M C (ap) V. Borders Health Board
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Bonomy,Lord Philip |
| Neutral Citation | [2012] CSIH 49 |
| Court | Court of Session |
| Docket Number | A394/07 |
| Published date | 06 June 2012 |
| Date | 06 June 2012 |
| Year | 2012 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Bonomy Lord Philip | [2012] CSIH 49 A394/07 OPINION OF THE COURT delivered by LORD BONOMY in the cause MC (Assisted Person) Pursuer and Respondent; against BORDERS HEALTH BOARD Defenders and Reclaimers: _______ |
Defenders and Reclaimers: I Ferguson, QC, Haldane, QC; NHS Central Legal Office
6 June 2012
Background
[1] The pursuer seeks damages as parent and guardian of her son N, born 23 November 1997. N suffers from spastic tetraplegic cerebral palsy and neo-natal encephalopathy which the pursuer claims was contributed to by fault on the part of staff at Borders General Hospital and the hospital itself.
[2] The claim was initially advanced on four grounds of fault. Following a proof on the question of fault and negligence the Lord Ordinary, by interlocutor dated 3 June 2011, rejected two of the grounds, but found fault and negligence established in respect of the other two The first related to the failure of midwife, Margaret Anne Davidson, to take appropriate action in dealing with a telephone call from the pursuer, and the second to the failure of the another midwife, Gaynor Elizabeth Terris, to ask appropriate questions when she answered a call from the pursuer in the early hours of the following morning. In this reclaiming motion the defenders challenge the Lord Ordinary's finding of fault and negligence in respect of the first of these calls, but not the second. More particularly, the challenge is to a finding in fact from which the finding of fault flows. As a result, there will inevitably be a further proof on the question of causation.
The critical fact
[3] The pursuer gave very clear evidence, which the Lord Ordinary accepted, about the circumstances of a telephone call she made to the hospital about 9.16 pm on the evening of 22 November when she spoke to midwife Davidson. The pursuer made the call because, when she wiped herself after going to the toilet, there was a green sticky substance on the tissue which caused her concern. She described it as a "dollop", which if scooped together might be about the size of a golf ball. Her evidence was that she told the midwife that she had been to the toilet, that there had been some green sticky stuff, and that she didn't know what it was. The Lord Ordinary found as a matter of fact that in the course of the call the pursuer told midwife Davidson that she had passed a green sticky substance vaginally. That is the finding that the defenders contend the Lord Ordinary was not entitled to make. In the event that he was, it is accepted by the defenders that there was fault on the part of the midwife in respect that that information ought to have led her to arrange for the immediate admission of the pursuer to hospital. The description given by the pursuer was indicative of the possible passage of meconium, the contents of the foetal bowel usually passed following birth, which when passed prior to birth is indicative of foetal distress. The Lord Ordinary also accepted the pursuer's evidence that when told about the discharge the midwife replied that that was a show and that anything could happen in the next week. The show is a mucous discharge passed vaginally shortly before labour. It may be clear, pink or streaked with blood.
The Law
[4] The applicable law was not in dispute. Under reference to a number of authorities, particularly Thomas v Thomas 1947 SC (HL) 45, Millars of Falkirk Ltd v Turpie 1976 SLT (Notes) 66, Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 and Hamilton v Allied Domecq Plc [2005] CSIH 74, 2006 SC 221, counsel for both parties were at one in submitting that, before an appellate court may disturb a finding in fact made by a judge at first instance, it must be satisfied that the judge was "plainly wrong". That might be because the evidence did not entitle him to make the finding challenged, or because factual findings critical to the conclusion reached are unsupported by the evidence, or because the judge's reasoning does not support the conclusion reached. The jurisdiction of the appellate court must be exercised within narrow limits, having regard to the advantages which a judge at first instance enjoys over the appellate court, including the opportunity to form an impression as to the credibility or reliability of the evidence of a witness from observing the witness give evidence and listening to the witness's testimony. On the other hand, where a finding of fact cannot be justified following scrutiny of the printed evidence and the first instance judge's reasoning, then the appellate court has a power and a duty to reverse that finding.
The decision of the Lord Ordinary
[5] Having recorded the evidence of all nine witnesses in some detail and the submissions of the parties, the Lord Ordinary then dealt discretely with each of the four cases of fault. His reasons for finding midwife Davidson to be at fault are set out in paragraphs 123 to 128 of his Opinion as follows:
"[123] The first matter to be determined in this respect is what was said in the course of this telephone conversation. Determination of this issue depends on an assessment of the credibility and reliability of the pursuer, her husband and midwife Davidson.
[124] I found the pursuer to be generally a credible and reliable witness in relation to the events before her admission to BGH. She accepted that her recollection of events after her admission to hospital was vague in parts, and she let others take control. However, although like all the other witnesses she was speaking to events more than thirteen years ago, I formed the impression that her recollection of this first call was reasonably clear. I also found her to be a truthful witness. She struck me as doing her best to assist the court, and she did not exaggerate or embellish her evidence. She was quite prepared to state that she could not remember something, and she conceded that her original recollection was that she made four telephone calls to the hospital but that this had been shown to be wrong. I accepted her version of the first call. I found the pursuer's husband to be a less reliable witness, although I do not suggest that he was not doing his best to be truthful. His recollection of the precise sequence of events after he took the pursuer to BGH was in my view somewhat confused. However, his recollection of the first call was clear. He supported his wife about the presence of the green sticky discharge, that she mentioned it when speaking to the lady in the first call, and that the lady at BGH was reluctant that they should attend at that stage and sought to dissuade them from doing so.
[125] Against this evidence, midwife Davidson could not remember the first call at all. I make it clear at the outset that I make no criticism of her in this respect: she impressed me as being a truthful witness, and she was doing her best to help the court. She deserves credit for not claiming to remember this conversation. She stated that she took hundreds of calls each year, and it is no surprise that she could not remember this particular call. However, the fact remains that she could not remember it; all she could do was to state what her normal practice would be.
[126] Apart from the pursuer's general demeanour when giving evidence, there are several factors which give some support to her evidence. This was her first pregnancy; it is not surprising (particularly standing the subsequent difficulties with N) that she should have a clear recollection of the events leading up to her admission to hospital. The findings after her admission to hospital are entirely consistent with her noticing a green sticky discharge shortly before the first call. Given that the presence of this green sticky discharge was the only reason for the telephone call, it seems unlikely that she would fail to mention in the course of the call that she had had this green sticky discharge, or to ask what it was. There is no reason to think that she would volunteer the word "show", nor that she would describe what she had found as her show, rather than as a green sticky discharge. Her position in evidence was that if she had been asked if it was her show, she would have replied that it was green sticky stuff and what was it. Moreover parties are agreed that the entire duration of this call was one minute and twenty four seconds. While I accept Mr Regan's evidence that it would be possible to elicit all the necessary information from the pursuer in this time, the duration of the second call was significantly longer than that of the first, and midwife Davidson appears to have obtained information on a variety of subjects. The length of the call does not suggest that there was much discussion about each of these. If the pursuer had merely stated that she had had some form of discharge, it seems unlikely that midwife Davidson would have had sufficient time in the course of this call to obtain further information as to its colour and consistency. In the course of such a short call, it seems unlikely that even a midwife of her experience would be able to assess with confidence that the pursuer knew what she was talking about if indeed the pursuer did describe this as her show.
[127] All that midwife Davidson could base her evidence on was her normal practice when taking such a call, and the terms of the note which is page 39 of No 7/1 of process. This note was not taken at the time of the conversation, and (a source of comment by Mr Regan) does not contain details of the pursuer's address or telephone number. I accept the point made on behalf of the defenders that it was such an elementary matter that if the pursuer had reported a green sticky discharge she would have been advised to come to hospital immediately, that one would expect midwife Davidson to give such advice...
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