Scottish High Court of Justiciary Decisons

J.S AND P.S. v. THE AUTHORITY REPORTER FOR WEST LOTHIAN [2001] ScotHC 55 (18th July, 2001)

[1] The appellants are the parents of a child D. who was born on 25 June 1999. D. was medically examined on 6 and 7 November 1999 and found to have a complex branched fracture to the right parietal region of the skull. After further investigations, the respondent referred the case to the children's hearing for West Lothian on the ground, firstly, that there had been an offence involving bodily injury to D. and, secondly, that there had been an unacceptable delay in seeking medical care for him, involving an offence under section 12(1) of the Children & Young Persons (Scotland) Act 1937. The appellants did not accept the grounds for referral and in consequence the hearing directed the respondent to refer the case to the sheriff. The sheriff heard evidence and submissions over four days and on 2 March 2000 held the grounds of referral established. On 9 March 2000, the sheriff issued a Note of the reasons for his decision, in accordance with Rule 3.51(3) of the Child Care and Maintenance Rules 1997. Subsequently, both appellants, who were separately represented before the sheriff and in the appeal, sought to appeal by stated case.

[2] The stated cases are in substantially the same terms, although there are certain differences, but the questions posed in the two cases are materially different. For the purposes of the appeal, the essential facts can be set out relatively shortly. D.'s parents, who are not married to one another but have cohabited for several years, are both employed. The arrangements for the care of D. included the participation of the mother of P.S., G.S. On 2, 3 and 4 November, D. was cared for either by his parents or by G.S. and no incident of note involving him occurred . On Friday 5 November, he was cared for by G.S. until 3.15 p.m. when he was collected by his mother, who took him home. Later in the evening, J.S. put D. in a bouncing chair. At one point J.S. lifted the chair but lost her grip on it causing it to tip and D. to slip, although he remained within the chair. D.'s head did not strike any object in the course of that movement but D. was upset and J.S. later called a doctor, who advised a calming treatment for him. In the course of the evening, a friend of J.S. visited her and formed the impression that there was something unusual in respect of D.'s head in that it appeared, at the top part, particularly large, but did not say anything about it.

[3] On Saturday 6 November 1999, D. woke at 6 a.m. and was fed at 6.30 and dressed by his mother. The family made ready to go by car to visit relatives in England, leaving at 7 a.m. A hat was put on D.'s head and he was carried to the car by his father. He was fed on arrival in Lincolnshire and undressed at about 11.15 a.m. He was fed again at 3 p.m. by his father who, after feeding him, remarked upon a soft swelling on his head. D. was taken to the Accident and Emergency department at Lincoln and Louth County Hospital at about 4 p.m. A series of medical examinations were then made, which confirmed the presence of a soft swelling on the right side of his head and, in due course, the existence of the fracture above mentioned.

[4] On Sunday 7 November 1999, D. was examined by Dr. Alistair Scammell, a consultant paediatrician who observed the swelling, which was easily noticeable by touch. Dr. Scammell questioned the appellants as to whether they were aware of anything to account for the injury but, the sheriff finds, no explanation was offered which would have been capable of accounting for the occurrence of the injuries. Later, after the family returned to Scotland, D. was examined by Dr. Helen Hammond, a consultant paediatrician, and by Dr. Kranti Hiremath, a police surgeon. Dr. Hammond discussed possible causes of injury, and in particular the incident involving the bouncy chair, with the appellants but the sheriff finds that the injury could not have been caused by such means.

[5] With regard to the injury, the sheriff makes the following important findings:

[6] The sheriff heard evidence from Dr. Scammell, Dr. Hammond and Dr. Hiremath, among others. In the stated case, he summarises the evidence which he heard, and it is abundantly clear that there was evidence which entitled him to make the findings which we have quoted. Both Dr. Scammell and Dr. Hammond gave evidence as to the kind of incident which would be necessary to cause the injury to D. Dr. Scammell said that it would require a significant impact, for example a resounding bang or by being swung or by a door being pushed vigorously against the infant. Dr. Hammond instanced a free-fall from four feet or something heavy falling on the child. Dr. Hiremath gave similar evidence. As regards the immediate effects of the injury, Dr. Scammell said that at the time of its occurrence the child would have been either unconscious or greatly distressed, crying very vigorously in all probability, and significantly upset so that no carer could have missed the distress. Dr. Hammond said that the pain suffered by the child at the time of the injury would have been excruciating and that the swelling would have been obvious to touch.

[7] The sheriff heard evidence from J.S. and G.S., but not from P.S. The narrative, summarised above, of the events preceding the attendance at hospital in Lincoln is derived from the evidence of J.S. and G.S. With regard to it, the sheriff says:

[8] Later, in referring particularly to the evidence of G.S., the sheriff says:

[9] The sheriff also heard evidence from Dr. Michael Hendry, a consultant radiologist who spoke to the results of x-ray examinations of the child and who agreed that a complex fracture required a more severe blow than a simple fracture but said that it was not possible to differentiate between accidental and non-accidental injury merely on the basis of the type of fracture. The sheriff accepted Dr. Hendry's evidence in regard to his interpretation of the x-rays but, in the light of Dr. Hammond's extensive experience in child care matters, he considered her evidence as to the inferences which could be drawn from the occurrence of a complex fracture in a household situation as of greater weight than the evidence of Dr. Hendry. Dr. Hendry did say, also, that the force required to cause such an injury was moderate force against a sharp edge, and that the most common cause of a depressed fracture was being hit on the head with a golf club.

[10] The submissions on behalf of the appellants were presented slightly differently but, as we understood them, resolved into four points, namely (1) that the terms of the Note of reasons issued by the sheriff, particularly when taken with the reasoning expressed in the stated case, indicated that he had taken a wrong approach to the onus of proof; (2) that the sheriff had misdirected himself in finding that a non-accidental injury had occurred despite his acceptance of the evidence of J.S and G.S. as credible; (3) that the sheriff had erred in making a finding of non-accidental injury when it had never been suggested either to J.S. or G.S. that an assault had occurred; and (4) that there was no sufficient evidence to entitle the sheriff to draw the inference of a non-accidental injury, particularly in the absence of any evidence of a mechanism unequivocally referable to a deliberate act causing the injury.

[11] The first of these submissions depends on a paragraph in the sheriff's Note dated 9 March 2000. In it he gives a very brief account of the discovery of the injury and the medical evidence pointing to the conclusion that the injury was not caused accidentally. After referring to Dr. Hammond's evidence in particular, he says:

[12] In the stated case, the sheriff narrates the submissions made to him, which included a submission that there had not been any medical evidence to identify what was meant by a "non-accidental injury". He says that he regarded it as important that any authority bearing on the matter should be identified. He then says:

[13] Hill v. N.C.B. was an action of reparation founding on section 48(1) of the Mines and Quarries Act 1954, which imposed a duty on a mine manager to take such steps by way of supporting the roof and sides of an underground road as were necessary for keeping the road secure. The pursuer had been injured by the fall of a stone from a roof and was able to establish that shot firing during the previous shift had made it possible that the security of the roof had been affected. It was held that it was not for the pursuer to prove that any insecurity in the roof was detectable but that it was for the manager to show that he had duly discharged his statutory duties. The opinions include reference to a dictum of Lord Denning in Brown v. National Coal Board 1962 A.C. 574 to the effect that if a fall occurred it was prima facie evidence of a breach of duty and that the burden then lay on the manager to show how it could not reasonably be foreseen or guarded against.

[14] The submission for the appellants on this point was put differently by their respective counsel. Counsel for J.S. submitted that it could be inferred from the terms of the sheriff's Note that he had inverted the onus of proof. Counsel for P.S. submitted that what the Note meant was that the sheriff had actually found that accident was a more probable cause of the injury than deliberate force. Both counsel submitted that what the sheriff had said was confused and difficult to understand and that it displayed an error which went to the root of his decision. The error might have been derived from considering the case of Hill v. N.C.B. which had no connection whatever with the issues in this case.

[15] It is true that the sentence in the Note which was criticised is confusingly expressed. It involves a double negative and there is some plausibility in the suggestion that, read in isolation, it could imply that the sheriff's approach was to require the appellants to prove that deliberate injury was not more probable than accidental injury. If, however, the sentence is read in its context, we do not think that that criticism is properly made out. The sheriff had considered the medical evidence which, in his view, pointed very strongly to the conclusion that the injury was not accidental. That evidence tended to exclude ordinary domestic accidents or incidents as possible causes. The sheriff then went on to consider the investigations made and states, in the passage quoted above, that no accidental event causing the injury was identified. What the criticised sentence means, in our view, in that context, is simply that there was no other evidence which was sufficient to counter the medical evidence as to the nature of the injuries and the inference that they were non-accidental which could be drawn from them. It is plain that the sheriff was applying the test of the balance of probabilities, which is the correct test, and in our view, although the sentence is badly expressed, it does not point to an error sufficient to vitiate the sheriff's decision.

[16] We should mention that counsel for both appellants submitted that the sheriff's Note should be treated as the definitive statement of his reasons and that the court should not have regard to any reasoning stated in the stated case itself. In the circumstances of this case, it is not necessary to explore that submission. There would certainly be something wrong, given the procedure in these cases, if there were to turn out to be a material difference between the reasoning expressed by the sheriff at the time of his decision, and embodied in a note, and any reasoning set out in the stated case. On the other hand, the note of reasons is to be issued at the time of the decision, or within seven days thereafter, and we do not think that it can have been intended that the sheriff's note should set out his reasons in the sort of detail which may be necessary if a stated case is called for. Moreover, the case has to be framed in relation to the questions raised, and may therefore require to deal with matters which the sheriff did not think it necessary to mention in a note. In any event, in this case, there is, in our view, no material difference between the reasoning in the Note and that in the stated case, and in these circumstances we are satisfied that it is perfectly proper to look to the stated case for an amplification of the narrative of the evidence heard by the sheriff and his views upon it.

[17] The remaining points taken in the appeal can be dealt with very briefly. The submission that the sheriff had accepted the evidence of J.S. and G.S. as credible was plainly based upon a misreading of what the sheriff said. The sheriff very carefully explained that he accepted the witnesses as credible only up to a point, and that he did not accept that their evidence negatived the conclusion that a non-accidental injury had been sustained by D. Any failure to put to J.S. and G.S. a suggestion that an assault had been committed was not, in our view, material in the circumstances of this case. The issue in these proceedings was whether a non-accidental injury had occurred and there was no accusation directed against any particular person as having committed such an act. There was nothing in the evidence to point to a particular individual as having done any act in relation to D. Accordingly, while in some circumstances it might have been appropriate to put a positive suggestion to one or both of the witnesses, we do not think that the failure to do so was material in this case. The final submission was that it was not permissible to infer that an assault had been committed simply from medical evidence alone without other evidence pointing to an act done with mens rea. The point in this case, however, is that the inference of non-accidental injury was drawn not only from the medical evidence as to the injuries but from the evidence tending to exclude any non-accidental cause for the injuries and the failure to identify any incident which might have given rise to such injuries accidentally.

[18] In the whole circumstances, in our opinion, it has not been shown that the sheriff erred in any material respect and the appeals should be dismissed. There are five questions in the stated case for J.S. and thirteen in the stated case for P.S. These questions have been variously framed, apparently in order to attempt to identify different aspects of the submissions which were made. In our view, it is sufficient for us to answer Question 1 in the case for J.S. in the affirmative and Question 4 in the negative; and in the case for P.S. to answer Question 5 in the affirmative and Question 13 in the negative, and quoad ultra to find it unnecessary to answer the remaining questions.