Morrison v Liverpool Women's NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 27 January 2020 |
| Neutral Citation | [2020] EWHC 91 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: D13LV404 |
[2020] EWHC 91 (QB)
THE HON. Mr Justice Turner
Case No: D13LV404
Appeal Ref: 77/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
Ms Elizabeth Francis (instructed by Slater & Gordon (UK) Ltd) for the Claimant
Mr Charles Feeny (instructed by Hill Dickinson LLP) for the Defendant
Hearing date: 16 January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Turner
INTRODUCTION
This appeal concerns the birth of a baby which went wrong. Fortunately, the baby was uninjured but his mother, the claimant, suffered a serious injury to her womb and had to undergo a hysterectomy. She brought a claim alleging negligence on the part of those responsible for her care at the defendant's hospital but liability was denied on the issues both of breach of duty and causation.
The trial came before Mr Recorder McLoughlin in June 2019. He handed down his reserved judgment on 6 September 2019. He found for the claimant and awarded damages against the defendant. The defendant now appeals against his decision to this court.
With one exception, to which I will turn in due course, neither party takes issue with the Recorder's detailed and careful findings of primary fact. Accordingly, the story can be told concisely.
BACKGROUND
At the relevant time, the claimant was expecting her fourth child. She had a history of undergoing two previous caesarean sections and had also sustained a tear to her womb. As a result, her pregnancy was categorised as “high risk” and a plan for her treatment was drawn up which included “elective CS…emergency CS during labour”
On 2 December 2014, her waters broke and she was admitted to the defendant's hospital. It was decided that the way forward, unless the claimant were to go into labour sooner, would involve her undergoing an elective caesarean section on the morning of 11 December. If she were to go into labour earlier, however, the section was to be carried out as an emergency.
And so it was that she was discharged from hospital on 9 December with instructions to return two days later at 7:00 am.
However, nature took its course and the planned timing of the elective caesarean was overtaken by events. At about 2:30 am on 11 December, the claimant duly presented herself to the hospital about four and a half hours before her appointed hour. By then, she was in the latent stage of labour. This is the label given to the period during which contractions are occurring but the cervix has not yet dilated by more than 4 cm. Once this level of dilatation has been achieved, the labour is no longer regarded as being latent but established.
Following her second admission, the claimant was assessed by the defendant's clinicians on four occasions: 2:40 am, 4:10 am, 5:35 am and 7:05 am. It was upon the last occasion that the decision was made to proceed to a caesarean section. The claimant gave birth to a baby boy at 8:36 am. However, she was subsequently found to have sustained damage to the posterior wall of her uterus which was not susceptible of repair. In consequence, a hysterectomy was performed.
At trial, the central issue relating to breach of duty was as to whether a decision should have been made at 4:10 am to proceed to a caesarean section. It was agreed that such a decision was not mandated at 2:40 am, so soon after the claimant's arrival. At 5:35 am, on the other hand, preparations were already afoot to deal with another emergency caesarean and no criticism was made about the decision to prioritise the progress of that procedure.
The claimant's expert, Mr Waterstone, concluded that no reasonable body of medical opinion could support the decision not to proceed to a caesarean section following the appraisal at 4:10 am. Mr Irons, on behalf of the defendant, concluded that a caesarean section was not mandated at this time. Each gave evidence in support of his respective opinion in their written reports and orally at trial.
It was further argued on behalf of the defendant on the issue of causation that the claimant was unable to prove on a balance of probabilities that the tear to her uterus occurred after the time at which the caesarean section would have been performed even had there been a decision to proceed with it at 4:10 am.
THE GROUNDS OF APPEAL
The First Ground of Appeal
The first ground of appeal is that the structure of the Recorder's judgment was so deficient and his reasons for reaching his conclusion so inadequate that his findings should not be allowed to stand. In this context, the defendant relies on the observations of the Court of Appeal in Simetra Global Assets Ltd and Another v Ikon Finance Ltd and 11 Others [2019] EWCA Civ 1413. However, merely because a judgment could have been better expressed or more logically structured does not automatically render it susceptible to appeal. Of course, circumstances may arise in which the reasoning in a judgment is so inadequate or incomplete that it cannot be allowed to stand. Nevertheless, in cases where the judgment, although, in parts, infelicitously expressed, can still be reasonably understood despite its presentational imperfections then the appellate court will not interfere. Care should be taken not to collaborate in the triumph of form over substance. In this case, the Recorder set out the evidence and arguments before him both accurately and in detail. Thereafter, he gave his reasons for reaching the conclusions at which he arrived. I am satisfied in the circumstances of this case that the broader allegations of structural and analytical imperfections are not of sufficient merit upon which to found a freestanding ground of appeal. Instead, this Court ought to concentrate on the substantive complaints relating to the judge's process of reasoning.
The Second Ground of Appeal
One such complaint raised in the second Ground of Appeal relies upon the fact that the Recorder made no direct reference to the well-known Bolam/ Bolitho test for breach of duty in the context of claims in professional negligence. I am readily persuaded that it would have been preferable for an express reference to have been made to this test within the context of the Recorder's reasoning. Nevertheless, I am not satisfied that it would be fair to conclude that he did not, in fact, apply this test. It is to be noted that he made repeated reference, at earlier stages in the judgment, to the basis upon which the claimant's case on breach of duty was advanced. At paragraph 47, for example, he records the opinion of Mr Waterstone, the claimant's expert, to have been that: “No reasonably competent obstetrician would have failed to make the decision to deliver by 4:10…” Later, he summarised the position of Mr Irons, the defendant's expert, at paragraph 83 to the effect that: “He felt that a reasonable body of opinion would have gone ahead with a CS at 4:00 am and alternatively a reasonable body would have left it.” Having preferred the evidence of the claimant's expert over that of the defendant, I am satisfied that, by necessary implication, he was applying the same test which the claimant's expert had set for himself and which was, in law, the appropriate one.
A further criticism is directed towards the fact that Mr Waterstone was unable to point to literature or guidance directly in support of his conclusions. The closest he came was his reference to the Green-top Guideline published by the Royal College of Obstetricians and Gynaecologists which provides that planned VBAC [Vaginal Birth After Caesarean] is contraindicated in women with previous uterine rupture or classical caesarean scar. This guidance is, however, of limited use. A vaginal birth was never part of the plan for the claimant and, indeed, it was foreseen that it should be avoided, if necessary, by carrying out an emergency caesarean. It gives no direct assistance on the issue as to the anticipatory timing of any caesarean before vaginal birth might otherwise take place. On the other hand, Mr Irons, on behalf of the defendant was also unable to identify any significant guidance or literature in unequivocal support of his approach.
Undoubtedly, in very many cases where disputes arise between experts in the context of claims in respect of clinical negligence, there exists a substantial body of literature and guidance from which each side seeks to draw comfort in order to support its respective position. It would be unduly mechanistic, however, to conclude that the absence of such material is, of itself, an insurmountable barrier to a finding of breach of duty. The complexities of clinical practice are bound to give rise to an almost limitless number of permutations of circumstances not all of which could be expected to be directly covered in guidance or literature. As it was, Mr Waterstone relied upon a combination of a logical assessment of the situation which presented itself at 4:10 am backed up with his many years of clinical experience in this area. Doubtless, the claimant's hand would have been strengthened further if Mr Waterstone had been able to draw upon more helpful guidance or literature but, on the facts of this case, the absence of such material fell far short of being automatically fatal to the survival of his conclusions. Again, the sustainability of the claimant's case must hinge upon a more focussed analysis of the evidence and of the Recorder's reasoning. This Ground of Appeal must, therefore, also fail.
The Third Ground of Appeal
The third Ground of Appeal relates to two...
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