Scottish Sheriff Court Decisions

SW21/09

SW650/09

SW651/09

SW2479/09

JUDGMENT

OF

SHERIFF PRINCIPAL

JAMES A TAYLOR

in the cause

L.A.B.

APPELLANT

against

 

Authority Reporter

RESPONDENT

                                                                        

 

 

 

GLASGOW, 8 November 2010.

 

The Sheriff Principal, having resumed consideration of the cause and in terms of Rule 3:48 of the Act of Sederunt (Child Care and Maintenance Rules) 1997, Amends statement of fact 6 by deleting from the statement the sentence "J would have displayed obvious external signs of injury but no medical attention was sought for J by either of the child's parents"; Answers questions 1 to 4 in the stated case in the negative; Declines to answer question 5; Remits the case to the sheriff to proceed as accords.

 

 

 

 

 

NOTE:-

 

Introduction

[1] In this appeal Ms Walker, Advocate, appeared for the appellant, Mr Dickson, solicitor, appeared for the Reporter and Mr Martin, solicitor for the curator ad litem. Ms Doyle had a watching brief on behalf of the appellant's partner who was not insisting upon his appeal having, as I understand matters, been refused legal aid.

 

[2] This is an appeal under Section 51 of the Children (Scotland) Act 1995. There were four children affected by the decision under appeal albeit that one child was born on 15 September 2009 after the proof before the sheriff had commenced. Parties were agreed that the evidence in respect of the other three children should be treated as evidence involving the newly born child. After evidence, the sheriff amended the statement of facts in terms of Rule 3.48 of the Act of Sederunt (Childcare and Maintenance Rules) 1997. The sheriff found it established that in terms of Section 52(2)(c) of the Children (Scotland) Act 1995 (hereinafter "the Act") each of the children was likely to suffer unnecessarily or be impaired seriously in their health or development due to lack of parental care. She also found that in terms of Section 52(2)(d) of the Act, one of the children, JP, was a child in respect of whom offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed. It followed that in respect of the other three children the sheriff found it established in terms of Section 52(2)(e) of the Act that they were each members of the same household as a child in respect of whom an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed. The ground of referral concerning lack of parental care was not challenged in the appeal. The appeal focused on whether the sheriff had been entitled to find that it was established that an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed against one of the children. The particular findings-in-fact challenged by the appellant were findings-in-fact 56 and 67 in the following terms:-

 

"56. J suffered deliberate repeated blows to his head on an unspecified date but not later than 4 or 5 days prior to 20 October. These were non-accidental.

 

67. On an unspecified date between 4 August and the two to three weeks prior to 20 October J was shaken deliberately by an adult with sufficient force to cause subdural bleeding."

 

Preliminary Issue

[3] At the outset of the appeal I asked Ms Walker if she considered that it was competent for me to alter the sheriff's findings-in-fact when the evidence had not been recorded. I referred to Macphail Sheriff Court Practice 3^rd Edn at paragraph 18.109 and to the case cited therein, namely Allardice v Wallace 1957 SLT 225. After a short adjournment Ms Walker referred me to Kearney Children's Hearings in the Sheriff Court 2^nd Edn at paragraphs 54.28 and 55.05. She also referred me to S v Kennedy 1987 SLT 667 where a finding-in-fact had been objected to as unnecessary and which objection had been sustained. She also referred me to S v Principal Reporter & Lord Advocate 2001 SLT 531 and in particular to the passage in paragraph 77 of the opinion of the Lord President where it was said "any issue of fact or law disposed of by a Children's Hearing, or by the sheriff, may be reviewed on appeal." She submitted that appeals from Children's Hearings were in a different category from appeals under the small debt procedures which were what had been under scrutiny in Allardice v Wallace. I was sufficiently satisfied that my concerns were ill-founded to enable the appeal to proceed. In the event the issue does not arise.

 

Appellant's Submissions

[4] I was informed that the principle issue in the appeal was whether the expert evidence was of sufficient quality to be relied upon. Macphail Sheriff Court Practice 3^rd Edn at paragraph 18.103 was referred to by Ms Walker in support of the proposition that the reasons which the judge has stated for his decision required to be scrutinised before the appellant can satisfy the court that the judge was wrong. The stated case posed four questions for the opinion of the court. These were:

 

"1. Did I err in excluding unsubstantiated possibilities in favour of relying upon evidence in support of findings that J suffered non-accidental injuries?

2. Did I err in holding, on the balance of probabilities, that J had suffered a deliberate shaking injury?

3. Did I err in holding, on the balance of probabilities, that J's bruising injuries were non-accidental?

4. Did I err in relying upon the Opinion evidence in the present case which supported the conclusion that J suffered a shaking injury?"

 

Thus it can be seen that there were two injuries which had formed the basis for the grounds of referral. These were bruising and a bilateral subdural haematoma which the sheriff held had been caused by shaking. I was referred to Scottish Family Law Service at paragraph C-2034.1 with regard to how the court should approach the balancing of probabilities. It was submitted following an article cited in the Scottish Family Law Service by Sheriff Ian Macphail (as he then was) that a judge is not bound to hold that the balance has come down on one side or the other. In other words, a judge might hold that on the evidence the court was unable to make a finding-in-fact on the evidence led. In those circumstances the party who has the onus of proof will fail.

 

[5] In so far as the bruising was concerned, it was accepted by the appellant that the parents had been unable to provide an explanation in their evidence as to how the bruising came about. They had postulated that the child, J, may have moved in his cot and banged his head on the side thereof or alternatively may have been hit on the head with a toy held by J's fifteen month old sibling. The sheriff records at paragraph 16 on page 38 of the stated case that the doctors had approached the issue of bruising on the basis of a differential diagnosis which the sheriff explains in her Note as a process of elimination. The bruising, it was submitted, could have been caused in one of three ways, namely an accidental event, a non-accidental event or some underlying medical condition which predisposed J to bruising. It was accepted, in the absence of credible explanation, that a child protection investigation was properly initiated. I was informed that on the evidence, none of the medical witnesses was able to be more specific as to the date of the bruising save that it was some eighteen hours to five days before the child had been admitted to hospital. It was submitted that in those circumstances the sheriff was not entitled to conclude, as she does in paragraph 20 on page 38 of her judgment, that the child had been subjected to repeated blows to its head to cause four separate bruises, two on each side of the head. At paragraph 39 on page 43 of the stated case the sheriff records that the blow which caused the bruising must have caused pain to the child and that therefore any adult supervising the child would have been aware of the injury and have responded by seeking medical attention. Ms Walker informed me that she did not believe that there was evidence to substantiate that statement.

 

[6] Turning to the issue of the bilateral subdural haematoma, I was informed that there were five possible causes, namely (i) non-accidental injury; (ii) accidental injury; (iii) birth trauma; (iv) metabolic disease or disorder or (v) an inconclusive cause being one not yet known to medical science.

 

[7] It was submitted under reference to Raitt, Evidence at paragraph 4.54 that an expert should restrict his or her evidence to matters within his or her own expertise or experience. I was referred to Davidson, Evidence at paragraph 11.13 where the author quotes from Blackie v The Police [1966] NZLR 910 at 915 a decision of the New Zealand Court of Appeal:-

 

"The law is plain that a person who seeks to give expert evidence must first qualify himself to the satisfaction of the court and that does call for sufficient evidence to accomplish that."

 

I was then referred to a Law Commission of England and Wales Consultation Paper entitled "The Admissibility of Expert Evidence in Criminal Proceedings in England & Wales" where, quoting from the Australian case of Bonython (1984) 38 SASR 45, the Supreme Court of South Australia opined that "whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court" and furthermore "whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court" were factors relevant to determining the admissibility of expert opinion.

 

[8] It was submitted that in relation to Dr Stoodley, who was the Reporter's principal witness in relation to the cause of the bilateral subdural haematoma, that there were two principal issues. The first was whether Dr Stoodley had restricted his evidence to his own field and secondly, whether in referring to other medical opinion he was referring to a body of knowledge or experience which was sufficiently organised or recognised to be acknowledged as a reliable body of knowledge or experience and with which he was sufficiently acquainted to enable his opinion to be of assistance. The expert witness led on behalf of the appellants was a Dr Squier and Ms Walker very properly did not seek to rely upon her evidence given that the sheriff held her to be a witness who lacked credibility.

 

[9] It was then submitted that in the course of the evidence it had been stated that a significant number of new born babies had bilateral subdural haematoma which were asymptomatic and resolved without intervention. It was also submitted that there was a discrepancy between the evidence of the witnesses led by the Reporter. Drs Watt and Stoodley both dated the bilateral subdural haematoma as some two to three weeks old as at 22 October 2008. On the other hand, the evidence from Dr Helen Mactier, a neonatologist, said that she gave J a routine examination on 13 October 2008 which was some seven days prior to his admission to hospital at which point she described J as appearing "very well indeed". J was reported to be alert, attentive and smiling. It was submitted that if Drs Watt and Stoodley were correct then J would have been suffering from bilateral subdural haematoma when Dr Mactier examined him. It was also submitted that the evidence disclosed that J was discharged from hospital into foster care on 31 October 2008 without there having been any medical or surgical intervention. When examined later in 2008 by a consultant paediatric neurologist J was found to be bright, interactive and making progress appropriate for a child of his age.

 

[10] The sheriff set out Dr Stoodley's qualifications at paragraphs 104 to 109 on pages 57 to 58 of the stated case. It was submitted that he was not suitably qualified to give the opinion evidence which he did. The sheriff's finding at paragraph 107 was attacked as being wholly lacking in specification. Paragraph 107 is relatively brief in that it states "Dr Stoodley has been involved in a number of cases of shaken babies." It was submitted that the sheriff had an obligation to explain how she came to that view by saying how many cases and provide an indication of the outcome of the cases in which Dr Stoodley had been involved. It was submitted that, in evidence, Dr Stoodley had said (and I hope I have noted what was stated in submission correctly):-

 

"Inevitably as a paediatric neuroradiologist I have been involved in non-accidental head injury cases in my clinical role and became involved in court processes as a result. It is a very important part of the role of any clinician to become involved in child protection issues. I became involved in a couple of medical legal cases and since then I have become involved in providing opinions in about 480 cases."

 

I was informed that Dr Stoodley acknowledged that he had no training in child protection issues other than basic medical training. In the context of his own practice I was informed that he had been involved with one baby whom he knew to have been shaken. He had been involved in a number of unspecified court cases where findings-in-fact had been based upon his opinion. He had later been informed by advocates that parents had made admissions of baby shaking.

 

[11] Against the background set out in the previous paragraph it was questioned what weight the court was entitled to give to the evidence of Dr Stoodley. The sheriff was under an obligation to explain why he was said to be an expert in the field and to set this out in her Note in detail. Dr Stoodley had said in evidence "there must be a whole cohort of children who have a bit of a shock, get better by themselves and never represent." The sheriff had not referred to this in her Note. Emphasis was placed on paragraphs 125 to 128 of the sheriff's Note where she, on reconsidering the evidence, was prepared to delete a sentence from the original findings-in-fact made by her. She had come to this view because the evidence had been based on likelihoods. This, said Ms Walker, gave rise to a difficulty for the sheriff in that the remainder of Dr Stoodley's evidence was also based upon likelihoods. Ms Walker summarised her position by querying whether a radiologist with no specialist training to give evidence regarding shaking babies should be giving evidence such as he did. Furthermore, his experience in dealing with a child like J who was asymptomatic and recovered without medical intervention was also challenged. Ms Walker said she did not understand what the sheriff meant when describing Dr Stoodley's evidence with regard to the cause of the bilateral subdural haematoma in particular at paragraphs 123 and 124.

 

[12] Ms Walker then referred to the evidence of Dr Jayamohan who was a consultant paediatric neurosurgeon who gave evidence on behalf of the appellant, the mother of the children. Ms Walker contrasted his evidence with that of Dr Stoodley. Dr Jayamohan's evidence had been that the overwhelming majority view amongst neurosurgeons was that a bilateral subdural haematoma was caused by the vein travelling from the brain to the skull tearing as it entered the dura. This tearing could be caused by shaking. He put the majority at about 90%. The minority view was that the vein as it enters the dura is too strong and ruptures without any trauma or shaking. At paragraph 144 the sheriff records that Dr Jayamohan was "unhappy" to go as far as to concede Dr Stoodley's view that this was a shaking incident albeit that he considered that J had sustained his bilateral subdural haematoma as a consequence of a non-accidental injury which would have been consistent with shaking.

 

[13] Dr Stoodley's evidence was contrasted with the position adopted by Dr Watt. Both were similarly qualified consultant radiologists. Dr Watt, I was informed, had given expert testimony in other cases involving the shaking of babies. He had experience of interpreting scans in child protection cases. Notwithstanding this expertise Dr Watt declined to give an opinion as to what might have been the cause of the bilateral subdural haematoma in J.

 

[14] Ms Walker recalled that Dr Stoodley had given a piece of evidence which she found curious. Apparently when she had been cross-examining him in relation to his expertise in imaging he had said "I don't need to understand the physics of the sun rising in the east and setting in the west to know this to be true." I was informed by Ms Walker that she placed great store on this comment and had referred to it in her closing submission to the sheriff.

 

[15] I was referred to Davidson, Evidence at paragraphs 11.15 and 11.16 where the US approach to the treatment of expert evidence is set out and commended. I was then referred to the Law Commission's paper on "The Admissibility of Expert Evidence in Criminal Proceedings in England & Wales" at paragraphs 2.16, 2.22 and 2.23 as examples of cases where expert evidence, initially accepted, was subsequently rejected. I was reminded that Dr Stoodley and Dr Jayamohan both referred to medical views relating to the shaking of infant children. I was referred to paragraphs 3 and 12 of the General Medical Council's Response to the Consultation Paper issued by the Law Commission.

 

[16] In summary I was informed that if one disregarded the evidence of Dr Stoodley the court was left with a differential diagnosis and very little else. Apart from Dr Stoodley's opinion there was no other evidence of any deliberate act or acts against J.

Submissions for the Reporter

[17] In his reply, Mr Dickson, solicitor for the Reporter, analysed the submission made on behalf of the appellant as being capable of being distilled to one issue, namely "Did the sheriff err in holding, on the balance of probabilities, that J had suffered non‑accidental bruising injuries and a deliberate shaking injury?"

 

[18] Mr Dickson submitted that the evidential burden was on the Reporter and the court had to be satisfied of facts on the balance of probabilities. Since the passing of the Civil Evidence (Scotland) Act 1988 there was no requirement for corroboration and hearsay evidence was admissible in civil actions. The standard of proof was the balance of probabilities. He referred me to Davidson on Evidence at page 157 where the author cites with approval the speech of Lord Brandon on The Popi M [1985] 1 WLR 948:-

 

"the legal concept of proof on the balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If a judge concludes...that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden."

 

He also referred me to the case of A M v Ferguson 1994 SCLR 487 as an example of a court concluding in a case involving a child with a broken arm that the court was entitled to draw inferences from the evidence even although there was no direct evidence of the cause of the broken arm. In the absence of adequate explanation the conclusion that the injury was sustained as a result of a non-accidental incident was upheld.

 

[19] Section 52(2)(d) and (e) of the Act are concerned with the harm to the child rather than how or by whom the harm was perpetrated. It was submitted that there is no requirement that the perpetrator be identified. He referred me to Professor Norrie, Children's Hearings in Scotland 2^nd Edn at page 29.

 

[20] Mr Dickson reminded me that in terms of Section 51(11) of the Act an appeal was restricted to either a point of law or any irregularity in the conduct of the case. He submitted that the submissions made on behalf of the appellant suggested that this appeal concerned findings-in-fact which had been made by the sheriff. In order to succeed the appellant would need to show that there had been an error made by the sheriff in assessing the evidence. Absent the notes of evidence that, submitted Mr Dickson, could not be done. In support of that last proposition he referred me to C v Miller 2003 SLT 1379 where at paragraph 79 the Inner House pointed out that appeals brought under Section 51(11) of the Act could not "involve a general review of the decisions of fact made by the sheriff..." and "the only factual issues which can properly be raised are those which are associated with an alleged error of law". The court had approved the dicta of Lord President Emslie in Mellon v Hector Powe Ltd 1980 SC 188:-

 

"The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at, then its decision is not open to successful attack. If there is evidence to support the decision of the tribunal of first instance then in the absence of misdirection in law, which includes the tribunal's selection of the wrong question to answer, that is an end of the matter."

 

[21] Mr Dickson laid great store by what was said by the court in C v Miller at paragraph 80 where the court points out that it is essential that specific and relevant questions require to be posed in the stated case. The court went on in Miller to warn that if the proper practice was not followed there was a real risk that the stated case would not "contain material which is pertinent to the resolution of the question concerned, such as a narrative of the evidence available to justify a particular finding-in-fact, or may not deal as specifically as desirable with such material."

 

[22] Mr Dickson submitted that the appellant's submission did not relate to the questions in the stated case. In order for the attack which had been made upon the sheriff's judgment to be sustained, properly focused questions were required. He postulated that, given the submissions, one question which might have resulted in the sheriff giving a narrative which would assist the appellate court would have been "Did I err in holding the evidence of Dr Stoodley to be admissible?" Another way of putting it would have been "Did the sheriff err in holding that Dr Stoodley was properly qualified to give evidence in this case?" or a further formulation might have been "Did Dr Stoodley give evidence beyond his expertise and therefore did the sheriff by placing weight on such evidence fall into error?" He contrasted these precise formulations with the general approach taken by the appellant's advisors in question 4 which is in the following terms: "Did I err in relying upon the Opinion evidence in the present case which supported the conclusion that J suffered a shaking injury?" Accordingly, he invited me to refuse to give effect to the submissions which had been made. He went on to submit that no attempt had been made to adjust into the stated case, material relevant to the submissions made. If he was mistaken and such an attempt had been made, the sheriff must have rejected the proposed adjustments and therefore it was not open to the appellant to introduce such material in this hearing.

 

[23] The approach which the court should take to the opinion evidence was set out in Davidson on Evidence at pages 124 and 125. Mr Dickson reminded me that a skilled witness should not be asked to express an opinion as to whether he was satisfied of some essential fact beyond reasonable doubt as that was essentially a jury question (Henry v HM Advocate 1987 JC 63 at pages 69 to 70). The author at paragraph 11.19 offers the view that where a variety of different and possibly contradictory expert evidence has been heard it is easier for the court to reach its own conclusion. The authority for that last proposition was said to be Bowers v Strathclyde Regional Council 1981 SLT 122.

 

[24] Mr Dickson submitted that there was nothing to suggest in the stated case that Dr Stoodley had strayed beyond his expertise. At paragraph 109 the sheriff sets out his experience. Dr Stoodley provided an expert view on the probable cause of the bilateral subdural haematoma. In order for him to express that view he required to be supplied with evidence ingathered by others. That is why Dr Stoodley is recorded as saying that he was part of the jigsaw; he required to rely on the testimony of others in order to provide the court with an opinion. For example, Dr Stoodley was told that there was no underlying medical condition. He was also informed that there was no evidence of an accident which might have caused significant trauma. That information, submitted Mr Dickson, enabled Dr Stoodley to make a diagnosis which was that, with no evidence of a point of impact, the most likely cause of the bilateral subdural haematoma was deliberate shaking. He would not have taken into account the background actions of the parents for which the sheriff would have been entitled to have regard. He had in mind here the delays in bringing the child to hospital.

 

[25] Mr Dickson then commented on the appellant's submission regarding the distinction which had been drawn between the evidence of Dr Stoodley and Dr Watt. He explained that Dr Watt was not in a position to give a diagnosis as he had not been provided with the same background information as had Dr Stoodley. Mr Dickson stated that it was the Reporter's position that a consultant neuroradiologist was the appropriate discipline to give expert evidence in cases involving babies with bilateral subdural haematoma. He began to explain his position further but probably stopped when he realised that he was going beyond the four corners of the stated case.

 

[26] Mr Dickson accepted the role of the expert as that was set out in Raitt and Davidson. He particular commended what was said by Lord Caplan in Elf Caledonia Ltd v London Bridge Engineering Ltd (Outer House, 2 September 1997, Unreported) the text of which can be found in Davidson on Evidence at page 479. Mr Dickson submitted that it could not be said by the appellant that any of the experts failed to measure up to what was said by Lord Caplan. He submitted that all of the experts who were deemed to be credible followed the mainstream view that shaking can cause bilateral subdural haematoma. He commended the experts for having drawn the court's attention to the minority view but then went on to explain why the court should not give weight to that minority view. He submitted that it was not clear from the submission what error the sheriff was said to have fallen into in her assessment of the facts but, whatever it was, the appellant could not meet the test that the sheriff was "plainly wrong" in her assessment of the evidence. Our system, submitted Mr Dickson, left it primarily to the fact finder to evaluate and assess expert evidence by deciding what, if any, weight it should receive.

 

[27] Mr Dickson submitted that there was ample evidence to hold that the four bruises sustained by J had been non-accidental in origin. The key facts which one could find in the stated case and which supported the sheriff's judgment were as follows:

 

1. J was only 3 months old and therefore immobile. This was incompatible with him having caused the injury himself by turning over in his cot as maintained by the appellant.

2. There were four bruises in total with more than one bruise on each side of his head. These four separate injuries pointed away from a one-off accident particularly when they were on different sides of the head.

3. There were contradictory reports from the adults in whose care J had been. His father said that he first noticed the bruises on 20 October but this was contradicted by the grandfather who said they were present on 19 October.

4. The parents gave no credible explanation for the bruising and could only speculate as to the cause. The sheriff had noted the evidence to be that an adult could not have been unaware that injuries had been inflicted given the pain and likely reaction from the child even if the cause was not known.

5. There was significance in the delay on the part of the parents in taking J to hospital and the reluctance of the father, when asked, to take J to hospital on 20 October.

6. The sheriff had recorded that the doctors had approached the issue with an open mind as to the underlying condition or accident and that the diagnosis had been reached by a process of elimination.

7. After extensive testing, no underlying medical condition could be found to explain the bruising.

8. The evidence of Drs Mackay and Doherty with regard to the bruising was that it was a non-accidental injury.

9. Dr Mackay had referred to the Child Protection Companion Guidelines set out on page 39 of the stated case and commented that some seven or eight of the nine "concerning factors" were present in this case.

10. There was no credible explanation given by the parents although at paragraph 26 in her Note the sheriff refers to the father having advanced an explanation for the very first time in the course of his evidence. As a consequence this had not been put to the witnesses called by the Reporter. Although there had been some suggestion made by the parents that the bruising might have been caused by a toy wielded by a 15 month old sibling of J, that toy was not produced in evidence and had not been examined to see if it fitted the pattern of bruising evident on J. For fairly obvious reasons the sheriff had rejected these explanations. Thus it was more likely than not that the bruising was non‑accidental.

 

[28] Turning to the bilateral subdural haematoma, Mr Dickson submitted that there was ample evidence to support the sheriff's findings-in-fact. Both parties accepted that there were five possibilities as to what might have caused the bilateral subdural haematoma. These are set out in paragraph 6 supra. Of these five possibilities it was accepted by the appellant that there was no evidence of an underlying medical condition such as metabolic disease or disorder. There was no evidence of an accident of sufficient severity to have occasioned bilateral subdural haematoma. Dr Hill had said that there was a localised point of impact. Dr Watt had said that bilateral subdural haematoma was normally associated with some impact damage. Dr Stoodley had not been made aware of any accidental trauma. Dr Jayamohan's view was that there was a strong possibility that the bilateral subdural haematoma had been caused by shaking. It was, submitted Mr Dickson, a matter for the sheriff to determine whether a strong possibility equiperated to a probability. Dr Jayamohan had also mentioned the possibility of an unreported traumatic event. Since however the adults who had care of J had given evidence one might have expected that they would have spoken to that and certainly reported it prior to going into the witness-box. Dr Jayamohan had also said that he would have expected there to be signs of trauma. None had been noted by any witness. The only evidence that the bilateral subdural haematoma had been caused by a birth related event had been given by Dr Squier and her evidence had been disregarded as incredible. I was referred to the stated case where it was shown that ultrasound scans had been administered in July and August and found to be normal whereas the scan in October had disclosed the bilateral subdural haematoma. This caused Drs Jackson, Stoodley and Jayamohan to conclude that the bilateral subdural haematoma had been caused post-August. Thus a birth trauma could be discounted. The overwhelming majority opinion was that the most likely cause of a bilateral subdural haematoma was the back and forward movement of an unsupported infant's head pivoting on its neck. There had been evidence of two bleeds in the child's head. Dr Jayamohan concluded that there had been two traumatic events after birth which he considered were non-accidental. Drs Mackay and Stoodley concluded that it was shaking. Dr Bussutil was of the view that there would have required to have been significant trauma or shaking incident. Thus the sheriff was entitled to come to the view that there was very persuasive evidence of more than one shaking incident.

 

The Curator ad Litem's Submissions

[29] Mr Martin, in his submission, broadly adopted the Reporter's submission. He placed great store on the fact that all of the doctors from Yorkhill Hospital who gave evidence were of the view that the child had suffered significant trauma consistent with shaking.

 

The Reply for the Appellant

[30] Ms Walker, in her reply, submitted that the error in law into which the sheriff fell was that she had misunderstood or misused the medical evidence of Drs Stoodley and Jayamohan and had over relied upon their evidence. Furthermore, Dr Stoodley had strayed outside his area of expertise. She accepted that the questions which had been framed in the application for the stated case did not go so far as to question the qualification and expertise of Dr Stoodley. She also acknowledged that some of the proposed adjustments to the stated case which, if they had been accepted by the sheriff might have better focused the appeal, had been withdrawn at the hearing on adjustments. In particular I refer to the second proposed adjustment on page 80 of the stated case and the tenth proposed adjustment on page 82 of the stated case. She also accepted that it had not been properly focused in the stated case that a radiologist was not the correct person to offer a view on whether shaking a baby might cause bilateral subdural haematoma. However, she submitted that the evidence was not sufficiently strong to conclude that shaking was the cause of J's bilateral subdural haematoma. She submitted further that M v Ferguson could be distinguished in that the evidence was given in that case by a consultant orthopaedic surgeon who was clearly the correct person to offer a view with regard to a broken arm.

 

Discussion

[31] It is always a difficult task for an appellant to challenge on appeal the findings‑in‑fact made by a court or tribunal of first instance. That is the position when the evidence has been recorded and the appellate court has a note of the evidence led. It is an even harder task when, as in appeals under Section 51(11) of the Act, the evidence has not been recorded and there are therefore no notes of evidence. It is perhaps not surprising that the Inner House decided in Allardice that it was not competent for the sheriff to supplement the findings-in-fact made by the sheriff substitute in an appeal in a small debt action. I note that the Inner House in Allardice may not have decided, and I put it no higher, that a sheriff could not delete a finding-in-fact made by the sheriff substitute. However, I noted that in C v Miller the Inner House held that in Section 51 appeals, any issue of fact or law disposed of by a Children's Hearing, or by a sheriff, may be reviewed on appeal. In 2001 when C v Miller was decided, the 1998 Human Rights Act was in force which, by Section 3 thereof, required domestic legislation to be read in a manner consistent with the Convention. C v Miller was a case concerning the compatibility of the Children's Hearing system with the Convention. Section 51 had to be interpreted in a manner which complied with the European Convention on Human Rights if that was at all possible. I also noted that in S v Kennedy the Inner House had been prepared to delete a finding-in-fact albeit that the reason for the deletion was that it was unnecessary to make the finding as opposed to whether the evidence justified the making of the finding. I had raised the issue of competency at the outset but was sufficiently satisfied by counsel for the appellant's submissions to proceed with the appeal. A preliminary reading of the process disclosed that what the court was being asked to do in this case was to delete two findings-in-fact and not to make any supplementary findings. In the event the issue of competency did not arise as I was not prepared, on the basis of the submissions made before me, to interfere with the findings made by the sheriff. Neither Mr Dickson nor Mr Martin felt it necessary to address the court on this issue.

 

[32] The appellant's position was made all the more difficult in this case by the imprecise questions posed in the stated case and in particular questions 1 and 4 which are in the following terms:-

"1. Did I err in excluding unsubstantiated possibilities in favour of relying upon evidence in support of findings that J suffered non accidental injuries?

4. Did I err in relying upon the Opinion evidence in the present case which supported the conclusion that J suffered a shaking injury?"

 

I note that the questions in the stated case are the same questions as appear in the sheriff's draft stated case. No attempt was made by the appellant to adjust the terms of these questions. These questions differ slightly from the questions contained in the applications for a stated case but even the questions in the application do not contain much of a hint as to some of the issues raised in the hearing before me. The difficulties which this presents to the court, and to the appellants, are fully explored in C v Miller. I have already referred to a passage from the opinion of the court. In addition, at paragraph 88, one finds the court stating the following:-

 

"In our opinion, it is wholly unrealistic to suppose that, without notice, a sheriff who dealt with a hearing which lasted for 49 days can reasonably be expected to narrate in detail all of the evidence which she heard on all topics raised before her in a stated case, without notice being given to her that some particular matter remains controversial."

 

In this case the evidence was led over a period of 24 days.

 

In C v Miller the court quoted with approval the dicta of the Lord Justice-Clerk in Drummond v Hunter 1948 JC 109 at page 113 when dealing with appeals by way of stated case:-

 

"If a legal issue is to be raised, it ought to be properly raised by a question defining the issue precisely. Unless this rule is followed, there is no real guarantee that a point taken in this court was a live point in the lower court, nor is there any guarantee that, when the case was being stated, the Judge stating it had in view the points sought to be argued here...The ingenuity of counsel can, by searching for gaps and discrepancies in the stated case, raise arguments which were not live issues either at the trial or at the adjustment of the case."

 

The Inner House in C v Miller came to the view that they could not give effect to the submissions made by counsel "because the factual issues to which they relate have not properly been raised in the stated case". The court went on to say:-

 

"Our approach to this matter is no arid formalism, but an insistence that, if questions of law are to be ventilated before this court, we must be furnished with the relevant factual material relating to them, which the court of first instance can do only if proper notice is given to it of the point to be raised, in the form of a specific question for inclusion in the stated case. If the proper and well understood procedure is not followed, there is a real risk that any attempt by an appeal court to deal with the matter on an inadequate or disputed factual basis will simply lead to injustice to one or more parties and to the children who are the subject of the referrals."

 

That is the position in which this court finds itself in relation to many of the submissions made. Even allowing for a Convention compliant interpretation of Section 51 of the Act, I have found it almost impossible to deal with some of the submissions made on behalf of the appellant. It was only as the appeal hearing progressed that I realised that one of the appellant's criticisms of the sheriff was that she had accepted that a consultant neuroradiologist, such as Dr Stoodley, was a person from the correct discipline to be giving expert evidence in cases where the issue was whether a baby had sustained a bilateral subdural haematoma as a result of having been shaken. That is why I posed the specific question to Mr Dickson as to the Reporter's view on this issue. He confirmed the Reporter's position to be that a consultant neuroradiologist was an appropriate person to give such expert opinion to a court. When I reviewed my notes at the conclusion of the appeal hearing I realised that I had not been told by the appellant what the appellant's position was regarding the discipline from which such an expert would require to come for his or her evidence to be given weight. I do not even know if there was any evidence that a consultant neuroradiologist was the wrong discipline. I did not understand any objection having been taken to Dr Stoodley's evidence at the hearing before the sheriff. There is no reference to such an objection having been taken in the sheriff's stated case. It would be surprising if there had been such an objection and for the sheriff not to record it. The question may not even have been focused in the evidence. If this was to be an issue there ought to have been a specific question posed in the stated case. The sheriff would then have been able to address the question in her stated case by narrating the evidence which she heard. Mr Dickson suggested a number of questions which I record in paragraph [22] supra which would have focused the issue. In fairness, Ms Walker accepted that more could and should have been done to assist the court.

 

[33] It is also, in my opinion, unfair to criticise a finding-in-fact or paragraph in a Note during the hearing of an appeal when the same finding-in-fact or paragraph appeared in the draft stated case and was not the subject of any proposed adjustment. For example, paragraph 107 in the sheriff's Note ("Dr Stoodley has been involved in a number of cases of shaking babies") was heavily criticised for its lack of specification. Yet no suggestion was made in the appellant's proposed adjustment that this paragraph was wanting or deficient in any respect. In the course of the appeal hearing, if I have understood the appellant's submissions correctly, it was not just that Dr Stoodley had the wrong qualifications which was the subject of criticism, it was, even if he had the requisite qualifications, he did not have the necessary experience. To support this attack paragraph 107 was said to be lacking in specification and that the number of cases and the outcomes thereof were not specified by the sheriff. Such criticism simply will not do and is grossly unfair when no opportunity was taken during the adjustment period to draw attention to any perceived deficiencies in the sheriff's narrative. Had the appellant proposed the following question "Did I err in law in relying upon the evidence of Dr Stoodley given his lack of experience?", the sheriff's stated case would have provided a narrative of what the evidence had been with regard to Dr Stoodley's experience.

 

[34] On the basis of the material in the stated case, particularly when viewed in light of the lack of proposed adjustments, I am not prepared to hold that Dr Stoodley had either the wrong qualification or insufficient experience to allow the court to rely upon his opinion. That is even before one considers whether there is a question in the stated case which I could answer and which would give effect to such a finding. The sheriff has set out in paragraphs 104 to 109 of her Note the qualifications and experience of Dr Stoodley. Without notice that his qualifications and experience were to be challenged one could not expect any more from the sheriff. I have no alternative but to reject the submissions made by the appellant in this regard which, if I have properly understood the submissions made on behalf of the appellant, were directed at questions 1 and 4 in the stated case. There is no material to enable me to do otherwise.

 

[35] I should record that I was invited to accept as material upon which I could rely, tracts of what, I was told by counsel for the appellant, had been said by Dr Stoodley in his evidence. My understanding is that the tracts were extracted from contemporaneous notes taken by either counsel or her instructing solicitors. These are set out in the narration of the appellant's submissions at paragraph 10. I hope that I have accurately recorded what was narrated to me. It might have been helpful had the evidence been set out in a joint minute, which is the usual way in which parties agree matters of fact. In the event neither Mr Dickson nor Mr Martin agreed that what had been read to me was a proper representation of the evidence. Indeed their submissions, and particularly those made on behalf of the Reporter by Mr Dickson, were inconsistent with what I was told by the appellant's counsel had been the evidence. It was part of Mr Dickson's submission that there was no evidence to suggest that Dr Stoodley strayed beyond his expertise or that he was insufficiently experienced. I was not prepared to agree with the submission made to me in counsel for the appellant's reply that since the submissions for the Reporter and the curator ad litem had not directly challenged the narrative of the evidence I could assume that there was tacit agreement that the tracts were accurate representations of what had been said. If parties to a litigation wish to record their agreement on detailed matters such as a verbatim account of the evidence of a witness which is otherwise unrecorded, they should do so by means of a joint minute of admissions. That is the time honoured manner in which the court is informed of agreements between parties and I can see no reason why the court should be required to depart from the normal practice in this case. In any event even if the evidence had been agreed it would have made no difference to the outcome. On their own, the tracts of evidence would not have persuaded me to come to the view that the sheriff had erred in placing the weight which she did upon the evidence given by Dr Stoodley.

 

[36] In relation to the third question posed in the stated case as to whether the sheriff had erred in holding that J's bruising injuries were non-accidental, the appellant submitted that the sheriff had erred when in paragraph 20 of her Note the sheriff concluded that the child must "inevitably" have been subjected to repeated blows to its head to cause four separate bruises. Counsel for the appellant called into question how the sheriff could say that such a conclusion was "inevitable". If one reads the sheriff's Note it becomes clear how she came to this conclusion. It was accepted by all parties that there were three potential causes for the injury. The three possibilities were (i) an accidental blow to the head; (ii) a non-accidental blow to the head and (iii) some underlying medical condition. At paragraph 19 of her Note the sheriff narrates that there was no evidence how the bruises could have been caused accidentally. Later in her Note she explains that J was a 3 month old child and therefore immobile. The sheriff drew upon the Child Protection Companion Guidelines and at paragraph 22 of her Note observes that the Companion states: "Non mobile children should not have bruises without a clear and often observed explanation. All such bruises should be carefully assessed." She came to the view that, given the age of J, the injuries could not have been self-inflicted. Both appellants gave explanations of how the injuries might have been sustained which the sheriff records. However, she makes it clear that what was being advanced by the parents were no more than theories. They had not witnessed any incident which could have explained the bruising to J's head. The sheriff deals with the issue in paragraphs 29 to 33 of her Note. In my opinion the approach she adopts in excluding accidental injury cannot be challenged in this forum. If it was being seriously put forward that J had sustained the bruising by virtue of one of his siblings striking him with a toy one might, as Mr Dickson pointed out, have expected the toy to be produced in evidence. The sheriff then eliminated the possibility that the bruising was as a result of an underlying medical condition. She explains in paragraph 17 of her note that extensive medical tests had been carried out and no such condition discovered. Thus having eliminated two of the three possible causes of bruising, ie accidental injury and some underlying medical condition, the sheriff was entitled, in my opinion, to conclude that the bruising was occasioned by the third potential explanation, namely non-accidental bruising. I note that an attempt was made to adjust paragraph 19 of the sheriff's Note by moving the sheriff to delete therefrom "There was no evidence as to how these bruises could have been caused accidentally" and substituting therefor "There was no direct evidence of J having suffered any accidental or non-accidental trauma which could have caused these bruises". The sheriff rejected this proposed adjustment on the basis that there was no evidence acceptable to her to suggest how these bruises could have been caused accidentally. It was not suggested in the course of the appeal that there was any direct evidence to explain the existence of the bruises. There were no more than speculations from the adults, one of which was advanced for the first time in the evidence of the father and which had not been put to the respondent's witnesses when they gave evidence. From that the sheriff could reasonably conclude that the explanation had not been previously given to the father's lawyers. It seems to me that on the evidence led, the sheriff was entitled to come to the view that non-accidental injury occasioned the bruising. The factors which were highlighted by Mr Dickson in his submissions seem to me to be entirely supportive of this conclusion. It was not in controversy that there were four bruises in total with two being on either side of J's head. The sheriff had the evidence of Drs Mackay and Doherty that the bruising was occasioned by non-accidental injury. There was the inconsistency in the evidence of the adults with the care of J as to when the bruising occurred. There was reluctance on the part of J's father to take him to hospital on him first disclosing to the authorities that he had noted the bruising. The parents were unable to provide any explanation for the bruising other than to speculate, which speculation the sheriff did not find to be credible nor supported by any surrounding facts. On the basis of the sheriff's note her view that the bruising was caused by non-accidental means cannot, in my opinion, be successfully challenged in this forum. I could not say that evidence narrated in the stated case so powerfully pointed in the direction of non‑accidental injury that I could conclude that the sheriff erred in law. Thus the terms of Section 51(11) are not met. It seems to me that the evidence pointed in the direction of the finding which the sheriff made. Counsel for the appellant submitted that she did not consider that paragraph 39 on page 43 of the sheriff's Note reflected the evidence. Paragraph 39 is in the following terms: "However I did not believe that the first appellant only saw the bruises on the Monday afternoon." I note that in the proposed adjustments no attempt was made by the appellant to vary the terms of paragraph 39. Without further material I am unable to assess whether paragraph 39 has a factual basis. In order for an appellate court to have such material it would be necessary for the finding to have been challenged at an earlier stage than the hearing of the appeal. I should note that adjustments are normally made to the findings-in-fact. The sheriff was clearly happy to consider adjusting the terms of her note. That is to be welcomed.

 

[37] It was not in dispute that J had suffered a bilateral subdural haematoma. It was also not in dispute that this could have been occasioned by one or more of five possibilities, namely (i) an underlying medical condition; (ii) accidental injury; (iii) a bilateral subdural haematoma present at birth; (iv) non-accidental injury and (v) an injury caused by a mechanism not known to medical science. It was accepted before me that there was no underlying medical condition. The sheriff noted that there was no evidence, acceptable to her, of any accidental injury of sufficient severity to have caused a haematoma. The sheriff noted that the only witness to speak to the possibility that the bilateral subdural haematoma was present at birth was Dr Squier. The sheriff did not find her a credible witness and therefore that possibility falls to be discounted. Ms Walker properly acknowledged that. The sheriff also noted that there had been ultrasound scans of J in July/August at which time no evidence was noted of a bilateral subdural haematoma. In October the same scans disclosed that there was a bilateral subdural haematoma. The doctors concluded therefore that the bilateral subdural haematoma was caused at some point between the two scans. The haematoma could not therefore have been present at birth. The sheriff accepted that evidence. I find it impossible to criticise the approach adopted by the sheriff. There was no evidence before the sheriff to suggest that the cause was a mechanism not presently known to medical science. That then leaves only one potential explanation which is that there was some non-accidental trauma. The expert witness Mr Jayamahon, called on behalf of the appellant, accepted that there were two large bilateral subdural haematoma which must have been caused by two traumatic events after birth. His conclusion was that there was a strong possibility that these had been caused by non-accidental traumas. He stopped short of concluding that shaking was the inevitable cause but he accepted that it was possible. In the final sentence of paragraph 144 of her Note the sheriff records of Mr Jayamahon "He was "unhappy" to go as far as conceding Dr Stoodley's view that this was a shaking incident but as I understood his evidence his findings were consistent with a shaking incident or incidents." As narrated by the sheriff at paragraphs 138 and 139 of her note, it is clear that Mr Jayamahon considered that there was a "strong possibility" that the bilateral subdural haematoma had been caused by non-accidental injury. The only other possibility, said Mr Jayamahon, was a traumatic event. However, such a traumatic event would have resulted in external signs of trauma. No such signs were reported. At paragraph 137 of her note the sheriff records Mr Jayamahon as saying that "the majority view would say that this (shaking) is the most likely cause." Given such evidence from Mr Jayamahon which was consistent with the evidence from Dr Stoodley and which was not in any way contradicted by the evidence from the other credible medical experts who gave evidence, it would have been very difficult for the sheriff to come to any view other than that which she did, namely, the bilateral subdural haematoma was caused by a shaking injury. As in many cases there will no doubt be adminicles of evidence which are not wholly consistent with such a conclusion. However, in the context of the instant case, where the sheriff requires to be satisfied on the balance of probabilities, the existence of such adminicles do not entitle the sheriff to disregard the opinion evidence before the court. I must assume that any such adminicles of evidence were put to the experts in cross-examination but their opinions were not thereby altered. In any event the manner in which question 4 is framed suggests that the appellant accepts that there was opinion evidence before the sheriff supporting the conclusion that J suffered a shaking injury. Thus in respect of this aspect of the appeal I am of the view that the terms of section 51(11) are not met.

 

[38] Much was also made of the sheriff's willingness, during the adjustment of the stated case, to delete a sentence from finding‑in‑fact 58 in her original note on the basis that the finding was predicated upon an inference taken from Dr Stoodley and to some extent Mr Jayamahon's evidence. At paragraph 128 of her Note she explains that the evidence which Dr Stoodley and Mr Jayamahon gave was based on likelihoods and the sheriff noted that to make a finding based on such was "probably going too far". It was submitted that this was inconsistent with the sheriff's position in relation to Dr Stoodley's evidence. He offered the view that the bilateral subdural haematoma in J's head was likely to have been caused by shaking. It was submitted that if the sheriff had deleted one finding because it was based on no more than a likelihood she ought not to have relied upon another finding also based on a likelihood. As Mr Dickson pointed out, in a civil case the standard of evidence which requires to be met before a fact can be established is that of the balance of probabilities. As Lord Brandon observed in The Popi M this "requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not." Thus if having heard evidence a sheriff concludes that the likelihood is that a particular event occurred the sheriff is entitled to conclude that the appropriate evidential standard has been met.

[39] I should record that in making the submission that Dr Stoodley was not an appropriate person to give expert opinion on whether the bilateral subdural haematoma had been caused by shaking, counsel for the appellant drew my attention to the approach adopted by Dr Watt, a consultant paediatric radiologist at Yorkhill, who had undertaken the MRI scan on J. In paragraph 103 of her Note the sheriff records that Dr Watt did not consider it his function to make a diagnosis. He simply interpreted the scan and provided the information to the consultants. This was contrasted with the approach adopted by Dr Stoodley who was from the same discipline. I was invited to conclude that one could infer that Dr Watt's approach, a reluctance to make a diagnosis, was correct and that Dr Stoodley had gone beyond the area of his expertise. There is of course another explanation which can be given in relation to paragraph 103 which is the one advanced by Mr Dickson. Dr Watt was not in a position to offer an expert opinion on the cause of the bilateral subdural haematoma because he did not have the whole clinical picture of J and therefore was not prepared to offer an opinion, not because he lacked the requisite skills and experience, but because he did not have the necessary factual information. I am therefore not prepared to criticise the sheriff for accepting Dr Stoodley as an appropriately qualified expert witness in this field on the basis of Dr Watt having declined to offer an explanation of the cause of the bilateral subdural haematoma present in J.

 

[40] Much was made by counsel for the appellant in relation to the duties which are incumbent upon an expert witness. I have set out in my narrative of her submissions the various propositions she advanced. For good reason these were not challenged by either Mr Dickson or Mr Martin. They did not appear to me to be controversial. Mr Dickson submitted that the experts upon whose evidence the sheriff relied, all met the standards required. Absent appropriate questions in the stated case there is no material to enable me to offer a view on this issue.

 

[41] As is pointed out in Macphail Sheriff Court Practice 3^rd Edn at paragraph 18.103, where an appellate court is invited to review a decision by a judge on an issue of fact the approach which the appellate court should take is to examine the reasons which the judge or sheriff has stated for his or her decision. In my opinion the reasons which the sheriff adopted in coming to the findings which she did are not open to challenge. Accordingly, it cannot be said that she erred in law. Absent an error in law or a procedural irregularity the terms of Section 51(11) are not met. The appeal must therefore fail. Having said that it would have been very much preferable had the questions posed been more precise and focused the issue. Had that been done the stated case would have been fuller and enabled a better examination of the issues which the appellant wished to ventilate. Given my lack of criticism of the approach adopted by the sheriff I answer questions 1 to 4 in the stated case in the negative. The fifth question in the stated case I decline to answer on the basis that it was inserted in the stated case to address points raised by the father who was not represented at the diet of appeal and upon which I was not addressed.

 

[42] In paragraph 128 of her note, the sheriff indicated that having reviewed the evidence she came to the view that she should delete a sentence from statement of fact 6 in the following terms:-

 

"J would have displayed obvious external signs of injury but no medical attention was sought for J by either of the child's parents."

 

I have reflected this in the interlocutor.