Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
[1987]
[COURT OF APPEAL]
731
^
1 Q.B.
Wilsher v. Essex A.H.A. (C.A.)
whether they had performed to the standard reasonably to be
expected of professional men holding the post they occupied in
that unit but without regard to the fact that inexperienced
doctors gaining knowledge of a specialist branch of medicine
were necessarily employed in the National Health Service (post,
pp. 7 4 9 G 7 5 0 F , H751C, 7 5 4 C - D , 7 5 6 C - D , 7 7 4 C - E , 775C, 776G,
778F779A).
(3) That the weight of expert evidence was that high levels
of oxygen could in the early stages of the plaintiff's life have led
to the development of retrolental fibroplasia and, in the
circumstances, the plaintiff had proved that the negligence of
the senior registrar could have caused or contributed to the
development of that condition; that, although the administration
of too much oxygen was not the only factor to be suspected in
the state of medical knowledge, its administration while the
catheter was situated in the vein had increased the possible risk
factors for a premature baby developing the condition; and (Sir
Nicolas Browne-Wilkinson V.-C. dissenting) that since the
negligence of the senior registrar made it more likely that the
plaintiff would contract the disease, the plaintiff had established
both a vicarious breach of duty by the defendants and a
sufficient connection with the loss the plaintiff had suffered to
make the defendants liable in damages and, accordingly, the
appeal should be dismissed (post, pp. 766E-F, 771B-C, G772c,
D-E, 7 7 6 E ) .
732
Wilsher v. Essex A.H.A. (C.A.)
Decision of Peter Pain J. affirmed on different grounds.
[1987]
^
APPEAL
733
1 Q.B.
"
734
Wilsher v. Essex A.H.A. (C.A.)
[1987]
"
735
1 Q.B.
"
736
Wilsher v. Essex A.H.A. (C.A.)
[1987]
737
1 Q.B.
consisted of findings of fact that, inter alia, there was negligent failure to
interpret the X-rays correctly and to check the monitor sufficiently
frequently and that by reason of that negligence the plaintiff was at risk
from RLF and that any further exposure was likely to increase the risk
to a greater extent than it would in a baby who had not been so
exposed.
It was at least implicit in the judge's approach to causation that the
defendants' negligence led to periods of exposure to oxygen which
materially increased the risk of RLF to the plaintiff. Alternatively, the
case of Clark v. MacLennan [1983] 1 All E.R. 416 was correctly
decided.
The judge applied the correct test and on a balance of probabilities
he found that the period when the plaintiff was exposed to excess
oxygen had caused or materially contributed to the development of
RLF.
Alternatively, on the basis of the findings made and of the evidence
relied upon in his judgment the judge was entitled to make and should
have made the finding that the plaintiff had established a prima facie
case on liability, and on the same basis the judge was entitled to make
and should have made the finding that certain of the periods of exposure
probably caused or materially contributed to the development of RLF.
Kennedy Q.C. replied.
Cur. adv. vult.
738
Mustill L.J.
[1987]
This action, and the resulting appeal, give rise to three groups of
questions:
1. Were there occasions during Martin's stay on the special baby care
unit when the oxygen tension of his blood was allowed to attain and
remain at an unacceptably high level? For this purpose, it is necessary to
distinguish between a related series of incidents occurring in the first two
days after the baby's birth, and a number of isolated occasions during
the succeeding weeks. I will call these the "first episodes" and "later
episodes" respectively.
2. Did any of the episodes of which complaint is made take place
through any breach of duty for which the defendants are liable?
3. If so, was any breach of duty the proximate cause of the physical
affliction, and the financial loss, of which the plaintiff now complains?
At the trial, there were other issues, relating to the aetiology of the
plaintiff's current problems with his right eye, and to the proper
quantification of his financial loss. The findings of the judge on these
issues are not now disputed.
Narrative
Before addressing the difficult issues of fact and law to which these D
questions give rise, it is convenient first to summarise the physiological
and clinical background to the dispute, and then to set out in outline
those aspects of the story which are not in dispute.
First, as to the bloodstream. Blood is the medium by which
substances are carried from one part of the body to another. To each
living cell are conveyed the materials which it needs in order to live and p
perform its own particular task: one of these materials is oxygen. The
bloodstream also removes from the cells those waste products whose
presence inhibits their functions: amongst these products is carbon
dioxide. The blood is enabled to act as an efficient carrier of oxygen and
carbon dioxide by the special properties of haemoglobin, the principal
component of the red blood cells, which has the capacity to enter into
reversible reaction with oxygen and carbon dioxide. The amount of F
these gases taken up by the haemoglobin is dependent on the partial
pressure (or tension) of the gas in the blood. The reaction is rapidly
reversible. Thus, the haemoglobin takes up oxygen under the high
partial pressures encountered at the alveoli in the lungs and releases it
rapidly when the partial pressure falls, at the tissues. Haemoglobin does
not absorb oxygen indefinitely. There comes a point at which all the Q
available haemoglobin has been converted to oxyhaemoglobin. This is
reached at a partial pressure (PO2) of about 12 KiloPaschals (KPa).
Beyond this point, a very small proportion of gas enters directly into
solution in the blood fluids. As partial pressures are increased, the
amount of oxygen thus transported by the blood is increased, but not in
an efficient manner, so that there is no point in increasing the PO2
indefinitely.
H
The transportation of carbon dioxide proceeds in a similar manner,
but in the reverse direction. The partial pressure of carbon dioxide
(PCO2) and the PO2 are related in a manner which it is unnecessary to
739
1 Q.B.
"
MustiU L.J.
740
Mustill L.J.
[1987]
today who would have perished, if born more than 50 years ago: or, if A
they had survived, would have suffered from irreversible brain damage.
But after a while it began to seem that there might be a price to pay. In
the early 1940s a quite new affliction was noticed. It was found that
some premature babies were suffering from a formation of fibrous tissue
behind the lens of the eye. For this novel complaint the term retrolental
fibroplasia (hereafter "RLF") was coined. For a while, it was regarded
simply as a disease of prematurity: i.e., as a disease to which premature "
babies were subject, but which had not previously been observed,
because most premature babies died. In the 1950s, however, it was
observed that there appeared to be an association, if not a correlation in
strictly statistical terms, between the use of enriched oxygen to save
premature babies from death or brain damage and the incidence of
RLF. This led to a reaction, whereby the use of enriched oxygen Q
environments was abated. The consequence was expressed graphically in
an article entitled "Cost of Preventing Retrolental Fibroplasia" by K. W.
Cross, "The Lancet," October 1973, vol. 2, p. 954:
"It is suggested that while the policy of restricting the amount of
oxygen in incubators has diminished the number of cases of
retrolental fibroplasia (RLF) in the U.K., it has concurrently
increased the number of deaths in the first 24 hours of life. A rough
estimate suggests that for each case of blindness prevented, there is
an excess of 16 deaths. It is further suggested that the proper cost
of preventing RLF would be the supply of adequate equipment and
staff in all premature-baby units."
Once again there was a reaction. The assumption that excess oxygen was E
likely to be a prime cause of RLF continued to exercise an important
influenceperhaps, as we shall later see, more important in the past
than it is today. At the same time, the price in death and brain damage
of avoiding blindness in the premature child was too high to be
uncritically accepted. A balance must be struck. The baby should have a
high enough PO2 to keep it alive and well, but not so high as to risk
damage to its sight. Since the question is one of balancing risks, there ^
can be no clear cut-off point at which the PO2 level passes from the
wholly acceptable to the wholly unacceptable. There was, however, a
broad consensus in the evidence led at the trial that, if the PO2 level
rose above 15 KPa of blood measured in the abdominal aorta (which
would have a PO2 less than the blood at the retina), steps should
promptly be taken to reduce it. Some witnesses would have preferred to Q
put the level rather lower than this. A level at or rather above 5 KPa
would reflect a measurement of pure venous blood, and would of course
be much too low. Again, there are no absolute requirements for the
carbon dioxide tension, but a reading of 10 KPa or above would be
markedly too high. For a good acid balance, the pH of the blood should
be about 7.42.
At the time in question, the means of maintaining this balance were ^
three-fold. First, there was informed observation of the child's
appearance. A child suffering from oxygen deficiency would become
cyanosed: it would seem "dusky." A child with sufficient oxygen would
741
1 Q.B.
"
Mustill L.J.
742
Mustill L.J.
[1987]
743
1 Q.B.
j)
Mustill L.J.
day and two by night. There were also two or three staff midwives or
neonatal nurses as well as subordinate nursing staff. In 1978 the unit
housed on an average some 15 children, of whom a maximum of two
would be on ventilators or in incubators.
Martin Wilsher was born at the Harlow Hospital at 2325 hours on
the night of Friday 15 December 1978. Although it was the weekend,
Dr. Wiles was standing by, because the baby was so much premature.
Martin was as ill as could be expected. Dr. Wiles said that he was a very
floppy blue baby. There were problems getting him to breathe, and he
was intubated. After eight minutes the tube was out and he was taken
down to the special baby unit. His colour improved when an oxygen
mask was applied.
Dr. Wiles promptly began the usual procedures for a baby so
premature. In particular, he set out to pass an arterial catheter for
connection to the Searle device. This happened some time after 0100
hours on Saturday, 16 December. Dr. Wiles made a mistake. The
severed ends of the blood vessels presented at the umbilical stump are
very fine-bored. It is hard to tell which is which. Dr. Wiles inserted
the catheter into a vein instead of an artery. Nobody has suggested
that this amounted to actionable negligence, for it was an error which
competent doctors could and from time to time did commit. The
catheter did not pursue a downward course and turn up again, as it
would have done if inserted into an artery. Instead, it went almost
straight up along the line of the baby's trunk, entering the right
atrium of the heart through the vena cava. Thence it passed
transversely across the heart, through the foramen ovale, and lodged
in the left atrium.
The monitor was then connected. The first electronic readings were
taken, and a blood sample was drawn through the catheter. Dr. Wiles
telephoned the technician at home, to come in to analyse the sample.
The chance event that the catheter had entered the venous system but
had penetrated the arterial side of the heart made the readings doubly
deceptive. If the sensor and the sampling hole had remained on the
venous side, the PO2 readings would have been so low that the faulty
location might at once have been recognised. Instead, the fluid being
sampled contained arterial blood. But it was also admixed (to a degree
unknown) with venous blood passing through the foramen ovale. The
partial pressure of the oxygen in the sample thus bore no relation to the
pressure of the oxygen in the blood which was reaching the retina.
For the whole of the next 24 hours the doctors were afflicted by
two quite different problems in their efforts to keep the oxygen
partial pressure under control. The first problem was one which they
recognised: namely that there was something wrong with the monitor.
The electronic messages from the sensor did not correspond with the
results of analysing the samples drawn down the catheter. It is
pointless to speculate about the reasons. The sampling hole was one
centimetre to the right side of the sensor, and may have been drawing
blood richer in oxygen. Perhaps the electronics were not working
well.
744
Mustill L.J.
[1987]
The second problem was one which the doctors did not recognise: A
namely, that both the electronic sensor tip and the blood sampler just
behind it were investigating the wrong blood.
Having inserted the catheter, Dr. Wiles arranged for an X-ray, which
he inspected. He then called for Dr. Kawa to come and check what he
had done. Dr. Kawa looked at the X-ray and decided that the tip of the
catheter was too high, so he directed that it should be withdrawn by 2
cm. Neither doctor realised that the configuration of the catheter ^
disclosed by the X-ray meant that it must be following the line of a vein,
not an artery: nor indeed did the consultant radiologist when she made a
routine examination of the plates some time after this episode was over.
At about 1000 hours Dr. Kawa decided to change the catheter,
probably because of the discrepancies in the readings. Dr. Wiles
withdrew the old catheter and Dr. Kawa inserted the new one. Again Q
the instrument was inserted in a vein. A further X-ray was taken and
inspected, but again the error in placing the catheter was not recognised.
The new catheter appeared to perform no better than the old. Entries in
the clinical notes suggest that attempts to calibrate the monitor from
1345 hours onward were given up, and at 2200 hours the monitor was
abandoned as "useless on this catheter." It is reasonable to assume that,
throughout this later period, the medical staff were controlling the D
oxygen supply by reference partly to the baby's colour and partly to the
results of the blood gas analyses. These had been consistently disturbing:
the PO2 and pH were too low, the PCO2 was too high. Accordingly, the
baby was put on the ventilator and the oxygen content of the
administered air was raised progressively until by 2200 hours the figure
stood at 100 per cent., where it evidently remained throughout the night g
of 16/17 December.
The following table summarises the blood gas readings of the first 30
hours:
BLOOD GASES EX CATHETER
Date
16 Dec
Time
0200
1000
Monitor
5
13
1315
17 Dec
1620
2200
0730
11
PO2
5.8
7.7
CPO2
8.9
9.3
pH
7.15
7.08
5.4
9.0
7.14
5.9
8.6
10.1
26.0
6.2
6.4
6.0
7.26
7.29
7.28
(ex arterial
Oxygen %
Comments
70
60
After
catheter
pulled down
80
On CPAP after
second catheter
inserted
80/90
95/100 on IMV
100
on CPAP/IMV
stab)
"
745
1 Q.B.
"
Mustill L.J.
carrying them himself in the interests of speed and safety. The analyses
showed a PChof 10.1 KPa for the catheter sample, and 26 KPa for the
stab sample. In his own words, after receiving the figure of 26 KPa, he
jumped off the couch and ran back to the unit. He turned the controls
from ventilation to CPAP, and then began to reduce the oxygen supply.
As a first reaction he wrote: "Baby has probably been supersaturated
with O2 for about 28 hours." However, after a telephone conversation
with Dr. Hardy, and looking back over the records, he added "Probably
less than 12 hours." Subsequently, the catheter was changed again. This
time, it was in an artery and the blood gas samples thenceforth became
a reliable guide. This marked the conclusion of the first episode.
It is convenient to pause here, because the negligence alleged in
relation to the first episode, and the consequences said to flow from the
negligence, are of a quite different character from those asserted in
relation to later stages of the baby's case. It can be seen that the first
episode fell into two parts, (a) Whilst the first catheter was in placeas
originally sited, and then retracted. During this period, which lasted for
eight of the baby's first 11 hours, both the monitor and the gas samples
were unreliable. The former may have been due to deficiencies in the
electronics; the latter was undoubtedly caused by the wrong positioning
of the sampling orifice of the catheter. The consequences of the mistake
in positioning the catheter are impossible to ascertain, without knowing
what the baby actually received by way of oxygen, and what consideration
led the medical staff to decide what levels of oxygen to supply. All one
can say is that the baby appears to have been on CPAP with
concentrations of 60-80 per cent. Whether this was too much, and what
the true PO2 levels were, is impossible to determine, (b) Between the
insertion of the second catheter and the recognition of the mistake. This
period lasted for about 24 hours. The electronic side of the monitor is
irrelevant for almost all of this period, since it was soon recognised as
unreliable: see above. The crucial factor was that the blood gas samples
were giving readings which were too low because the sampling orifice of
the catheter was in the wrong place. The progressive increase to pure
oxygen must have been an attempt to remedy the situation apparently
disclosed by these false figures.
In these circumstances, I believe that the plaintiffs advisers were
right to accept (in conformity with Dr. Wiles' revised opinion) that the
adverse consequences of the misplacement cannot be shown to have
manifested themselves in terms of excessive PO2 until some time between
1620 hours and 2200 hours, when the concentrations of administered
oxygen were reaching really high levels; and I also believe that the
defendants' advisers were right to accept that the levels probably did
become unacceptably high at about the time when the baby started to
receive pure oxygen. This gives a bracket of about 8 to 12 hours, as the
duration of the period during which the baby's PO2 levels became
excessive because of the mistake in siting the second catheter. What
those levels actually were cannot, of course, be deduced.
When one turns to the remainder of the exposures about which the
plaintiff complains, the position is quite different. Here, there is no
complaint about the accuracy of the blood gas samples. On the contrary,
746
Mustill L.J.
[1987]
they are relied upon as the only safe guide to the baby's oxygen tension,
drawn as they were from the correctly placed third catheter. The
allegation is directed to the monitor which, it is said, was relied upon by
the nursing staff when controlling the oxygen concentration, which was
in fact giving inaccurate readings; and which ought to have been restored
to accuracy by more frequent calibration against blood samples.
The exposures originally criticised are said to have taken place on
19/20 December; on 28/29 December; on 8 January; on 11 January; on
17 January; and on 22/23 January. On each occasion the figures for PO2,
derived either from blood gas analyses or from the monitor, showed an
excess over 15 KPa. The plaintiff's argument was that this excess
continued for substantial periods, and that it was negligent to allow the
figure to remain so high for so long. By way of elaboration, it was
argued for the plaintiff that on these occasions the intervals between the
taking of blood gas analyses were too long, so that the nurses were
controlling the baby's oxygen supply by reference to the readings on a
monitor which, for lack of calibration, might well have been reading too
low, thus leading to the administration of excess oxygen. In essence, the
judge has held that, with the exception of the last episode, the
defendants gave no adequate reason for not taking more frequent
readings, and have failed to displace the inference that, in the absence
of additional analyses, the baby must be taken to have suffered high
oxygen tensions for excessive periods. On the hearing of the appeal, it
was accepted on behalf of the plaintiff that the finding of the judge in
relation to the penultimate exposure could not be sustained. The
argument therefore centered upon the three remaining exposures. I
return to these in more detail at a later stage.
Breach of duty: the law
This appeal raises three questions of law relating to the allegation
that the defendants are liable for breach of duty: 1. What is the nature
of the cause of action upon which the plaintiff relies? 2. What standard
of care was demanded of those members of the medical and nursing
staff who are said to have been negligent? 3. Upon whom rests the
burden of proof in relation to the allegation of negligence?
Before addressing these questions we must face up to a problem
which must oppress many of those who have to deal with cases of this
kind. Expressed in terms of the present case, it is this. Here we have a
medical unit which would never have existed but for the energy and
public spirit of Dr. Hardy. If the unit had not been there, the plaintiff
would probably have died. The doctors and nurses worked all kinds of
hours to look after the baby. They safely brought it through the perilous
shoals of its early life. For all that we know, they far surpassed on
numerous occasions the standard of reasonable care. Yet it is said that
for one lapse they (and not just their employers) are to be held liable in
damages. Nobody could criticise the mother for doing her best to secure
her son's financial future. But has not the law taken a wrong turning if
an action of this kind is to succeed?
I must say at once that no rhetorical question of this kind formed
part of any argument advanced by Mr. Kennedy, and rightly so in my
"
747
1 Q.B.
Mustill L.J.
748
Mustill L.J.
[1987]
If the nature of the plaintiffs cause of action had been a live issue on
\
this appeal, it would have been necessary to look with care at the
developing line of authority on liability for medical negligence. For Mr.
Kennedy asserted roundly that no health authority ever had been, or in
principle ever could be, under any such direct liability as suggested,
except perhaps in the case of a person being appointed to a post for
which he is not qualified. In the event, however, Mr. McKinnon
explicitly disclaimed on the plaintiff's behalf any intention to put forward
a case of direct liability. The trial had been conducted throughout, he
made clear, exclusively on the basis of vicarious liability. It is therefore
unnecessary to express any opinion on the validity in law of a claim on
the alternative basis. Unfortunately, this does not deprive the point of
all practical significance in the present context. Possibly because the
statement of claim could be read as raising a direct claim and possibly Q
also because the circumstances of the trial precluded a systematic
analysis of the plaintiff's real complaints, the judge approached the
question of negligence on a basis different from the one which was
common ground before this court. Thus, in the course of discussing the
authorities he said:
"It was contended by Mr. Miller for the defendants that in
establishing the standard of care owed by the defendants I should
bear in mind that the mistake as to where the catheter was originally
inserted was made by Dr. Wiles, who was then a fairly junior
doctor of limited experience. I cannot accept this. The action is
brought against the defendants and not against Dr. Wiles. I must
follow the standard of care propounded by May J. in Murray
v. Kensington and Chelsea and Westminster Health Authority E
(unreported), 1 May 1980: 'But as a matter of law I think that
Robert was entitled to expect from the defendants, it so happens in
the person of Dr. Marfitt, that standard of care to be expected of a
hospital holding itself out as capable of taking care of premature
babies.'"
Later, when rounding off his views on the facts, he said:
p
"I hold that the failure to interpret the X-ray correctly was negligent
in the defendants. They fell short of the proper standard of care for
a special care baby unit, partly through Dr. Wiles' difficulty through
inexperience in reading the X-ray and partly through Dr. Kawa's
carelessness in not checking the X-ray properly."
The judge, therefore, never had occasion to express an opinion on the G
individual standards of care demanded of Dr. Kawa and Dr. Wiles
standards which, as both parties agreed on the argument of the appeal,
were not the same. Nor did he perform a similar task in relation to
those who might be alleged to be negligent in relation to the later
episodes: I say "might be alleged" because, in relation to the later
episodes, the plaintiff has never identified even the categories of persons,
let alone the individuals, for whom the defendants are to be held H
vicariously liable. The problem must therefore be approached de novo.
It is convenient to begin by mentioning a number of considerations
which, in my judgment, have no bearing on the present appeal.
749
1 Q.B.
rj
Mustill L.J.
In the first place, there is the situation where the doctor embarks on
a form of treatment which is still comparatively untried, with techniques
and safeguards which are still in the course of development: or where
the treatment is of particular technical difficulty. In such a case, if the
decision to embark on the treatment at all was justifiable and was taken
with the informed consent of the patient, the court should, in my
judgment, be particularly careful not to impute negligence simply
because something has gone wrong. For my part, however, I do not
accept that any such consideration is relevant here. So far as concerns
the first episode, there was nothing novel about the use of an umbilical
catheter, nor was there any technical difficulty in examining the X-ray to
verify that the catheter was in the right place. Again, although the
management of this baby was plainly a difficult matter for several weeks,
the techniques to be adopted were not of a novel or recondite kind, and
there is no suggestion that if it had been appropriate to take more
frequent blood gas samples at the time of the later episodes, the persons
concerned would not have had the means and opportunity to do so. This
does not appear to me a case where the staff of the baby unit were
operating on the frontiers of medical science.
Again, I accept that full allowance must be made for the fact that
certain aspects of treatment may have to be carried out in what one
witness (dealing with the use of a machine to analyse the sample) called
"battle conditions." An emergency may overburden the available
resources, and, if an individual is forced by circumstances to do too
many things at once, the fact that he does one of them incorrectly
should not lightly be taken as negligence. Here again, however, the
present case is in a different category, for none of those accused of
negligence who were called to give evidence on their own behalf
suggested that, if mistakes were made, this happened because their
attention was distracted by having to do something else at the same
time, or because they had to take a difficult decision on the spur of the
moment.
Next, there is the established body of authority, of which Bolam v.
Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586-587 is
a conspicuous example, to the effect that a doctor who adopts a practice
accepted as proper by a responsible body of medical men skilled in the
relevant branch of medicine is not to be taken as negligent merely
because there is a contrary view. Although this principle may have some
bearing on the later episodes, it can have nothing to do with the first
episode for, although there were witnesses who regarded it as excusable
in a young doctor not to know about the significance of the loop and its
absence, there was no body of medical opinion which could regard it as
appropriate to overlook the indications given by the X-rays as to the
position of the catheter. The doctors made a mistake, although not
necessarily a culpable one.
I now turn to the real content of the standard of care. Three
propositions were advanced, the first by Mr. Badenoch on behalf of the
plaintiff. It may, I think, be fairly described as setting a "team" standard
of care, whereby each of the persons who formed the staff of the unit
750
Mustill L.J.
[1987]
*>
"
751
1 Q.B.
Mustill L.J.
or customers, and no case was cited to us which suggested that any such
variable duty of care was imposed on others in a similar position. To my
mind, it would be a false step to subordinate the legitimate expectation
of the patient that he will receive from each person concerned with his
care a degree of skill appropriate to the task which he undertakes, to an
understandable wish to minimise the psychological and financial pressures
on hard-pressed young doctors.
For my part, I prefer the third of the propositions which have been
canvassed. This relates the duty of care not to the individual, but to the
post which he occupies. I would differentiate "post" from "rank" or
"status." In a case such as the present, the standard is not just that of
the averagely competent and well-informed junior houseman (or whatever
the position of the doctor) but of such a person who fills a post in a unit
offering a highly specialised service. But, even so, it must be recognised
that different posts make different demands. If it is borne in mind that
the structure of hospital medicine envisages that the lower ranks will be
occupied by those of whom it would be wrong to expect too much, the
risk of abuse by litigious patients can be mitigated, if not entirely
eliminated.
I now turn to the third question, which relates to the burden of
proof. It is most readily illustrated by a citation from an earlier judgment
of the same judge, Peter Pain J., in Clark v. MacLennan [1983] 1 All
E.R. 416, in which, after discussing the decision of the House of Lords
in McGhee v. National Coal Board [1973] 1 W.L.R. 1, he said, at p.
427:
"On the basis of this authority, counsel for the plaintiff contended
that, if the plaintiff could show (1) that there was a general practice
not to perform an anterior colporrhaphy until at least three months
after birth, (2) that one of the reasons for this practice was to
protect the patient from the risk of haemorrhage and a breakdown
of the repair, (3) that an operation was performed within four
weeks and (4) that haemorrhage occurred and the repair broke
down, then the burden of showing that he was not in breach of duty
shifted to the defendants. It must be correct on the basis of McGhee
to say that the burden shifts so far as damages are concerned. But
does the burden shift so far as the duty is concerned? Must the
medical practitioner justify his departure from the usual practice? It
is very difficult to draw a distinction between the damage and the
duty where the duty arises only because of a need to guard against
the damage. In McGhee's case it was accepted that there was a
breach of duty. In the present case the question of whether there
was a breach remains in issue. It seems to me that it follows from
McGhee that where there is a situation in which a general duty of
care arises and there is a failure to take a precaution, and that very
damage occurs against which the precaution is designed to be a
protection, then the burden lies on the defendant to show that he
was not in breach of duty as well as to show that the damage did
not result from his breach of duty."
752
Mustill L.J.
[1987]
The judge then went on to apply the principle which he had stated to A
the later episodes of the present case, although not to the first episode,
in respect of which he made an affirmative finding of negligence. His
conclusion on the later episodes was that:
"I therefore cannot find that the defendants have established that
the high readings that occurred prior to 11 January occurred without
negligence on their part."
g
With respect, I must dissent from this approach, although I
acknowledge the problems which this entails. If, as McGhee v. National
Coal Board [1973] 1 W.L.R. 1 certainly decides, there are special rules
governing standard or burden of proof in those cases where the current
state of knowledge does not permit the proof or disproof of a causal
connection between breach and loss, the maintenance of a different rule
for proving the breach itself will not always be easy to achieve in
practice, since in some instances breach and causation will be closely
linked. This is illustrated by the present case, where the issue whether
there were long periods of excessive oxygenation might be assigned
either to the part of the case concerned with breach of duty, or to the
group of questions concerned with the consequences of the breach of
duty. I prefer the former view, but the question is not easy. Nonetheless,
I would find it impossible, unless impelled by binding authority, to hold
that proof of the primary facts constituting negligence is in some way
dispensed with merely by showing that some step, which is designed to
avert or minimise a risk, has not in the particular circumstances been
taken, is itself sufficient to establish a breach of duty. I now turn to the
decided cases.
Turning to the authorities cited, the first is the McGhee case [1973] 1
W.L.R. 1 itself. Here, the pursuer was exposed to the effects of brick
dust during his working day, in circumstances which did not constitute a
breach of duty by his employers. His exposure was, however, prolonged
by the failure of the employers to provide washing facilities, so that he
had to cycle home still covered in dust and sweat. The lower courts held
that this failure did constitute a breach of duty. The pursuer contracted
dermatitis. There was no doubt that the complaint was brought about by
contact with dust, but it was impossible on the current state of medical
knowledge to prove whether or not the additional period of exposure
tipped the scale to cause the pursuer to contract the disease when
otherwise he would not have done so. The pursuer was, however, able
to show that the failure to provide showers materially increased the risk
that dermatitis would set in. The House of Lords held that this was
sufficient to connect the breach of duty with the pursuer's loss.
Plainly, the decision in the McGhee case [1973] 1 W.L.R. 1 has no
direct bearing on the issues in the present case concerning the alleged
breach of duty: for such a breach had already been established before
the case reached the House of Lords. Indeed, in certain of the speeches
there appears to be implicit the idea that, in a sense, the proof of breach
is equivalent to proof of causation, and the damage which the required
standard of care is designed to forestall has in fact materialised. Nor do
I see how the fiction (for such Lord Wilberforce acknowledged it to be)
753
1 Q.B.
Mustlll L.J.
754
Mustill L.J.
[1987]
before that date they were not in breach of duty. Thus, as in the A
McGhee case [1973] 1 W.L.R. 1, there were consecutive periods of
excusable and inexcusable periods of exposure to risk. It was therefore
argued that the whole of the hearing loss should be attributed to the
defendants' fault. This argument failed, because the evidence showed
conclusively that most of the hearing loss had taken place during the
earlier period; an apportionment between the losses taking place during
the two periods was possible, although not with any precision; and it ^
would be wrong to hold the defendants liable for a contribution to the
plaintiffs' hearing losses which was known not to be the result of the
defendants' breach. This aspect of the case had nothing to do with
breach of duty, which had already been dealt with at a stage of the
judgment before apportionment came to be considered. Nor, in relation
to causation, did the judgment do more than attempt a summary of the Q
McGhee case and an explanation of why it did not apply to the case in
hand. It does not, to my mind, offer any help in regard to the problem
now under discussion.
Accordingly, I would hold that, so far as concerns the issue of
negligence, the facts of the present case must be approached on the
footing that the burden of proof rests on the plaintiff.
The facts: first episode
It will be recalled that two catheters were inserted into the plaintiff's
umbilical vein. The first insertion was performed by Dr. Wiles alone, at
about 0100 on 16 December. An X-ray was taken, which was studied by
both doctors. Neither observed that it was misplaced, although Dr.
Kawa did conclude that the tip was too high, and asked for it to be E
pulled back. The second insertion was performed by Dr. Kawa, with Dr.
Wiles in attendance, at about 1000 hours on the same day. Another Xray was taken. The evidence suggests that the plate was seen by both
doctors. Neither observed that the catheter was misplaced.
The mistakes made on these two occasionsfor mistakes they
undeniably werewere of a rather unusual kind. To recognise the _,
misplacements did not call for the kind of meticulous study of the X-ray
plates, for which there might be insufficient time during the busy life on
the ward. Nor did it require any profound skill or learning. Once
furnished with the necessary elementary knowledge of the circulatory
system, and told how to apply it, even a layman can recognise when the
instrument is not in an artery. In that sense, the misplacement was
obvious. But in another sense it was not obvious, and this was because G
the doctors did not apply their anatomical knowledge to what they saw
on the plates. In the words of Dr. Kawa, "it just did not click." The
question is whether it should have done.
The first step is to see what explanation the doctors gave for this
omission. Dr. Wiles knew that it was possible for a catheter to be
accidentally inserted in a vein, for he himself had diagnosed just such an
occurrence about a month previously. Two locum doctors had put a "
catheter in a vein. When Dr. Wiles saw the X-ray he recognised that the
catheter had gone into the portal vein towards the liver. This was
obvious to him because the catheter took a sharp bend to the right.
755
1 Q.B.
H
H
Mustill L.J.
756
Mustill L.J.
[1987]
757
1 Q.B.
Mustill L.J.
In company with the judge, I do not find these helpful. Any sound
professional will recognise that he himself has committed errors in the
past, and can understand that other competent men may do the same.
But an understandable mistake may still be negligent: see Whitehouse v.
Jordan [1980] 1 All E.R. 650, 666 per Donaldson L.J. and in the House
of Lords [1981] 1 W.L.R. 246. A similar comment may be made to
some extent, on the use of the word "blameworthy."
B
I do not intend to set out the expert evidence at length. On the one
side, Professor Hull in his first report stated that any doctor who passes
an umbilical catheter into a newborn baby must be able to assess where
the tip of the catheter is sited and that means that he must be able to
read the X-ray. If the X-ray is misread then it is a serious mistake. Dr.
Harvey said that anyone concerned in administering treatment in a unit
Q such as this should be able to read an X-ray like this correctly. He
would not accept the suggestion that the mistake was not blameworthy.
Dr. Roberton also considered that anyone putting in an umbilical
arterial catheter should have the necessary skill to interpret the X-ray. A
competent house officer should be able to identify exactly the position of
the catheter. Dr. Chiswick said that it was not conventional practice to
take note of the route, but nevertheless considered that either the
D doctor who put the catheter in or a doctor working with him, responsible
for the unit at that time, should know whether the catheter has gone
into a vein or an artery. He thought that this was a mistake which a
doctor in the position that these doctors were in, in a baby care unit,
ought not to have madebut added that he could hardly call it
blameworthy.
g
On the other side, Professor Hull in his oral evidence withdrew the
opinion contained in his report, because subsequent inquiries had shown
him that there was virtually nothing about the loop in the literature, and
the junior doctors whom he had asked did not know about it. The
defendants also relied on the notation placed on the X-ray by the
consultant radiologist after a routine inspection of the plates three days
after the event. If a person experienced in the study of X-rays could
F believe the catheter to be in the aortic knuckle, how could it be
negligent for the other doctors to make the same mistake? For myself, I
am not disposed to attach much weight to this. The radiologist was not
called, so we know nothing about her thought processes, or what she
was looking for, or whether she was even aware that umbilical catheters
might be accidentally misplaced. The standard of care must, it seems to
Q me, be different in respect of the task which this radiologist was
performing, from the one to be demanded of the doctors on the baby
care unit.
In the light of all this evidence I have come to the clear conclusion
that the judge was right to find that Dr. Kawa was negligent. He was in
charge of the unit; he was called in expressly to verify the work of Dr.
Wiles on the first occasion, and himself inserted the catheter on the
** second. I fully recognise the danger of hindsight, and acknowledge that
something which is obvious, once isolated and pointed out, is not
necessarily obvious when it is encountered in the course of the day's
work. Even so, I consider that somebody in the position of Dr. Kawa
758
Mustill L.J.
[1987]
759
1 Q.B.
On this matter the judge has found (i) the defendants have not
proved that they were free from fault in allowing such long periods to
elapse; (ii) there were excessive periods when the oxygen tension was
too high. For the reasons already stated, I consider that the first finding
erroneously places the burden of proof on the defendants. The judge
has not found affirmatively whether or not they were negligent. Is it
legitimate for this court to make its own finding? Eight years after the
event, I believe that we must try. A retrial must be avoided, unless all
else fails.
For this purpose I will consider in relation to each episode not only
the allegation that the intervals between sampling were excessive, but
also the assumption (or perhaps positive finding) that the PO2 remained
excessive for "lengthy periods."
By way of introduction it must be noted that Dr. Hardy regarded a
range of about 7 to 13 KPa as acceptable for PO2. Dr. Stamboulis, who
was the houseman at the relevant time, prescribed a range of 10 to 15
KPa, but Miss Pearson did not agree, and aimed to keep the reading
between 10 and 12 KPa. The alarms on the monitor were set at 5 and 15
KPa. It was not suggested on behalf of the plaintiff that Miss Pearson's
policy was wrong, nor that the nurses did not carefully try to put it into
practice. Rather the reverse, since it was the plaintiffs case that reliance
on the monitor readings had led the nurses to think that the level of
oxygen supply was safe when it was not.
At the trial, complaint was made about five later episodes. The
complaint which was related to events on 22-23 January was rejected by
the judge. Another, concerned with 17-20 January, appears to have
been inferentially accepted, but was abandoned on the argument of the
appeal, there being no evidence that the PO2 ever did exceed the
equivalent of 15 KPa for a sample taken in the aorta. (At this stage, the
catheter had been removed, and samples were taken by stab.) The
circumstances of those remaining were as follows.
(a) 20 December
Late on 19 December the baby had an incident of apnoea. At 2230
hours a blood gas sample revealed the following:
PO2
Monitor
PCO2
pH
12.5
11
13.4
6.92
The figures for PCO2 and pH were very poor. The baby was put on
ventilation to flush out the CO2; the notes indicate half-hourly CPAP
and ventilation, with oxygen concentrations of 65-70 per cent, and 80-90
per cent, respectively. The ventilation would tend to increase the PO2.
This treatment, which was ordered by Dr. Wiles, produced the following
results, obtained at 1030 hours on 20 December.
PO2
Mustill L.J.
Monitor
PCO2
pH
calibrated
monitor
17.5
6.6
7.20
15
According to the notes, the proportional calibration exercise performed
when the analysis result came back resulted in a re-setting at 15 KPa
760
Mustlll L.J.
[1987]
when the needle had been reading 13.5 KPa. The PO2 had thus fallen,
(The proportional calculation suggests that the monitor needle must
have been reading rather more than 15 KPa when the sample was
taken.)
At 2115 hours on the same day there was another gas analysis
yielding the following figures:
PO2
10.6
Monitor
11
PCO2
11
pH
7.14
The PO2 level was thus back in control, although the PCO2 was now
high again. By this time the concentrations of administered oxygen has
been reduced. That concluded episode (a), as identified by the argument
for the plaintiff.
C
(b) 28/29 December
The relevant figures are as follows:
Date
Time
PO2
27 Dec
27 Dec
27 Dec
29 Dec
1000
1400
1100
1345
17.4
18.8
29 Dec
2300
6.4
Monitor
PCO2
pH
9.7
7.18
15
6.5
5.7
7.28
7.25
10
7.0
calibrated
monitor
13.4
13.0
14.2
18.3 (at
1600 hours)
The clinical and nursing notes indicate that the baby was alternatively
on IMV and CPAP during 28/29 December. The PO2 of 17.4 KPa was
based on a sample taken whilst the baby was on IMV at 35-45 per cent.
oxygen. The readings made later on the same day were taken when the
baby was on IMV.
(c) 6/7/8 January
On 6 January the baby had a severe cyanotic attack lasting for 10
minutes, but responded when oxygen was applied by face mask. At 1130
hours on 7 January the figure was:
P0 2
10.6
PCO2
8.1
PCO2
8.4
pH
7.22
n
u
pH
7.14
761
1 Q.B.
Mustill L.J.
762
Mustill L.J.
[1987]
**
763
1 Q.B.
"
Mustill L.J.
have been periods of high PO2 but thought that a sustained period was
unlikely in view of the fluctuating ambient oxygen and the use of IMV
and CPAP. It was difficult to interpret the position from the documents
alone, without getting a feel for the fluctuating course of the baby.
On this material I would hold that the judge was not justified in
finding that there were lengthy periods of excessive PO2. That there
were some periods of excess is indisputable, for there cannot just have
been spikes, coinciding by chance with the moments when the samples
were taken. But there is no means of knowing how long the periods
lasted. Moreover, and this is just as important, it is impossible to tell
whether, if extra samples had been taken, they would have made any
difference. It is recognised that the error on the monitor varies, and that
the baby's PO2 varies. For all that anyone can tell, any extra sample
might have been taken at a time when the monitor was performing
within tolerance (as it was at 1345 hours on 29 December) and when the
PO2 level happened to be acceptable. In such a situation the nurses
would be reassured, not warned.
Finally, there is the incident of 7/8 January. I can deal with this
briefly. It happened at a time when the monitor was not being calibrated
daily, a practice of which Dr. Chiswick and, no doubt, the other doctors
disapproved. But there is no evidence to show that the episode was
other than transient. Indeed, there is no evidence to show that the PO2
ever exceeded 15 KPa, since the reading was taken from the monitor,
not a blood gas analysis. Plainly, there had been an accident which
called for the immediate application of oxygen. There may have been an
overshoot. The staff were watching the monitor. No doubt, they reduced
the oxygen supply as soon as they thought it safe to do so. I can see no
reason to suppose that taking a sample later on the same day would
have made any difference.
Causation
The primary case for the plaintiff at the trial was that even
if the breach of duty was not the sole cause of his developing RLF,
nevertheless it made a significant contribution, and accordingly is to be
treated as the proximate cause for the purpose of an award of damages:
Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613. Evidence to this
effect was given by Dr. Harvey and Dr. Roberton, and the first report
of Professor Hull might also be read in this sense. In the event,
however, the judge did not take this line for, although there are
passages in his judgment which might be understood as findings of a
proved proximate cause, this can hardly have been the effect intended,
given the prominence of the argument based on the McGhee case [1973]
1 W.L.R. 1. Moreover, although, if the judge had expressed a preference
for the evidence of the plaintiff's experts on this point, we might have
been justified in making our own finding in favour of the plaintiff, he
did not do so, and the division of opinion is too sharp to make such a
step permissible on the basis of the transcripts and literature alone.
Thus, we must consider the correctness of the route which the judge
preferred to take. This was as follows: 1. It is common ground that
exposure to excessive PO2 involves an increased risk of RLF. 2.
764
Mustill L.J.
[1987]
Already, it had been shown that, of the infants born during a two year
period with birth weights of less than 1600 gm. in the United States of
America, 30 per cent, were afflicted by RLF. Baum and Tizard had
written in 1970 that the link between RLF and oxygen therapy "is
certain," and they had suggested a pathogenesis involving the constriction
of retinal blood vessels. One year later, Garner and Ashton had written Q
that it was "now common knowledge" that RLF is due to the toxic
effects of oxygen. However, even as these words were in the press, a
project was being carried out under the direction of Kinsey and others,
involving the prospective study at five important teaching hospitals in
the United States of 719 surviving premature babies, of whom 76
developed RLF. Elaborate statistical exercises were performed on this
quite small sample. Ultimately, amidst many conclusions to the effect **
that various correlations were not proven, there emerged the opinion
that the most important risk factors were low birth weight and the
duration (not the concentration) of the oxygen treatment. We have,
765
1 Q.B.
A.
"
- Mustill L.J.
766
Mustill L.J.
[1987]
"
767
1 Q.B.
j-v
Mustill L.J.
not that this additional exposure to injury was the cause of it, or at least
materially contributed to it. This he failed to do. The House of Lords
disagreed. Lord Reid's conclusion on the medical evidence was that the
fact that the man had to cycle home caked with grime and sweat added
materially to the risk that this disease might develop. He continued, at
pp. 4-5:
"I cannot accept the view expressed in the Inner House that once
the man left the brick kiln he left behind the causes which made
him liable to develop dermatitis. That seems to me quite inconsistent
with a proper interpretation of the medical evidence. Nor can I
accept the distinction drawn by the Lord Ordinary between
materially increasing the risk that the disease will occur and making
a material contribution to its occurrence. There may be some logical
ground for such a distinction where our knowledge of all the
material factors is complete. But it has often been said that the
legal concept of causation is not based on logic or philosophy. It is
based on the practical way in which the ordinary man's mind works
in the everyday affairs of life. From a broad and practical viewpoint
I can see no substantial difference between saying that what the
defender did materially increased the risk of injury to the pursuer
and saying that what the defender did m a d e a material contribution
to his injury."
Lord Wilberforce said that there could be little doubt that the
appellant's dermatitis resulted from a combination, or accumulation, of
two causes: exposure to dust while working in hot conditions in the kiln
and the subsequent omission to wash thoroughly before leaving the
place of work; the second of these, but not the first, was, on the
findings, attributable to the fault of the respondents. H e continued, at
p. 6:
"My Lords, I agree with the judge below to the extent that merely
to show that a breach of duty increases the risk of harm is not, in
F
"
768
Mustill L.J.
[1987]
Secondly, from the evidential point of view, one may ask, why A
should a man who is able to show that his employer should have
taken certain precautions, because without them there is a risk, or
an added risk, of injury or disease, and who in fact sustains exactly
that injury or disease, have to assume the burden of proving more:
namely, that it was the addition to the risk, caused by the breach of
duty, which caused or materially contributed to the injury? In many
cases, of which the present is typical, this is impossible to prove, B
just because honest medical opinion cannot segregate the causes of
an illness between compound causes. And if one asks which of the
parties, the workman or the employers, should suffer from this
inherent evidential difficulty, the answer as a matter of policy or
justice should be that it is the creator of the risk who, ex hypothesi
must be taken to have foreseen the possibility of damage, who Q
should bear its consequences."
After quoting from the speech of Lord Keith of Avonholm in Bonnington
Castings Ltd. v. Wardlaw [1956] A.C. 613, Lord Wilberforce went on to
say, at p. 7:
"The evidential gap which undoubtedly existed there (i.e. the
absence of proof that but for the addition of the 'guilty' dust the ^
disease would not have been contracted) is similar to that in
the present case and is expressed to be overcome by inference. . . .
The present factual situation has its differences: the default here
consisted not in adding a material quantity to the accumulation of
injurious particles but by failure to take a step which materially
increased the risk that the dust already present would cause injury, g
And I must say that, at least in the present case, to bridge the
evidential gap by inference seems to me something of a fiction,
since it was precisely this inference which the medical expert
declined to make. But I find in the cases quoted an analogy which
suggests the conclusion that, in the absence of proof that the
culpable addition had, in the result, no effect, the employers should
be liable for an injury, squarely within the risk which they created F
and that they, not the pursuer, should suffer the consequence of the
impossibility, foreseeably inherent in the nature of his injury, of
segregating the precise consequence of their default."
The analysis by Lord Simon of Glaisdale was in the following terms, at
pp. 8-9:
"The question, then, is whether on the evidence the appellant
brought himself within this rule [that a material contribution to the
injury will suffice]. In my view, a failure to take steps which would
bring about a material reduction of the risk involves, in this type of
case, a substantial contribution to the injury. In this type of case a
stark distinction between breach of duty and causation is unreal. If
the provision of shower baths was (as the evidence showed) a
precaution which any reasonable employer in the respondents'
position would take, it means that such employer should have
foreseen that failure to take the precaution would, more probably
"
769
1 Q.B.
Mustill L.J.
770
Mustill L.J.
[1987]
case. This is a case in which the actual chain of events in the man's A
body leading up to the injury is not clearly known. But there are
effective precautions which ought to be taken in order to prevent it.
When you find it proved (a) that the defenders knew that to take
the precaution reduces the risk, chance, possibility or probability of
the contracting of a disease, (b) that the precaution has not been
taken, and (c) that the disease has supervened, it is difficult to see
how those defenders can demand more by way of proof of the "
probability that the failure caused or contributed to the physical
breakdown."
Finally, Lord Salmon, at pp. 12-13:
"My Lords, I would suggest that the true view is that, as a rule,
when it is proved, on a balance of probabilities, that an employer Q
has been negligent and that his negligence has materially increased
the risk of his employee contracting an industrial disease, then he is
liable in damages to that employee if he contracts the disease
notwithstanding that the employer is not responsible for other
factors which have materially contributed to the disease: Bonnington
Castings Ltd. v. Wardlaw [1956] A.C. 613 and Nicholson v. Atlas
Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613. I do D
not find the attempts to distinguish those authorities from the
present case at all convincing. In the circumstances of the present
case, the possibility of a distinction existing between (a) having
materially increased the risk of contracting the disease, and (b)
having materially contributed to causing the disease may no doubt
be a fruitful source of interesting academic discussions between F
students of philosophy. Such a distinction is, however, far too
unreal to be recognised by the common law. I would accordingly
allow the appeal."
These speeches raise problems. In the first place, Lord Wilberforce
conceived that the doctrine expounded went to burden of proof. It left
the defendants with the task of proving that the breach of duty did not F
cause the loss. The other members of the House, by contrast, seem to
have concluded that, once it was proved that the breach of duty
increased the risk, this ipso facto proved a connection between the
breach and the injury.
Fortunately, it is not necessary to examine this apparent difference in
reasoning, because the judge has found that in the present case the
defendants have failed to discharge the burden of which Lord Wilberforce G
spoke. The defendants did not, as I understand it, challenge this
conclusion and, if they had done so, I would have held that the
conclusion was plainly right.
Equally, there is another question which we do not have to solve. In
the speeches of Lord Simon of Glaisdale and Lord Kilbrandon, and
perhaps of others, there is the idea that duty and causation are opposite
sides of the same coin. Once the plaintiff has established a breach of
duty, comprising a failure to take measures to forestall a known or
knowable risk, the necessary causation proves itself. This analysis is not
so easily applied to the present case where the risk may be of two
771
1 Q.B.
"
Mustill L.J.
different kinds. The first exists if it is known that excess oxygen can
cause RLF. Here, anyone who allows excess oxygen to be administered
runs the risk of causing injury, even though the injury is not certain to
materialise. But there is also a risk even if it is not known, but merely
suspected, that excess oxygen can cause RLF. Once again, a person who
allows excess oxygen to be administered runs the risk of causing injury:
but here, the contingency is double, not single. A prudent doctor,
familiar with current medical opinion, will not run either of these risks
unless the circumstances force him to do so. Yet there is a difference in
kind as well as degree between the two. Can a causal connection be
presumed in the second case, as well as the first?
In the end I have not found it necessary to solve this troublesome
problem, because on the evidence I find it proved that excess oxygen
can cause or contribute to RLF, so that the case falls into the first
category. But for this, I would have inclined to the view that the
McGhee case could not be applied, and believe that ultimately Mr.
McKinnon did not press the argument to the contrary.
There is, however, one problem which must be tackled. I had at one
time believed that the present case is on all fours with the McGhee case
[1973] 1 W.L.R. 1 and that any apparent difference between the two
simply stemmed from the way in which the problem happened to be
expressed. I am now persuaded that this is not so, and that the two
situations really are different. In the McGhee case there was only one
risk operating, namely that contact of a sweaty skin with brick dust
would lead to dermatitis. The fact that such contact did cause the injury
was not in dispute. Just as in Bonnington Castings Ltd. v. Wardlaw
[1956] A.C. 613 the defenders' fault lay in not taking proper steps to
reduce that single risk. The uncertainty was whether the fault had tipped
the scale. In the present case there is a greater uncertainty. Instead of a
single risk factor known to have caused the injury there is a list of
factors, which cannot be fully enumerated in the current state of medical
science, any one of which might have caused the injury. What the
defendants did was not to enhance the risk that the known factor would
lead to injury, but to add to the list of factors which might do so. I
acknowledge that this is much further from the facts of Bonnington
Castings Ltd. v. Wardlaw, which was the springboard for the McGhee
case than were the facts of the McGhee case itself.
The question is whether this makes a crucial difference. The root of
the problem lies in the fact that, for reasons of policy, their Lordships'
House mitigated the rigour of the rule that the plaintiff must prove that
the breach caused the loss, in the interests of achieving a result which
was considered to be just. Given that this was a decision based on
policy, rather than a chain of direct reasoning, the difficulty is to know
whether a similar approach can properly be adopted in the different
circumstances of the present case. After much hesitation I have come to
the conclusion that it can. Reading all the speeches together, the
principle applied by the House seems to me to amount to this. If it is an
established fact that conduct of a particular kind creates a risk that
injury will be caused to another or increases an existing risk that injury
will ensue; and if the two parties stand in such a relationship that the
772
Mustill L.J.
[1987]
one party owes a duty not to conduct himself in that way; and if the first A
party does conduct himself in that way; and if the other party does
suffer injury of the kind to which the risk related; then the first party is
taken to have caused the injury by his breach of duty, even though the
existence and extent of the contribution made by the breach cannot be
ascertained. If this is the right analysis, it seems to me that the shape
taken by the enhancement of the risk ought not to be of crucial
significance. In the McGhee case [1973] 1 W.L.R. 1, the conduct of the ^
employers made it more likely that the pursuer would contract dermatitis,
and he did contract dermatitis. Here, the conduct of those for whom the
defendants are liable made it more likely that Martin would contract
RLF, and he did contract RLF. If considerations of justice demanded
that the pursuer succeed in the one case, I can see no reason why the
plaintiff should not succeed in the other.
C
Finally, I should mention the certain observations of Lord Wright
(with whose speech the other members of the House agreed) in A/S
Rendal v. Arcos (1937) 43 Com. Cas. 1, 13-15, which have come to the
attention of the court since the conclusion of the argument.
Since we have not had the benefit of submissions upon them, and
since they were uttered in a context very different from the present, it ~
would not be appropriate to found any conclusions upon them. It does,
however, appear that they are consistent with the views of causation
which I have endeavoured to express.
Accordingly, I would hold that the plaintiff has established both a
breach of duty by the defendants, and a sufficient connection with the
loss which he has suffered. This is sufficient to establish liability, and I
would dismiss the appeal.
E
Although this is a long judgment I cannot part from the appeal
without saying something about the history of the action. I do so, not to
criticise the practitioners who conducted the case, but to draw attention
to certain features of medical negligence litigation, as currently conducted
in England and Wales.
The first feature speaks for itself: it is delay. The events in question p
happened in the first two months of Martin Wilsher's life. He is now
aged seven and a half years. Surely this will not do. Quite plainly, the
parties cannot be expected to join battle straight away. Time is needed
for diagnosis, advice, reflection and possibly negotiation. But it is unfair
to expect witnesses at a trial of this kind (or indeed of any kind) to
remember what happened six years before. It is also unfair to the
parties. These cases are of great importance to both sides: to the parent ^
who has to plan her child's future and to the doctors who are accused of
a breach of duty. They should not have to wait so long.
Secondly, the procedures adopted before trial were such as to make
the trial quite unnecessarily difficult to conduct, and to create a real risk
of injustice. What happened was this. During April 1981 a statement of
claim was served, the material part of which read:
H
"The defendants by their servants or agents the medical and/or
nursing staff at the said hospital were negligent in their care
management and treatment of the plaintiff as set forth below."
773
1 Q.B.
Mustill L.J.
774
Mustill L.J.
[1987]
me it seems wrong that in this area of the law, more than in any other,
this kind of forensic blind-man's-buff should continue to be the norm.
For the reasons previously stated, I would dismiss this appeal.
I agree with the judge that this is the correct test by which to weigh ^
the conduct of all the doctors in the present case.
If I understand him correctly, the Vice-Chancellor would apply a less
stringent test to a newly-qualified practitioner, who has accepted an
appointment in order to gain experience. The suggested test would only
hold such a doctor liable "for acts or omissions which a careful doctor
with his qualifications and experience would not have done or omitted."
With great respect, I do not believe this is the correct test. In my view, E
the law requires the trainee or learner to be judged by the same
standard as his more experienced colleagues. If it did not, inexperience
would frequently be urged as a defence to an action for professional
negligence.
If this test appears unduly harsh in relation to the inexperienced, I
should add that, in my view, the inexperienced doctor called upon to
exercise a specialist skill will, as part of that skill, seek the advice and
help of his superiors when he does or may need it. If he does seek such
help, he will often have satisfied the test, even though he may himself
have made a mistake. It is for this reason that I agree that Dr. Wiles
was not negligent. He made a mistake in inserting the catheter into a
vein, and a second mistake in not recognising the signs that he had done
so on the X-ray. But, having done what he thought right, he asked Dr. G
Kawa, the senior registrar, to check what he had done, and Dr. Kawa
did so. Dr. Kawa failed to recognise the indication on the X-ray that the
catheter was in the vein, and some hours later himself inserted a
replacement catheter, again in the vein, and again failed to recognise
that it was in the vein. Whichever of the suggested tests of negligence
should be applied to Dr. Wiles, we are all agreed that Dr. Kawa was
negligent, and that the defendants must therefore be liable for any "
damage to the plaintiff proved to have been caused by that negligence.
So far, I have considered negligence in relation only to the first 36
hours of Martin's life, to the time early in the morning of 17 December
775
1 Q.B.
Glidewell L.J.
1978 when Dr. Wiles realised that the catheter was in the vein. I can
express my views about the proof of negligence in relation to the later
episode shortly. I agree with Mustill L.J. that the judge was wrong to
hold that the burden was on the defendants to show that they were not
in breach of duty on the later occasions on which it is alleged that
Martin was subjected to excessive blood oxygen pressure. I also agree
that, the burden of proof being on the plaintiff, the evidence before us
does not establish that the defendants were negligent on the later
occasions. When one turns to causation, therefore, the only relevant
negligence is that of Dr. Kawa during the first episode.
There are, however, two other comments I should make in relation
to negligence. Firstly, I agree with the Vice-Chancellor that there seems
to be no reason in principle why, in a suitable case different on its facts
from this, a hospital management committee should not be held directly
liable in negligence for failing to provide sufficient qualified and
competent medical staff. Secondly, I agree with and adopt the rejection
by Mustill L.J. of the suggested concept of "team negligence."
I now turn to consider the second point of disagreement between the
Vice-Chancellor and Mustill L.J., that relating to causation. I too have
found this a most difficult question to decide, but in the end I am in
agreement with Mustill L.J., that the plaintiff has proved sufficient facts
to come within the principle of McGhee v. National Coal Board [1973] 1
W.L.R. 1, and thus to succeed.
I gratefully adopt Mustill L.J.'s summary of the effect of the medical
evidence. I emphasise his fifth conclusion, ante p. 766E-F:
"The weight of the expert evidence was that high PO2 levels of the
kind experienced in the first episode can, particularly at an early
stage of the baby's life, lead to RLF, although nobody can say that
in this particular instance the first episode, rather than some other
unknown factor, was definitely the cause, or one of the causes, of
the injury."
Although the judge said that it was common ground that excessive blood
oxygen pressure increases the risk of RLF, we were told that this was
not accepted, and the medical evidence bears this out. Nevertheless, I
agree with Mustill L.J. that the evidence does, on balance, prove that
excess blood oxygen pressure can cause or contribute to RLF, and thus
that the negligent administration of an excess of oxygen increases the
risk of RLF.
There are, however, a number of other disabilities or diseases from
which premature babies are liable to suffer which, singly or in
combination, can or may cause RLF. Thus, in Martin's case, the
evidence goes no further than establishing the following range of possible
causes of his RLF:
(i) the excess PO2 during the first episode;
(ii) the excess PO2 during the first episode plus possible excess PO2
during one or more of the later episodes for which the defendants
are not liable;
(iii) the excess PO2 during the first episode, plus one or more of the
other disabilities and diseases of prematurity;
776
Glidewell L.J.
[1987]
G
V.-C. I gratefully adopt the
statement of the facts and the findings made by Mustill L.J. in his
judgment. Save as to the two points with which I will deal hereafter, I
am also in complete agreement with his conclusions and reasoning on
the issues of law which arise.
The first point on which I differ from Mustill L.J. relates to the
question of negligence. On this issue, I disagree, not with his decision,
but with the process whereby he reaches his conclusion. I enter into this
field with hesitation since it is one in which I have virtually no
experience. But I cannot accept that the standard of care required of an
SIR
NICOLAS
BROWNE-WILKINSON
"
777
1 Q.B.
^
$* Nicolas
Browne-Wilkinson V.-C.
778
S" Nlcow.n
v r
Browne-Wilkinson V.-C.
[1987]
confusion which has been caused in this case both by the pleading and
the argument below which blurred the distinction between the vicarious
liability of the health authority for the negligence of its doctors and the
direct liability of the health authority for negligently failing to provide
skilled treatment of the kind that it was offering to the public. In my
judgment, a health authority which so conducts its hospital that it fails
to provide doctors of sufficient skill and experience to give the treatment
offered at the hospital may be directly liable in negligence to the
patient. Although we were told in argument that no case has ever been
decided on this ground and that it is not the practice to formulate claims
in this way, I can see no reason why, in principle, the health authority
should not be so liable if its organisation is at fault: see McDermid v.
Nash Dredging & Reclamation Co. Ltd. [1986] Q.B. 965 especially at
pp. 978-979.
Claims against a health authority that it has itself been directly
negligent, as opposed to vicariously liable for the negligence of its
doctors, will, of course, raise awkward questions. To what extent should
the authority be held liable if (e.g. in the use of junior housemen) it is
only adopting a practice hallowed by tradition? Should the authority be
liable if it demonstrates that, due to the financial stringency under which
it operates, it cannot afford to fill the posts with those possessing the
necessary experience? But, in my judgment, the law should not be
distorted by making findings of personal fault against individual doctors
who are, in truth, not at fault, in order to avoid such questions. To do
so would be to cloud the real issues which arise. In the modern world
with its technological refinements, is it sensible to persist in making
compensation for those who suffer from shortcomings in technologically
advanced treatment depend upon proof of fault, a process which the
present case illustrates can consume years in time and huge sums of
money in costs? Given limited resources, what balance is to be struck in
the allocation of such resources between compensating those whose
treatment is not wholly successful and the provision of required treatment
for the world at large? These are questions for Parliament, not the
courts. But I do not think the courts will do society a favour by
distorting the existing law so as to conceal the real social questions
which arise.
I have dealt at such length with this issue because the standard of
care applicable is of general importance. But, in the event, I reach the
same conclusion on this issue as Mustill L.J. In my view, Dr. Wiles was
not negligent. He failed to identify the wrongly inserted catheter, despite
the absence of the "loop" disclosed on the X-rays, because he lacked the
experience to look for such loop. Professor Hull's evidence shows that
junior doctors of Dr. Wiles' experience in special care baby units were
in general unaware of the significance of such loop. In the circumstances,
I do not think Dr. Wiles was negligent in failing, through lack of
experience, to appreciate the significance of the X-ray showing no loop
in the course which the catheter took. Moreover, Dr. Wiles called in his
superior, Dr. Kawa, to check what he had done.
However, the case of Dr. Kawa is quite different. He was an
experienced registrar with six years' paediatric experience, including one
**
779
1 Q.B.
^
"
,, Sir Nfcoias
Browne-Wilkinson V.-C.
780
sir Nicolas
[1987]
Browne-Wilkinson V.-C.
the decision in that case was based not on logic but on common sense or
public policy. The difficulty is to know whether, as Mustill and Glidewell
L.JJ. think, it is right to extend further an illogical decision taken on
grounds of policy to cover the present case, i.e. does this case fall within
the rationale of the principle applied in the McGhee case? With the
greatest hesitation, I have come to the conclusion that this case does not
fall within the rationale. In my view, it was fundamental to the decision
in the McGhee case that the dermatitis was undoubtedly physically
caused by brick dust. Thus, when Lord Reid says, at p. 5:
"From a broad and practical viewpoint I can see no substantial
difference between saying that what the defender did materially
increased the risk of injury to the pursuer and saying that what the
defender did made a material contribution to his injury."
the public policy which he is applying stems from the fact that the
defendants created risk (i.e., the continued presence of brick dust) and
the injury (i.e., dermatitis caused by brick dust) fell "squarely" within
that risk. That formulation of the principle cannot be applied in this
case. The risk created by the plaintiffs was RLF caused by excess p
oxygen: unless and until you can say that the plaintiff's RLF was caused
by oxygen, it is impossible to say that the injury falls "squarely within
the risk." In my view, there is no ground of public policy which requires
the defendants to be held liable for an injury which they may well not
have caused and which the steps they ought to have taken would not
have avoided if, in fact, the cause of the plaintiffs RLF was not excess _
oxygen but one of the four other candidates.
For these reasons, and with considerable diffidence, I differ from
Mustill L.J. on the causation question. For myself, I would have allowed
the appeal because the plaintiff has failed to establish that the defendants'
negligence caused his RLF.
Finally, I would like expressly to endorse the remarks made by
Mustill L.J. at the end of his judgment concerning the delay that has H
occurred in this case and the procedures adopted before the trial. The
judge in his judgment commented on the difficulties with which he was
faced arising from those procedures. In my view, the Rules Committee
1 Q.B.
781
sir Nicolas
Browne-Wilkinson V.-C.
[COURT OF APPEAL]
FITZGERALD v. LANE
D
1986
1987
*-*
j-j
Dec. 1, 2, 3, 4, 5;
Feb. 23;
March 6
AND ANOTHER