Groom v Selby
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LADY JUSTICE HALE,MR JUSTICE DAVID STEEL |
| Judgment Date | 18 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1522 |
| Docket Number | Case No: B3/2001/0130 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 October 2001 |
[2001] EWCA Civ 1522
Lord Justice Brooke
Lady Justice Hale
Mr Justice David Steel
Case No: B3/2001/0130
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Judge Peter Clark)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Terence Coghlan QC and James Aldridge (instructed by the Legal Department, MDU Services Ltd for the Appellant)
Robert P Glancy QC and Christopher Hough (instructed by Irwin Mitchell for the Respondent)
This is an appeal by the defendant from a judgment of Judge Peter Clark, sitting as a judge of the High Court on 11th December 2000, when he held that the claimant Sarah Jane Groom was entitled to recover damages from the defendant, Dr Miranda Ruth Selby, for her admitted negligence in failing to discover the claimant's pregnancy at or immediately after the claimant attended her general practitioners' surgery on 21st November 1994. The claimant subsequently gave birth to a child, Megan, on 26th May 1995. On 21st June 1995 Megan was admitted to hospital where she was diagnosed as suffering from salmonella meningitis, complicated by bilateral frontal brain abscesses. The judge held that the claimant was not entitled to recover the ordinary economic cost of bringing up Megan, if she had been a healthy child, but that she was entitled to recover the additional costs attributable to bringing up a disabled child. Although the claimant originally sought permission to cross-appeal against the first of these findings, that application has been dismissed by consent. We are therefore concerned only with the defendant's appeal against the judge's second finding. The defendant also appeals against the judge's order that she pay the entire costs of the action up to the date of that order.
The facts of the case are relatively straightforward. The claimant was born in June 1968, and in 1989 she started to live with a man called Danny Conway, whom she married about ten years later. In October 1990 their first child Charlie was born. The claimant suffered three miscarriages in the course of the next two years, but during 1993 she became pregnant again. During this pregnancy she discussed with her partner the idea of her being sterilised after her next child was born. They consulted a general practitioner and decided that the claimant would see a consultant at their local hospital after the child was born.
Their second child, Holly, was born in February 1994, and six months later the claimant saw the consultant who carried out a sterilisation operation on 5th October 1994. She did not perform a pregnancy test before operating. Unknown to anyone the claimant was about six days pregnant at that time.
On 21st November 1994, when she was probably seven and a half weeks pregnant, the claimant saw the defendant, Dr Selby. Although her periods were normally regular, she had missed a period. She complained of abdominal pain and a green discharge. Dr Selby prescribed antibiotics. She did not recommend or arrange a pregnancy test, and she did not examine her to see if she was pregnant. It is admitted that she was negligent in this regard.
On 14th December 1994, when she was probably 11 weeks pregnant, the claimant saw Dr Selby's partner, Dr Swift. Dr Swift arranged for a pregnancy test, and about a week later she told her that the test result was positive. The claimant was distraught at this news. On 29th December an ultrasound scan was performed. The claimant saw the foetus in her womb. She discussed the possibility of a termination of the pregnancy with her husband, but felt unable to take this course. The judge found as a fact that if she had been told about the pregnancy on 21st November, she would have asked for her pregnancy to be terminated. There is no appeal against that finding.
On 26th May 1995 Megan was born. She was just over three weeks premature. She appeared healthy at first, but on 21st June 1995 she became unwell and was admitted to hospital. As I have said, she was diagnosed as suffering from salmonella meningitis, complicated by bilateral frontal brain abscesses. Surgical drainage was performed, and a ventriculo-peritoneal shunt inserted.
Megan subsequently developed convulsions and episodes of septicaemia. Investigations suggested she had an immunoglobulin deficiency. Immunoglobulin infusions were continued until January 1997, and she now has normal immune functions. The judge found that her prognosis is uncertain.
The reason for this is that brain damage to the frontal lobes can produce variable results. In a best case scenario, Megan's future disabilities will be mild. She will be left with a degree of emotional vulnerability and lability, with intelligence in the low-average range. On this basis she will probably be able to function independently as an adult. In a worst case scenario, she will plateau in both cognitive and emotional development as a school child. She will have moderately severe learning difficulties and will be unable to live independently. In this scenario she will require ongoing attendance and supervision.
The matter was tried on the basis of agreed medical reports. There was no oral evidence. On this basis the judge made findings, against which there is no appeal, on the cause of Megan's disability. He said that the claimant's half-brother had experienced meningococcal meningitis as a child, and that her two older children had suffered illnesses in the first year of their lives. Charlie had developed malaise and fever, from which he had made a good recovery, when he was two months old. Holly had developed meningococcal meningitis at the age of 11 months, but this was not due to any immune deficiency. The judge found that Megan did not have a congenital immune deficiency.
He went on to find that three factors had led to her contracting salmonella meningitis. The first was bad luck. She had been exposed at birth to bacterium which was colonising her mother's birth canal and perineal area. This persisted until it caused invasive infection three and a half weeks later. The second factor was Megan's young age at the time, which predisposed her, like all infants, to serious infections of this kind. The third was her prematurity. This rendered her even more susceptible to invasive infection, partly because she had had less time in which to pick up maternally derived protective antibodies in her blood.
The claim in this action was issued on 18th November 1997. On 20th July 2000 Master Foster ordered that judgment be entered in favour of the claimant for damages and interest to be assessed. He directed that two issues be treated as preliminary issues in the assessment:
(i) Is the claimant entitled to claim any damages for all or part of the cost of bringing up and caring for Megan?
(ii) Was Megan born with congenital abnormalities which have led to her needing additional care?
The judge directed that judgment be entered for the claimant on the first of these issues to the extent set out in his judgment, and for the defendant on the second issue. He ordered the defendant to pay the claimant's costs of the action to date. He granted both sides permission to appeal and directed that the assessment of the claimant's damages be postponed until after the hearing of any appeal.
I have summarised the judge's findings quite briefly, but in order to understand the issues in the case it is necessary to set out the expert evidence at somewhat greater length. For this purpose I refer to the admirably clear report prepared by Dr Adam Finn, who is a senior lecturer in paediatric immunology.
Immunoglobulins, which are also known as antibodies, are proteins released by white blood cells. They circulate in the blood and constitute part of a human being's defences against infection. When a baby is born, he/she has little or no immunoglobulin of any class in the blood derived from his/her own blood cells. This is because the immunoglobulin only starts to be made by the white blood cells in response to exposure to infection, and babies are not normally exposed to infection in the womb.
A baby, however, usually has detectable (and often quite high) levels of immunoglobulin in the blood during the first weeks of life, because this class of antibody is transported from the mother's blood across the placenta into the baby's blood during the last weeks of pregnancy. Babies born prematurely are more prone to severe infection that those born at term, and one of the reasons for this is that they have fewer antibodies derived from their mothers in their blood.
Newborn infants are prone to several extremely severe infections. These include bacterial infections such as meningitis, which are usually caused by bacteria that derive from the mother's birth canal and the skin around that anatomical area. These coat the surface of the baby during the first weeks of life until they are released by other organisms. Salmonella is one such bacterial strain. For this reason, serious infection with this and other similar bacteria is seen in normal young infants, but only much more rarely in other age groups of normal children.
I have already set out one reason (see paragraph 14 above) why premature babies like Megan may be even more prone to severe infection of this kind. Another reason is that the skin and mucous membranes (the linings of the nose and mouth) in new born babies are thinner and more easily damaged, and this weakness is even more pronounced in premature babies. Once the skin or mucous membranes are damaged, the way is...
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