J.m. As Legal Representative Of R.m. (ap) V. Highland Health Board
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2014] CSOH 9 |
| Docket Number | A273/08 |
| Date | 23 January 2014 |
| Court | Court of Session |
| Published date | 23 January 2014 |
| OUTER HOUSE, COURT OF SESSION [2014] CSOH 9 | |
| A273/08 | OPINION OF LORD KINCLAVEN in causa JM as legal representative of RM (AP) Pursuer; against HIGHLAND HEALTH BOARD Defenders ________________ |
Pursuer: Gale QC; Heaney; Drummond Miller LLP
Defenders: Stephenson QC; Devaney; Central Legal Office
23 January 2014
Introduction and Overview
[1] This is an action for damages. The pursuer ("JM") alleges that her daughter ("RM") suffered catastrophic injury around the time of her birth, on 2 June 1999, as a consequence of fault and negligence on the part of certain members of staff at Raigmore Hospital, for whose actions the defenders are liable.
[2] The case came before me by way of proof before answer.
[3] Mr Gale QC and Mr Heaney appeared for the pursuer. Mr Gale submitted that I should sustain the pursuer's first plea-in-law and repel the defenders' second and third pleas and allow a proof on quantum of damages.
[4] Mr Stephenson QC and Ms Devaney appeared for the defenders. Mr Stephenson sought decree of absolvitor. The defenders denied liability and contended that the pursuer's averments insofar as material were unfounded in fact. RM did not suffer any loss, injury and damage as a consequence of fault and negligence for which the defenders are responsible.
[5] Having considered the whole evidence, in this most anxious proof, I have decided that the pursuer has failed to prove her case and that the defenders are entitled to absolvitor.
[6] The defenders' submissions prevail - for the reasons mentioned below.
[7] I would outline the background and my reasons as follows.
The Background
[8] The pursuer, JM, is the mother and legal representative of RM who resides with her. RM was born on 2 June 1999 at Raigmore Hospital, Inverness. It is averred that RM suffers from a form of cerebral palsy.
[9] The defenders are Highland Health Board. They have responsibility for Raigmore Hospital, Inverness and for the actions and omissions of staff employed at said hospital at the material time. This Court has jurisdiction.
[10] The pursuer seeks damages of £10.5 million with interest and expenses.
[11] The parties agreed, in terms of a Joint Minute (No 20 of process), that the proof on liability and on causation of RM's cerebral palsy should take place separately from any proof on quantum. Without prejudice to that generality, the parties had also agreed:
(1) That the nature and extent of the brain injury suffered by RM in utero or shortly after her birth, how it was caused, and whether and if so to what extent it was caused by fault on the part of the defenders' doctors and midwives; were to be dealt with at the proof on liability and causation; and
(2) That the effect of the said brain injury on RM's cognitive and physical functioning and the impact thereof on her life (including her life expectancy) was to be held over for any proof on quantum.
[12] On 8 October 2012 the Court, on joint motion, allowed the proof before answer to be restricted to liability and causation in terms of that joint minute and Rule of Court 36.1.
The Pleadings
[13] I do not propose to rehearse the contents of the closed record (no 21 of process) as amended 15 October 2012. The parties are very familiar with the pleadings. I refer to them for their full terms.
[14] Suffice it so say that, for present purposes, the pursuer's averments of fact are set out in article 2, the pursuers' averments relating to events after delivery can be found in article 3 and the allegations of negligence are in article 4.
[15] The defender's responses are in answers 2, 3 and 4.
[16] The pursuer's averments of loss are set out in article 5 of condescendence. The pursuer avers, inter alia, that RM has severe impairments in cognition and language as a direct result of injury sustained to her brain. She has been diagnosed as having cerebral palsy spastic quadriplegia with dystonic athetosis. It is admitted that RM is wholly dependant and requires constant care.
Witnesses for the Pursuer
[17] There were 13 witnesses for the pursuer, namely:
1. JM, the pursuer - RM's mother;
2. AM (pursuer's witness No 2) - RM's father who was present in the delivery room;
3. Midwife KM (witness No 4) - who was the midwife caring for the pursuer prior to approximately 22.00 hours;
4. Midwife KMACP (witness No 3) - who was the midwife caring for the pursuer after approximately 22.00 hours;
5. Sister CR (witness No 5) - who was the midwife sister in charge of the labour ward after approximately 22.00 hours;
6. Dr AS (witness No 15) - the Obstetric Registrar alleged to be negligent;
7. Dr RA (witness No 12) - the Registrar who attended after delivery;
8. Dr MH (witness No 16) - the Consultant Obstetrician on call,
9. Dr GF (witness No 13) - the Consultant Paediatrician who attended after delivery;
10. Mrs Jean McConville, (witness No 19) - midwifery expert witness for the pursuer;
11. Professor Tim Draycott, (witness No 21) - Consultant Obstetrician and expert witness for the pursuer;
12. Dr Hilary MacPherson, (witness No 22) - Consultant Obstetrician and Gynaecologist and expert witness for the pursuer; and
13. Prof Benjamin Stenson, (witness No 23) - Consultant Neonatologist and expert witness for the pursuer.
[18] The credibility of RM's parents was not in doubt.
Witnesses for the Defender
[19] There were 4 witnesses for the defenders, namely:
1. S.M.M., (defence witness No 10) - a neonatology nurse who spoke to entries made in RM's records when she was in the Special Care Baby Unit (SCBU);
2. Professor James Walker, (defence witness No 15) - Professor of Obstetrics & Gynaecology and expert witness for the defenders;
3. Dr Julia Sanders, (defence witness No 12) - Consultant Midwife & Senior Project Manager and expert witness for the defenders; and
4. Dr Jonathan Coutts, (defence witness No 16) - Consultant Neonatologist, respiratory paediatrician and expert witness for the defenders.
Joint Minute of Agreement
[20] There was an extensive joint minute of agreement (no 25 of process) which I can refer to for its whole terms brevitatis causa.
Productions
[21] The productions for the pursuer were numbered 6/1 to 6/88 of process. The productions for the defender were numbered 7/1 to 7/48 of process.
Joint List of Authorities
[22] I was referred to the following joint list of authorities:
1. Dineley v Lothian Health Board [2007] CSOH 154;
2. NM v Lanarkshire Health Board [2013] CSIH 3 particularly at paragraphs [56] to [61] and [64] to [66];
3. Skelton v Lewisham and North Southwark Health Authority [1998] Lloyd 's LR Medical 324;
4. Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134;
5. Bolitho v City and Hackney Health Authority [1998] AC 232;
6. D's Curator Bonis v Lothian Health Board 2010 CSOH 61, 2010 SLT 725;
7. Davie v Magistrates of Edinburgh 1953 SC 34;
8. Dingley v The Chief Constable, Strathclyde Police 2000 SC (HL) 77;
9. Dingley v The Chief Constable, Strathclyde Police 1998 SC 548 (IH);
10. Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176;
11. Honisz v Lothian Health Board [2006] CSOH 24, 2008 SC 235;
12. Hunter v Hanley 1955 SC 200;
13. Ide v ATB Sales Ltd [2008] EWCA Civ 424, [2008] PIQR P13 P251 at paragraphs 4 and 6;
14. Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (CA);
15. Loveday v Renton [1989] 1 Med LR 117;
16. Montgomery (M's Guardian) v Lanarkshire Health Board [2010] CSOH 104, particularly at paragraphs 1 to 5, 9, 10, 116, 117, 178, 190, 194 to 198, and 206;
17. Mackinnon v Miller 1909 SC 373 (IH);
18. Mallett v McMonagle [1970] AC 166 (HL);
19. Maynard v West Midlands Regional Authority [1984] 1WLR 634 (HL);
20. McGlinchey v General Motors UK Limited [2012] CSIH 91;
21. McConnell v Ayrshire and Arran Health Board 2001 Rep LR 85 (OH);
22. Morton v West Lothian Council 2006 Rep LR 7 (OH);
23. Jones v Great Western Railway Company (1931) 144 LT Rep 194 (HL);
24. S-B, Re (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1AC 678;
25. Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 (HL);
26. The Popi M [1985] 1WLR 948 (HL);
27. Toremar v CGU Bonus Limited [2009] CSOH 78; and
28. Wilsher v Essex Area Health Authority Health Authority [1987] QB 730 (CA).
[23] I do not propose to quote extensively from those cases. The relevant passages were not in dispute and they have been highlighted by parties in their respective written submissions. See, for example, the pursuer's written submissions at paragraphs 8 to 40 and the defenders' principal submissions at paragraphs 2.1 to 2.6. I agree with the pursuer was that the evidence should be considered as a whole and that circumstantial evidence can have compelling force. The assessment of the evidence is a matter for me.
[24] In relation to liability, the test in relation to "the standard of care" is to be found in the well-known case of Hunter v Hanley test (case numbered 12 above which Mr Gale deals with in paragraphs 34 to 40 of his written submissions). In Hunter v Hanley Lord President Clyde said inter alia:
"To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances ... But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with...
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