Whitehouse (A.P.) (Suing by his Mother and Next Friend Eileen Whitehouse) v Jordan and Others

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Bridge of Harwich
Judgment Date19 Feb 1981
Judgment citation (vLex)[1981] UKHL J0219-1

[1981] UKHL J0219-1

House of Lords

Lord Wilberforce

Lord Edmund-Davies

Lord Fraser of Tullybelton

Lord Russell of Killowen

Lord Bridge of Harwich

Whitehouse (A.P.) (Suing by His Mother and Next Friend Eileen Whitehouse)
(Appellant)
and
Jordan and Others
(Respondents)
Lord Wilberforce

My Lords,

Stuart Whitehouse is a boy now aged ten: he was born on 7th January 1970, with severe brain damage. In these circumstances, tragic for him and for his mother, this action has been brought, by his mother as next friend, in which he claims that the damage to his brain was caused by the professional negligence of Mr. J. A. Jordan who was Senior Registrar at the hospital at Birmingham where the birth took place. There were originally also claims against Professor McLaren, the consultant in charge of the Maternity Unit to which Mr. Jordan belonged, and also against the hospital on its own account. But these have disappeared and the hospital, more exactly the West Midland Regional Health Authority, remains in the case only as vicariously responsible for any liability which may be established against Mr. Jordan.

A large number of claims have been made since the event most of which have now been eliminated or withdrawn. The negligence ultimately charged against Mr. Jordan is that in the course of carrying out a "trial of forceps delivery", he pulled too long and too strongly upon the child's head, thereby causing the brain damage. The trial Judge, after a trial of eleven days in which eminent medical experts were called on each side, and numerous issues were canvassed, reached the conclusion which he expressed in a most careful judgment, that the plaintiff has made good his case: he awarded £100,000 damages. His decision was reversed by a majority of the Court of Appeal (Lord Denning M.R. and Lawton L.J., Donaldson L.J. dissenting) which refused leave to appeal to this House. Leave was, however, granted by an Appeal Committee. The essential and very difficult question therefore has to be faced whether, on a pure question of fact, the Court of Appeal was justified in reversing the decision of the trial judge.

My Lords, I need not elaborate upon the principles of law which have to be applied. First, it is necessary, in order to establish liability of, and to obtain an award of compensation against, a doctor or a hospital that there has been negligence in law. There is in this field no liability without proof of fault. Secondly, there are strict limitations upon this power of an appeal court to reverse the decision of the judge on an issue of fact. These have been well and clearly stated notably by Lord Sumner in The Hontestroom [1927] A.C. 37, and by the Court of Appeal in The Glannibanta (1876) 1P.D. 283, 287. The Court of Appeal had them fully in mind. The main reason why, in the absence of an error of law, the judgment of the trial judge calls for the utmost respect, is that he has seen and heard the witnesses, often, as in this case, including the rival parties (the mother and Mr. Jordan). The strength of this consideration will vary from case to case according as conclusions have to be reached as to credibility, or based on demeanour. In the present case they exist but are not compelling. A view had to be and was expressed as to the credibility of the mother: she was, generally, found to be incapable, in the understandable circumstances, of giving reliably precise evidence, but there remains a question whether, though what she said was unacceptable, something of evidentiary value can be extracted from it. On this I consider that the Court of Appeal was entitled to form an opinion.

As to the evidence of Mr. Jordan, no question of credibility arose: there was no doubt that he was telling the truth as he saw it. The judge did not express disbelief of his account: what he did was to appraise it in relation to such other evidence as was available: this he was entitled to do, but the Court of Appeal, while bound to attach great weight to the judge's views, was able to evaluate it for itself.

Thirdly, there was the evidence of Professor McLaren. I think that his demeanour in the witness box must have had an influence upon the judge's views, and this calls for complete respect. But as I shall hope to show, the ultimate conclusion to be drawn depends much more upon the setting in which his evidence was given, and the relation which it must be thought to have to the events which occurred.

Lastly, there were the expert witnesses. The judge was entitled to be impressed by the way in which each of them gave evidence, but he gave no indication how this factor balanced out. In the end, as to the standard of skill to be expected of Mr. Jordan, there was little difference of opinion: such as there was related to what they respectively thought Mr. Jordan had actually done. This brings us back to the primary issue, as to what really happened in the critical twenty-five minutes.

The appeal brought out, very clearly to my mind, that the issue does not depend upon the endless refinements—for example on the meaning of "impaction"—of the experts, but upon one issue: what, if any, evidence of negligence was provided by (a) the evidence of the mother; (b) the report and evidence of Professor McLaren; (c) the evidence of Mr. Jordan. Unfortunately the solution of this issue remains one of immense difficulty.

Mr. Jordan was at the time a Senior Registrar, of near consultant status, esteemed by his professional colleagues. There is no question but that he brought the utmost care to bear upon Mrs. Whitehouse's labour and delivery. If he was negligent at all, this consisted in a departure, in an anxious situation, from a standard accepted by the profession at the time. Put very briefly, it was said to lie in continuing traction with the forceps after an obstruction had been encountered so that the baby's head became "impacted": I shall not explain this word at this stage. It is obvious that the error, if error there was, lay centrally in the area of the exercise of expert judgment and experienced operation. Mr. Jordan was a member of the obstetrical unit at the hospital headed by Professor McLaren, which had a high reputation: Professor McLaren himself was a distinguished obstetrician, unfortunately ill at the time of the birth.

Mrs. Whitehouse was accepted as thirty years of age: this was her first baby. She was small, only 4ft. 10 1/2in. in height. She was a difficult, nervous and at times aggressive patient. She was unable, or refused, to agree to vaginal examination during her pregnancy, or to have taken a lateral X-ray, though urged to do so by Professor McLaren. These processes would have helped to discover the exact shape of the pelvis. It is fair to say that when Mr. Jordan came on the scene, he was not greatly handicapped by this, because Mrs. Whitehouse was at that time under epidural anaesthetic, and he was able to examine her vaginally. However, he had not the advantage of accurate measurements of the pelvis or of the ischial spines.

I need say little about the pre-natal history of the case. It is fully told in the judgments of the trial judge and the Master of the Rolls. The mother was seen by a number of doctors in the course of her pregnancy including Professor McLaren and Mr. Jordan. I do not think that any criticism can be made of what they did. She was identified clearly as likely to be a difficult case: on 31st December 1969 Professor McLaren recorded that he thought the outlet was tight and that a trial of labour would be needed. This means that labour would be permitted to start and to proceed under close supervision in order to see whether the head could, with safety, proceed down the birth canal.

Mrs. Whitehouse was admitted to the hospital at 0200 hours on 6th January 1970 her membranes having ruptured shortly before. The vertex was recorded as engaged at 0230, and this was confirmed by Mr. Kelly, of consultant status, at 1000 hrs. He noted "fair sized baby".

So at this point we have a small woman, anxious and distressed, awaiting a baby, for her on the large side, with the head in a favourable position and engaged in the pelvis; noted as being probably a case for "trial of labour". At 1130 she was given an epidural anaesthetic which would prevent her from feeling pain and probably from sensation below the waist.

At 1830 she was seen by Dr. Skinner. He examined her vaginally and abdominally. He reported "vertex engaged, foetal heart satisfactory … pelvis seems adequate".

Now comes the period critical for this case. At 2330 Mr. Jordan, who was not on duty, came to talk to Dr. Skinner. On his radio communicator the latter was told that Mrs. Whitehouse was fully dilated. Dr. Skinner thought that this was a case for a more senior man than he, and Mr. Jordan agreed to go: he saw her at 2330 and examined her abdominally and vaginally. He read the notes on the case, which, as the above summary shows, informed him precisely of what he had to deal with: a difficult case calling for great care.

He made a detailed note which I need not copy in full. It gave all the necessary medical details. Against "pelvis" he wrote "small gynaecoid" ( i.e., of appropriate female shape) and then "Normal delivery out of the question".

He decided to embark on a trial of forceps and did so at 2345. The full expression for this is trial of forceps delivery which, as the evidence showed beyond doubt, means that the operator tries to see whether with the use of forceps a delivery per vaginam is possible. This involves two things, first tentative and delicate handling at least at the start; second the necessity of continuously reviewing progress with the obligation to stop traction if it appears that delivery per vaginam cannot be proceeded with without risk. Then delivery will take place by Caesarean section.

Two things must be said at this stage. First—though for...

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