lord Ordinary’s resolution of the issues after proof
Classification of issues
[49]      In his opinion, having identified the material which had been put before him by parties, the Lord Ordinary states his intention to deal with the main issues and his findings in relation to these issues under three main heads:  (1) the chronology of the labour, (2) the pursuers’ allegations of negligence, and (3) questions of causation.  He expresses the hope that through the format that he is adopting, with its reference to their respective written submissions, the parties, who are obviously aware of what has been submitted by them, will obtain a reasonably clear and concise indication of his decisions and reasons (opinion para [45]).

 

Findings of fact
[50]      The Lord Ordinary’s head (1) comprises his findings of primary fact as to events prior to delivery.  It extends from paragraphs [47] to [117] of his opinion.  It is to be understood by reference to the Lord Ordinary’ explanation at paragraph [46]:  “Averments which have been made on record but which have not been established to my satisfaction are not included in my findings.”

[51]      In many instances the findings under head (1) were in relation to matters that were not contentious.  However, as is apparent from our discussion of the competing versions of events after 2200 on 1 June and indeed from the way in which the pursuers articulated their four cases of fault, parties were in dispute as to whether FHR was in fact monitored for the whole of the period from 2200 on 1 June to just before delivery at 0202 on 2 June;  and what the monitoring that had been carried out demonstrated, if properly interpreted.  The Lord Ordinary’s determinations on these controversial matters are to be found in the following paragraphs of his opinion, which we here reproduce (the pursuers criticise these findings and contend that the Lord Ordinary gave inadequate reasons for making them, we shall say more about that later in this opinion).

[60]      CTG was commenced at or about 18.14 on 1 June, 1999 and ran until about 01.12 on 2 June, 1999, shortly before the pursuer was transferred to theatre for caesarean section

[62]      At commencement of the CTG trace there was a base line foetal heart rate of around 140 beats per minute with frequent accelerations and excellent base line variability.  This fairly normal pattern continued throughout the trace. 

[78]      Following a second dose of diamorphine at around 21.50 there was a further dampening of the baseline variability, but it still remained above 5 beats per minute.  There were occasional early or variable decelerations that were very brief in duration.  Administration of diamorphine has a typically suppressive effect on reactivity but the remaining variability in the foetal heart rate after opiate administration is reassuring.  The trace generally was reassuring and reactive

[85]      After siting of the epidural at about 22.30 there were a number of variable decelerations against the background of normal baseline rate and variability and the continued presence of accelerations.  Most of the decelerations had a drop from baseline of less than 60 bpm and lasted less than 60 seconds.  Accordingly they are classified as typical.  Normal variability continued throughout and can be seen both in the baseline and within decelerations.  Both variable and early decelerations are common as labour progresses.  Variable decelerations are usually due to intermittent cord compression.  Early decelerations are usually due to foetal head compression.  Neither form of deceleration indicates serious foetal compromise. 

[90]      From 23.40 contractions were 4:10 or 5:10. 

[91]      The CTG showed early decelerations but was otherwise reactive

[100]    Throughout the period of the CTG, until discontinuation at 01.12, the material features of the trace were not such as to require early delivery, or alteration in the obstetric management. 

[103]    CTG monitoring equipment was not routinely available in theatre.  There was no indication to transfer CTG monitoring equipment to theatre.  That would have taken time.  The presence of CTG equipment in theatre can make it difficult to access the patient when they are being prepared for caesarean section.  The CTG was discontinued, as was normal practice at the time, shortly before transfer to theatre and in the context of an acceptable foetal heart pattern. 

[104]    Following transfer intermittent foetal heart monitoring was carried on by Midwife [MacPherson].  A handheld "Sonicaid" was used to listen to the heart whilst manually monitoring the nature of the contractions.  This was in 1999 a standard practice.  Midwife [MacPherson] continued to monitor the foetal heart rate in the anaesthetic room and then in theatre until the caesarean section commenced. 

[105]    There was no indication to further expedite delivery.  In any event discontinuation of syntocinon upon transfer to theatre would have meant a decrease in the frequency and strength of the contractions.  It was reasonable to assume (bearing in mind the absence of other adverse factors and following a positive response to scalp stimulation at 00.40) that the foetal condition would improve or at least not deteriorate. 

[106]    There are no clinical notes between 00.35 and 01.15.  Following transfer to theatre Midwife [MacPherson] made notes in a separate continuation sheet which has become separated from the principal notes and cannot now be found.  Such notes would normally have included recordings of the foetal heart, the timing of the epidural top up, the timing of "knife to skin", the time the head was delivered and the time of delivery.  The recording of midwifery observations on a separate sheet is a common practice, for example, when the principal notes are required by anaesthetic, paediatric or other members of staff present in theatre.

[107]    The anaesthetic record commenced at 01.30.  It would have taken 20 to 30 minutes to test the epidural already in place, administer a test dose of anaesthetic agent and top up the anaesthesia with a further dose before confirming there was a satisfactory block to allow the caesarean section to proceed

[111]    Delivery was approximately 67 or less minutes after the decision was made by [Dr Hulse] and agreed with the pursuer, and in accordance with normal and reasonable practice. 

[117]    [Rowan’s] condition at birth could not have been reasonably anticipated from the appearance of the CTG up to 01.12 and foetal monitoring thereafter.

 

The cases of negligence
[52]      The Lord Ordinary addresses the allegations of negligence (his head (2)) in paragraphs [118] to [175] of his opinion.  He explains there that in addition to the four cases of negligence set out at paragraph [46] above, he considered the allegation made by Professor Draycott in evidence that there was a negligent failure to recognise that the CTG trace was pathological from 2200, albeit that allegation had no basis on record.  At paragraphs [126] and [131] he observes that all the cases of negligence, whether directed against the midwives or the medical staff, were premised on there having been at the relevant times, “abnormality of the trace”.  His conclusion, stated at paragraph [140], is that there had been no negligence.  As the Lord Ordinary more or less says in terms at paragraph [141], that of course follows from his findings in fact in relation to the trace and, in particular, the findings that are included in paragraphs [62], [85], [91], [100] and [117].

 

Causation
[53]      At paragraph [176] of his opinion the Lord Ordinary turns to what he designated as head (3), questions of causation.  His discussion of causation extends from paragraph [176] to paragraph [204] and he sets out his conclusions at paragraphs [205] to paragraph [225].  He finds there to be no doubt that Rowan’s airway was obstructed by something after delivery and that it is likely that her cerebral palsy is a consequence of that.  He notes that of the competing mechanisms suggested by the parties, a blockage by meconium or a bronchogenic cyst, inspissated hardened or thickened meconium was the more likely.  A third possibility, a mechanical blockage from other extraneous material, had been mentioned but had not been the subject of compelling evidence.  However, even if Rowan's airway was blocked by some meconium, the pursuer had failed to establish:  that meconium was aspirated by Rowan through the process of agonal gasping;  that agonal gasping occurred at or shortly before birth;  or that Rowan had been suffering from chronic partial hypoxia prior to birth.  As far as the mechanism which brought about an obstruction of Rowan’s airway, the Lord Ordinary concludes that what exactly happened to her will probably never be known.  He goes on to find that in any event the pursuer had failed to establish that delivery at some earlier point in time would have altered the outcome and thus the defender is entitled to absolvitor.

 

Grounds of appeal
[54]      Shorn of some of some of their elaboration, the grounds of appeal in the reclaiming motion are as follows:

1.         The Lord Ordinary’s Opinion does not constitute a reasoned opinion and the absence of a reasoned opinion means that there has not been a fair trial of the issues.  That neither party has had a fair trial is no answer to this ground of appeal.

(a)        The time spent at avizandum was excessive.  A reasonable observer would come to the view that there was a real possibility that the Lord Ordinary’s recollection of the evidence and the impression it made upon him had been diminished.  The content of the opinion would not reassure the reasonable observer.

(b)        At the most basic level the Lord Ordinary failed to provide reasons for the factual narrative at paragraphs [42] to [117] he appears to have found proved.  His findings in relation to credibility and reliability are superficial and inconsistent.  The Lord Ordinary has made no effort to analyse the evidence to see how it does or does not fit together with a view to underpinning the necessary findings of primary fact.

(c)        The Lord Ordinary gives little or no explanation as to why he preferred certain expert evidence.

(d)       The Lord Ordinary disposes of the evidence of the midwifery expert, Jean McConville, in a summary fashion at paragraph [151].

(e)        The Lord Ordinary’s opinion does not demonstrate that he had an adequate grasp of the relevant medical science to make the findings in fact.  It does not deal adequately with the controversy between the experts.

(f)        The Lord Ordinary’s finding in relation to causation is superficial and confusing. 

(g)        The Inner House should hear submissions on the entirety of the case and decide it afresh.  If that is not practicable or appropriate, the case should be referred to a single judge to re-hear the evidence and make adequate findings in fact. 

2.         The Lord Ordinary erred in law by failing to adequately explain why he rejected the four cases put forward by the [pursuers] in submission and noted by him on page 73 of the Reclaiming Print.

3.         The Lord Ordinary has erred in law by failing to subject the expert evidence on the negligence issues to adequate scrutiny.  The course of action which the clinician called by the defender as an expert defends must be one which is logical and rational in the circumstances which pertained in the particular case:  Bolitho v City and Hackney Health Authority [1998] AC 232.  The Lord Ordinary has erred in law by failing to carry out this analysis.

4.         The Lord Ordinary has erred in law by failing to explain how he has come to the conclusion that the birth would not have taken place sooner had the CTG trace between 0100 to 0115 been observed.

5.         The Lord Ordinary erred in law.  He does not explain how and in what aspects he has applied the Hunter v Hanley standards to the various alleged failures.

6.         The Lord Ordinary erred in law by failing adequately to explain why, had the last section of trace 0100 to 0115 been observed (as those who were there said it ought to have been), it was not negligent to fail to take the CTG monitoring machine to the operating theatre.

[55]      We now turn to consider these grounds, as they were developed on behalf of the pursuers and responded to by counsel for the defender.

 

Delay in issuing the Lord Ordinary’s Opinion (ground of appeal 1 (a))
The pursuers’ submissions
[56]      It was the pursuers’ submission that the parties had been denied what they had been entitled to:  a decision delivered promptly, based on the oral evidence heard at the proof.  They had not got a fair hearing once the judge’s recollection of the witnesses and the immediacy and atmosphere of the proof had been lost.  In Scotland while a right to judgment within a reasonable time is acknowledged there is no authority on what amounts to a reasonable time in this context or as to what the remedy should be where there has been inordinate delay.  In England the Court of Appeal’s response to inordinate delay is to reduce the level of deference to the first-instance decision, to consider it with special scrutiny and, if in doubt about whether the first instance judge had a firm grasp of what went on at the trial when he wrote the judgment, to send the case back to be reheard:  see Goose v Wilson Sandford & Company [1998] TLR 85 and cf Manning v Kings College Hospital NHS Trust (2009) 110 BMLR 175.  In the instant case the delay had not been so long as in Goose (where the delay was 20 months and the case had been sent to be retried) but the same issues arose given the Lord Ordinary’s failure to make adequate findings and to explain his reasons.  In Manning the Court of Appeal had excused an eight-month delay on the basis that the judge would have needed to “steep himself in the detailed medical evidence and make sure he understood it” before producing a 256 page judgment that was “absolutely comprehensive … dealing with each and every point in the most rigorous way”.  That, the pursuers submitted could not be said of the Lord Ordinary’s opinion in the present case.

 

The defender’s submissions
[57]      The defender submitted that whether the period of time spent at avizandum in the present case was unreasonable required to be assessed in context:  specifically having regard to the whole length of the action, the complex and exceptional nature of the evidence and the significance of the issues for everyone involved.  This was an exceptional case and the duration at avizandum was not unreasonable.  The Rules of Court do not prescribe a time by which written judgments must be issued.  The period during which the present case was at avizandum was less than half the period complained of in Berry v United Kingdom Application no.  41512/05.  The Report of the Scottish Civil Courts Review (B60185) (Scottish Civil Courts Review, Edinburgh, 2009), Vol 2, Ch 10 paras 18 to 36 dealt with delay in issuing judgments.  The Review’s audit of cases referred to at paras 24 and 25 identified cases at avizandum for up to 96 weeks.  While in McCourt v HM Advocate 2012 JC 336 at [15] the Court stated that as a rule of thumb all cases taken to avizandum, whether civil or criminal, should be advised within three months of the hearing, it recognized that exceptionally some cases will, for reasons of complexity or otherwise, justifiably take longer to advise.  This was such a case.  The period at avizandum reflected the difficulties in resolving its various complexities.  However, were it to be concluded, contrary to the defender’s submission, that the period at avizandum had been unreasonable that does not of itself vitiate the Lord Ordinary’s conclusions.  Findings of fact are not to be set aside simply because the judgment was seriously delayed.  At most such delay would introduce an additional factor on appeal, if in the light of delay the court cannot be satisfied that the Lord Ordinary came to the right conclusions:  Manning v Kings College Hospital NHS Trust, Waller LJ at para 53, Bond v Dunster Properties Limited  [2011] EWCA Civ 455, (2011) 108(19) LSG 21, Arden LJ at paras 4 - 13, Longmore LJ at paras 103 - 104 and Neuberger MR at paras 119 - 120, Langsam v Beachcroft LLP [2012] EWCA Civ 1230, Arden LJ at paras 132 - 137, Antigua Power Company Limited v Attorney General of Antigua [2013] UKPC 23 at paras 61 - 63.  To order a retrial on the basis of delay is not a course open to the court.  Such an approach would be arbitrary.  It would be unfairly prejudicial to the blameless defender who might in any event have succeeded had there been no delay. 

 

Discussion
[58]      As Lord Neuberger observed in Antigua Power Company Limited at para 61 the notion that serious delay in obtaining a court determination can amount to a denial of justice is too obvious and too well established to require any detailed explanation or authority.  It may amount to a contravention of article 6.1 of the European Convention on Human Rights.  These considerations clearly informed the decision of court in McCourt v HM Advocate (an instance of a delay on the part of the Appeal Court of 18 months as between date of hearing and issue of the opinion).  That leaves for consideration just what amounts to serious or unreasonable delay in any particular case and what should be its consequences.  There will be cases where these questions might be difficult to answer but that is not so in the present case.  We immediately accept and acknowledge that there was an unreasonable delay here between the Lord Ordinary taking the case to avizandum and the issue of his opinion.  The period was just short of twelve months.  That was simply too long although it should be put in its context.  Parties had taken about four years and nine months from the date of raising the action to concluding their submissions following proof.  The proof had extended over some six weeks.  Submissions were lengthy.  In their written form they took up 254 pages.  We strongly suspect that this highly elaborate approach did nothing to make the Lord Ordinary’s job easier. We would suppose that it made it more difficult. Impressive as the written submissions may be if their purpose was to demonstrate their authors’ command of the detail of the case, it is difficult to see how they would have assisted the Lord Ordinary in adopting a structure for his decision-making, highlighting the points that he had to decide, and assembling the material relevant to deciding these points. It is understandable that the Lord Ordinary made no attempt at summaries of these written submissions. We would have found doing so almost impossible.  Experience indicates that the preparation of a judicial opinion will often take a matter of months, partly because it is expected to be detailed and partly because judges are not always allocated the workdays necessary for writing.  That means that judges are preparing judgments in parallel with their other work.  Traditionally Outer House judges have been expected to prepare opinions in the evening and at weekends.  That may be changing, but the allowance of a “writing day” remains something of a bonus.  That the issue of a judgment may seem to parties to be a slow process is not necessarily solely the responsibility of the Lord Ordinary in question.  That said, the parties here are entitled to say that this is not their concern;  by whatever standard one determines unreasonableness, the issue of this opinion took too long and that is something for which the court as a whole must take responsibility and accordingly apologise. 

[59]      Is that all? While counsel for the pursuers spent some time in their submissions on the question of delay, they acknowledged that it was not a “freestanding” ground of appeal.  The assertion that the time taken at avizandum was excessive is included in paragraph (a) of ground of appeal (1) but it does not form part of a proposition which, if accepted, would lead to the reclaiming motion being allowed.  The pursuers’ submission was that the court should be less willing to accept inadequate reasons where the Lord Ordinary has lost the immediate impression of having heard the evidence.  There was the possibility that the Lord Ordinary’s decision was defective because he had forgotten what the evidence was.  In any event, given the delay, the Lord Ordinary’s decision should not be accorded the deference usually given the determination of fact by a court of first instance.  Reference was made to the decisions of the Court of Appeal in Manning v Kings College Hospital NHS Trust, Bond v Dunster Properties Ltd and Goose v Wilson Sandford.

[60]      We accept that delay in the issue of an opinion may give rise to the inference that the judge at first instance has forgotten or failed to understand the evidence.  A similar inference may be drawn where the judge’s reasoning is inadequate or absent.  That was the inference which the pursuers’ counsel urged us to draw in the present case, both by reason of delay and what they said about the Lord Ordinary’s reasoning.  Had it been critical to our decision we would have been very slow to draw that inference.  The Lord Ordinary did not have access to a transcript but he did have access to written submissions which discussed the evidence very fully.  Moreover, in the transcript that has been provided to this court, there are frequent passages where the Lord Ordinary has intervened to ensure that he has been able to note the exact terms of witnesses’ evidence.  These and other passages suggest to us that, as a matter of fact, the Lord Ordinary was engaged with and understood what the witnesses were saying.  Senior counsel for the pursuers specifically acknowledged that he had no criticism of the way in which the Lord Ordinary had conducted the proof.  He had been courteous, sensitive to the needs of witnesses and attentive to what they said.  In addition, the pursuers did not submit that the Lord Ordinary’s conclusions were entirely contrary to the evidence, rather their submission was that he had not provided reasons for preferring that part of the evidence which supported the defender’s contentions and rejecting that part of the evidence which supported the pursuers’ contentions.  Notwithstanding what appears in ground of appeal 1 (c), the nub of the case advanced at the reclaiming motion was not about the Lord Ordinary’s subjective comprehension of the material put before him, rather it was about whether in adopting the form of opinion that he had, the Lord Ordinary had succeeded in objectively demonstrating that comprehension in a way that sufficiently laid out the mental process which led him to his conclusion. 

[61]      Accordingly, while we accept that there was serious delay in the issue of the Lord Ordinary’s opinion and we further accept that parties are entitled to consider that delay to have been unreasonable, we are not persuaded that this is material to determination of the reclaiming motion. 

 

Failure to give adequate reasons for findings of primary fact (ground of appeal 1 (b) and (e))
The pursuers’ general submissions on the requirement for reasons
[62]      It was the pursuers’ submission that the Lord Ordinary’s opinion was completely inadequate as an explanation of why he had come to the conclusions that he had.  Counsel for the pursuers set out what they submitted were the principles relevant to what constitutes a properly reasoned judicial decision.  The principles applied to the analysis of expert evidence, causation and negligence as they applied to the assessment of evidence of primary fact.

[63]      It was acknowledged that there were no formal requirements to which an opinion of the Court of Session had to conform.  Each judge was accordingly entitled to adopt his or her own style.  There were, however, certain irreducible minima which had to be met by a determination if it is to deserve the status of a decision of a judicial tribunal, as Lord Rodger had used that phrase in Dingley v The Chief Constable of Strathclyde Police 1998 SC 548 at 555D.  Junior counsel for the pursuers commended what appears in chapter 17 of Macphail Sheriff Court Practice (3^rd edit) in relation to the form of a sheriff court interlocutor as having more general application.  A judgment issued after proof should identify what were the judge’s findings in fact in relation to matters in issue.  It should explain why these findings were made.  It should include within it all the factual material and contentions of each party, whether supportive of the judge’s conclusions or otherwise.  Conclusions should be provided on every matter raised, irrespective of whether the judge considers them essential to his decision.  Where the judge has drawn inferences, that should be stated in terms and the primary facts from which the inferences were drawn should be identified.  When making findings in fact the judge should explain what was their basis.  Where matters were admitted or were otherwise uncontentious that should be indicated, whereas where matters were contested and the subject of conflicting evidence that too should be indicated, the evidence set out and reasons given for accepting or rejecting that evidence, whether in whole or in part:  Wallace v Glasgow City Council [2011] CSIH 57 at para 24.  That will require an assessment of the credibility and reliability of witnesses.  Reference was made to Heffer v Tiffin Green, Court of Appeal, Times 28 Dec 1998 where it was emphasised that it was essential that oral evidence be tested by the judge for its credibility and reliability against the objective facts, the contemporaneous documents, the motives of the parties and the overall probabilities.  Brevity had its place;  there was no need to rehearse everything, but the judge has to deal with such material discrepancies as have emerged.  Where expert opinions are involved, the judge must make clear how he has approached these opinions and the primary facts upon which they are based.  In a case such as the present this would include finding what actually happened and then coming to a view as to what should have happened.  Having done all this, the judge should then set out the relevant law and apply it to the facts as they have been found to be.

[64]      The judicial duty to provide reasons for court decisions arises from the right to a fair trial, whether that right is analysed from the perspective of common law or article 6 of the European Convention on Human Rights;  justice will not be done if it is not apparent to parties why they have won and, more importantly, why they have lost:  English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, Anya v University of Oxford [2001] ICR 847 at para 12.  Adequate reasons, junior counsel for the pursuers submitted, also have a practical function.  In their absence a party is denied the opportunity of determining whether a decision is appealable.  They provide the material with which an appellate court can work and, if necessary, decide an appeal on paper.  They provide a response to and therefore an appropriate acknowledgement of the effort put in by parties in presenting their cases.  They introduce transparency.  By imposing a discipline on the decision-maker to work towards a logically coherent conclusion and then explain that process they are the indicators of the intellectual integrity of the final opinion.  A properly reasoned judgment is much more likely to be based on the evidence;  providing reasons concentrates the mind:  Flannery v Halifax Estate Agency [2000] 1 WLR 377 at 381.  Sufficient reasoning confers legitimacy on a judgment, making it more likely to be acceptable to the parties and the wider public.  The parties comprise the primary audience for a judicial decision but they are not the only audience.  A judicial decision is a public document and it should explain in terms which are comprehensible to the reasonably intelligent reader with no particular prior knowledge of the case what were the issues it raised, what material was brought to bear by parties with a view to their resolution and how they were resolved. 

[65]      Senior counsel for the pursuers adopted and reinforced his junior’s submissions under reference to what had been said by the English Court of Appeal in Flannery and Anya.  A failure by a judge of first instance to give reasons for a conclusion essential to his decision was a freestanding ground of appeal.  When faced with inadequate reasoning in the opinion of the lower court, an appellate court may be tempted to try and work out why the lower court had decided as it did.  The Court of Appeal in Anya at para 22 warned against this course of action, firstly because it is an invitation to an appellate court to speculate in circumstances where it was the duty of the first instance court to explain itself and secondly, it requires the appellate court to assume as decided against the appellant the very issues which might for all the appellate court knows have been determined wholly or partly in his favour.

 

The pursuers’ criticism of the Lord Ordinary’s approach to the explanation of his assessment of fact
[66]      According to counsel for the pursuers, the Lord Ordinary had failed to demonstrate that he sufficiently understood the topic of baseline variability, which was central to the case.  He had failed to explain the gist of the evidence of each of the expert witnesses.  His language, for example in paragraphs [7] and [176] of his opinion, would suggest that he had set himself to do no more than to provide an outline rather than full reasons.  He had failed to explain his decisions on the important issues.  His reasons were accordingly left obscure rather than being made transparent.  In part, this was a consequence of the Lord Ordinary’s undiscriminating adoption of the defender’ submissions.  At paragraph [142] of his opinion the Lord Ordinary states:  “My core finding, in relation to alleged negligence, is that the defender's staff fulfilled all duties properly incumbent upon them”.  Then at paragraph [143] he explains that finding in these terms:  “I reached that conclusion essentially for the reasons outlined by the defender in their written submissions” [emphasis added].  The defender’s submissions were, by their nature tendentious and controversial.  They were lengthy, addressing a large number of issues.  To adopt them in the way the Lord Ordinary had done did nothing to explain, even to the parties, what were the points or reasons that the Lord Ordinary had found to be persuasive.  Matters were made even less clear by his use of the adverb “essentially” – what exactly did that mean?  Parties at least had access to the defender’s written submissions.  This was not so in the case of interested members of the public or the profession reading the Lord Ordinary’s opinion on the Scottish Court and Tribunal Service website.  A reference to a written submission which is not published adds nothing to an understanding of an opinion.  Similar observations can be made in relation to what the Lord Ordinary says at paragraph [216] - “I was not satisfied that [Rowan] entered a gasping phase or agonal gasping shortly before birth.  I did not accept the pursuer's submissions to that effect - essentially for the reasons outlined by the defender (at page 127 paragraph 7.40 et seq of the defender's principal submissions)”.  While it is true that that is a reference to a specific passage in the defender’s submissions, a number of different reasons are put forward there for rejecting the pursuers’ theory of agonal gasping.  The Lord Ordinary’s adoption of the whole passage fails to explain what were the reasons he had accepted.  Again, what is to be made of the adverb “essentially”? Another example of obscure and confusing language was to be found in paragraph  [161] where the Lord Ordinary states:  “In general terms, I agree with many of [counsel for the defender’s] propositions”. 

[67]      At paragraphs [166] and [173] of the Lord Ordinary’s opinion there are references to there having been “insufficient” evidence whereas in the absence of any requirement for corroboration, sufficiency cannot be an issue.  Although the Lord Ordinary had included Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 and Toremar v CGU Bonus Ltd [2009] CSOH 78 in the list of authorities cited to him and, consistent with these cases, had stated at paragraph [23] of his opinion that he accepted the pursuers’ submission that the evidence should be considered as a whole and that circumstantial evidence can have compelling force, he had not explicitly directed himself on the nature of the fact-finding process in a way that explained what he was going to do and how he was going to do it.  The Lord Ordinary had failed to demonstrate that he had followed the Karanakaran approach.  It is at least possible that in rejecting evidence as “insufficient”, he set himself an inappropriately high standard.  His treatment (at paragraphs [18] and [155] of his opinion) was exiguous and inconsistent. 

[68]      At least in one respect, the Lord Ordinary had failed to demonstrate that he understood the point in issue, indeed he would appear not to have done so.  Paragraph [172] of his opinion is in these terms:

“I was not satisfied that there [sic] any negligent failure to monitor the foetal heart rate after 01.12 hours.  I accepted the evidence of Midwife [MacPherson] that intermittent monitoring would have occurred.  She was an experienced midwife (albeit retired for 8 years and aged 73).  In any event, the pursuer failed to establish that there would have been signs of distress audible on intermittent auscultation such that delivery should or could have been expedited.”

 

The pursuers were not maintaining that there would have been signs of distress audible on intermittent auscultation.  It was their position that neither intermittent auscultation nor any other sort of monitoring was carried out after about 0112.

[69]      It was submitted that the Lord Ordinary had failed to provide assessments of the witnesses which, had he done so, might have explained his acceptance or rejection of their evidence.  This was a case where there were disputes as to fact.  In particular there was a dispute as to whether intermittent auscultation had been carried out on the first pursuer after 0115 on 2 June and whether Dr Sharkey had indeed met with the pursuers to discuss the events surrounding Rowan’s birth, as Dr Sharkey claimed to have done.  The first pursuer had denied Midwife MacPherson’s account of carrying out auscultation and the pursuers had no recollection of the meeting that Dr Sharkey spoke of.  In addition there were differences of opinion in the expert evidence.  Despite this the Lord Ordinary did not address the credibility and reliability of the factual witnesses beyond some bland and global remarks at paragraph [155] to the effect that he found the witnesses of fact to be credible and as reliable as might reasonably be expected given the circumstances and the lapse of time and the statement (apparently contradicted by his rejection of the first pursuer’s evidence) that the credibility of the pursuers was not in doubt. 

 

The pursuers’ criticisms of specific findings in fact
[70]      The pursuers identified a number of specific findings in fact by the Lord Ordinary which, for reasons they put forward, they submitted were inadequately explained.  These findings have already been set out in this opinion at paragraph [51].  They are however repeated below, printed in italics.  The numbers preceding them are the paragraph numbers from the Lord Ordinary’s opinion. 

[60]      CTG was commenced at or about 1814 on 1 June 1999 and ran until about 0112 on 2 June 1999. 

 

[71]      A copy of the CTG trace was lodged as a production.  The final portion is numbered 6/2/163 of process.  The relevant time period can be derived from the printed grid-lines.  The pursuers’ initial position was that in finding that the CTG ran until 0112, rather than 0115, the Lord Ordinary had reached a conclusion that was inconsistent with the evidence and the submissions of both parties.  However, it came to be accepted by counsel that what was of importance to the pursuers’ case was the appearance of the trace rather than its precise timing and this criticism was withdrawn. 

[62]      At commencement of the CTG trace there was a base line foetal heart rate of around 140 beats per minute with frequent accelerations and excellent base line variability.  This fairly normal pattern continued throughout the trace. 

 

[78]      Following a second dose of diamorphine at around 21.50 there was a further dampening of the baseline variability, but it still remained above 5 beats per minute.  There were occasional early or variable decelerations that were very brief in duration.  Administration of diamorphine has a typically suppressive effect on reactivity but the remaining variability in the foetal heart rate after opiate administration is reassuring.  The trace generally was reassuring and reactive.

 

[85]      After siting of the epidural at about 22.30 there were a number of variable decelerations against the background of normal baseline rate and variability and the continued presence of accelerations.  Most of the decelerations had a drop from baseline of less than 60 bpm and lasted less than 60 seconds.  Accordingly they are classified as typical.  Normal variability continued throughout and can be seen both in the baseline and within decelerations.  Both variable and early decelerations are common as labour progresses.  Variable decelerations are usually due to intermittent cord compression.  Early decelerations are usually due to foetal head compression.  Neither form of deceleration indicates serious foetal compromise. 

 

[90]      From 23.40 contractions were 4:10 or 5:10. 

 

[91]      The CTG showed early decelerations but was otherwise reactive

 

[72]      What he described as the Lord Ordinary’s bland conclusion, at paragraph [62] that the CTG trace had exhibited a fairly normal pattern (and, implicitly, was properly interpreted by those responsible at the time) was, submitted junior counsel for the pursuers, arrived at in the face of a substantial body of evidence to contrary effect and yet this evidence is neither mentioned nor analysed.  No reason is given for its rejection.  When senior counsel for the pursuers came to address us, he described the finding in paragraph [62] in the absence of any accompanying explanation as a dereliction of the Lord Ordinary’s duty to do justice between the parties.  One simply could not know the state of his understanding of the science or what his thought processes were given the particular evidence that he had heard. 

[73]      By way of illustration of evidence that in the period up to discontinuation of CTG monitoring the trace was neither normal or reassuring and therefore contrary to what the Lord Ordinary records by way of his findings, junior counsel for the pursuers referred to the following quotations from the evidence of witnesses:  Karen Marnoch -“2200 ...suspicious yes but it is only one sector of a large trace”;  Jean McConville  - “abnormal CTG from 2308”, “baseline variability remains reduced.  The deceleration pattern has got biphasic features”;  Sister Richmond  - “biphasic decelerations [at 0110]”, “...I did not give it any thought at the time”;  Professor Draycot  -“Pathological by 2200” “trace from about 0050 ...definitely of concern”, “slightly more sinister than the preceding decelerations but they are all sinister”;  Dr MacPherson - “The biphasic element means that the deceleration is prolonged and is a more ominous development ...This is a worsening pattern.  ...It is getting worse”;  Dr Hulse - “...should the delivery of this baby with that trace have been expedited? – If possible, yes...”;  Professor Walker - “...  it would have been preferable to have a continuous monitor in theatre” “[other witnesses] have all expressed the view that that last part of the trace from about 0055 hours through to the end of the trace does indicate, in their view foetal distress.  Do you agree with that? – I would agree with that”, “it is a deterioration of the trace ...I would expect it to be noticed ...I would expect someone to have looked at this section of the trace at some point”, “a suspicious trace”;  and Dr Sanders - “this section ...  between 2150 and 2210 I think there would be justification in ...becoming concerned and wanting to closely observe it to see whether these features were going to progress”, “the final deceleration would be concerning ...you would note it”, “starting at 0054, a series of decelerations that actually decrease in depth up until 0110 ...those decelerations ...I take it you would not describe them as anything more than suspicious? – That is correct, yes.  ...Would you expect them to have been observed? They would have been observed”.

[74]      Junior counsel for the pursuers accepted that the passages he had referred to had been selected because they were favourable to the pursuers’ contentions that the CTG trace showed signs of foetal distress from about 2200 and that by 0115 the pattern was such that if observed and competently interpreted the Caesarean section should have been expedited to something like a “crash” or “section 1” procedure.  However, the passages did illustrate that there was evidence to support the pursuers’ contentions and that it came from a number of witnesses, including experts led by the defender.  The Lord Ordinary was obliged to consider this evidence (as he said he had) but also to deal with it in the sense of explaining what he made of it and, if he rejected it or construed it differently from the way the pursuers suggested it should be construed, explain why.  He had not done that or at least not in any way that was adequate. 

[94]      At about 00.35 the Registrar, Dr [Sharkey], noted that "CTG - has been marked earlies throughout but otherwise reactive".

 

[97]      At 00.40 the CTG trace demonstrated a positive response to scalp stimulation, indicating the foetus was not hypoxic. 

 

[98]      Dr [Sharkey] telephoned Dr [Hulse], the on-call consultant obstetrician and gynaecologist, from the labour ward midwifery station at about 00.50.  She informed Dr [Hulse] that the patient was diabetic;  of her findings on vaginal examination;  and that the trace showed early decelerations.  She discussed with him whether the pursuer should be allowed to labour for a further hour to see if the labour would progress.  Dr [Hulse] advised caesarean section was now indicated given the diabetic status of the pursuer and the failure of labour to progress.  His instruction was to perform a caesarean section. 

 

[99]      The decision to proceed to caesarean section was due to the pursuer's failure to progress in labour.  The caesarean section was not undertaken because of any perception that [Rowan] had become hypoxic or otherwise compromised in utero.  The caesarean section was classed as "emergency", in the sense that it was not an elective or pre-planned procedure.  It was not a "crash" or "Grade 1" section (requiring delivery within 30 minutes) and there was no clinical indication for such.  Normal practice at the time was for delivery within about 60 to 90 minutes of the decision to proceed to emergency caesarean section.  The position had to be explained to the pursuer and her consent to caesarean section obtained.  It would have taken 5 to 10 minutes to transfer the pursuer from the labour ward to theatre.  A theatre team including nursing, anaesthetic and paediatric staff required to be assembled.  The pursuer had to be prepared for the procedure, including shaving, draping and skin preparation.  Anaesthesia was required.

 

[100]    Throughout the period of the CTG, until discontinuation at 01.12, the material features of the trace were not such as to require early delivery, or alteration in the obstetric management. 

 

[75]      Again, it was the pursuers’ position that the Lord Ordinary had not provided adequate reasons for the findings contained in these paragraphs of his opinion and, in particular the findings relating to how the CTG trace should have been interpreted and how that should have informed the degree of urgency in carrying out the Caesarean section.  The conclusion at paragraph [100] was not one that could be reached without consideration, and therefore discussion in the opinion, of the evidence and particularly the evidence to contrary effect.  The Lord Ordinary provides no such discussion.

[76]      The pursuers’ counsel accepted that Dr Sharkey had made the note recorded at paragraph [94] and that she had telephoned Dr Hulse, albeit that the pursuers’ position at proof was that the call had been made earlier than 0050.  There had also been an issue as to how long it would have taken to prepare the first pursuer for theatre once the decision had been made to carry out a Caesarean section, on the one hand in normal circumstances and on the other if things had been hurried along.  The Lord Ordinary had simply presented his conclusions without any discussion as to how he had resolved what were important issues of timing.

[77]      An important part of the pursuers’ case, which, according to counsel, was not addressed by the Lord Ordinary, was that Dr Sharkey’s assessment of the trace had been negligent and in relaying information to Dr Hulse that she had created a false impression.  If Dr Hulse had been given what the pursuers contended was the true picture there would have been more urgency in his instruction to carry out a section.  Again there was support for the pursuers’ position in the evidence.  Dr Sanders had said that the CTG trace was “suspicious” at 0035 on 2 June and that the description of the trace given by Dr Sharkey to Dr Hulse was inadequate.  Professor Walker had said that the trace was suspicious, and had he been the consultant, he would have wanted to know what Dr Sharkey meant to convey by her description and would have questioned her.  Sister Richmond, the sister on duty at the time, said that Dr Sharkey’s description was wrong.  Dr Sharkey herself accepted that she had misclassified the trace.  The impression that Dr Sharkey had given to Dr Hulse was that the CTG trace was fine.  Dr Hulse said that if, at the time of his phone call with Dr Sharkey he had seen the trace which was shown to him in the witness box or had it been properly described he would have expedited the Caesarean section.  Accordingly, so it was submitted on behalf of the pursuers, in finding as he had, the Lord Ordinary would seem to have rejected Dr Hulse’s evidence, despite the fact that he was the obstetrician in charge of the unit, that the Caesarean section procedure could be hurried along without it having to be a category 1 or crash section.  The situation at 0035 and what ought to have been done then was important because, if Dr Hulse had been present, or had been given the correct information, Rowan would have been born before she was and, on the pursuers’ case, spared brain damage.

[103]    CTG monitoring equipment was not routinely available in theatre.  There was no indication to transfer CTG monitoring equipment to theatre.  That would have taken time.  The presence of CTG equipment in theatre can make it difficult to access the patient when they are being prepared for caesarean section.  The CTG was discontinued, as was normal practice at the time, shortly before transfer to theatre and in the context of an acceptable foetal heart pattern. 

 

[78]      The pursuers took issue with the Lord Ordinary’s uncritical acceptance of the supposed “normal practice” of not continuing CTG monitoring once the first pursuer had been removed from the labour ward to theatre.  The Lord Ordinary had failed to address the contention that the practice was not logically supportable and, in any event, in the case of the first pursuer, ran contrary to the defender’s own protocol for diabetics.

[79]      Counsel for the pursuers drew attention to the evidence that there was a general instruction, or protocol, that diabetic women in labour should be provided with continuous CTG monitoring in the sense of using a CTG machine to provide a printout, beat-to-beat, during the entire labour.  Despite that protocol, in this case the machine was disconnected when the first pursuer left the labour ward to go to theatre at 0115 hours, 47 minutes before she gave birth.  She was not reconnected once her trolley had been pushed the 150 yards to the operating theatre.  It was the pursuers’ submission that whatever was “normal practice”, the protocol demanded continuous CTG monitoring.  The Lord Ordinary does not mention that the protocol was not followed.  Moreover, the Lord Ordinary’s reference to “an acceptable foetal heart pattern” is made without any mention of the last section of trace.  The pursuers’ case was that it was negligent not to reconnect the CTG machine once the first pursuer had been transferred to theatre.  It would have been straightforward to do so, as Dr MacPherson and Professor Draycott had explained, and it could have been in place until five minutes before incision.  The defender’s expert, Professor Walker, had accepted that, based on the appearance of the last section of trace, it would have been preferable to take the continuous CTG to theatre rather than rely on handheld auscultation.  The defender’s midwifery expert, Dr Sanders, had said:  “I may have considered taking the monitor to theatre”.  Dr Hulse gave evidence about the advantages of continuous CTG over intermittent monitoring.  The defender had an obstetrics expert, Dr Mathers, who was not called as a witness.  His report had however been seen and agreed to by Midwife McConville and Professor Draycott.  According to the report where there was no physical reason to discontinue the CTG its continuation was mandatory.  While the “normal practice” of not taking the CTG to theatre may not have been challenged on behalf of the pursuers by saying to, for example Professor Walker, “I put it to you that this was not a logically supportable practice”, there had been evidence from various sources about what was done and why, and a submission had been made that, not to take the machine to theatre was simply not logically supportable.  It was therefore clear that the Pursuer was saying that it was negligent not to have taken the machine to theatre.  The lack of continuous CTG monitoring was important because Professor Draycott gave evidence, based on the medical records, that there was a drop in FHR between the continuous CTG being turned off at 0115 (150 bbm) and delivery at 0202 (60 bbm or less).  The Lord Ordinary was invited to infer that, had the machine been connected, the drop in the heart rate would have been noted, the Caesarean section process would have been speeded up and the birth would have been earlier, thus saving Rowan from injury.

[104]    Following transfer intermittent foetal heart monitoring was carried on by Midwife MacPherson.  A handheld "Sonicaid" was used to listen to the heart whilst manually monitoring the nature of the contractions.  This was in 1999 a standard practice.  Midwife MacPherson continued to monitor the foetal heart rate in the anaesthetic room and then in theatre until the Caesarean section commenced. 

 

[80]      Whereas the Lord Ordinary finds that there had been intermittent auscultation after 0115, the pursuers’ case was that there was no monitoring of FHR, continuous or otherwise, after 0115.  The defender’s case was that there was occasional monitoring with the handheld Sonicaid.  This was a point of controversy between, on the one hand, the two pursuers, who said there was no monitoring with a handheld device, and the midwives and Dr Sharkey, who said that there was.  There were no records of monitoring after 0115 albeit that Midwife MacPherson said that she had made notes which were recorded on a separate piece of paper.  The Lord Ordinary found that the pursuers were credible.  There had been no submission that they were unreliable on this matter.  Nevertheless the Lord Ordinary gives no explanation as to why he apparently preferred the evidence of the midwives and Dr Sharkey to that of the pursuers.  He does not say anything about the circumstances of the loss of the notes. 

[105]    There was no indication to further expedite delivery.  In any event discontinuation of syntocinon upon transfer to theatre would have meant a decrease in the frequency and strength of the contractions.  It was reasonable to assume (bearing in mind the absence of other adverse factors and following a positive response to scalp stimulation at 00.40) that the foetal condition would improve or at least not deteriorate. 

 

[81]      The pursuers’ position on this was that the Lord Ordinary’s finding that there was no indication to further expedite delivery (it having been decided to proceed delivery by section given failure to progress labour) was unduly favourable to the defender, given the evidence drawn attention to by the pursuers in relation to the appearance of the trace prior to 0115 and the drop in FHR between then and birth and the circumstance that the defender’s staff had lost the contemporaneous notes.  The Lord Ordinary had not considered the evidence about the last section of trace.  Having found that it was not negligent to disconnect the continuous CTG, notwithstanding the absence of logical justification for so doing, the Lord Ordinary does not make any finding about what would likely to have been seen on the trace had CTG monitoring been continued.  The Lord Ordinary relied on a positive reaction by Rowan, in the form of an increase in heart rate, at 0040 when her scalp was touched and “the absence of other adverse factors” to draw the conclusion that there was no indication to expedite delivery.  He fails to mention that there were other factors, such as the appearance of trace after 00:35 hours, and what would have been seen on continuous CTG after 0115.  It was submitted on behalf of the pursuers that if the defender has no notes or has lost notes then an adverse inference should be drawn against it so as not to put the pursuers at a forensic disadvantage due to a failure on the part of the defender in properly carrying out its responsibilities.  That was not an approach adopted by the Lord Ordinary.

[107]    The anaesthetic record commenced at 01.30.  It would have taken 20 to 30 minutes to test the epidural already in place, administer a test dose of anaesthetic agent and top up the anaesthesia with a further dose before confirming there was a satisfactory block to allow the caesarean section to proceed. 

 

[111]    Delivery was approximately 67 or less minutes after the decision was made by Dr MH and agreed with the pursuer, and in accordance with normal and reasonable practice. 

 

[82]      The pursuers’ criticisms of these findings were that the relevant evidence is not set out.  The Lord Ordinary does not place the findings in context.  What is normal and reasonable in one set of circumstances is not normal and reasonable in another.  The Lord Ordinary had made no finding about how soon the Caesarean section could have taken place had there been a decision to get on with matters more urgently in light of, for instance, proper action by Midwife MacPherson from 2300 hours, a correct description of the trace to Dr Hulse, notice being taken of the last section of trace or Rowan’s condition being shown to be deteriorating on continuous CTG after 0115

[117]    [Rowan's] condition at birth could not have been reasonably anticipated from the appearance of the CTG up to 01:12 and foetal monitoring thereafter. 

 

[83]      The pursuers’ submission was that, again, a finding had been made without reference to the evidence to the effect that Rowan’s condition in utero ought to have been a matter of concern or to the inference that ought to be drawn about her deteriorating condition between 0115 and birth.

 

The pursuers’ criticism that the Lord Ordinary failed to address factual issues bearing on the evaluation of the evidence of Dr Sharkey and Midwife MacPherson
[84]      Two issues arose in relation to what happened after the birth and resuscitation.  Neither related directly to a ground of fault, but it was submitted on behalf of the pursuers that they did have a bearing on how the Lord Ordinary should have approached the evaluation of evidence which did have a bearing on grounds of fault and therefore they should have been the subject of findings in fact.

[85]      The first of these issues was whether Dr Sharkey went to visit the first pursuer and what was said and why.  There was evidence that Dr Sharkey had visited the first pursuer in the ward and thereafter made a self-serving note to the effect that the first pursuer was happy with everything.  It was submitted on behalf of the defender that the self-serving aspect of this was not put to Dr Sharkey but that is not correct.  Counsel for the pursuers had asked Dr Sharkey what she was doing making a note recording that she had been exonerated by the first pursuer.  At paragraph [155] the Lord Ordinary rejected as unfounded the suggestion that any of the defender’s witnesses were self-serving but does not explain why.  Neither did he analyse the credibility and reliability of Dr Sharkey’s evidence

[86]      The second issue was about the missing notes (said to have been made by Midwife Macpherson) and the lack of a contemporaneous inquiry or at least any record of such an inquiry.  The significance of this was that the pursuers were put at a forensic disadvantage by the defender’s failure to keep a contemporaneous record.  This was a reason to draw inferences where possible in favour of the pursuers but the matter was not mentioned by the Lord Ordinary and no adverse inferences were drawn.

 

The submissions for the defender on adequacy of reasons for findings in fact
[87]      On behalf of the defender junior counsel submitted that the pursuers’ approach, for all its emphasis on principle and generous citation of authority, did little to assist in providing a correct definition of adequate reasons.  Dingley was not an analogous case;  there no reasons whatever had been given.  Reasons were primarily intended for the parties and the adequacy of reasons can be judged by reference to the state of their knowledge.  In the defender’s submission, for reasons to be adequate it was enough if parties were able to understand why a particular decision has been reached;  why one party had won and the other party had lost.  The standard is an objective one and does not depend on any assertion that an actual party has not understood something.  Not every item of evidence requires to be minutely examined.  It did not follow from the fact that the expert evidence had been detailed that detailed reasons were required from the judge.  It was to be borne in mind that after proof the Lord Ordinary had been provided with written submissions which, taken together, represented a lengthy and detailed analysis by the parties of the evidence in the case and of the applicable law.  This analysis was discussed and made use of by the Lord Ordinary in his opinion.  Whereas both parties also made oral submissions the matters that the Lord Ordinary was asked to determine were broadly those matters dealt with in the written submissions.  Many of the findings in fact had been the subject of admissions in the pleadings or were uncontroversial in the sense of having been based on medical records as spoken to by witnesses who had not been challenged.  Not everything required the same level of scrutiny.  One had to have regard to what were the important issues in the particular case and, critically, the issues upon which the decision might turn. 

[88]      Where the allegation is one of clinical negligence it is open to the judge to determine the issue of fault on the basis of the defender’s expert evidence where there is no rational basis for discounting it:  Bolitho v City and Hackney, Honisz v Lothian Health Board 2008 SC 235.  This was of relevance in the present case.  The pursuers had submitted to the Lord Ordinary that this was not a deviation from normal practice case.  That was a reference to the passage in the decision in Hunter v Hanley 1955 SC 200 at 220 which states that where it has been established that there is a usual and normal practice and that the relevant practitioner has not followed that practice, he may be found liable for negligence if, but only if, no professional person of ordinary skill would have taken that course if acting with ordinary care.  That is an aspect of the more general test for professional negligence laid down in the same case:  for negligence to be established the court must be satisfied that the course of action criticised was one that no professional person would have taken if acting with ordinary care.  On the pursuers’ approach the interpretation of the CTG trace and the action to be taken in response to that interpretation were matters of ordinary skill and care or common sense.  For the pursuers it was enough for them to succeed if the Lord Ordinary preferred the evidence of their experts to that of the defender’s experts.  The Lord Ordinary had (correctly) rejected that approach.  In his view (and this is not challenged in this reclaiming motion) the interpretation of a CTG trace and therefore the action to be taken in response to the appearance of a particular trace, are matters of clinical judgement and therefore if in the particular instance they are said to have been negligent that must be determined by the familiar test in Hunter v Hanley.  This had a bearing on the adequacy of the Lord Ordinary’s reasoning when determining the pursuers’ claim.  In moving the reclaiming motion the pursuers’ approach had been to look at passages in the evidence demonstrating their case at its height.  The pursuers accepted that there had been evidence to contrary effect, supporting the actions taken by the defender’s staff in their management of the delivery.  This proper concession was critical.  In a deviation from normal practice case, as the Lord Ordinary had correctly held this case to be, for the defender to succeed it is sufficient that that evidence be accepted by the Lord Ordinary as reflecting a body of responsible professional opinion which was not Bolitho irrational.  Given that the defender’s experts had not been challenged on the basis that their views were irrational, there was a simple route for the Lord Ordinary to decide on cases of fault which all related to the exercise of clinical judgement.  Moreover, there were a number of evidential steps to be taken before the Lord Ordinary could find that but for what was said to have been negligence the delivery would have been expedited.  In the absence of the necessary pieces of evidence the pursuers’ case had to fail.  It was accordingly unnecessary for the Lord Ordinary to subject every element of the case to same degree of scrutiny. 

[89]      The Lord Ordinary’s findings in relation to whether CTG monitoring equipment should have been taken to theatre are in paragraph  [103] of his opinion.  Evidence that, unless otherwise requested, discontinuation of the CTG was in accordance with normal practice had gone unchallenged.  The appropriateness of the decision to discontinue monitoring in this particular case was the subject of expert evidence led by both parties.  The ultimate position of the pursuers’ experts was that intermittent auscultation was sufficient but in any event, expert evidence supportive of intermittent auscultation had been led by the defender.  The Lord Ordinary’s findings are clearly explicable with reference to this unchallenged evidence of normal practice and his finding that the approach in Bolitho and Honisz applied:  opinion paragraphs  [159] and [161].  The Lord Ordinary’s findings in relation to the incidence of intermittent fetal monitoring and note taking after the cessation of the CTG trace at about 0112 are contained in paragraphs [103], [104] and [106].  He accepted that intermittent monitoring was carried on by Midwife MacPherson in the anaesthetic room and in theatre until the Caesarean section occurred.  These findings, read together with paragraphs [42] and [172], demonstrate that the Lord Ordinary took into account all of the evidence and accepted Midwife MacPherson’s evidence on this point, as he was entitled to do.  There was no real challenge by the pursuer to Midwife MacPherson’s evidence that she carried out intermittent monitoring, other than to question whether it was possible she had not done so (a possibility she conceded, although she maintained it was not a probability).  The evidence of the second pursuer was not inconsistent with Midwife MacPherson’s evidence.  He did not observe monitoring but was not present in theatre at the relevant time.  The first pursuer’s evidence, read as a whole, amounts to an inability to recollect intermittent monitoring, which is not of itself inconsistent with Midwife MacPherson’s evidence.  To the extent there was any discrepancy between the pursuer’s evidence and that of Midwife MacPherson any difference is explicable by the Lord Ordinary’s finding that the witnesses to fact were as credible and reliable as might reasonably be expected given the passage of time:  opinion paragraph [155].  In a number of respects the first pursuer had been unable to recall documented events, and was confused as regards timings or the sequence of events.  That the Lord Ordinary did not expressly comment upon any possible inconsistency between the evidence of the pursuer and her husband and that of Midwife MacPherson does not provide a sufficient basis for the appellate court to interfere with his conclusions.  The Lord Ordinary enjoyed the advantage of hearing from the witnesses at first hand.  The appellate court is bound, in the absence of compelling reason to the contrary, to assume that he has taken the whole of the evidence into his consideration.  There is no basis upon which to interfere with his conclusions unless it is possible to conclude that he was so clearly wrong that an alternative judgment on the facts ought to be substituted:  Thomas v Thomas 1947 SC (HL) 45 at 61.  There is no material inconsistency between the Lord Ordinary’s findings in relation to the credibility of the pursuer and her husband on the one hand, and his findings in relation to the credibility and reliability of all of the witnesses to fact on the other.  The only material factual dispute related to whether monitoring took place after the pursuer was transferred to theatre at about 0115.  The pursuers did not seek to challenge Midwife Macpherson’s evidence in respect of any alleged failure to monitor except to suggest to her the possibility that she had not carried out any monitoring.  There was no other material inconsistency between the factual witnesses.

[90]      In response to the point that the Lord Ordinary had failed to mention an important challenge to Dr Sharkey’s evidence, counsel argued that there was in fact no conflict for the Lord Ordinary to resolve in that both pursuers had been asked about speaking to Dr Sharkey.  Neither remembered having done so but they did not go the distance of saying that it did not happen.  It had not been put to Dr Sharkey in re-examination (she having been led for the pursuers) that the meeting did not happen.

 

Discussion
[91]      As Lord President Rodger said in Dingley v The Chief Constable of Strathclyde Police at 555D, “parties who come to court are entitled to the decision of a judicial tribunal ...such a decision must be reasoned ...an oracular pronouncement will not do.” In the present case that proposition was uncontroversial.  The discussion related to what amounted to sufficient reasons and whether sufficient reasons were to be found in the Lord Ordinary’s opinion.  In their respective submissions parties emphasised considerations which, on the one hand, pointed to the need for much fuller explanations than the Lord Ordinary had provided and, on the other, supported the view that the reasoning which was apparent from his opinion was adequate in the circumstances of the case.

[92]      In the Court of Session where the court has made avizandum (in other words has reserved judgment) when it comes to pronounce its decree the interlocutor containing that decree will almost always be accompanied by an opinion of the court.  Neither statute nor the Rules of Court impose any requirements as to the form such an opinion should take or what it should contain.  There is therefore considerable scope for the judge drafting the opinion to adopt his or her preferred organisation and to express his or her personal style.  However, the opinion is the opportunity, and the only opportunity, for the judge to explain his or her decision.  Just what is required for an adequately reasoned decision will depend on the circumstances of the case and we do not intend anything we say to be prescriptive or in any way to limit the freedom of judges to adopt their own approach, but some observations are of general application. 

[93]      In contested litigation the decision of a judicial tribunal is required because parties are at issue on points of fact or points of law or on the application of the law to the facts or on some or all of these matters.  As the whole purpose of a judicial decision is to resolve issues of this sort, it is to be expected that an opinion will identify what were the issues the court had to resolve in the particular case.  Then, because proceedings are adversarial and based on the assumption that it is for parties to put before the court the material by reference to which the issues are to be resolved, the opinion should record that material, whether it be in the form of evidence, citation of legal authority or argument based on that evidence and authority.  This need not be done verbatim or necessarily at great length;  the summarising and marshalling of points at an appropriate level of generality with a view to focusing what is relevant to a resolution of the issues and not getting lost in detail is an important judicial skill.  However, with the recording of what was put before the court, as with other aspects of a legal decision, regard must be had to the various audiences which the court should be addressing.  The primary audience is made up of the parties.  By recording the material which they put before it the court is providing the parties with the reassurance that they have been heard.  The court has a wider audience.  Its decisions are public documents and published as such.  They may be included in the law reports.  By identifying the issues for decision and the materials that parties brought to bear with a view to determining these issues, the court’s opinion is explaining to any interested member of the public what the case is about and what, if any, is its general importance.  Another audience or at least potential audience is any appellate court which may be required to consider the court’s decision.  It will need to know what material was put before the lower court because almost inevitably it will be by reference to that material that the appellate court will require to judge the correctness of the decision under appeal.

[94]      Where a decision requires the resolution of disputed issues of fact an opinion should make clear how these issues have been resolved.  That means making findings of fact, whether findings of primary fact or findings of the nature of inferences based on primary facts.  There is no requirement that they appear as an enumerated list as, for example, is the practice in the Sheriff Court, but if any matter of fact is relevant to the decision it should be apparent on the face of the opinion what the court has found that fact to be.  Equally, if the court declines to resolve a particular matter of fact as to which parties were in dispute, on the view that it is unnecessary to do so or it has not proved possible to do so, that should be stated in terms. 

[95]      An opinion should make clear the basis upon which facts have been found.  Some will never have been contentious in that they were the subject of admission in the pleadings or formal agreement by joint minute.  Some will turn out not to be contentious as a consensus develops among the witnesses or between counsel in the course of a proof.  Evidence may simply not be challenged.  Where findings in fact are uncontentious for one or other of these reasons that should be explained.  Where a finding is made in respect of facts that were disputed, the opinion should explain the basis upon which that has been done.  That will include identifying evidence which is to contrary effect.  Where the explanation is the acceptance of a witness who was challenged or the preference of one witness or a number of witnesses over another or other witnesses that again must be explained.  The explanation will usually be articulated in terms of credibility and reliability but mere certification of a witness or witnesses as credible and reliable and therefore worthy of acceptance is not good enough.  If a judge has believed a witness and taken the witness’s account to be accurate, he or she must say why that was so, at least in cases where that witness or the witness’s account has been challenged in some way.  Demeanour can be of importance but generally a judge should explain whether or not he found a witness’s testimony internally consistent and consistent with other evidence, particularly objective and documentary evidence.  If motivation or overall probabilities have been relied on, that should be made clear.

[96]      Finally, an opinion should explain how the law has been applied in evaluating the evidence (for example, in relation to onus of proof) and then applied to the facts.

[97]      When viewed in the light of these considerations we conclude that the Lord Ordinary’s opinion in this case is deficient;  it sets out how the Lord Ordinary has resolved the issues before him but it does not adequately explain why he resolved them in the way he has.

[98]      Our first observation about the Lord Ordinary’s opinion is that it is written exclusively for the parties and not for its other potential audiences.  The Lord Ordinary assumes that his reader has access to the parties’ written submissions.  He says that in terms at paragraph [44] of his opinion when he explains that he does not propose to rehearse the detailed submissions of parties which have already been reduced to writing “and are known to parties” (emphasis added).  Of the 62 pages of the Lord Ordinary’s opinion, no less than 15 are taken up with lists, either of authorities referred to by parties or the topics in the written submissions.  It is not clear what value these lists were thought to have;  they do nothing to advance the understanding of a reader who does not have access to the written submissions. 

[99]      Senior counsel for the pursuers said of the Lord Ordinary’s opinion that it had failed to exhibit learning.  It may be by that counsel meant to suggest that the Lord Ordinary had not troubled to acquire the requisite understanding of the relevant physiology and medical practice.  We have not drawn that inference but another way of putting the pursuers’ criticism that would seem incontrovertible is that the Lord Ordinary assumes that his reader is familiar with the relevant physiology and medical terminology.  To those without that familiarity and who do not set themselves to acquire it, what appears in paragraphs  [51], [56], [58], [59], [70] to [72], [75], [79], [83], [84], [86] to [90], [92], [93], and [96] will remain obscure.  Senior counsel instanced paragraph [90] “From 2340 contractions were 4:10 or 5:10” as one example of what he described as “jargon”.  That is perhaps unfair.  At paragraph [51] of his opinion the Lord Ordinary explains that the annotation “4:10” indicate four uterine contractions every ten minutes.  However at no point in the opinion is the reader told what is the significance of that or any other rate of contractions.  One explanation for that may be that the Lord Ordinary takes the view that he is addressing a well-informed audience:  the parties and their medical and legal advisers.  That is however only partly true.  An appeal court, for example, may be expected to understand that regular contractions are synonymous with established labour but the rate of contractions is unlikely to mean very much to it without something by way of explanation.  Another possible reason for the absence of any explanation in paragraph [90] is that the rate at which the first pursuer was contracting from 2340 on 1 June was of no particular relevance to the issues in the case.  If that is so its presence in the opinion is a distraction and it should perhaps have been omitted, along with other correct but irrelevant details of the progress of the first pursuer’s labour.  On the other hand, if this and similar details were relevant to informing the overall clinical picture and the decision-making of the clinicians involved then the opinion should have explained that.  It is the absence of explanation of these small and perhaps immaterial details (even to the extent of saying that they are unimportant but are included in order to provide a complete narrative) as well as of more critical findings that allowed counsel for the pursuers to suggest that there had been a failure of engagement with and analysis of the evidence by the Lord Ordinary.

[100]    Our second observation follows from the first and it is that the very terse style in which the Lord Ordinary expresses his decision leaves his thought processes largely obscure.  That the reasoning which underpins a judicial decision should be transparent is uncontroversial.  The reasons for that are set out in Dingley and the English cases to which we were referred:  English, Anya and Flannery. 

[101]    Our third observation relates to the Lord Ordinary’s technique of supplying reasons by the adoption of a party’s submissions.  It cannot be said that to do so will always be wrong.  Where the argument is relatively simple or at least capable of being unambiguously articulated, and is articulated in the body of the opinion, then it may suffice simply to adopt it as a preferred contention and the reason for a decision.  However, once submissions become at all complex, as they certainly did in the present case, they are intrinsically unsuitable for the purpose of providing a rational underpinning to a particular decision.  They are likely to involve alternative combinations of elements offering the decision-maker different routes to a conclusion among which the decision-maker is invited to choose.  In contrast a judicial decision must make clear what particular route was followed and which particular factors were taken into account.  Moreover, there is the matter of register or tone.  Submissions are by their nature advocacy documents which are rhetorical and partisan in nature, intended to have an emotional as well as a rational appeal.  Judicial pronouncements on the other hand are, or should be, even-handed in their approach and sober in their expression. 

[102]    Our fourth observation is that the Lord Ordinary’s opinion is all to do with his decision and very little to do with the controversy which preceded it.  We would see that as a deliberate choice of the Lord Ordinary rather than any intellectual failing on his part, but the result of that choice is a document which might serve well enough as an award in an arbitration but which fails to record, as a judicial determination should, the nature of the underlying dispute which the determination has resolved.  It is part of the function of a judicial opinion to record how parties approached the issues and what material they put before the court with a view to their resolution.  A reader requires that material if he is fully to understand why the case was decided as it was and a party is entitled to the assurance that the material he put forward was considered and, in the event that it is rejected, why that is so.

 

Findings that were not made (but which the pursuers submit should have been made):  the last section of the trace between 0035 and 0115 (ground of appeal 4)
The pursuers’ submissions
[103]    In addition to the criticism that the Lord Ordinary made findings of fact without explanation of why evidence to contrary effect had been rejected, it was submitted on behalf of the pursuers that the Lord Ordinary had failed to make any findings in relation to what had been an important area of controversy at proof.  This is whether anyone looked at the trace between 0035 and 0115 on 2 June, what was shown on the trace at that time, and, if what was shown had been noted, what would have happened had those responsible been exercising reasonable care.  There ought to have been a finding or findings about these issues (in the pursuers’ note of argument for this court this missing finding is identified as “finding 100A”). 

[104]    We understood these submissions to be directed to ground of appeal 4, albeit that that ground is couched in terms of the Lord Ordinary having erred in failing to explain why delivery would not have taken place sooner had the CTG trace between 0035 and 0115 been observed.

[105]    It is the pursuers position that the evidence was that, had the section of trace between 0035 and 0015 been looked at, as it should have been by Midwife MacPherson (a point confirmed by Midwife Sister Richmond, Dr Sharkey and Dr Sanders), it would have given rise to a sufficient degree of concern that, given the practice of the unit, as spoken to by Midwife Sister Richmond and Dr Hulse, the Caesarean should have been expedited as a “crash” section. The adverse nature of the trace had been spoken to by Jean McConville, Dr Sanders, Sister Richmond (who had been present on the ward but who did not turn her attention to the trace at the time), Professor Walker, Professor Draycott and Dr Hulse.  Despite its importance, the Lord Ordinary does not deal with this evidence at all.  Given the delay in producing his judgment, the Lord Ordinary may have forgotten about it. He may have been distracted by the technical aspects of the evidence about the CTG and the language used to describe the trace.  He need not have been; as long as he found that those who were present ought to have considered the trace “suspicious” or “not normal” or “bad” or “not good” or any variant of these descriptions, the Caesarean should have been expedited. While, as the Lord Ordinary notes at paragraph [149] of his opinion, he accepted the submission for the defender that no case had been pled against the midwifery staff in respect of the period between 0035 and 0112 hours, he nevertheless exonerates the midwives just to make sure.  However he does so without looking at the evidence and without saying why they should be exonerated.  It was submitted that the Lord Ordinary ought to have made adequate findings in relation to the midwives failures during this period because the evidence criticising them had been led without objection and this was a matter which fell under the general averments of fault on the part of the midwifery staff in the period after 2300 (see pages 10B–D and 11B–D of the closed record, as it is reproduced in the reclaiming print).

[106]    Assuming the decision to deliver by Caesarean section was made at 0050, 25 minutes passed before the first pursuer was taken to theatre.  Contrary to what would be submitted on behalf of the defender, it was no answer to the pursuers’ contention that in this particular maternity unit the standard of what should have been done by way of hurrying up delivery was that set by Dr Hulse, to lead evidence that other clinicians would not have followed the same course. 

 

The defender’s submissions
[107]    The Lord Ordinary neither found that the last section of the CTG was not observed nor that it was observed.  He had been entitled to conclude that there was insufficient evidence in support of such a finding.  Sister Richmond’s final position was that she would have been aware of the decelerations in the final section of CTG (ie  that they would have been observed).  There was no concession from Midwife MacPherson that the trace was not observed.  At paragraph [166] of his opinion the Lord Ordinary found that the pursuers had failed to establish that delivery could or should have been expedited.  Even if Sister Richmond had reported that the appearance of the trace indicated an adverse clinical situation, there was no evidence that it would have been expedited.  This was an obstetric decision and when Dr Sharkey gave evidence she was not asked about this.  Further, there was no evidence as to the practicality of expediting delivery in the circumstances of the case.  What Dr Hulse would have done is irrelevant (and his evidence on the point was in any event expressed in general terms rather than under reference to the case of the first pursuer) because Dr Sharkey would have required to contact him again in order to ask for his advice.  There was no evidence as to whether Dr Sharkey, who was the obstetrician who was to carry out the procedure, would have taken the same approach as Dr Hulse.  Moreover, there was rational and reasoned expert midwifery evidence led by the defender which was supportive of any alleged failure by the midwives to report the last section of CTG to medical staff (despite there being no case of fault on Record directed against the midwives in respect of the period 0035 to 0115 and no motion to amend was made).  Thus, the pursuers failed to establish that in the circumstances a report should have been made by the responsible midwives. 

 

Discussion
[108]    The findings which the pursuers say should have been made in relation to the failure by the midwives to report on an adverse trace between 0035 and 0115 on 2 June would have supported a case of fault which, as the Lord Ordinary observes at paragraph [149] of his opinion, was not made on record.  Evidence was however led and the Lord Ordinary considered the criticisms of the midwifery staff.  He rejected them as not made out on the basis of that evidence (opinion paragraph [166]).  The pursuers’ contention is that the Lord Ordinary was wrong to conclude as he did having regard to evidence to which they refer.  We understand that in this matter as in others the pursuers’ object is to demonstrate in just how many respects the Lord Ordinary went wrong.  However, despite a number of references to the evidence the pursuers’ counsel did not enter into an evaluation of all the evidence relevant to the matter and did not invite the court to do so.  At the best for the pursuers we can therefore do no more than note that it is their contention that there was evidence which, had it been evaluated as the pursuers submit it should have been evaluated, should have led to the conclusions that:  between 0035 and 0115 the CTG was either not observed or not properly assessed by the responsible midwives;  and had it been properly assessed it should have prompted a report to Dr Sharkey who then, had she been exercising reasonable care, would have expedited the timing of the Caesarean section.

 

Failure adequately to analyse and assess the expert evidence (ground of appeal 1 (c), (d), (e), and 3)
The pursuers’ submissions
[109]    In the submission of the pursuers the Lord Ordinary had not provided any proper assessment of the expert evidence.  In particular he had failed to analyse the expert evidence by reference to the strands relating to each of the four cases that were before the court.  The pursuers’ criticisms of the way in which the Lord Ordinary had dealt with the expert evidence were in part an aspect of the contention that the Lord Ordinary had failed to give adequate reasons for concluding as he had, with the consequential inference that he failed to grasp the relevant scientific and medical issues (grounds 1 (a), (c) and (d)) and in part a contention that the Lord Ordinary had failed to subject the expert evidence led by the defender in support of the management of the first pursuer to the level of scrutiny associated with Bolitho v City and Hackney Health Authority. 

[110]    The pursuers pointed to Professor Walker and Dr Sanders having been said by the Lord Ordinary to be “measured” whereas nothing was said about Dr MacPherson and Mrs McConville.  Valuable evidence from Dr Hulse had been left out of account.  The failures in relation to the analysis of the evidence of Dr MacPherson and Dr Hulse were particularly significant.  Dr MacPherson was led specifically because she was an ordinary obstetrician in a district general hospital in 1999 and not, as were Professor Draycott and Professor Walker, a doctor at the cutting edge of innovation.  Dr MacPherson had been able to give evidence as to what the practice would have been in a hospital like Raigmore at the relevant time.  The Lord Ordinary’s opinion barely touches upon her evidence despite it having taken up 100 pages in the transcript in addition to her lodged report.  It is no more than mentioned in passing in paragraphs [148] and [151].  Her evidence was by no means irrelevant and the Lord Ordinary does not say that it was.  She was in the witness box for a day — most of it being cross-examined.  Her criticism of those responsible for the first pursuer’s care was that they were too relaxed in the face of adverse indications.  If the Lord Ordinary was to set that opinion aside he had to explain why he was able to do so.  He had not done so.  His approach was perfunctory.  In paragraph [148] of his opinion there is an apparent rejection of Professor Draycott (“I do not accept that this views represented the situation in 1999”), who was dismissed as “a bit of a perfectionist” notwithstanding him also being described as “an exceptionally diligent professional”.  The Lord Ordinary also rejected Mrs McConville but did not explain upon what basis.  The defender’s experts did not get a much fuller treatment. 

[111]    In a case such as the present where there was a mass of conflicting expert evidence produced in the course of what was in the nature of an intellectual exchange, it was for the judge to enter into this exchange, not perhaps as an equal but with a degree of understanding of the material before him.  A coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons:  Eckersley v Binnie (1988) 18 Con LR 1 at 77.  It is by his reasoning that the judge demonstrates that he has engaged with the material put before him and thereby gives confidence to the losing litigant that the decision was based on the evidence.  Here the expert evidence was detailed and complex.  The Lord Ordinary had been entitled to use discretion in deciding how to present his decision but, as is illustrated by other opinions following proof on issues similar to the present, for example AW v Greater Glasgow Health Board [2015] CSOH 99, Coyle v Lanarkshire Health Board [2013] CSOH 167, LG v Greater Glasgow Health Board [2013] CSOH 90, Campbell v Borders Health Board [2011] CSOH 73 and Montgomery v Lothian Health Board [2010] CSOH 104, one would expect to find set out:  the evidence of the various experts, the issues as between the experts, an identification and determination of all questions of credibility and reliability, and a conclusion on all material issues which the expert evidence raised.

[112]    In the pursuers’ submission, the Lord Ordinary had similarly failed to deal adequately with their criticisms of the conduct of Midwife MacPherson.  The pursuers’ position was that just after 2300 (when, according to the finding in paragraph [91] of the Lord Ordinary’s opinion the CTG trace was showing early decelerations but was otherwise reactive) had Midwife MacPherson been exercising ordinary skill and care she would have drawn Dr Sharkey’s attention to what was a concerning trace.  As emerged from her evidence it appeared that midwife MacPherson did not in fact have the skills necessary to identify what was shown by the CTG.  Her doing nothing therefore was not the result of the exercise of an informed professional judgement;  rather it was the result of incompetence.  That point was made on behalf of the pursuers.  However, as appears from paragraphs [155] and [156] of his opinion, the Lord Ordinary simply rejected the criticism of midwife MacPherson without saying why did so beyond referring to an unspecified opinion of Dr Sanders which he said supported midwife MacPherson’s management.

 

The defender’s submissions
[113]    The Lord Ordinary accepted the defenders’ submission that the expert evidence in relation to liability fell to be tested by reference to the criteria in Bolitho as summarised in Honisz at paras [25] and [159]:  where there are two opposing schools of thought among medical practitioners as to the appropriateness of a particular practice it is not the function of the court to prefer one over the other;  and only in exceptional cases may the court conclude that a practice of responsible medical practitioners does not stand up to rational analysis.  The Lord Ordinary was correct to do so.  Once it was accepted that this was (contrary to the pursuer’s submission) a departure from normal practice case, in order to establish negligence the pursuers required to demonstrate that the defenders’ expert obstetric evidence fell to be rejected as unreasonable or illogical by reference to the Bolitho and Honisz criteria.  It was not then a matter of preferring one body of expert evidence to another.  The Lord Ordinary would not have been entitled to accept Dr MacPherson and find for the pursuer unless he first rejected the defender’s expert, Professor Walker.  No attempt was made to discredit Professor Walker’s evidence on the basis that his approach was unreasonable or lacked a logical basis.  The Lord Ordinary accepted the defenders’ submission in that regard (opinion paragraphs [142]-[143], [152], and [161] to [175]).  The Lord Ordinary observed that he found the defenders’ expert witnesses to be “impressive and measured” (opinion paragraph [155]).  In the absence of any Bolitho attack it was accordingly not open to the Lord Ordinary to prefer Dr McPherson and he therefore did not require to explain in further detail why he rejected her evidence (if he did).  The Lord Ordinary expressly took into account all of the evidence (opinion paragraph [42]).  An appellate court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration:  Thomas v Thomas at 61, Henderson v Foxworth Investments Limited 2014 SC (UKSC) 203, Lord Reed at paras [48] and [57] and Montgomery v Lanarkshire Health Board 2015 SLT 189, Lord Kerr and Lord Reid at para [102].  There is no such compelling reason in this case.  The Lord Ordinary’s observations about Professor Draycott were legitimate and must be read in context:  the Lord Ordinary was considering whether his views expressed the range of acceptable professional practice in 1999 in the face of contrary evidence and an acceptance by the witness that he had applied a 2001 standard (the RCOG Guidelines) to practice in 1999.

[114]    For essentially the same reasons, the Lord Ordinary did not require to explain in further detail why he rejected the evidence of Mrs McConville.  The defender led expert midwifery evidence from Dr Sanders which was exculpatory of the responsible midwives.  Having concluded, correctly, that what Dr Sanders said could not be rejected as unreasonable, irrational or illogical, the Lord Ordinary did not require to explain in further detail why he rejected the evidence of Mrs McConville.  It was not a matter of preferring either side’s expert evidence but of determining whether the defender’s experts could be rejected.  In any event the Lord Ordinary explained why he considered that the standards relied on by Mrs McConville did not reflect the situation in June 1999 (opinion paragraph [151]).  This is a finding he was reasonably entitled to make. 

[115]    There is no basis upon which to infer that the Lord Ordinary’s opinion demonstrates an inadequate grasp of the relevant medical science to make the findings in fact.  He had heard extensive and detailed evidence and had been addressed on it at length.  The Lord Ordinary sought to avoid unnecessary repetition by incorporating the parties’ submissions in his opinion (opinion paragraphs [43-45].  He is an experienced judge and the appellate court should be slow to infer a lack of understanding or learning.  The principal point of difference between the experts came down to their interpretation of the CTG and the range of appropriate responses thereto in connection with the management of the Pursuer’s labour.  The Lord Ordinary correctly recognised that this involved the exercise of clinical judgment (opinion paragraph [171]).  The pursuers’ midwifery and obstetric experts accepted that, at the relevant time, there could be a difference of professional interpretation in respect of a given CTG trace.  The Lord Ordinary identified that the approach taken by the pursuers’ experts was too strict for 1999, a conclusion that he was reasonably entitled to reach (opinion paragraphs [151]-[152]).

[116]    Underlying each of the pursuers’ cases of fault, and implicit in them, is the contention that in June 1999 the CTG would, should and must have been interpreted and acted upon in the manner the pursuer’s experts claim.  In order for the pursuers to succeed it was crucial to place the acts and omissions complained of in the correct context of contemporary midwifery and obstetric practice.  No serious attempt was made by the pursuers to do so.  The Lord Ordinary did not base his decision on the nomenclature applied to the trace, rather he considered whether, having regard to the proper context, the views expressed by the defenders’ experts were irrational, illogical or unreasonable (opinion paragraphs [151], [152], [167]-[171]).  This approach was correct.  It is clear from the Lord Ordinary’s opinion that he understood that in assessing whether the actions taken by the defender’s staff were negligent, consequent on their interpretation of the CTG, it was the appearance of the trace that mattered and not the terminology used to describe it (opinion paragraph [165]).  This is evident in his finding that if Dr Hulse had seen the trace, regardless of the terms used to describe it, he would not have instructed that there be a “crash” Caesarean section:  this is supported by the evidence.  Thus there was no evidence that delivery would have been expedited at that stage.  Further, he concluded that it would have been in accordance with a reasonable body of obstetric opinion not to proceed to a “crash” Caesarean section, as has had been spoken to by Professor Walker. 

 

Discussion
[117]    The Lord Ordinary’s approach to the recording and assessment of the midwifery and obstetrical expert evidence is consistent with his approach to the recording and assessment of the factual evidence;  he quite deliberately concentrates on giving his decision while relying on parties’ submissions to identify the issues, the evidence led with a view to resolving the issues and the parties’ respective contentions in relation to that evidence.  The pursuers argue, for reasons that are very similar to those upon which they rely in their criticisms of the Lord Ordinary’s approach to his findings of primary fact, that that is simply inadequate.  We agree.  We repeat that the function of an opinion in Court of Session procedure is to identify, at an appropriate level of detail:  what are the issues to be resolved, what is the material that was put before the court with a view to the resolution of the issues, how the issues were resolved and why the issues were resolved in the way they were.  An opinion which does not do this is not, properly speaking, a judicial decision. 

[118]    In so far as the Lord Ordinary discusses the expert midwifery and obstetrical evidence he does so in that part of his opinion where he addresses the issue of negligence (paragraphs [118] to [175]).  What the expert evidence was required to focus upon was the interpretation to be given to the CTG trace, and the contention of the pursuers that over the last four hours of the first pursuer’s labour it was abnormal and that there was a consequential need to expedite delivery in the case of an IDDM mother.  That the Lord Ordinary was fully aware that this is what the case was about appears to us to be clearly demonstrated in paragraphs [118] to [139] of his opinion.  He then announces his conclusion that he was not satisfied that there was negligence at paragraph [140] (a conclusion that is simply reiterated at paragraphs [141], [142], [143], [174], [175], and [176] and slightly elaborated upon at paragraph [162] (in relation to the first case of negligence), [164] (in relation to the second case), [166] (in relation to the third case) and [163] (in relation to the fourth case)).  In what is very briefly stated reasoning the Lord Ordinary touches on, but no more than touches on, the evidence he had heard.  He observes that the interpretation of a CTG trace is a matter of clinical judgement (paragraphs [152] and [171]).  He rejects the suggestion that midwife MacPherson lacked core skills (paragraph [155]).  He assesses Dr Sanders and Professor Walker as impressive and measured witnesses (paragraphs [155] and [156]).  He accepts that Professor Draycott’s view was that the trace was pathological from 2200 on 1 June (paragraph [148]) but contrasts that with the views of Dr Sanders and Professor Walker, and also Dr Sharkey and Dr Hulse (paragraph [154]).  He thus concludes that the management of the first pursuer’s labour and delivery by midwife MacPherson and Dr Sharkey was supported by appropriately qualified experts who could not be rejected as being unreasonable, irrational or illogical (paragraphs [156] and [157], [171]).  The difference in view as between Professor Draycott (and presumably Mrs McConville and Dr MacPherson), on the one hand, and Dr Sanders, Professor Walker, Dr Sharkey and Dr Hulse, on the other, was to be explained by different assessments of the stage of development of medical knowledge in 1999 (paragraphs [148], [150], [151], [169] and [170]). 

[119]    Looking at the paragraphs to which we have referred, we would see the Lord Ordinary to have supplied, in broad outline, sufficient reasoning for his conclusion on the effect of the expert evidence.  As is very familiar, it is not for the court to prefer one respectable body of professional opinion over another:  Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639, it only being where the court is satisfied that a body of expert opinion cannot be logically supported at all that it will not be available as a benchmark by reference to which allegedly negligent conduct may be assessed:  Bolitho v City and Hackney Health Authority at 243D and Honisz v Lothian Health Board at para 39.  However, it is not the Lord Ordinary’s line of reasoning that the pursuers complain about or even, necessarily, his conclusion that the defender’s responsible staff members were not negligent;  it is accepted that there was evidence which could be construed as exculpating them.  The pursuers’ complaint is that the Lord Ordinary has failed to demonstrate in his opinion that he has engaged with, considered and understood the substantial body of expert evidence led by the parties.  He has not explained how he resolved the various subordinate issues underlying his reasoning.  He has not even explained what these issues were.  There is no proper evaluation of what the expert witnesses had to say.  The complaint relates to the evidence led on behalf of the defender as well as the evidence led on behalf of pursuers.  Again, we did not understand that the pursuers argued that the Lord Ordinary should necessarily have found the defender’s experts’ approach to be Bolitho irrational, but in so far as the defender’s witnesses made no criticism of the lack of urgency in proceeding to delivery after the decision to go to Caesarean section had been made, the pursuers had argued that that evidence had failed the Bolitho test.  Where the pursuers’ case was that even had delivery been a few minutes earlier Rowan would not have sustained injury, it was incumbent on the Lord Ordinary to subject the defender’s evidence to critical scrutiny and demonstrate that he had done so.  There was no indication of that whatsoever. 

[120]    We would accept the pursuers’ complaints to be well made.  The Lord Ordinary has nothing in his opinion about the evidence as to the appearance of the CTG trace, or the evidence given by the experts as to how it should be interpreted, or the parties’ respective contentions as to what should be made of that evidence.  He contents himself with a reference at paragraph [29] of his opinion to the parties’ written submissions and the observation that because parties are familiar with their written submissions he will take them as read.  We have some sympathy for the Lord Ordinary.  He had been provided with written submissions which were very detailed indeed and then been addressed on them at length.  This was the parties’ distillation of some six weeks of evidence.  It would be understandable if the Lord Ordinary felt that setting out a summary and then analysis of that evidence would not only be very laborious but also repetitious and therefore redundant.  Nevertheless, for much the same reasons as have informed our conclusion that the Lord Ordinary has not provided adequate reasons for his findings of primary fact, we can only regard this approach as an abrogation of the Lord Ordinary’s responsibility to provide a coherent judicial decision.  It would hardly be an exaggeration to say that as far as the opinion is concerned many days of conflicting evidence about the appearance of the CTG trace are compressed into the observation at paragraph [148] of the opinion that it was Professor Draycott’s view that from 2200 on 1 June the trace was pathological and it had been negligent not to recognise that, whereas, as is noted at paragraph [154], neither Dr Sharkey, Dr Hulse, Dr Sanders nor Professor Walker considered Rowan’s trace to be pathological.

[121]    The result of the Lord Ordinary’s approach to the writing of his opinion is that the interested but previously uninformed reader is left in ignorance as to what the expert evidence was.  That in turn means that such a reader has not been apprised of the nature of the controversy between the parties beyond what is revealed by the Lord Ordinary’s quotation from the pursuers’ averments at paragraph [129].  And if the nature of the controversy is not made clear, it follows that the reader cannot fully understand precisely what has been decided.  That is to view the opinion as addressed to the wider public.  Unlike the wider public the parties are aware of what the evidence was and what, in the light of the evidence, came to be the precise controversy.  However, when it comes to the expert evidence we would see this opinion as failing the parties (and particularly the pursuers as losing parties) as well as the wider public.  The opinion provides them with no assurance that they have been heard in the sense of what they put forward having been listened to, understood and weighed in the balance. 

[122]    While we would not wish to push this consideration too far, we saw force in the submission by senior counsel for the pursuers that among the various audiences which would be entitled to feel disappointed by the Lord Ordinary’s opinion was that composed of the witnesses who gave expert midwifery and obstetrical evidence, particularly those who were led on behalf of the pursuers, Professor Draycott, Mrs McConville and Dr MacPherson.  They had been critical of the management of the first pursuer’s labour.  There is no suggestion that they were other than well-qualified and responsible clinicians who had been conscious of their duties to the court.  That did not mean that the Lord Ordinary had to accept their evidence as determinative of the issues before him.  The Lord Ordinary was entitled to conclude, as he indicates that he did conclude, that their evidence was reflective of practice as it came to be developed after 1999 rather than at the relevant time.  Moreover, that evidence was contradicted by another and equally responsible body of expert opinion.  However, where a case of clinical negligence is supported by responsible professional evidence we would see it as incumbent upon a judge sufficiently to summarise that evidence and in the event of it being rejected as determinative explain why that is so.  It is not simply a matter of courtesy, although there is an element of that.  Just as parties are entitled to the assurance that their case has been heard and to an explanation in the event of it being rejected, so witnesses are entitled to the assurance that their evidence has been heard, understood and evaluated and, where rejected, rejected for reasons that are explained.  In this case the Lord Ordinary does not provide that assurance.  As counsel for the pursuers pointed out, Professor Draycott is described as being exceptionally diligent but his evidence is then put aside on the basis that he is “perhaps something of a perfectionist” (opinion, paragraph [148]).  As with Professor Draycott, Mrs McConville’s evidence is associated with post-1999 practice but otherwise assessed only by a brief (and frankly incomprehensible) reference to her reliance on chapter 4 of the first edition of Gibb & Alkuraman (paragraph [151]).  Dr MacPherson’s contribution is relegated to the similarly obscure observation that she had agreed that “the more complicated Gibb approach may not have been the only view of these things” (paragraph [151]).

[123]    Counsel for both parties referred to the speech of Lord Browne-Wilkinson in Bolitho for their respective purposes.  The critical statement of principle (found at [1998] AC 243C-E) is as follows:

“[I]t will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.… It is only where a judge cannot be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide a benchmark by reference to which the defendant’s conduct falls to be assessed”.

 

As we have already indicated, we accept that in the event of the Lord Ordinary finding the defender’s witnesses to represent a responsible body of professional opinion, and these witnesses supporting the management of the first pursuer’s labour, that was sufficient to determine the issue of negligence against the pursuers.  It follows that it was properly open to the Lord Ordinary to come to his decision without a full analysis of the evidence of the pursuers’ experts.  Nevertheless, we do not see that as relieving the Lord Ordinary of the obligation to set out that evidence in sufficient detail that the reader can understand what were the criticisms he considered to have been rejected in the evidence led on behalf of the defender. 

[124]    Notwithstanding that criticism of the Lord Ordinary’s opinion, we should record that his conclusion on this matter appears to us to be inevitable in view of the terms of Professor Walker’s opinion.  As we have already noted, the Lord Ordinary clearly regarded Professor Walker as an impressive witness.  We have considered the terms of Professor Walker’s reports and the whole of his evidence, and we cannot discover any basis on which we could disagree with that assessment.  The conclusions in the reports were clear.  In his second report, Professor Walker states that at no time could the trace be called pathological, nor did it indicate an immediate “crash” or category 1 delivery.  In the same report it was also stated that the decision as to the timing of delivery was correct, and that in 1999 in the United Kingdom it was common for a delay of over 60 minutes from decision to delivery to occur in a Caesarean section of this type.  He further stated that there was no evidence that an earlier delivery would have resulted in a baby in a better condition.  As to Professor Walker’s evidence, the general tone of the evidence, so far as that can be discovered from a transcript, appears to be measured and reasonable throughout.  We cannot discover any point at which it could be said that the witness appeared unreasonable or unconvincing.  Throughout his evidence Professor Walker maintained that the treatment of the pursuer was in accordance with proper professional standards.  This applies to his discussion of the actual delivery (pages 2685-2687, the trace (pages 2698-2722) and the nature of the decelerations (pages 2724 and following).  We can discover no inconsistency or hesitation in those answers.  The same applies to Professor Walker’s treatment of Professor Draycott’s report (pages 2773 onwards).  Once again Professor Walker took the consistent position that the reaction to the trace was in accordance with proper clinical practice.  The pursuer’s case on record was considered (pages 2787 onwards), and was rejected.  Nothing in Professor Walker’s cross-examination appears to us to detract seriously from his evidence.  Counsel for the pursuer referred us to a particular passage (at pages 3461-3472), but we could find nothing in that passage to cause us to doubt the view that at least one body of medical opinion would have considered the course followed by the defenders to be in accordance with proper professional practice in 1999.  On that basis, we do not think that the pursuer could realistically avoid the Bolitho principle.  We accordingly consider that the defenders would almost inevitably have succeeded on a proper consideration of the evidence.  We should add that we have also considered Dr Sanders’ evidence.  There is one significant difference between her evidence and that of Professor Walker:  Doctor Sanders considered the final section of the trace to be “concerning”, which Professor Walker did not; in this respect Doctor Sanders agreed with the pursuer’s experts.  Doctor Sanders did not, however, criticize the time taken to proceed to a Caesarean section, which we think takes away most of the force that this point might otherwise have had for the pursuer.

 

Making findings on causation which were superficial and confusing (ground of appeal 1(f))
The pursuers’ submissions
[125]    In the pursuers’ submission, the approach of the Lord Ordinary to the explanation of the factual issues in relation to causation, by simply laying out the contentions of the pursuer (opinion paragraphs [178] to [189]), then those of the defender (paragraphs [190] to [204]) and then, without much more other than a series of concluding statements, deciding for the defender, “essentially for the reasons outlined by the [defender]” in their concluding submission (paragraph [216]), was inadequate.  The averments of the parties called for a response from the Lord Ordinary that demonstrated his understanding of the relevant science and a rational basis for his decision either to draw or not to draw the inferences which parties invited him to draw.  In this the Lord Ordinary failed. 

[126]    The pursuers’ case was that Rowan drew meconium into her airway during a period of agonal gasping.  The defender explained obstruction of the airway by the presence of a bronchogenic cyst.  The relevant experts, Professor Stenson and Dr Coutts, explained why one or the other mechanism might be inferred but there was direct evidence supporting the pursuers’ theory.  Dr Alberts, a paediatric Senior House Officer who was the first paediatrician to come to theatre but who later could not be traced and therefore did not give evidence made a note in relation to gasping as did Dr Alit.  Dr Sharkey gave evidence that she did not see Rowan gasping but that might be explained by her attention being concentrated on what was a difficult Caesarean delivery.  Midwife MacPherson had no recollection of meconium but Dr Sharkey described Rowan as smeared in meconium.

[127]    The pursuers had listed the particular matters which they submitted required to be addressed in relation to their case as to how Rowan came to be acutely asphyxiated but which the Lord Ordinary failed to address in his opinion.  The Lord Ordinary does not analyse the evidence with a view to explaining why he was not satisfied that Rowan had entered an agonal gasping phase shortly before birth, whether by reference to the pursuers’ points or otherwise.  He does not make any findings about timings but nevertheless says, without further explanation, that the “inference of chronic partial hypoxia prior to birth is not supported by the duration of time that [Rowan] survived without any effective airway”.  He fails to deal with the pursuers’ submissions about how chronic partial hypoxia would account for the reading on the continuous CTG before it was stopped;  how it would account for Rowan’s poor condition at birth;  and how it would account for agonal gasping.  He does not address the particular argument that Rowan would be expected to live longer than the monkeys in the asphyxiation experiments which were referred to in evidence, because urgent steps were being taken to resuscitate her.  The Lord Ordinary noted that Professor Stenson, who supported the pursuers’ theory regarding causation, including agonal gasping, was an impressive witness, and although not unequivocal, “felt that meconium was the most likely explanation.  Meconium need not be of uniform consistency or shape” (paragraph [211]).  It was critical to Professor Stenson’s theory on causation that Rowan had entered a phase of agonal gasping.  At paragraph [216] of his opinion the Lord Ordinary records that he was not satisfied that Rowan had entered a gasping or agonal gasping phase shortly before birth but he does not explain why.

[128]    According to the pursuers, not only was the Lord Ordinary’s reasoning in relation to causation inadequate, but it was confused.  The Lord Ordinary appears to accept that the obstruction in Rowan’s airway was more likely to have been caused by meconium than by the existence of a bronchogenic cyst as suggested by the defender.  He fails, however, to explain when and how such meconium entered Rowan’s airway, and to what extent that would have been consistent with Rowan’s condition during labour, it being borne in mind that it is commonplace for babies to have meconium in their mouths and upper airways at about the time of birth without suffering the sort of obstruction experienced by Rowan.  The evidence at proof presented two possible mechanisms for Rowan’s airway being obstructed.  While appearing to have rejected the presence of a bronchogenic cyst and despite finding the meconium mechanism the more likely of the parties’ two alternatives he chose a “third way”, in other words an unknown mechanism, as hinted at in paragraphs 69 and 71 of the defender’s written submission.  Junior counsel for the pursuers explained that while he did not go the distance of maintaining that a finding that meconium had been inhaled must necessary involve acceptance of the agonal gasping explanation of this, the hypothesis of meconium inhalation was connected to the hypothesis of agonal gasping and given the circumstantial support for the pursuers’ case there was an onus on the Lord Ordinary to provide cogent reasons to explain why he had decided as he did.  The reference by the Lord Ordinary to the defender’s written submission did not provide that;  paragraph 69 makes 16 points in arguing for rejection of the pursuer’s theory.  His opinion begs the question:  did the Lord Ordinary accept all of them or only some of them and, if only some, which?

 

The defender’s submissions
[129]    The Lord Ordinary’s findings in relation to causation were neither superficial nor confused.  Having rejected the bronchogenic cyst theory proffered by the defender, the Lord Ordinary was not bound to accept the alternative (and implausible) theory proffered by the pursuers:  Lesley Anne McGlinchey v General Motors UK Limited [2012] CSIH 91.  The Lord Ordinary correctly observed that both competing theories were rare and both had contra-indications in the evidence (paragraph [207]).

[130]    The causal theory posited by the pursuer depended on proof of three distinct elements:  (i) that the airway was blocked by a plug of meconium sufficiently thick and viscous so as to resist dislodgement during resuscitation procedures;  (ii) that the plug was aspirated at or shortly before delivery as a result of agonal gasping (the foetus does not breath in utero, and in any event normal respiration is insufficient to achieve the necessary degree of blockage);  and (iii) that agonal gasping occurred prior to birth as a result of chronic partial hypoxia in utero.  The Lord Ordinary observes that it was more likely, as between meconium and bronchogenic cyst, that Rowan’s airway was obstructed by meconium, probably inspissated hardened or thickened meconium rather than fresh meconium (opinion paragraph [211]).  The Lord Ordinary correctly observes that the presence of meconium is not sufficient by itself to establish the necessary causal link between alleged negligence and injury (paragraph [212]).  The necessary causal link as averred by the pursuers is agonal gasping, occurring at or shortly before birth, as a result of chronic partial hypoxia (paragraph [218]).  The Lord Ordinary was not satisfied on the basis of the whole evidence that this had occurred (paragraph [218]).  This conclusion is one that he was reasonably entitled to reach.  The evidence of the factual witnesses was inconsistent with Rowan being in the stage of agonal gasping.  There was no evidence from a factual witness that supported her having reached that stage. 

[131]    The Lord Ordinary does not go so far as to find, on a balance of probabilities, that the blockage was meconium (and did not need to, standing his findings in relation to agonal gasping).  Even if he had, it was not then incumbent on the Lord Ordinary to accept the inference postulated by the pursuers that the mechanism of aspiration was agonal gasping.  The Lord Ordinary did not accept the inference.

[132]    The pursuers’ case, to the extent it is based on agonal gasping and chronic partial hypoxia, is purely inferential.  There was no evidence of brain damage caused by chronic partial hypoxia.  Professor Stenson’s reasoning was circular:  he postulated a thick plug of meconium as the explanation for the failure of resuscitation and then further postulated agonal gasping in order to explain how this could have occurred in utero.  The inference that agonal gasping occurred in utero was contrary to the evidence.  It is certainly neither obvious nor necessary having regard to the whole evidence, all of which the Lord Ordinary explains he took into account (paragraph [218]).  There is no basis upon which to infer from his failure to discuss the details of the evidence in his judgment that the Lord Ordinary failed to take them into account:  Henderson v Foxworth Investments Limited para 57.

[133]    The Lord Ordinary found that the inference of chronic partial hypoxia at birth was not supported by the duration of time that Rowan survived without an effective airway (paragraph [217]).  The Lord Ordinary was entitled to reach this conclusion, notwithstanding the evidence of Professor Stenson.  Professor Stenson’s contrary view was based on an underestimate of Rowan’s actual survival time as spoken to by Dr Farmer.  His view was not vouched with reference to any literature and amounted to no more than assertion.  The weight which the Lord Ordinary accorded to Professor Stenson’s evidence on this point was a matter for him having had the benefit of hearing the evidence first-hand.  Professor Stenson’s evidence about the likely effect of resuscitative measures on survival time was scant and imprecise. 

 

Discussion
[134]    The Lord Ordinary discusses questions of causation at paragraphs [176] to [225] of his opinion.  At paragraph [178] he quotes the pursuers’ critical averments on causation:

“During labour [Rowan] suffered chronic partial asphyxia.  At or shortly before delivery she was no longer able to compensate for the prolonged chronic partial asphyxia.  As a result she began to gasp while in utero.  By gasping she inhaled a plug of fresh meconium deep into her airway.  The meconium plug caused acute asphyxia which in turn caused the brain damage which has led to the disabilities from which she suffered and continues to suffer.”

 

There follows the pursuers’ contentions as to how the evidence supported these averments at paragraphs [179] to [189], and the defender’s contrary contentions at paragraphs [190] to [204].  The Lord Ordinary then sets out his conclusions on these contentions in the form of findings.  Again, the style is terse but we do not see that the reasoning is confused.  The pursuers’ case depended on inferences being drawn from primary facts.  At paragraph [209] in his opinion the Lord Ordinary accepts that it is likely that Rowan suffered cerebral palsy due to a failure of resuscitation following birth in consequence of an obstruction in her trachea.  That was a necessary part of the pursuers’ case but they also had to establish that it was a plug of meconium that had obstructed Rowan’s trachea and that the plug had been inhaled by reason of agonal gasping.  As the Lord Ordinary identifies at paragraph [207] the defender had proposed a competing candidate for the mechanism which had obstructed the trachea and that was the presence of a bronchogenic cyst.  Compelling expert evidence had been put forward in support of each of the candidate conditions but both were rare and both had contra-indications in the evidence (paragraph [207]).  While unable to exclude the possibility of a cyst and recognising that obstruction by a meconium plug is not recorded in the literature (paragraph [213], the Lord Ordinary expresses the view at paragraph [211] that meconium was the more likely of the two candidates.  As a matter of logic, identifying the more likely of two unlikely but possible causes for a given phenomenon does not necessarily lead to the conclusion that more likely of the two is the likely cause of the phenomenon.  That is so even where the two possibilities are the only possibilities which have occurred to the observers of the phenomenon.  It is different where it can be concluded that the two possibilities are the only possibilities;  then, in what can be described as a closed system, the elimination of one must lead inevitably to acceptance of the other.  In the context of legal fact-finding these considerations are most often associated with the decision of the House of Lords in The Popi M [1985] 1 WLR 948 and Lord Brandon’s acceptance there of what had been said by Scrutton LJ in La Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650 at 657.  They have been recently considered by this court in McGlinchey v General Motors UK Limited.  In the present case the Lord Ordinary did not discard the possibility of obstruction by reason of the presence of a meconium plug but neither, despite regarding it as the less likely of the two suggested candidates, did he exclude the possibility of obstruction by reason of a bronchogenic cyst (paragraph [210].  Critically, his view that obstruction by reason of the presence of a meconium plug was more likely than obstruction by reason of the presence of a cyst did not lead him to make a determination of what had caused the obstruction (paragraphs [219], [222] and [223]).  He was entitled to adopt that position.  This was not a closed system case, as the Lord Ordinary explains at paragraph [220].  There were other possibilities, albeit that no compelling evidence had been led regarding them.  What Scrutton LJ said in La Compania Martiartu is apposite:

“…it is always open to a court, even after ...  prolonged inquiry with a mass of expert evidence… to conclude… that the proximate cause ...  even on a balance of probabilities, remains in doubt, with the consequence that the [pursuer has] failed to discharge the burden of proof…”.

 

[135]    The Lord Ordinary did not leave off his consideration of causation with his conclusion that a meconium plug had not been shown to have been the likely source of the obstruction.  He appreciated that a necessary component of the pursuers’ case was that hypoxia had brought Rowan to a state of agonal gasping in an attempt to ventilate herself and it was such a gasp which had drawn in a meconium plug (paragraphs [136] and [215]).  Without proof of this very specific mechanism the pursuers must fail.  At paragraph [216] the Lord Ordinary records that he did not accept the pursuers’ submissions on that and accordingly had not been satisfied that Rowan had entered a gasping or agonal gasping stage shortly before birth.  Thus, even if Rowan’s airway had been blocked by meconium (which the Lord Ordinary had not found to have been proved), the pursuers had failed to prove that agonal gasping had occurred at or shortly before birth and therefore that meconium had been aspirated by reason of agonal gasping (paragraph [218]).  In addition, the Lord Ordinary did not find established that there had been chronic partial hypoxia prior to birth, that not being supported by the duration of the time that Rowan survived without an effective airway (paragraphs [217] and [218]).  Ante-natal chronic partial hypoxia was of course part of the mechanism which the pursuers had to prove. 

[136]    There is, in our opinion, nothing wrong with the process of reasoning outlined above that led the Lord Ordinary to conclude that the pursuers had failed to prove that what they alleged to have been negligence for which the defender was liable caused Rowan’s injury.  We therefore reject the criticism that the Lord Ordinary’s reasoning was confused. 

[137]    There remains the criticism that the Lord Ordinary failed to narrate and then analyse important features of the evidence and the pursuers’ argument which supported their critical averments on causation.  The pursuers draw particular attention to their contention that chronic partial hypoxia would explain separate matters of fact which they submit were demonstrated by the evidence:  an abnormal CTG trace, Rowan’s poor condition at birth, and agonal gasping;  and to their contention that Rowan’s survival beyond the period predicted by animal experimentation could be explained by the urgent steps taken to resuscitate her.

[138]    We do not regard the Lord Ordinary’s findings on causation to be “superficial” which is the word used together with “confusing” in the first sentence of ground of appeal 1 (f).  Nor do we see it as necessarily an error for a first instance judge to omit to mention every item of evidence founded on and every argument advanced by a party.  However, and this is to return to the central theme of this opinion, by choosing to express himself in what is a very terse and compressed style, the Lord Ordinary has laid himself open to the charge of failing properly to grapple with what he acknowledges to have been the extremely difficult issue of whether the pursuers had proved the necessary elements of their case in so far as relating to causation of injury (paragraph [207]).  Our impression, based on his summaries of the parties’ respective positions and his reasoning referred to above, is that he did grapple with the issue.  Nevertheless, for reasons that we have already discussed, it would have been better had the Lord Ordinary provided a fuller explanation of the process of analysis which he had gone through.  Parties should not be required to take on trust that their case has been rigorously evaluated;  they are entitled to see that demonstrated in the court’s opinion.  Whether the pursuers had proved their proposed explanation of how Rowan’s airway came to be obstructed was a critical issue in the case.  It had been fully discussed in both parties’ written submissions.  Notwithstanding the repetition that that would have involved, we would see that the issue called for a fuller treatment than the Lord Ordinary provides in his opinion;  if not in his summaries of the parties’ positions then in his findings.  We appreciate that by saying that the Lord Ordinary should have provided a “fuller” treatment we beg the question “how much fuller?” Length, per se, is not virtue and brevity is not a vice.  Speaking generally, the opposite is so.  Writing an effective opinion involves judicious summarising and indeed omission of material that has been put before the court.  With a view to illustrating what we have in mind by saying that a fuller treatment was required we would draw attention to paragraphs [207] and [208] of the opinion.  These are in the following terms:

“[207]  The two competing scenarios (relating to meconium and bronchogenic cyst) make it extremely difficult to reach a clear conclusion in relation to what exactly caused the obstruction or when.  There was compelling expert evidence in support of both those possible causes.  Both scenarios were rare and both had contra-indications in the evidence.

 

[208]    On a balance of probabilities, I am unable to hold that the obstruction of [Rowan's] airways was caused, or materially contributed to, by the negligence alleged by the pursuer to have occurred during the latter stages of the management of labour.”

 

Within these two paragraphs the Lord Ordinary sets out a sufficient basis for rejecting the pursuers’ claim.  We have no reason to believe that everything that appears in this paragraph [207] is other than an accurate account of the evidence that the Lord Ordinary had heard but it calls out for elaboration and explanation.  What was the compelling evidence? What were the contra-indications? The opinion does not provide an answer.

[139]    The Lord Ordinary turns to agonal gasping and indicates that he had not accepted the pursuers’ submission that it should be concluded that Rowan had entered into that phase shortly before birth.  Again, by concluding that he could not make such a finding the Lord Ordinary provides a sufficient reason to reject the pursuers’ claim.  However, he does not set out in his opinion why he has arrived at the conclusion he has.  Rather, he refers to paragraphs 7.40 to 7.45 of the defender’s written submission, stating that it is “essentially” for the reasons “outlined” in that passage that he has decided as he has.  We have considered the passage in the written submission.  It contains what look to us to be cogent reasons for finding agonal gasping not to have been established.  An acceptance of these reasons means that the pursuers’ claim must fail.  It was open to the Lord Ordinary to accept these reasons;  having also considered what had been put forward by the pursuers.  However, by his use of “essentially” and “outlined” the Lord Ordinary leaves a question over whether or not he has accepted the  reasons in full and by his reference to an unpublished document he leaves the interested but previously uninformed reader none the wiser as to what these reasons may be.  That is not satisfactory. 

[140]    Despite the foregoing criticisms of the Lord Ordinary’s reasoning, we are of opinion that he has said enough to justify the view that he could not decide what the cause of the injury was.  That appears in particular from paragraphs [207] and [208] of his opinion and in his reference to paragraphs 7.42-7.45 of the defenders’ written submission.  In summary, he followed the ratio of cases such as The Popi M, La Compania Martiartu v Royal Exchange Assurance Corporation, and McGlinchey v General Motors UK Ltd, as explained at paragraph [134] above.  That conclusion seems reasonably clear from the terms of the Lord Ordinary’s opinion.  If he was justified in taking such a view, the pursuer’s case must fail on the ground that causation has not been proved.  We have considered the evidence of Professor Stenson, who was the pursuer’s principal witness on causation, and we can find nothing in his evidence that would persuade us to reach any different conclusion on this matter.  Competing causal hypotheses were put forward by the parties, in a situation where the facts were not entirely clear and neither of the hypotheses was free from difficulty.  In summary, therefore, we must conclude that the Lord Ordinary was justified in concluding that a causal mechanism had not been established.

 

Failure to give adequate reasons for rejecting the pursuers’ cases of negligence (grounds of appeal 2, 4, 5 and 6)
The pursuers’ submissions
[141]    Grounds of appeal 2, 4, and 6 each put forward the proposition, albeit in slightly different terms, that the Lord Ordinary failed to explain why he had rejected the pursuers’ four cases of fault.  Ground 5 complains of a failure to explain to which aspects of these cases the Lord Ordinary has applied the Hunter v Hanley standard appropriate to assessment of an exercise of clinical judgement as opposed to the standard of reasonable care appropriate to activities which do not involve an exercise of such judgement.  In their written note of argument the pursuers summarise the four cases (see paragraph [46] in this opinion) and then highlight particular points in relation to each which the Lord Ordinary should have discussed and made a decision about, as follows:

1.         Case (1) is a Hunter v Hanley case against midwife MacPherson.  The pursuers say that she failed to pick anything up on the trace because she was not a midwife of ordinary skill exercising ordinary care.  She did not do what she ought to have done because she lacked the necessary skills.  She did not exercise appropriate clinical judgment and make a decision.  This is a case where there should be an assumption in favour of the pursuers that a competent midwife (a midwife of ordinary skill) would have picked up the problems with the trace from 2300 on 1 June.

2.         In relation to case (2) the Lord Ordinary ought to have addressed the evidence of Dr Hulse and the submission that the first pursuer was entitled to consultant level care even although Dr Hulse was not present.  The Lord Ordinary was referred to the evidence of Dr Sharkey, and the evidence that she had failed to see what Dr Hulse had seen when presented with the trace in court, namely a suspicious situation.

3.         In relation to case (3) negligence had been established in that there had been a collective failure to observe a monitoring system that was mandatory under the hospital’s own protocol.  If the defender’s position is that there is credible and reliable evidence representative of a responsible body of professional opinion that supports the practice of completely failing to look at the CTG trace then the pursuer submits that the Bolitho exception applies.  Those who were present, namely Dr Sharkey, Sister Richmond and midwife MacPherson each thought that the trace should have been looked at, and Dr Sharkey and Sister Richmond thought it should have been reported and acted on.  Dr Sanders and Dr Hulse thought it should have been acted on.  Professor Draycott thought it should have been acted on.  Professor Walker agreed that Sister Richmond’s reaction was not inappropriate.

4.         In relation to case (4) it was submitted that acting in contravention of the defender’s own system for mandatory continuous CTG for IDD mothers such as the first pursuer was, at least in the circumstances of this case, negligent.  It may have been routinely ignored.  It may not have been the usual practice.  However, the evidence was that there was no good reason not to follow the protocol.  The CTG could readily have been taken to theatre.  If the Lord Ordinary was satisfied that, in the circumstances of the transfer of the first pursuer to theatre, a good reason existed for a departure from the defender’s own system, he failed expressly or by necessary inference to find what it was. 

[142]    The pursuers’ counsel developed this line of criticism in submission.  The Lord Ordinary had failed to set out what he understood to be the competing contentions of parties.  He had not, as he should have done, taken each of the four cases in turn and dealt with it within in the framework provided by Hunter v Hanley.  In respect of cases (3) and (4) he required to address the argument that the Bolitho exception applied.  Again the Lord Ordinary had failed to do that.

 

The defender’s submissions
[143]    It was the defender’s position that the Lord Ordinary had given sufficient reasons for rejecting the four cases advanced by the pursuers.  The Lord Ordinary had applied the correct approach to expert evidence as set out in Bolitho and Honisz.  He had correctly found that interpretation of a CTG trace and its application to the management of labour is a matter involving skill and the exercise of clinical judgment (paragraph [152]).  The Lord Ordinary had been entitled to find for the pursuers only if satisfied that exculpatory evidence led by the defender was irrational, illogical or unreasonable.  In a clinical negligence action the burden rests on the pursuer to discredit the defenders’ expert evidence in the present case.  No such attempt was made in cross-examination of the defender’s experts or in submissions in the present case.  Rather, the contrary submission was advanced and relied upon that this was not a deviation from practice case.  The Lord Ordinary did not accept that submission.  He then concluded that the evidence of the defender’s experts could not be rejected as being unreasonable, irrational or illogical (opinion, paragraphs [152] and [161–175]).  The Lord Ordinary did not err in law.  He correctly analysed whether he required to reject the defender’s evidence by applying the well-recognised criteria in Bolitho and Honisz and concluded that he did not.  The expert evidence and the rationality/logic/reasonableness of the approach propounded by the defender’s experts was set out in detail in the defender’s written submission which was incorporated within the Lord Ordinary’s opinion at paragraph [37]. 

[144]    Contrary to the pursuer’s submission, the Lord Ordinary did not make any finding that the last section of the CTG was not observed (nor did he make any finding that it was observed).  He was entitled, on the basis of the evidence to conclude there was insufficient evidence in support of such a finding. 

[145]    The Lord Ordinary gave sufficient reasons why, having regard to the last section of CTG, the pursuer had failed to establish that delivery would have been expedited (paragraph [166]).  It was implicit in the Lord Ordinary’s finding in paragraph [166] that he, correctly, focused on whether there was evidence directly bearing on whether those present in a decision making capacity would have taken any decision to expedite delivery.  He was correct to observe that there was no evidence about that.  The Lord Ordinary’s finding was supported by the evidence:  there was rational and reasoned expert midwifery evidence led by the defender which was supportive of any alleged failure by the midwives to report the last section of CTG to medical staff and there was rational and reasoned expert evidence led by the defender that delivery did not require to be expedited.

[146]    With reference to ground of appeal 5, it was clear from the Lord Ordinary’s opinion that he had applied the Hunter v Hanley standards to the four cases of fault advanced by the pursuer.  He was correct to do so.  The approach advocated by the pursuers was incorrect and unvouched by authority.  It would involve a two-tier approach:  requiring the court first to identify whether the actions desiderated on the part of clinical staff were “common sense steps” (however that is to be defined) or not.  A court has no way of assessing whether actions in a professional context are “common sense steps” or not without reference to the well-recognised test for professional negligence.  For example, the pursuers contended that “midwives telling the doctor about concerns” is a “common sense step”.  That is an over-simplification.  Expert evidence will inevitably be required to evaluate whether the concern was such that it ought, in the exercise of reasonable skill and care, to have given rise to any action and, if so, whether the concern was sufficiently serious that it mandated a report to medical staff or whether it was appropriate for the midwife to continue monitoring.  These are matters of professional judgment and practice, informed by medical or midwifery knowledge, experience and skills.  Similar issues arise in relation to a midwife’s duty to write “adequate” notes.  Without expert evidence of practice at the relevant time the court is ill placed to determine whether the notes were “adequate”.  The extent to which a midwife should watch and act upon a CTG is similarly a matter for expert evidence, to be assessed with reference to the principles in Hunter v Hanley, Bolitho and Honisz, as the Lord Ordinary correctly accepted. 

 

Discussion
[147]    The pursuers’ complaint that the Lord Ordinary has failed adequately to explain his rejection of the four cases of fault substantially overlaps with their complaints that he has failed adequately to explain his findings of fact and that he has failed adequately to discuss the expert evidence.  This was perhaps inevitable in an appeal which is about the way the Lord Ordinary has chosen to express himself in relation to what are interdependent components in his decision-making.  Given that overlap and given what we have already said about we consider to have been an unduly tersely expressed opinion, there is no purpose in elaborating that by reference to the Lord Ordinary’s discussion of the cases of fault.  The defender has set out the basis upon which it would seem that the Lord Ordinary rejected the allegations of negligence.  The pursuers do not say that he was not entitled to do so.  However, for reasons which have already been canvassed, where a case is rejected a clear explanation should be given.  That did not happen here. 

 

Grounds of appeal:  summary of outcome
[148]    We accept that the time taken for the issue of the Lord Ordinary’s opinion was excessive.  The pursuers seek no specific remedy in respect of that but we consider that they, and the defender, should have an apology from the Court for what was its failure to ensure that an opinion was issued within a reasonable time. 

[149]    As appears from our foregoing discussion of the other points raised in the grounds of appeal, we further accept that the Lord Ordinary’s opinion does not provide adequate reasons for his decision.  The Lord Ordinary, quite deliberately as it would appear, adopted what we have described as a terse style of expression.  Generally speaking, a succinct judgment is to be commended but in this case that was achieved at the expense of sufficient explanation of the various conclusions that the Lord Ordinary reached.  That is clearly so in relation to matters of primary fact and opinion bearing on negligence.  It is more debateable in relation to causation but there also, as we have already indicated, more was required by way of exposition of the competing arguments and their respective evidential bases in order to explain why the Lord Ordinary arrived at a non probandum.  As Henry LJ observed in Flannery v Halifax Estate Agencies Ltd, it should not be assumed that a court, for whatever reason, has failed to give reasons or at least adequate reasons in fact had no reasons for coming to its decision.  However, as Henry LJ also observed, if the reasons are not set out then neither the parties nor an appellate court can know whether they were good or bad because the judgment is not transparent.  The pursuers are therefore entitled to say, as they do say, that, up to this point, they have not had a fair trial of the issues and that the defender has not had a fair trial either is not an answer to that.

[150]    The pursuers are accordingly entitled to a remedy.  It will be recalled that when we were setting out the pursuers’ position in brief we identified the first proposition that the pursuers had to establish was that the Lord Ordinary’s opinion is so flawed that his interlocutor might properly be recalled.  We accept that the pursuers have established that proposition.  However, that only takes them so far.  As was explained by junior counsel for the defender, a reclaiming motion against an interlocutor of the Lord Ordinary pronounced after proof, as usually conducted, involves a two-stage decision making process.  The first stage is to scrutinise the Lord Ordinary’s decision.  Where, as a result of that scrutiny, the Inner House comes to the view for example that the reasons given by the trial Judge are not satisfactory (which is the case here), that leads to a second stage, at which the matter will then become at large for the appellate court in the sense that it becomes open to the Inner House to reconsider and determine the issues, including the issues of fact, which were originally before the Lord Ordinary (cf Thomas v Thomas Lord Thankerton at 54).

[151]    That at least, as both parties agreed, is the usual course but, as we have foreshadowed, it was not the course that the pursuers wished to follow in the present case.  Their approach was to focus on the inadequacy of the Lord Ordinary’s opinion as a properly reasoned judicial decision.  Beyond that, as junior counsel for the pursuers put it, “all [we] need to do is to show that there was a good going dispute between the parties”.  On the pursuers’ approach because the Lord Ordinary had failed to provide a properly reasoned judicial determination of that dispute, his interlocutor of 23 January 2014 assoilzing the defender should be recalled and the whole matter remitted to a single judge to determine it anew.  In other words rather than going through a two-stage decision making process this court was invited to stop at stage one.  There would be no stage two in the sense of a reconsideration of the issues.  The process of determining the issues would start again before a different Lord Ordinary who would conduct a fresh proof.  Although in their note of argument this disposal is put forward as an alternative to the Inner House determining all issues between the parties, when it came to the hearing of the reclaiming motion counsel explained that this was the only option for which the pursuers argued.

[152]    The pursuers’ proposal is nothing if not radical.  The defender argued that it was incompetent but, if competent, wholly inappropriate.  We turn to consider these arguments.

 

Disposal
Submissions for the pursuers
[153]    According to the pursuers, because the Lord Ordinary’s opinion was so deficient as a statement of judicial reasoning, it could not stand and therefore the Lord Ordinary’s interlocutor must be recalled but that did not mean that this court must then proceed to decide the merits of the case on the basis of the transcript.  Such a course would not be possible as the Lord Ordinary had not given the Inner House the necessary tools with which to resolve the issues.  Because evaluation of the evidence and its effect was dependent on the resolution of questions of fact which had not been properly addressed by the Lord Ordinary and because of his failure to make any proper analysis of issues of credibility and reliability, or any proper assessment of the expert witnesses, the case could not be determined on the basis of a purely paper exercise.  It was not a matter of just looking at discrete issues;  the Inner House would have to look at the whole evidence and in doing so reappraise each of the witnesses.  The very scale of the exercise was a reason not to go down that road.  The Inner House could not take on the role of a court of first instance.  In order to do justice therefore there was no alternative but to allow the reclaiming motion and then remit to the Outer House to hear proof over again.  Senior counsel for the pursuers accepted that the rehearing of the whole of a Court of Session proof was something without precedent.  However, the court had an inherent jurisdiction to regulate its procedure in order to do justice:  Hall v Associated Newspapers Ltd 1979 JC 1 at 9, Tonner v Reiach & Hall 2008 SC 1, Taylor Clark Leisure v HM Commissioners for Revenue and Customs 2015 SC 595.  It should exercise that jurisdiction and remit the case to the Outer House for proof on all issues.

 

Submissions for the defender
[154]    On behalf of the defender it was submitted that the disposal sought by the pursuers was incompetent.  As the pursuers had conceded it was entirely without precedent notwithstanding the fact that the requirement for a reasoned judgment was a matter of common law and must have been raised as a criticism of the Lord Ordinary’s opinion in previous cases.  In contrast to the provisions which allowed for a new jury trial or the taking of additional proof (Court of Session Act 1988 sections 29 and 37;  see also Rankin v Jack 2010 SC 642), there was no basis in statute for ordering a new proof.  Reference to the practice of the Court of Appeal in England was of no assistance as Civil Procedure Rule 52.10 (2) (c) specifically conferred power to order a new trial.  As appeared from Tonner at para 92, a court cannot confer on itself a power which does not exist.  Nothing in the reports of either the Lord Penrose or Lord Gill reviews suggested that the Inner House could dispose of a case in the way suggested by the pursuers, whereas what was said in Thomas v Thomas at 54, 56 and 59, and Thomson v Glasgow Corporation 1962 SC (HL) 36 at 61 and 70 would suggest that it could not.  In Longworth v Yelverton (1865) 3 M 645 at 649 Lord President McNeill, contrasting the position of a proof and a jury trial, had said “It would not be competent in this case to obliterate the whole proof and begin anew”.  There was authority in relation to appeals in the sheriff court (prior to the establishment of the Sheriff Appeal Court by section 46 of the Courts Reform (Scotland) Act 2014) that whereas the sheriff principal might allow further proof, his powers did not extend to the allowance of proof anew on the whole case:  Whitehouse v Strathclyde Regional Council, 18 Feb 1986, referred to in Macphail Sheriff Court Practice (3^rd edit) at para 18.81.

[155]    Junior counsel for the defender argued, under reference to Thomas v Thomas, that the pursuers’ justification for what they conceded was a highly unusual course of action was illogical.  As appeared from Thomas, for the reclaimer to succeed in a reclaiming motion the court must be persuaded to look at the material presented to it in two stages.  The first stage is consideration of the Lord Ordinary’s opinion.  Only if the appellate court is satisfied that the Lord Ordinary has not taken advantage of his having seen and heard the witnesses or because his reasons are not satisfactory or because it unmistakably so appears from the evidence, will, at what is a second stage, the case be at large for the appellate court.  At the second stage it is for the appellate court to carry out its own analysis of the case.  Here the pursuers say that the Inner House is unable to carry out its own analysis, the reason being the fundamental nature of the flaws in the Lord Ordinary’s opinion which should persuade this appellate court that the first stage test had been met.  It simply made no sense to say, as the pursuers were saying in this case, that in order to carry out its reanalysis at stage two the Inner House had to be able to rely on certain aspects of the opinion which ex hypothesi had been found to be flawed at stage one.  As was observed in the course of discussion, the pursuers’ position seemed to be that the greater the error on the part of the Lord Ordinary the less able will be the Inner House to deal with it.  That, counsel submitted, could not be so.  The short and correct position was that if for any reason a case could not be reassessed on the papers then the Lord Ordinary’s decision stands.

[156]    If, contrary to his principal submission, there was power to order a rehearing counsel submitted that it was inappropriate to exercise it here.  To do so would result in prejudice to the defender.  The consideration that it was an important and high value case cut both ways.  Litigation should be final.  What was proposed was a further consideration of events which had occurred in 1999.  There had been difficulties with the proof in 2013.  These will not have disappeared.  Key witnesses, including Dr Alberts, could not be found.  The anaesthetist, Dr Mathur, had relocated abroad.  Those witnesses who did attend had to recollect or reconstruct their then usual practice at a remove of more than 13 years.  Dr Atal had become a general practitioner.  Midwife Macpherson was 73 years of age at the time of the 2013 proof, having retired eight years before.  She was at times confused and had difficulties in recalling events and usual practice.  She had found the process stressful and indeed at one point during the proof she had collapsed.  Recent investigation indicated that she was currently extremely ill.  She was frail.  It would unfair to her and to the defender to expect her to give evidence afresh at future date.  Dr Hulse had been 68 years old at the proof in 2013, having retired in 2001.  Were a new proof to be ordered, in addition to the problems associated with asking witnesses about matters now many years in the past there would be the additional problems associated with the witnesses’ earlier experience of giving evidence.  While there was the possibility of evidence being agreed, where issues about credibility and reliability were live that might be problematic.  A new proof would inevitably be encumbered by reference to the existing transcript as a source of previous inconsistent statements.  At the same time, it could not be assumed that the case at any further proof would be exactly the same as it had been at the first proof.  It was likely that the pursuers would renew their attempt to amend to introduce new cases in respect of consent to antenatal care and the management of the labour by Dr Sharkey between 2140 and 1015 hours on 1 June 1999.  What was in prospect therefore was not simply a rehearing.  This went to the prejudice which would be suffered by the defender.

[157]    There were then the financial consequences of any new proof.  Up until March 2013 the defender had spent more than £335,000 on the case in a situation where the National Health Service Central Legal Office does not charge the full commercial rate.  To throw that away would involve the “hideous waste of costs” referred to in English v Emery Reimbold & Strick at para 25.

 

Discussion
[158]    The pursuers’ proposal collides head-on with what was said, very recently, by Lord Justice-Clerk Carloway delivering the opinion of the Court in Scottish Ministers v Stirton [2014] CSIH 92, 2015 SCLR 350 at para 87:

“[87]    One interesting feature of the reclaimers' grounds of appeal was the concentration upon points which, the reclaimers maintained, would demonstrate apparent bias on the part of the Lord Ordinary.  The contention, which they had apparently intended to make in framing the grounds of appeal, was that, if apparent bias were to be demonstrated, that would be the end of the case and the prayer of the petition would be refused.  However, as was accepted by all parties at the Summar Roll hearing, in civil proceedings that result is unlikely to follow.  In a reclaiming motion, if it is demonstrated that a Lord Ordinary hearing a proof has erred in some fundamental manner, which vitiates the findings in fact, the case does not come to an end with the victor in the Outer House becoming the automatic vanquished in the Inner House.  Rather, in that situation, it will normally be necessary for the Inner House to carry out its own review of the evidence (and if necessary to hear additional evidence) and to reach its own decisions of fact based upon that evidence.  That may be a lengthy process, but it is one that would require to be embarked upon.  In that regard, it is not normally competent, as it may be in certain statutory appeals, for the court in a reclaiming motion to avoid this exercise by remitting the cause to the Outer House for a rehearing of the proof by a different Lord Ordinary (cf T v T 2001 SC 337, LP (Rodger) at para [68]).  The reclaiming motion, for review of the Lord Ordinary's interlocutor, encompasses a rehearing, where appropriate, of the evidence which was, or ought to have been, adduced.”

 

What the Lord Justice-Clerk describes as normally necessary where a reclaimer succeeds in demonstrating that the Lord Ordinary who heard a proof has erred in some fundamental manner which vitiates his findings in fact, conforms with what has happened in every such reclaiming motion of which members of the bench and counsel have knowledge.  There is no authority for what the pursuers propose whether in statute, the Rules of Court or judicial precedent.  As the Lord Justice-Clerk observed, additional evidence may be heard (by a member of the Inner House) in order to determine an issue raised in a reclaiming motion where evidence had not been led on the matter in the Outer House:  eg Reid v Haldane’s Trs (1891) 18R 744, Vitruvia SS Co v Ropner Shipping Co 1925 SC (HL) 1, Hewat v Edinburgh Corporation 1944 SC ] 30, Rieley v Kinslaw Riding School 1975 SC 28.  Power to that effect was formerly conferred by section 62 of the Court of Session Act 1868 and is now conferred by section 37 of the Court of Session Act 1988.  Mackay v Mackay 1946 SC 78 was an undefended action for divorce where the pursuer reclaimed against dismissal on the basis of a failure to corroborate adultery.  In what has the look of a pragmatic solution to a technical problem, the Inner House recalled the interlocutor of the Lord Ordinary and remitted to him to take such further evidence as might be tendered but the decision did not in any way disturb the evidence previously led.  Where a Lord Ordinary has died, retired or become incapacitated during the period of adjournment of a partly heard proof, Rule of Court 36.13 allows the Inner House to give directions which may be for the continuation of the proof before another Lord Ordinary:  eg AMN v Gilcomston North Sea Ltd 2008 SLT 835.  However, counsel for the pursuers were unable to point to any reported example of a previous proof before the Lord Ordinary being, as it were, erased and the procedure set back to the point of allowance of proof in order that another Lord Ordinary might hear evidence anew:  cf Longworth v Yelverton at 649.

[159]    Pursuers’ counsel made reference to the practice of the English Court of Appeal.  That does not assist.  As counsel for the defender pointed out, there is specific provision for the allowance of an appeal and remit to the lower court to conduct a new trial in Civil Procedure Rule 52.10 (2) (c). 

[160]    In moving for recall of the Lord Ordinary’s interlocutor and a remit to the Outer House for proof of new, the pursuers accordingly wish us to depart from what they acknowledge to be the invariable practice of the Court.  We have not been persuaded that it is open to us to do so.  The pursuers rely on what was said and done in Tonner v Reiach and Hall 2008 SC 1 under reference to what Lord Justice-General Emslie, giving the opinion of a court of five judges in Hall v Associated Newspapers Ltd 1979 JC 1 described as “the indispensable power which is inherent in every court to do whatever is necessary to discharge the whole of its responsibilities”.  Tonner was considered in Hepburn v Royal Alexandra Hospital NHS Trust 2011 SC 20 where, in a partially dissenting opinion, Lord Carloway questioned the legitimacy of what had been done in the earlier case.  That is not a debate which we require to enter into but we recognise the force of Lord Carloway’s observation, at paragraph 54 of his opinion, that such inherent power as the Court may have does not allow a single judge or Division of the court to adopt an ad hoc measure simply on the basis that it is in accordance with the judge’s or Division’s notion of justice in the circumstances of a case.  That said, we would take a certain amount to be uncontroversial.  The Court of Session has power, which is not dependent on statute or the Rules of Court but, rather, emanates from its constitutional function and therefore can be described as inherent, to regulate its own procedure.  As Erskine has it, “every power is understood to be conferred without which the jurisdiction cannot be explicated”:  Institutes I.ii.8.  Thus, in part, procedural law is based on practice (Lord President Hamilton gives some examples of that at para 31 of his opinion in Tonner) and, as in other areas of the law, may be developed as a result of judicial decisions:  Tonner para 31.  However, that is rather different from abandoning well established procedure simply to deal with what are said to be the exigencies of a particular case.  But the question of innovating on established procedure only arises where the particular case does present exigencies for which the established procedure makes no provision.  The  very bare minimum for an exercise of the Court’s inherent power in matters of procedure must be that the proposed novel step should be “necessary to discharge the whole of [the court’s] responsibilities”, as Lord President Emslie put it in Hall.  In the present case we see there to be no question of it being necessary to remit to the Outer House for a new proof. 

[161]    For all that senior counsel for the pursuers sought to emphasise what were said to be the many failures on the part of the Lord Ordinary, this case is not so unusual.  The same counsel went out of his way to acknowledge how well the proof had been conducted.  Although there had earlier had been some doubt about this, all the evidence is available to this court in the form of a transcript together with the documentary productions.  We were accordingly able to reconsider the case on the papers.  We were willing to do so and, indeed, would have considered it our duty to do so if we had been so required;  where the Lord Ordinary has been shown to have erred, it is for the Inner House to decide the case:  Clippens Oil Co Ltd v Edinburgh and District Water Trustees (1905) 8 F 731 at 750, Duncan v Wilson 1940 SC 221 at 224, Scottish Ministers v Stirton at para 87, Maxwell The Practice of the Court of Session at p545.  It would have been a lengthy and perhaps difficult task but, with the assistance of counsel, by no means impossible.  We simply do not accept the argument on behalf of the pursuers that the Lord Ordinary’s failures fully to address the credibility and reliability of witnesses, evaluate the competing expert evidence and make certain proposed findings in fact would in any way have precluded our carrying it out.  A judge who hears witnesses giving evidence undoubtedly has advantages which an appellate bench reading the transcript does not have when it comes to determining what to make of the evidence but that simply means that a court which is deciding a case on the papers must do the best it can.  Appellate courts are capable of addressing the credibility and reliability of witnesses:  see eg Duncan v Wilson, Yuill v Yuill [1945] P 45 and (a case cited and applied in Yuill) Hvalfangerselskapet Polaris A/S v Unilever (1933) 46 Ll L Rep 29.  Having done so, they are also capable of making findings in fact de novo on the basis of the transcript.  Dingley v The Chief Constable of Strathclyde Police is a notable example of the Inner House doing just that in a complex case where the Lord Ordinary had provided no analysis of the evidence whatsoever.

[162]    Accordingly, not only is the pursuers’ proposed disposal entirely unprecedented, it is unnecessary.  In our opinion, it follows that whatever view one takes of the extent of the inherent power of the court, the only course that the pursuers invite us to take in this case is incompetent. 

 

Conclusion
[163]    Having accepted the pursuers’ argument that the Lord Ordinary’s explanation of why he made what he did of the evidence is inadequate, this court was prepared to enter into a reconsideration of that evidence but counsel for the pursuers did not invite us to do that and indeed expressly declined to present the reclaiming motion in such a way as would have made that possible.  What counsel did invite us to do is not something which, in our opinion, is competent.  We are therefore left with only one option which is to refuse the reclaiming motion. 

[164]    However, we do not wish to leave our consideration of the case on what may seem to be a purely technical note.  We are even less willing to leave it implying some failure on the part of the pursuers’ counsel to present their case in the best possible way.  As for the latter point, it appears to us that everything that could be achieved by skill, diligence and passion has been brought to bear in support of the pursuers’ case.  In preparing for the hearing of the reclaiming motion once the transcript became available, the pursuers’ counsel left open the option of arguing that when regard was had to all of the evidence the Lord Ordinary had been “plainly wrong” in finding that it had not been established that Rowan had sustained her undoubted brain damage by reason of negligence for which the defender is liable.  However, it would appear that as counsel further considered that evidence they appreciated that while some parts of it supported the pursuers’ case, other parts did not.  As the pursuers’ counsel fairly and properly acknowledged, the Lord Ordinary was entitled to accept these other parts and, in so far as they represented a respectable body of professional opinion which could not be shown to be irrational, he was bound to accept them.  A reconsideration of the evidence by this court might therefore have led to the conclusion that for all the criticisms that could be made of the Lord Ordinary’s opinion, his decision was nevertheless the correct one on the basis of the evidence that had been led.  This would appear to have led counsel to modify their approach;  rather than saying that the Lord Ordinary’s conclusions were necessarily wrong they focused their criticisms on the quality of his reasoning or, rather, the extent to which his reasoning was set out in his opinion.  The argument came to be:  because the Lord Ordinary did not properly explain himself his conclusions must be set aside and the proof must be heard over again.  However that brought them face to face with what proved to be the insurmountable hurdle that that is simply not how our appellate process is conducted.  Thus, while the reason why the pursuers case fails can be described as a procedural difficulty, in truth the difficulty appears to us to have been more substantive.  Although we have not heard full argument on the correctness or otherwise of the Lord Ordinary’s opinion, as indicated at paragraph [124] of this opinion, we have considered the evidence of Professor Walker and concluded that the Bolitho principle must almost inevitably apply, with the result that the pursuer’s case must fail. We have further considered the evidence on causation, as summarised at paragraph [140] and concluded that the Lord Ordinary was entitled to conclude that the causal mechanism had not been proved, notwithstanding Professor Stenson’s evidence. That conclusion too means that the pursuer’s case cannot succeed.

[165]    The reclaiming motion is refused.  We reserve all questions of expenses.