Thompson v Bradford
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Jonathan Parker,Sir Christopher Staughton |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1439 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2004/2442 and B3/2004/2442(Z) |
| Date | 29 November 2005 |
[2005] EWCA Civ 1439
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Queens Bench Division
In the High Court of Justice
Mr Justice Wilkie
HQ03X01801
Lord Justice Waller
Lord Justice Jonathan Parker and
Sir Christopher Staughton
Case No: B3/2004/2442 and B3/2004/2442(Z)
Martin Spencer QC (instructed by Leigh Day & Co, Solicitors) for the Respondent
John Grace QC (instructed by Berryman Lace Mawer, Solicitors) for the Appellant
Introduction
This, as all have recognised, is a tragic case. Hamish Thompson was born on 1 st November 1997. He was given vaccinations on 29 th December 1997 one of which was intended to immunise him against contracting polio. Within a few weeks, from the very vaccine he was given, he contracted a vaccine strain of polio (VAPP). He is now severely disabled. On 29 th December 1997 Hamish's parents were concerned as to whether Hamish should be vaccinated on that day being concerned about a boil on Hamish's backside. Dr Bradford a general practitioner advised that the immunisation could proceed on that day. That advice by his judgment given on 3 rd November 2004, Wilkie J held was proper advice. However the judge went on to hold that there were certain matters about which the doctor should have informed the parents in relation to which "fault" was established. He further held that if they had been informed of those matters, they would not in fact have proceeded with the vaccination on that day, pending the boil clearing up. He also held that, although no doctor could have foreseen that the existence of the boil, or more accurately the lancing of the boil, might provide a greater potential for Hamish contracting polio than existed in any case where a baby was vaccinated, factually it was the boil via which polio had been contracted. On that basis he held that the defendant was liable in damages for the injury flowing from the contracting of polio from the vaccine.
Doctor Bradford appeals against the judge's finding of liability. He challenges the finding that he breached any relevant duty. He challenges in any event the factual findings either that the parents would in fact have postponed the vaccination or that polio was contracted via the wound left by the lancing of the boil. Even if those challenges fail, he challenges the judge's finding that any "fault" found was causative of the damage suffered. Hamish cross-appeals against the judge's finding that Dr Bradford was not negligent to advise that immunisation could proceed.
The facts
The facts are fully set out in the judge's judgment, and I will try to summarise them without the necessity of explaining such disputes as arose and were resolved by the judge.
Hamish was born on 1 st November 1997. Mrs Tighe, the health visitor, visited first on 12 th November and left a booklet entitled "Personal Child Health Record". On that occasion she discussed immunisation with Hamish's mother. The booklet contained information about the reasons for immunisation, the very limited circumstances in which a child should not be immunised, and the circumstances in which the child should receive immunisation notwithstanding the fact that the child may be unwell with a cold or taking medicine such as antibiotics. The book also contained a timetable for immunisations including the specific date of 29 th December for Hamish's two month immunisations for diphtheria, tetanus, whooping cough, polio and Hib.
On 19 th November Mrs Tighe made a second visit. She made certain checks which were satisfactory except she noted Hamish had a sticky eye, but she also accepted that Mrs Thompson drew her attention to the fact Hamish had developed a large spot on his left buttock. Mrs Tighe advised Mrs Thompson to keep an eye on that spot and after two or three weeks this spot cleared and faded away.
Almost as soon as the first spot had faded away, a second spot larger than the first began to develop on the right buttock. This was seen by a doctor on Hamish's six week check up, and the advice was to put Vaseline on it, and keep an eye on it.
The spot did not go away and became larger. Hamish became uncomfortable and increasingly irritable, and by 27 th December more than two weeks after the spot first appeared he became more irritable and uncomfortable. On the night of 27 th/28 th December Mrs Thompson was sufficiently concerned to contact the out of hours' doctor by telephone. That doctor, Dr Hadfield, having asked various questions, advised on the telephone that it would be alright to wait to see the nurse at Hamish's eight week check up the next day.
On 29 th December Mr and Mrs Thompson took Hamish to the clinic both for the eight week check up and for the purpose of having him immunised. They saw a health visitor Mrs Goulding. She found a hard inflamed area on the anal edge, and was sufficiently concerned to discuss it with Dr Grey, who without inspecting Hamish prescribed antibiotic cream. Mrs Goulding advised Mrs Thompson to apply the antibiotic cream and if there was no improvement to come back within two or three days to see the doctor. Mr and Mrs Thompson asked whether they should proceed with the immunisation and Mrs Goulding indicated they should.
Mr and Mrs Thompson then took Hamish to the practice nurse, Mrs Dallimore, who was to undertake the immunisation. She asked whether Hamish was well and the Thompsons explained the history of the first spot and the new boil. At the trial Mrs Dallimore, because she had misread her notes, suggested that there was some discussion about Hamish's hip. Her refusal to accept that she had misread her notes made a bad impression on the judge, as did the fact that Dr Bradford adopted her error.
Mrs Dallimore was sufficiently concerned about the boil to indicate it should be seen by one of the doctors. Dr Grey was unavailable and Dr Bradford came to examine Hamish.
Dr Bradford asked questions designed to elicit whether Hamish was "systemically unwell". Dr Bradford was acting in accordance with the guidance given to GPs in what is known as "The Green Book". He was quite properly seeking to ascertain whether there were any contraindications to immunisation. Relevant advice in the "Green Book" was as follows:—
"7.2 General Contraindications
7.2.1 If an individual is suffering from an acute illness, immunisation should be postponed until recovery has occurred. Minor infections without fever or systemic upset are not reasons to postpone immunisation. Antibody responses and incidence of adverse reactions were the same in children with or without acute mild illness, when given MMR vaccine. The acute illnesses were upper respiratory tract infection, diarrhoea or otitis media.
The following conditions are NOT contraindications to immunisation
e. Contact with an infections disease.
g. Treatment with antibiotics or locally-acting (e.g. topical or inhaled) steroids.
Other contraindication issues
7.7.7 Surgery is not a contraindication to immunisation, nor is recent immunisation a contraindication to anaesthesia or surgery. Recent receipt of OPV does not contraindicate tonsillectomy. In the United States, where recent OPV administration has never been considered a contraindication for tonsillectomy, there has been no recorded case of vaccine associated poliomyelitis following this procedure."
He was provided by the Thompsons with the history including the calling of the duty doctor on the night of 27 th/28 th. He found that Hamish did not have a fever. Hamish did not exhibit distress or irritability save when Dr Bradford pressed the boil gently to express some pus which was to be subjected to analysis. He diagnosed a possible perianal abscess and prescribed a course of oral flucloxacillin suspension to be taken 4 times daily, and indicated that they should revert to him if in a couple of days the abscess did not resolve.
Mr and Mrs Thompson raised with Dr Bradford whether in the light of his examination and their concerns they should proceed with vaccination that day. Dr Bradford told them there was no reason not to go on with immunisation that day using, as the judge found, an inappropriate phrase in giving that advice.
It is common ground that Dr Bradford did not go into the question whether the immunisation should be postponed. It is common ground that he did not do that which a competent GP should have done which was to explain (i) that Hamish's presentation of a recurring perianal abscess was unusual, and (ii) that the perianal abscess may have required surgery. It is however important to emphasise that the reason why a competent GP should have provided this information, [if it should have been provided in the context of advising whether the immunisation should proceed as opposed to advice limited to the treatment of the boil (a matter to which I shall return below)], was not because any GP would have thought there was a risk of Hamish contracting polio from the vaccine via an unusual abscess or surgery. It was because if Hamish had the vaccinations, and then within a short time had surgery, first it might be very uncomfortable for Hamish, if he were to suffer a reaction to one or other of the vaccinations to have the discomfort of surgery all at the same time; or possibly because the vaccinations, might be rendered ineffective—I stress—in the sense of failing to immunise not actually causing VAPP.
Dr Isaac, the expert called on behalf of Hamish, accepted...
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