Hamilton v Fife Health Board
| Jurisdiction | Scotland |
| Judgment Date | 24 March 1993 |
| Docket Number | No. 39 |
| Date | 24 March 1993 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Prosser
Reparation—Negligence—Personal injuries sustained by child while in utero resulting in death three days after birth—Whether injuries sustained by a "person"—Whether action of damages for loss of society by parents competent—Damages (Scotland) Act 1976 (cap. 13), secs. 1(1) and (4) and 10 (1)1
Words and phrases—Statutory interpretation—"Person"—Damages (Scotland) Act 1976 (cap. 13), secs. 1(1) and (4) and 10 (1)1
A child was born in 1976 and died three days later in consequence of injuries sustained by it while in utero which were allegedly caused by negligent acts on the part of the doctors attending the child's mother. The parents of the child brought an action against the health board seeking damages for loss of the child's society. The defenders argued that the action was irrelevant as the child had not been a person for the purposes of the 1976 Act at the time when the injuries were sustained. The Lord Ordinary (Prosser) held that personal injuries could only be sustained by a person and that the child had not been a person at the relevant time. The pursuers reclaimed.
Held, (rev. judgment of Lord Prosser) (1) that the case depended on the construction to be placed upon sec. 1(1) of the Damages (Scotland) Act 1976; (2) that there could be no liability until both damnum and injuria concurred, but once the child was born and became a person the necessary concurrence was established and the child acquired the right to sue the person whose breach of duty resulted in its loss; and (3) that it followed that the defenders were liable to pay damages to the pursuers in accordance with sec. 1(1) of the 1976 Act; and reclaiming motion allowed.
B v. Islington Area Health AuthorityELR [1991] 1 Q.B. 638 and de Martell v. Merton and Sutton Health AuthorityELR[1993] Q.B. 204, followed.
Opinion that the 1976 Act had not altered the position at common law whereby relatives of a child injured while in uterocould sue for damages without recourse to the fiction that in matters affecting its interest a foetus should be deemed to have been born when the injuries were sustained.
Mrs Audrey Jean Hamilton brought an action of damages in respect of the loss of society of her child, following his death three days after his birth allegedly as a result of negligence on the part of doctors at Craigtoun Maternity Hospital, against Fife Health Board. John David Watson, the father of the child, was the second pursuer.
The parties averred inter alia that: "COND. II On or about 12th August 1976, the first-named pursuer was admitted to Craigtoun Maternity Hospital, St Andrews, at 38 weeks gestation and in early labour. It was her first pregnancy. The second-named pursuer was the child's father and attended with her. She was short in stature, at 147 cms. only. She was admitted at about 3.31 a.m. by which time the membranes had ruptured spontaneously. Labour did not, however, become properly established and at about 10.00 a.m., an oxytocin drip was set up. She was fully dilated by 5.30 p.m. At that time, she was under the care and supervision of a registrar, Dr Patel. He decided to proceed to forceps delivery. His reasons for doing so are to the pursuers unknown. There were no signs of foetal distress. The first stage of the first pursuer's labour is noted as having ended at 5.50 p.m. She had, accordingly, had virtually no opportunity to push when the decision to intervene with forceps was taken. The defenders' averments in answer are denied except in so far as coinciding herewith. Ans. 2 Admitted that on or about 12th August 1976, the first-named pursuer was admitted to Craigtoun Maternity Hospital, St Andrews. Believed to be true that it was the pursuer's first pregnancy. Believed to be true that the second-named pursuer was the child's father. Not known and not admitted that he attended hospital with her. Admitted that the first-named pursuer was 147 cms. in height. Admitted that she was admitted to hospital at about 3.30 a.m. Admitted that at the time of admission the membranes had ruptured spontaneously. Admitted that at about 10.00 a.m., an oxytocin drip was set up. Admitted that at certain times, the first-named pursuer was under the care and supervision of Dr Patel. Admitted that Dr Patel decided to proceed with forceps delivery.Quoad ultra denied except insofar as coinciding herewith. Explained and averred that the oxytocin drip was commenced to accelerate labour because by about 10.00 hours, the contractions were only fair. At about 17.00, the cervix had reached near full dilation. The foetal head was in the right occipito transverse position below the level of the ischial spines, a condition usually referred to as “deep transverse arrest”. The foetal heart was ranging from 140 to 120. In the circumstances, it was decided to prepare for cephalic rotation and forceps extraction. Dr Patel held the appointment of senior house officer.
"COND. III In preparation for his attempt at forceps delivery, Dr Patel first tried to rotate the baby's head manually. He failed, without realising, to do so successfully. He then attempted to apply forceps to the baby's head, several times, but without success. Having failed to rotate the baby' s head to the occipito anterior position, his initial attempts at forceps delivery were bound to fail. He summoned a consultant obstetrician, for assistance and Dr Fairlie, consultant obstetrician, attended. He attempted to deliver the baby using Keilland's forceps, to account for the fact that I the baby' s head was in the left occipito anterior position, i.e., still requiring rotation before delivery. He made three attempts to deliver the baby using Keilland's forceps, but failed. He then removed the forceps and rotated the baby's head manually. He then applied Neville Barnes forceps and the baby was delivered, with some difficulty. He advised the second-named pursuer that he would be lucky if his wife survived. He was agitated. He had been heard by the second pursuer to be shouting at Dr Patel, shortly after his arrival. They appeared to be arguing. The cord had been compressed during delivery by the aforesaid forceps. The baby was noticed to have become distressed (or at risk of asphyxia) prior to Dr Patel's attempts at forceps delivery. The baby was in a poor condition at birth and died three days later from a tenorial tear and intracranial haemorrhage as a result of the aforesaid forceps procedures. The baby was baptised and named David John prior to his death. With reference to the defenders' averments in answer, admitted that at birth, the baby showed symptoms of severe asphyxia. Quoad ultra the defenders' averments in answer are denied except insofar as coinciding herewith.Ans. 3 Admitted that in preparation for his attempt at forceps delivery, Dr Patel first tried to rotate the baby's head manually under explanation that he believed that he had succeeded in achieving rotation. Admitted that, thereafter, he attempted a forceps delivery. Admitted that he summoned a consultant obstetrician for assistance. Admitted that Dr Fairlie attended. Admitted that Dr Fairlie used Keillands forceps. Admitted that Dr Fairlie removed the Keillands forceps and rotated the baby's head manually. Admitted that Dr Fairlie applied Neville Barnes forceps and the baby was delivered. Admitted that the umbilical cord compressed during delivery. Admitted the baby was in poor condition at birth and died later. Admitted that the cause of death was a tenorial tear. Quoad ultra denied except in so far as coinciding herewith. Explained and averred that prior to attempting to rotate the baby's head, Dr Patel attempted to contact Dr Herriot, the obstetrician in charge of the case and the duty on-call obstetrician. His attempts to contact Dr Herriot were unsuccessful. Contact was subsequently made with Dr Fairlie by telephoning his home. Dr Fairlie was contacted at 18.24 and arrived at the hospital 11 minutes later. On arrival at the hospital, Dr Fairlie confirmed the diagnosis of deep transverse arrest. The umbilical cord was prolapsed by the side of the head and was compressed between the head of a normal-sized baby and the pelvic wall of a small pelvis. Dr Fairlie had diagnosed that asphyxia was inevitable. The presence of meconium supported the diagnosis of asphyxia. Urgent delivery was the only possible way of saving the baby's life. Dr Fairlie made a correct cephalic application of the Keillands forceps without difficulty but attempts to rotate the baby's head gently to an occipito-anterior position were met with resistance. He, therefore, decided to remove the Keillands forceps and rotate the head manually. This was successful. Correct application of the Neville-Barnes forceps was made with the head in the occipito-anterior position and appropriate traction was applied to effect delivery. On application of traction it was apparent that there was some contraction of the pelvic outlet. Nevertheless, the traction was successful. At birth, the baby showed symptoms of severe asphyxia. This was treated immediately by Dr Fairlie by endotracheal intubation and positive pressure oxygen insuflation. Having regard to the fact that the umbilical cord had prolapsed it was essential that a forceps delivery be attempted if the baby was to be born alive. The interval between calling an anaesthetist from Kirkcaldy and delivery of the baby by caesarean section would have been at least one-and-a-half hours and in the judgment of Dr Fairlie the baby would not have survived that interval of time. A tear of the tenorium cerebelli occurs in a spontaneous delivery but it is more likely to occur when the head had to accommodate, by moulding, to the size and shape of a small pelvis. It is also well established that a tenorial tear may occur without cerebral haemorrhage and that superimposed asphyxia may cause cerebral haemorrhage. At 18.45, Dr Herriot arrived at Craigtoun...
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