“As long as the FHR was adequately monitored and reassuring”
“Before I turn to that, I must tell you what in law we mean by “negligence.”
“In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a ‘responsible body of medical men.’ Later, at p. 588, he referred to ‘a standard of practice recognised as proper by a competent reasonable body of opinion.’ Again, in the passage which I have cited from Maynard’s case [1984] 1 W.L.R. 634 , 639, Lord Scarman refers to a ‘respectable’ body of professional opinion.The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”
“In Wilsher v Essex AHA[1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior Doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital Doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the Doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the Doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.”
“81. The social and legal developments which we have mentioned point away from a model of the relationship between the Doctor and the patient based on medical paternalism. They also point away from a model based on a view of the patient as being entirely dependent on information provided by the Doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. 82. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient's entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the Doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. 83. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The Doctor's advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions. 84. Furthermore, because the extent to which a Doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.” … “87. The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce [1999] PIQR P53 , subject to the refinement made by the High Court of Australia in Rogers v Whitaker 175 CLR 479 , which we have discussed at paras 77-73. An adult person ofsound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The Doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the Doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
“[40]. In our opinion Lord Boyd’s analysis is correct. Montgomery was about advising of the risks associated with a proposed course of action, which would of course include the risks if that course of action were not adopted. It does not follow that where a Doctor concludes that a course of treatment is not a reasonable option in the circumstances of the patient the duty under Montgomery nevertheless arises. The patient’s right is to decide whether or not to accept a proposed course of treatment. That right can only be exercised on an informed basis, which means that the patient must in such a situation be advised of the risks involved in opting for that course of treatment, or rejecting it. If alternative treatments are options reasonably available in the circumstances the patient is entitled to be informed of the risks of these accordingly. But where the Doctor has rejected a particular treatment, not by taking on him or herself a decision more properly left to the patient, but upon the basis that it is not a treatment which is indicated in the circumstances of the case, then the duty does not arise. The Doctor may of course, have made an error, but if so the consequences of that error, and an assessment of whether there was negligence, would be assessed on the standard Hunter v Hanley basis, as the Lord Ordinary in the present case correctly observed (para.111): “Montgomery imposes an obligation on the Doctor to discuss the risks associated with a recommended course of treatment and to disclose and discuss reasonable alternatives. It does not go so far as to impose upon the Doctor an obligation to disclose and discuss alternatives that he or she does not, in the exercise of professional judgement, regard as reasonable. If the Doctor is wrong either about the risks of the recommended course or about the reasonableness of any alternative, then he or she might be liable for any consequent loss or injury, but that would be decided by application of the Hunter v Hanley test.”
“Explained that transfer to theatre and then reassessment would be best.”
“Explained to pt that we agree to LSCS although would not be our first option.”
“Had there been acceptable medical evidence here that an overdose of penicillin administered intrathecally was known to increase the risk that the meningitis, which the penicillin was intended to treat, would cause deafness, the decision would have been in point. It would be immaterial that medical science was unable to demonstrate the precise mechanism whereby the risk was increased. But as it is, there is in the instant case no such medical evidence. It is true that there are few recorded cases of overdoses of penicillin intrathecally administered for the purpose of treating actual or suspected meningitis. But the paucity of such cases, none of which supports the suggested causal connection, cannot in itself make good the lack of appropriate evidence.”
“In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.”
“16 It is a basic principle of the law of tort that the claimant will only have a cause of action if he can prove, on balance of probabilities, that the defendant’s tortious conduct caused the damage in respect of which compensation is claimed. He must show that, but for the defendant’s tortious conduct he would not have suffered the damage. This broad test of balance of probabilities means that in some cases a defendant will be held liable for damage which he did not, in fact, cause. Equally there will be cases where the defendant escapes liability, notwithstanding that he has caused the damage, because the claimant is unable to discharge the burden of proving causation.”
“It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England.”
“The medical evidence was that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years. That means, I think, that the disease is caused by the whole of the noxious material inhaled and, if that material comes from two sources, it cannot be wholly attributed to material from one source or the other. I am in agreement with much of the Lord President's opinion in this case, but I cannot agree that the question is: which was the most probable source of the respondent's disease, the dust from the pneumatic hammers or the dust from the swing grinders? It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material.”
“It is admitted by the respondents that the deceased inhaled while in their employment the particles which caused his illness and ultimately his death, but they contend that it was not proved that particles which were wrongfully emitted, or which, having been innocently emitted, were allowed, through inadequate ventilation, to remain within his breathing zone, made a material contribution to his illness.”
“It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim "de minimis" is applicable. Accordingly, following the decision in Wardlaw's case, I must hold the respondents liable.” (My italics in line two). Lord Cohen stated at P 622 that: “Pneumoconiosis is a progressive disease. The longer a workman is exposed to an intense cloud the graver must be the risk of infection.”
“Dermatitis can be caused, and this dermatitis was caused, by repeated minute abrasion of the outer horny layer of the skin followed by some injury to or change in the underlying cells, the precise nature of which has not yet been discovered by medical science.”
“It was held in the Court of Session that the appellant had to prove that his additional exposure to injury caused by his having to bicycle home unwashed caused the disease in the sense that it was more probable than not that this additional exposure to injury was the cause of it. I do not think that that is the proper approach.”
“… fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury. That is well illustrated by the decision of this House in Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613.”
“The respondents seek to distinguish Wardlaw's case by arguing that then it was proved that every particle of dust inhaled played its part in causing the onset of the disease whereas in this case it is not proved that every minor abrasion played its part. In the present case the evidence does not show—perhaps no one knows --- just how dermatitis of this type begins. It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence. I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that that is proved.”
“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 view point 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.”
“It was equally common ground, however, that RLF may occur in premature babies who have survived without any artificial administration of oxygen and that there is evidence to indicate a correlation between RLF and a number of other conditions from which premature babies commonly suffer (e.g. apnoeia, hypercarbia, intraventricular haemorrhage, patent ductus arteriosus, all conditions which afflicted Martin) although no causal mechanisms linking these conditions with the development of RLF have been positively identified.”
“If the judge had directed himself that it was for the plaintiff to discharge the onus of proving causation on a balance of probabilities and had indicated his acceptance of this evidence in preference to the contrary evidence led for the authority, a finding in favour of the plaintiff would have been unassailable.”
“I believe that a process of inferential reasoning on these general lines underlies the decision of the majority in McGhee's case.”
“The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 W.L.R. 1 laid down no new principle oflaw whatever. On the contrary, it affirmed the principle that the onusof proving causation lies on the pursuer or plaintiff. Adopting a robustand pragmatic approach to the undisputed primary facts of the case, themajority concluded that it was a legitimate inference of fact that thedefenders' negligence had materially contributed to the pursuer's injury.The decision, in my opinion, is of no greater significance than that andto attempt to extract from it some esoteric principle which in some waymodifies, as a matter of law, the nature of the burden of proof ofcausation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”
“Principles of causation in relation to disease 12. Many diseases are caused by the invasion of the body by an outside agent. Some diseases are caused by a single agent. Thus malaria results from a single mosquito bite. The extent of the risk of getting malaria will depend upon the quantity of malarial mosquitoes to which the individual is exposed, but this factor will not affect the manner in which the disease is contracted nor the severity of the disease once it is contracted. The disease has a single, uniform, trigger and is indivisible.”
“13 The contraction of other diseases can be dose related. Ingestion of the agent that causes the disease operates cumulatively so that, after a threshold is passed, it causes the onset of the disease. Lung cancer caused by smoking is an example of such a disease, where the disease itself is indivisible. The severity of the disease, once it has been initiated, is not related to the degree of exposure to cigarette smoke.”
“14 More commonly, diseases where the contraction is dose related are divisible. The agent ingested operates cumulatively first to cause the disease and then to progress the disease. Thus the severity of the disease is related to the quantity of the agent that is ingested. Asbestosis and silicosis are examples of such diseases, as are the conditions of vibration white finger and industrial deafness, although the insults to the body that cause these conditions are not noxious agents. For this reason it is important to distinguish between asbestosis and mesothelioma when considering principles of causation.” principles of causation.”
"The defendants as well as the plaintiffs are entitled to a just result. If we know - and we do know, for by the end of the case it was no longer seriously in dispute - that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position."
"Thus, whatever the position might be if the court were to find itself unable to make any findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or for the plaintiffs in full, or on some wholly arbitrary basis such as an award of 50 per cent., I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such."
“The evidence is clear, namely that the degree of exposure to asbestos dust makes a difference to the degree to which a particular patient will suffer the disease. Quantification is, however, difficult. Different people respond differently to the inhalation of asbestos, and they respond at different rates at different points of time. Whilst there is a cumulative effect recognised by both specialists, the mere fact that half his working life was with the defendants cannot do anything other than produce a reason for taking that factor into account. Any mathematical approach is clearly unsupportable on the evidence. In the end my assessment is based on the way this matter was put by Dr Page: ‘It is cumulative exposure which causes the asbestos and aggravates it … if the plaintiff had sustained exposure to asbestos dust only whilst working for the Defendants his condition would probably be less.”
“It might be said that the judge should have made the defendants liable only to 50 per cent. If the other employers had been before the court, then subject to exposure which ought to be considered de minimis, I think this is what he would have done. As it is he erred on the side of generosity to the claimant. No one criticises him for that. This method of dividing responsibility on a time exposure basis is, I understand, adopted among insurers in such cases as these. In the absence of some unusual feature, such as for example periods of exposure to a particularly dangerous blue asbestos during some periods, that seems to me to be not only the sensible, but correct approach in law. In practice, many years afterwards, such distinctions are likely to be impossible to prove.” ‘It is cumulative exposure which causes the asbestos and aggravates it … if the plaintiff had sustained exposure to asbestos dust only whilst working for the Defendants his condition would probably be less.”
“20 … (iii) However in principle the amount of the employer's liability will be limited to the extent of the contribution which his tortious conduct made to the employee's disability, (iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant's tortious conduct, (v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury. 21 The application of those propositions should lead to a just and principled result. We mention by way of coda that this approach seems to accord with the view of the authors of the American Law Institute Restatement of the Law, Torts, 2d (1965), section 433 A(e): "Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant C himself, and the extent of the harm has been aggravated by his tortious conduct."” “Causation and apportionment: was the judge entitled to conclude that 50% was an appropriate figure for Mr Allen? (A) Preliminary observations 23 (i) Although these cases were test cases, this particular issue is a pure question of fact dependent upon each individual claimant. This issue is therefore not one of principle and the amounts at stake are so relatively small that this point would never have reached this court had it not been regarded as wrapped up in the issues of principle, (ii) The question of attribution of part of an injury to a particular defendant in a case such as the present is one on which a full and detailed inquiry would be expensive in time and money in a way totally out of proportion to the amount at stake. In those circumstances there is in principle much to be said for judges at first instance doing what Smith J did in the present case and adopting a broad brush approach.” "Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant C himself, and the extent of the harm has been aggravated by his tortious conduct."”
“46. In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson's case exemplifies such a situation. If the evidence demonstrates that “but for” the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified, and the claimant will succeed. 47. The instant case involved cumulative causes acting so as to create a weakness and thus the judge in my view applied the right test, and was entitled to reach the conclusion he did”
“31 As Professor Sarah Green has succinctly observed (Causation in Negligence (2015), chapter 5, p 97): “It is trite negligence law that, where possible, defendants should only be held liable for that part of the claimant’s ultimate damage to which they can be causally linked . . . It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes . . .” “It is trite negligence law that, where possible, defendants should only be held liable for that part of the claimant’s ultimate damage to which they can be causally linked . . . It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes . . .”
“39 The sequence of events may be highly relevant in considering as a matter of fact whether a later event has made a material contribution to the outcome (as Hotson v East Berkshire Health Authority[1987] AC 750 illustrates), or conversely whether an earlier event has been so overtaken by later events as not to have made a material contribution to the outcome. But those are evidential considerations. As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome.”
“97… In short, the ‘material contribution’ approach applies, in my view, just as much to multiple factor cases as it does to “single agency” cases. 98 This brings me, then, to Mr Kennedy’s submission that in a case such as the present the court should engage in an apportionment exercise of the sort carried out in the Holtby case. I cannot accept that this can be right. First, I am in some doubt how this argument can work in circumstances where, as Mr Kennedy accepted during closing submissions, if the ‘material contribution’ test has been satisfied, then causation is made out. It seems to me that, if that is the position, then if the evidence is such that it is not possible to attribute particular damage to a specific cause, the claimant must be entitled to recover in respect of the entirety of his or her loss. 99 Secondly and in any event, I am quite clear that apportionment is not appropriate where it is not merely difficult but is impossible to allot particular loss to a particular cause. The Holtby case itself makes this clear since that was a case in which it was not impossible but merely difficult to work out what damage had been caused by particular factors. This is apparent from the passage in Stuart-Smith LJ’s judgment on which Mr Kennedy himself relies, namely, para 20, in which reference is made to the “question of quantification” being possibly “difficult”, as opposed to impossible. Stuart-Smith LJ cited with approval the following observations made by Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd[1984] QB 405 , 443: “whatever the position might be if the court were to find itself unable to make any findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or for the plaintiffs in full, or on some wholly arbitrary basis such as an award of 50%, I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment …”