Gold v Haringey Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE WATKINS,LORD JUSTICE STEPHEN BROWN |
| Judgment Date | 14 April 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0414-9 |
| Docket Number | 87/0645 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 1987 |
[1987] EWCA Civ J0414-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE SCHIEMANN)
Royal Courts of Justice.
Lord Justice Watkins
Lord Justice Stephen Brown
and
Lord Justice Lloyd
87/0645
1111/86.
MR. STEPHEN MILLER (instructed by Messrs. Hempsons, London WC2) appeared on behalf of the Appellants.
MR. CHARLES LEWIS (instructed by Messrs. Pritchard Englefield & Tobin, London W1) appeared on behalf of the Respondent.
On 20th August 1979 Mrs. Phyllis Gold underwent an operation for sterilisation at the North Middlesex Hospital. It was on the day after the birth of her third child. The operation did not succeed, for in October 1982 she gave birth to her fourth child, Darren. In October 1984 she commenced these proceedings against Haringey Health Authority, despite the fact that she and her husband are delighted with Darren, their first boy, and indeed have gone on to have a fifth child, born in November 1984.
In her writ, as amended, she claims damages for negligence in carrying out the operation. But that claim was rejected by the judge. He found that the plaintiff had failed to prove that Dr. Arzanghi, who carried out the operation, had been negligent. There is no appeal against that finding.
But the judge went on to hold the defendants liable on another ground. He held that they ought to have warned the plaintiff that the operation might not succeed, and ought, in the circumstances, to have mentioned the alternative of vasectomy. If they had, then, according to the judge's findings, Mrs. Gold would not have consented to the operation, and Mr. Gold would have been vasectomised instead. By inference, he has found that the vasectomy would have been effective to prevent the birth of the fourth and fifth children. The failure rate for vasectomy was accepted as being about 5 per ten thousand, compared with a failure rate for female sterilisation of between 2 and 6 per thousand. The judge held that the defendants were negligent in not informing the plaintiff of the failure rate for female sterilisation, and that they are liable in damages accordingly, which he assessed at £19,000.
Before relating the history of the matter, I desire to make one point clear. We are not in this case called on to decide whether it is desirable or not that a plaintiff should be able to claim damages for the birth of a healthy child, and a child which, in this particular case, the plaintiff and her husband are now delighted to have. In Jones v. Berkshire Area Health Authority, decided on 2nd July 1986, another unwanted pregnancy case, Ognall J. said:
"I pause only to observe that, speaking purely personally, it remains a matter of surprise to me that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are afflicted with a handicapped child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency with a measure of astonishment. But there it is: that is the law."
Many would no doubt agree with that observation. But the desirability of permitting such a claim does not concern us here. At one time there was a conflict of decisions at first instance whether it was against public policy to allow a plaintiff to recover damages for the birth of a healthy child. But that conflict has been resolved, so far as this court is concerned, by the unanimous decision of this court in Emeh v. Kensington and Chelsea Area Health Authority (1985) QB 1012. So in the present appeal we are concerned solely with the question whether the plaintiff has established negligence against the defendants by reason of their failure to warn the plaintiff that the operation might not succeed.
The history of the matter, very briefly, is as follows. The plaintiff's first and second children, both girls, were born in December 1969 and November 1972. There was then a long gap before she conceived her third child. In the course of her third pregnancy, she discussed with her husband the possibility of him having a vasectomy. According to Mr. Gold's evidence, they knew about vasectomy because two of his friends had had a vasectomy, including Mrs. Gold's brother-in-law. On 9th January 1982 Mrs. Gold went to see her general practitioner, Dr. Gomez. He confirmed she was pregnant. She told him that she and her husband were thinking of vasectomy. Dr. Gomez suggested sterilisation instead. According to Mrs. Gold's evidence, Dr. Gomez was not against vasectomy, but said that sterilisation would be "handier" as Mrs. Gold would be in hospital in any event having her third child.
On 24th July 1982 Mrs. Gold saw Miss Witt, the consultant to whom she had been referred at the commencement of her pregnancy. Mrs. Gold told Miss Witt that she did not want any more children. Miss Witt suggested sterilisation. She did not mention vasectomy as an alternative; but then neither did Mrs. Gold, although it had been discussed between her and her husband the previous January.
Soon after 24th July Mrs. Gold must have returned to see Dr. Gomez, her general practitioner. Regrettably Dr. Gomez was not called as a witness, so we do not know what took place on that occasion. All we know is that on 31st July he wrote to Miss Witt as follows:
"Many thanks for considering this patient for sterilisation. She has two children aged 10 and 7 years, and she is due for her confinement on 20th August 1979. The patient is aware that this is an irreversible operation."
It may be that there was some discussion about vasectomy, and that Dr. Gomez repeated his earlier advice that sterilisation would be "handier"; but we do not know, since Dr. Gomez was not called, and Mrs. Gold was not asked.
On 14th August Mrs. Gold saw Dr. Plummer, the house surgeon. She told her that she wanted to be sterilised, and signed a written consent in the form then current. On 19th August she gave birth to Nicola. On 20th August the operation was performed. The judge has found on the balance of probabilities that neither Miss Witt nor Dr. Plummer nor Dr. Arzanghi ever clearly explained that there was a risk of the operation failing. Mr. Miller, who appears for the defendants, does not seek to go behind that finding.
In her case as originally pleaded the plaintiff relied exclusively on the absence of any warning as to the failure rate of the operation, which, as I have said, was accepted as being about 2 per thousand, or about 6 per thousand if carried out immediately after childbirth. But on the third day of the evidence, when one of the plaintiff's experts was being re-examined, the judge raised the question (Friday, 6th June, morning, page 39D) whether it might be the defendants' duty, not only to warn the plaintiff of the failure rate for sterilisation, but also to compare the failure rate for female sterilisation with the failure rate for male vasectomy. The point was taken up later the same day with the first of the defendants' experts (Friday, 6th June, afternoon, page 3D). On the morning of Monday, 9th June, Mr. Lewis, for the plaintiff, applied to re-amend the Statement of Claim in accordance with the judge's indication, so as to allege that the defendants were negligent in failing to discuss vasectomy with the plaintiff, and to mention the relative failure rates of the two operations. Despite this amendment, Mr. Lewis made clear to us that his main case rested, and had always rested, on the simple failure to warn that sterilisation might not succeed.
I now turn to the evidence. The doctors were unanimous in their view that though they themselves would have warned of the risk of failure, nevertheless a substantial body of responsible doctors would not have given any such warning in 1979. One of the witnesses put the proportion of doctors who would not have given any such warning in 1979 as high as 50%. How then did it come about that the judge convicted the defendants of negligence?
In directing the jury in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582, McNair J. said:
"(A medical man) is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…..merely because there is a body of opinion who would take a contrary view".
In Maynard v. West Midlands Regional Health Authority (1984) 1 WLR 634, the House of Lords applied the Bolam test to a case of wrongful diagnosis. Lord Scarman said, at page 638:
"It is not enough to show that there is a body of "competent professional opinion which considers that there was a wrong decision if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper"
In Sidaway v. Board of Governors of Bethlem Royal Hospital (1985) AC 871, the House of Lords applied the same test to a case in which a doctor, before carrying out an operation, failed to warn his patient of a very small risk of very serious injury. It would have been open to the House of Lords to hold that the Bolam test applied to negligent diagnosis and negligent treatment, but not negligent advice. In other words, the House of Lords...
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