Tulley (A Minor) v Wirral Hospitals NHS Trust [2008] EWHC 1685 (QB)

[2008] EWHC 1685 (QB)

Case No 5LV90169

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue MANCHESTER DISTRICT REGISTRY

Date 18/07/2008

Before

MRS JUSTICE SWIFT DBE

Between

JACK TULLEYClaimant

WIRRAL HOSPITALS NHS TRUSTFirst Defendant

MERSEY REGIONAL AMBULANCE NHS TRUSTSecond Defendant

Mr Michael Spencer QC (instructed by Edwards Abrams Doherty) for Claimant

Mr Graham Wood QC (instructed by Hill Dickinson LLP) for First and Second Defendants

Hearing Hearing dates: 16 th– 18 th June 2008

Judgment

[1]This is a claim made on behalf of the claimant, Jack Tulley, who is a child of 12 years old, for damages for personal injuries and losses alleged to have been caused by the negligent management of his mother by the first and/or second defendants following a prolapse of the umbilical cord which occurred shortly before his birth. Split trials of the issues of liability and causation and of quantum were ordered. Between 16 and 18 June 2008, I heard the evidence and submissions relating to the issues of liability and causation, upon which I now set out my findings.

[2]At trial, the claimant was represented by Mr Michael Spencer QC and both defendants by Mr Graham Wood QC. The background The factual background

The background

[3]The claimant is the second child of his mother, Ms Gillian (Gill) Jones. At the time of his birth, she had a three year old daughter, Jasmine. Her previous pregnancy had been uneventful. She had a spontaneous rupture of the membranes (SROM) (often known as the “breaking of the waters”) at home. She was admitted to hospital shortly afterwards and underwent a normal vaginal delivery.

[4]Ms Jones’ pregnancy with the claimant was similarly uneventful, apart from an admission to hospital in October 1995 because of vomiting. Her estimated date of delivery was 22 November 1995. At the time of the claimant’s birth, she was a week past full term. On the evening of 29 November 1995, she was at her home at 19 Paxton Way, Noctorum, Wirral (the address has since changed but I shall refer to the property as 19 Paxton Way) with Jasmine, when she had a SROM. She telephoned her mother, Mrs Kathleen Sheridan, who lived locally, and also a close friend, Ms Dee Foggarty, who was to take her to hospital by taxi and remain with her during the delivery.

[5]The claimant’s case is that the SROM occurred some time between 9:30pm and 10pm (I shall use the 12 hour clock except when quoting from the contemporaneous documents) and that Mrs Sheridan arrived at 19 Paxton Way shortly after 10pm. Mrs Sheridan then rang the maternity unit at Arrowe Park Hospital (APH) to inform them of the SROM. She told the unit that Ms Jones would make her own way to hospital. APH was situated very close to 19 Paxton Way, at a distance of about two miles by road.

[6]As Ms Jones was upstairs preparing to leave for the hospital, she felt something come out of her vagina. She did not know what it was and called for her mother. Her mother went upstairs and they saw the umbilical cord. Her mother went downstairs and telephoned the maternity unit again. The claimant’s case is that this call was made at about 10:10pm. Mrs Sheridan explained what had happened and received advice that Ms Jones should go on all fours (a position intended to relieve pressure on the cord) and should remain in that position until help (in the form of an ambulance which Mrs Sheridan was told would be sent) arrived. Mrs Sheridan communicated that information to Ms Jones who did as instructed and positioned herself on her hands and knees.

[7]The contemporaneous documents show that an ambulance (which I shall call the first ambulance) arrived at 19 Paxton Way at 10:50pm and that another ambulance (the second ambulance), bringing the APH Obstetric Flying Squad (the Flying Squad), arrived at 10:58pm. It is alleged by the claimant that, during the period of 40 minutes or so between the second telephone call and the arrival of the first ambulance, Mrs Sheridan rang the hospital on at least two further occasions to find out where the ambulance was.

[8]Once the Flying Squad was on the scene and had the opportunity of assessing the situation, Ms Jones was placed on an ambulance chair (still on all fours), with a midwife, Mrs Margaret Anderton, supporting the claimant’s head in Ms Jones’ vagina. She was then carried into one of the ambulances and taken to APH where she arrived at 11:15pm. After ultrasound scanning had ascertained that the baby was still alive, she underwent an emergency caesarean section and the claimant was delivered at 11:25pm.

Cord prolapse

[9]A prolapse of the umbilical cord occurs when part of the cord descends through the cervix and vagina following rupture of the membranes, whether spontaneous or artificial. Cord prolapse gives rise to a serious risk of compromise of the blood supply between the placenta and the fetus, with consequential fetal distress. Compromise can occur as a result of the cord contracting when exposed to the outside environment and/or as a result of compression of the cord as it lies in the vagina or through the cervix. Because of the risks to the fetus associated with cord prolapse, it is essential that, once a prolapse has been diagnosed, delivery should be undertaken as soon as possible. If the mother is in the second stage of labour, with the cervix fully dilated, this can be done by an assisted vaginal delivery. If the second stage has not yet been reached, delivery should be carried out by emergency caesarean section.

The claimant’s injuries

[10]The claimant was born in a depressed and asphyxiated condition. He had APGAR scores of four at one minute, four at five minutes and seven at ten minutes. He required suction and intubation. Spontaneous breathing was established after ten minutes. He was subsequently diagnosed as suffering from cerebral palsy, with significant motor and intellectual impairment. The Issues Causation

The Issues

[11]There is no dispute that the claimant’s cerebral palsy and his resultant disabilities were caused by a profound hypoxic ischaemia, and that this resulted from an interruption of the blood flow between the placenta and the fetus, following a prolapse of the cord.

[12]As to the timing of the onset of hypoxia, the two neuroradiologists instructed in the case, Dr Paul Butler and Dr Brian Kendall, agree that the abnormalities in the claimant’s brain evident on cranial magnetic resonance imaging are typical of damage caused by profound hypoxia lasting longer than ten minutes, but no more than 25 minutes. The opinion of Dr Richard Newton, Consultant in Child and Adolescent Neurology, instructed on behalf of the claimant, (whose opinion is accepted by the defendants) is that, if the claimant’s delivery could have been secured by 11:10pm (i.e. saving him 15 minutes’ exposure to hypoxic ischemia), it is probable that he would have survived without brain injury.

[13]Thus, in order successfully to establish the necessary causation, the claimant must demonstrate that, but for the alleged breach of duty, he would have been delivered before 11:10pm.

Breach of duty

[14]The claimant contends that a period of as long as 40 minutes elapsed between Mrs Sheridan’s second telephone call (informing the hospital of the cord prolapse) and the arrival of the first ambulance at 10:50pm. An even longer period elapsed before the arrival of the Flying Squad at 10:58pm. This passage of time must, the claimant submits, have been attributable either to a failure on the part of a member or members of staff at APH (for which the first defendants were responsible) or to a failure on the part of the ambulance service (for which the second defendants had responsibility). It is alleged that the hospital staff failed to respond promptly by requiring an ambulance to attend at Ms Jones’ home once the prolapsed cord had been reported to them. Alternatively, it is said that there must have been a delay on the part of the ambulance service in responding to a call-out made promptly by the hospital staff. At trial, the claimant did not pursue the case against the second defendants with any vigour. Instead, the dispute centred on the conduct of members of staff employed by the first defendants.

[15]The defendants concede that, if a delay of the magnitude alleged by the claimant did indeed occur, there must have been negligence on the part of someone employed by one of them. However, their case is that the claimant’s timings are wholly wrong. They contend that the first telephone call (informing the maternity unit of Ms Jones’ SROM) was made at or about 10:30pm, almost 30 minutes later than the claimant alleges. They argue that the second telephone call (informing the unit about the prolapsed cord) was made at about 10:45pm (35 minutes later than the claimant alleges). They say that, following the second telephone call, a member of staff on the maternity unit telephoned the switchboard immediately, requesting that the Flying Squad should be dispatched to Ms Jones’ home. That message, was, they say, passed to the second defendants at 10:47pm and, thereafter, there was no delay in mobilising the ambulances and in getting Ms Jones to hospital and delivering the claimant.

[16]At one time, the claimant was contending that the Flying Squad should not have been used at all and that its use – and the decision of the crew of the first ambulance to await the arrival of the Flying Squad, rather than to take Ms Jones to APH immediately – resulted in culpable delay in delivering the claimant. The claimant also criticised the use of the ambulance chair to convey Ms Jones from the first floor of her home to the ambulance, alleging that the difficulties of manoeuvring it downstairs led to further avoidable delay. By the end of the trial, however, all these criticisms had fallen away and rightly so. It was plain by that time that, although alternative courses of action were open to the individuals concerned in these events, their decisions to act as they did could not be characterised as negligence. It is not necessary for me to deal further with these allegations.

[17]The sole issue in this case, therefore, is the timing of the events leading up to the claimant’s delivery and, in particular, the timing of the second telephone call to the maternity unit, informing staff of the cord prolapse.

The witnesses

[18]For the claimant, I heard oral evidence from Ms Jones, Mrs Sheridan, Mr Peter Jones (Ms Jones’ brother), Ms Ellie Stewart (Mr Peter Jones’ partner) and Ms Foggarty.

[19]For the defendant, I heard evidence from Mrs Susan Askew (midwifery sister on duty on the maternity unit at the relevant time), Mrs Margaret Anderton (a midwife, also on duty on the unit at the time) and Dr Najum-Us-Saquib Qureshi (a registrar in obstetrics and gynaecology, who was on duty on the unit on the night in question).

[20]I also heard evidence from Mr John Davis and Mr Richard Lane, both experts in ambulance service procedures. Their evidence was primarily concerned with the use of the Flying Squad and with events once the ambulance crews had arrived at Ms Jones’ house. Since the allegations relating to these matters are no longer pursued, it is not necessary for me to refer further to these witnesses.

The effects of delay

[21]The events that are the subject of this claim occurred over 12½ years ago. No formal complaint was made to the defendants at the time. Ms Jones first consulted solicitors some time in 1997 and it was not until July 2005 that proceedings were commenced. Consequently, it was not until many years after the relevant events that the defendants’ witnesses were asked to give their recollection of those events. As to the claimant’s witnesses, although Ms Jones made a written statement some time in 1997, Ms Foggarty did not make a statement until 2003. Mr Peter Jones and Ms Stewart did not make their statements until 2006. The fact that, at trial, the witnesses were attempting to recall events which had taken place so long ago inevitably had an effect on the quality of their evidence.

[22]The problems were compounded by the fact that some of the documentation which might have been helpful in pinpointing the timing of various events was not available. In particular, the vehicle running sheet/log for the ambulances which attended the call could not be found. Nor was the controlled drugs book held in the maternity unit available. There were no records of the staff on duty on the maternity unit or the Special Care Baby Unit (SCBU). There was no patient report form relating to the treatment by the ambulance crew of Ms Jones. Some contemporaneous documents were, however, available and I shall discuss those in due course.

The Evidence

[23]I now turn to the evidence about the events on the evening of 29 November 1995.

The arrangements for Ms Jones’ admission to hospital

[24]By 29 November 1995 (a Wednesday), Ms Jones was a week beyond term. The antenatal notes record that she had last attended the clinic on Monday, 27 November 1995 and was to be seen again on Thursday, 30 November 1995. Although Mrs Sheridan’s evidence was that she believed that Ms Jones was to have a caesarean section on 30 November 1995, there is no indication in the antenatal records that any specified action was to be carried out on that date. Ms Jones told me that it was possible that a decision may have been taken to induce labour on that day; alternatively, she may have been sent home to await developments. In any event, she had her bag packed and had made the necessary arrangements for Jasmine’s care in preparation for the time when she was admitted to hospital for the birth.

[25]Ms Jones, who had no partner at the time, told me that she had arranged for Ms Foggarty to be with her during the baby’s delivery. When informed that Ms Jones was to be admitted to hospital, Ms Foggarty was to take a taxi from her home to 19 Paxton Way, collect Ms Jones and accompany her to hospital. Meanwhile, Ms Jones’ brother, Mr Peter Jones, and his partner, Ms Stewart, were to look after Jasmine during Ms Jones’ time in hospital. Ms Foggarty, Mr Peter Jones and Ms Stewart all agreed that this had been the arrangement. Mrs Sheridan’s recollection was different. She told me that the original arrangement had been that she was going to stay at Ms Jones’ home and look after Jasmine whilst Ms Jones was in hospital. She said that Mr Peter Jones and Ms Stewart were not going to play any part in the care arrangements. However, when the cord prolapse occurred, she decided to accompany Ms Jones to hospital. It was then, she said, that it became necessary for her to telephone Mr Peter Jones and Ms Stewart and ask them to care for Jasmine while she was away. It is clear from the evidence of the other witnesses that Mrs Sheridan is wrong about this and that Ms Jones had arranged for Mr Peter Jones and Ms Stewart to care for Jasmine during her admission to hospital for the birth.

The spontaneous rupture of the membranes

[26]In the evening of 29 November, Ms Jones was at home with Jasmine. They were in the living room watching television. It was well past the usual bedtime for a three year old, but Ms Jones said that she wanted to spend some time with Jasmine before the birth of her baby. She thought that they were watching live television, rather than, for example, a children’s DVD. As they were watching the television, Ms Jones’ waters broke. She said that she had had a similar episode before Jasmine’s birth so was not particularly worried. She was not experiencing any pains at that time so knew that she was not in labour. However, the onset of labour was clearly not far away and it was plain that she should get herself to hospital. She left the television on and Jasmine watching it, and went to telephone Mrs Sheridan from the telephone situated in the hall at the bottom of the stairs. Her intention was that Mrs Sheridan, who lived less than five minutes’ walk away, would come to sit with Jasmine for a while, then return home. Ms Jones also telephoned Ms Foggarty, who promised to come round in a taxi as previously arranged. Timing

[27]In her witness statement, Ms Jones said that her waters broke “[s]ome time between 9:30pm and 10pm”, whereupon she immediately telephoned her mother and Ms Foggarty. In oral evidence, she suggested that it was probably about 9:45pm when her waters broke, although she was unable to say why she believed this. She was adamant that it had happened before 10pm.

[28]In her witness statement, Mrs Sheridan said that she could not remember the precise time that Ms Jones had telephoned her, although it was certainly before 10pm. In oral evidence, she told me that Ms Jones rang at about 9:40-9:45pm. She said that she remembered the time since she had just come out of the bath and was usually in bed at 10pm. In cross-examination, she said that she remembered that it was 9:45pm when Ms Jones telephoned because she had looked at the clock at the time she received the call.

[29]In her witness statement, Ms Foggarty stated that Ms Jones telephoned her “certainly after 9:30pm but before 10pm”. In oral evidence, she said that it was “approaching 10pm” when Ms Jones rang.

The first telephone call to the hospital

[30]Ms Jones’ evidence was that her mother arrived about five minutes after she had telephoned her. She said that there was no particular sense of urgency at that stage. She remained downstairs for 5-10 minutes before going upstairs to change her underwear and to collect her bag so as to be ready for Ms Foggarty when she arrived. At some point, her mother telephoned the maternity unit to inform them that Ms Jones’ waters had broken and that she would be coming into hospital. She said that there was an interval of about 10-15 minutes between the first and second telephone calls. Since she told me that the “commotion” (i.e. the cord prolapse and the events that followed) occurred at 10:05-10:10pm, it follows that, on her timing, the first telephone call must have been made no later than 10pm.

[31]Mrs Sheridan told me that she arrived at 19 Paxton Way before 10pm. She said that the ITV news programme, “News at Ten”, was just coming on. She made the telephone call to the hospital at about 10pm. In her witness statement, Mrs Sheridan said that she had arrived at about 10pm (when “News at Ten” had just started) and made the call immediately.

[32]The only evidence the defendants have relating to the first telephone call is an entry in the Flying Squad logbook made by Mrs Anderton between about midnight and 12.30am on 30 November 1995. As part of a longer note, she recorded: “Call → 22.30 patient reported SRM, no contractions, at term, no complications, advised to come in. Patient using own transport”.

[33]Mrs Anderton’s evidence was that she herself did not take the telephone call. She had been told about it by another member of staff. When she made her witness statement, she believed that she had received the information from Mrs Askew. However, in evidence, Mrs Askew denied that that was the case. It seems therefore, that the information must have come from another member of the staff in the maternity unit, probably the person who took the call. I was told that this was a fairly routine type of call which would not necessarily have been noted in the patient’s records.

The arrival of other members of the family

[34]Although Mrs Sheridan’s evidence was that she had telephoned Mr Peter Jones and Ms Stewart at a later stage of events (after the cord had prolapsed), it is clear that she is mistaken about that and that, in fact, she rang them earlier. She probably spoke to Ms Stewart’s mother (with whom the couple lived), who passed the message on to Mr Peter Jones.

[35]In his witness statement, Mr Peter Jones did not say what time he received the news of the SROM. However, he estimated his time of arrival at 19 Paxton Way at just after 10pm. In oral evidence, he said that he received the message at about 9:30-9:45pm. He and Ms Stewart were watching television in bed. The News had not yet started. It took them 10-15 minutes to dress and ten minutes to reach Ms Jones’ house. He said that they arrived at 19 Paxton Way just after 10pm. He said that he knew that they had arrived shortly after 10pm because “News at Ten” had just started. Later in his evidence, he estimated their time of arrival at about 10:10pm.

[36]Ms Stewart’s recollection was rather different. She said that she went to bed just after 9:30pm and Mr Peter Jones joined her shortly afterwards. He told her that he wanted to watch the News. She said that she went to sleep and “a couple of minutes after 10pm”, Mr Peter Jones woke her up to say that Mrs Sheridan had telephoned. At that time, the News was on. She said that it took them about 5-6 minutes to get to 19 Paxton Way. She estimated that they arrived at about 10:05-10:10pm, although she later suggested that it may have been 10:10-10:15pm. She said that Mrs Sheridan was on the telephone when they arrived and Ms Jones was going upstairs to get her bag for the hospital.

[37]Mr Peter Jones’ evidence was that, as he walked into 19 Paxton Way, Mrs Sheridan was on the telephone to the hospital and Ms Jones was either “going upstairs” (in his witness statement) or “pacing across the landing” (in his oral evidence). The telephone call referred to by Mr Peter Jones and Ms Stewart must have been the first telephone call made by Mrs Sheridan to the maternity unit.

[38]Both Mr Peter Jones and Ms Stewart told me that they were unaware of the arrangement whereby Ms Foggarty was to take Ms Jones to hospital. They believed that Ms Jones was to be taken to hospital by ambulance. It seemed that, not only had they believed that at the time, but that they continued to believe it to be so right up until the time that they gave their evidence.

[39]At some stage, another brother of Ms Jones, Mr Terry Jones, arrived at 19 Paxton Way with his then partner, Ms Gill Adamson. Mrs Sheridan told me that she did not telephone Mr Terry Jones. She suggested that Mr Peter Jones must have done so. I heard no evidence from Mr Peter Jones about that and Mr Terry Jones and Ms Adamson did not give evidence.

The cord prolapse

[40]Ms Jones’ evidence was that, once upstairs, she went into the bathroom and walked towards the bedroom to collect some clean underwear. She said that she had been upstairs for no more than five minutes, probably less, when, as she walked towards the bedroom, she felt “something fall down”. She was scared and called for her mother who came upstairs. At that stage, Ms Jones said that she did not know what had happened. When her mother came up, they both saw the umbilical cord against her thigh. It was pulsating. Ms Jones told me that Mrs Sheridan “panicked” and went downstairs to ring the hospital again. Ms Jones herself was worried and upset. She was crying. She recalled that her mother shouted upstairs that she should get onto all fours. She did so, resting on her hands and knees. She also recalled her mother telling her that an ambulance was on its way.

[41]In her witness statement, Mrs Sheridan said that, within “about a minute” of the first telephone call, she heard Ms Jones shout from upstairs that there was something wrong. Mrs Sheridan was afraid that the baby was about to be born. She went upstairs and saw Ms Jones on the landing. She could see the cord hanging outside her body. She then went downstairs to ring the maternity unit again. She told me that she was frightened. She did not realise the specific dangers associated with cord prolapse. However, she was afraid that the baby was about to be delivered without any medical assistance on hand.

[42]In her witness statement, Mrs Sheridan said that she was put through by the hospital switchboard to the maternity unit, where a nurse told her to put the telephone down (leaving the line open), go upstairs, place a blanket on the floor and tell Ms Jones to get on all fours and not to move from that position. Mrs Sheridan did as she was told, then returned to the telephone. The nurse asked her whether the cord was moving (by which I assume she meant pulsating) and Mrs Sheridan confirmed that it was. She was told that an ambulance would be out to the house straightaway.

Timing

[43]Ms Jones’ evidence was that the “commotion” occurred at 10:05-10:10pm. I infer from that that she was suggesting that the second telephone call to the maternity unit was made at that time. She said that no longer than about 10-15 minutes elapsed had between the first and the second telephone calls. She told me that, by the time the cord prolapse occurred, Mr Peter Jones and Ms Stewart had arrived at 19 Paxton Way, together with Mr Terry Jones and Ms Adamson.

[44]Mrs Sheridan said that she made the second telephone call at 10:10pm. She estimated the period between the first and second telephone calls at about five minutes. She said that it could have been 15 minutes, but she thought it was less.

[45]Mr Peter Jones told me that, about 5-10 minutes after he and Ms Stewart had arrived at 19 Paxton Way, he heard Ms Jones shouting for her mother. By his timings, that would have been at about 10:10-10:15pm. He recalled Mrs Sheridan putting down the telephone in order to go up to Ms Jones. He believed that Ms Adamson took over the call, asked where the ambulance was, then replaced the receiver and said that the ambulance was on its way. In cross-examination, he said that Mrs Sheridan was on the telephone asking where the ambulance was when Ms Jones said that she could see the cord.

[46]Ms Stewart’s oral evidence was that the prolapse happened about 10-15 minutes after she and Mr Peter Jones arrived. On her timings, that would be at about 10:15-10:25pm. Her evidence about sequence of events was rather confused. At one point in her evidence, she appeared to suggest that the cord prolapse was discovered while Mrs Sheridan was on the telephone to the maternity unit reporting the SROM. At other times, she seemed to be saying that there was a time interval between the two events.

The arrival of Ms Foggarty

[47]Ms Jones’ evidence was that Ms Foggarty arrived after the cord prolapse, not long after she had been instructed by her mother to go onto all fours. Mrs Sheridan said that she thought that Ms Foggarty arrived as she was putting the telephone down after her second telephone call to the maternity unit. She estimated the time at 10:10-10:15pm.

[48]Ms Foggarty’s evidence was that, having received the call from Ms Jones (which, as I have said, she believed was at “approaching 10:00pm”), she rang for a taxi. This took no longer than five minutes to arrive and the journey took a further five minutes. She said that she arrived at 19 Paxton Way shortly after 10pm, certainly no later than 10:15pm. Mrs Sheridan was on the telephone, making what must have been her second call to the hospital. Mr Peter Jones and Ms Stewart were there and there were “other faces”, presumably Mr Terry Jones and Ms Adamson. Mrs Sheridan directed Ms Foggarty upstairs where she found Ms Jones kneeling on all fours, partially wrapped in a quilt. She saw the cord, although she did not know what it was. Ms Jones was very distressed. Ms Foggarty sat on the stairs and talked to her, attempting her to keep her spirits up.

After the second telephone call

[49]Ms Jones’ evidence was that she remained on her hands and knees for at least 35 minutes before an ambulance arrived. During that time, Ms Foggarty was talking to her. She heard her mother on the telephone to the hospital “a few times”. In her witness statement, she said that she remembered her mother “was screaming and shouting” down the telephone. She said that Mrs Sheridan “was incredibly distressed and panicking”. At one point, she was aware that her mother had got so upset that she passed the telephone to Ms Adamson.

[50]Mrs Sheridan said that, when the ambulance did not arrive, she rang APH a third time. She said that this was 10-15 minutes after the second telephone call. In her witness statement, she estimated that the time of this third call was 10:20pm. She spoke to a nurse, who said that the ambulance was on its way. In her written statement, she described a fourth telephone call, when she became so frustrated that she handed the telephone to Ms Adamson. Mrs Sheridan said that she then took over the call again and screamed and shouted at the person on the other end of the telephone. In oral evidence, Mrs Sheridan told me that she “kept ringing” and did not know how many calls she made. She could not remember whether anyone else had spoken to APH apart from herself. Mrs Sheridan said that, meanwhile, Mr Peter Jones and Ms Stewart were outside waiting for the ambulance and she also sent Mr Terry Jones outside in case the ambulance needed directions.

[51]Ms Foggarty’s evidence was that it was “a good half hour to 40 minutes” before the first ambulance arrived. During that period, Mrs Sheridan made two or three further calls to the hospital. She was “running round frantically” and there was “a lot of chaos downstairs” which seemed to Ms Foggarty “to go on for ages”.

[52]Mr Peter Jones said that the first ambulance came about 30-35 minutes after he arrived at the house. In cross-examination, he put the time at about 25 minutes. He said that, by then, he believed that there had been three calls for the ambulance. He thought that the cord prolapse had occurred before the second call and that the third call was to find out where the ambulance was. In re-examination, however, he appeared to suggest that the cord prolapse has occurred before what he termed the “first” call. Mr Peter Jones’ evidence was that he and Ms Stewart stood at the front door for 5-10 minutes, looking for the ambulance. They then walked to the main road and waited there for 2-3 minutes, then returned to the house where they stayed in the sitting room looking after Jasmine. In cross-examination, he said that he could not remember whether they had gone out once or twice to look for the ambulance.

[53]Ms Stewart’s evidence was that the first ambulance came about 30-35 minutes after she and Mr Peter Jones had arrived. From her evidence, it appeared that she and Mr Peter Jones had gone out to look for the ambulance shortly after their arrival at 19 Paxton Way, before the cord prolapse occurred and at a time when no ambulance had in fact been called. As I have said, they were apparently unaware of the arrangement for Ms Foggarty to take Ms Jones to hospital and believed that she was to be conveyed there by ambulance. Ms Stewart said that they walked to the main road (about 2-3 minutes’ walk away) and waited there for about ten minutes before returning to the house. She suggested that she had made a second visit to the main road and that it was after that that she was told about the prolapsed cord.

The arrival of the ambulances

[54]Ms Jones said that she did not know that two ambulances had attended. She was just aware of “people in uniform”. In her witness statement, she said that at least four or five people came. She went on:

“A nurse came in and told me immediately that there was a possibility that they would have to do an emergency caesarean section there and then. I asked a female why it was taking so long for the ambulance to come. She told me that they were putting equipment into the ambulance. There were also two men dressed in green tunics. One man in green came and took a look at the cord and said it was “still throbbing, let’s go”

. Almost immediately a midwife came and pushed her fingers up into my vagina and kept them there whilst I was taken out on a chair on all fours”.

[55]The reference to an emergency caesarean section being done “there and then” must be mistaken since there can have been no question that a caesarean section would have been performed at Ms Jones’ home. A vaginal delivery might have been attempted if her cervix had been fully dilated. In oral evidence, Ms Jones said that, contrary to what was suggested in her witness statement, she had not asked about the cause of the delay while she was still at her home. She said that she had done so when she was in the ambulance on her way to hospital.

[56]Mrs Sheridan was aware that two ambulances had attended. She believed that they had arrived together. She thought that there were three nurses and a doctor in the first ambulance and an incubator, oxygen cylinders and other equipment in the second. In oral evidence, she said that she could not be sure about that, although she was certain that the two ambulances had arrived together. She did not accept that there had been as long as eight minutes between the arrival of the two ambulances.

[57]Ms Foggarty was also aware that two ambulances had attended but could not remember how long had elapsed between the arrival of the first and the second. In her witness statement, she said that four to six people came running upstairs. At that point, she moved from the top of the stairs to a position on the opposite side of Ms Jones so as not to be in the way of the ambulance personnel. However, she remained on the landing throughout, within sight of Ms Jones and the people assisting her. She said that she was not aware of any period of waiting for the arrival of the second ambulance. In her witness statement, Ms Foggarty estimated that it had taken “anything between 10-15 minutes” from the time they arrived for the team to get Ms Jones to the ambulance. She described how Ms Jones was picked up and placed on a chair, still on her hands and knees. There were difficulties manoeuvring the chair down the stairs. There were also problems in getting Ms Jones from the front door to the ambulance; the council were carrying out renovations in the area and there was no pathway, “just mud”.

[58]In his witness statement, Mr Peter Jones said that the first ambulance had arrived, carrying the nurses. After about five minutes, the second ambulance arrived. This, he said, had all the equipment in it and the paramedics. In his oral evidence, Mr Peter Jones said that he could not say how far apart in time the ambulances arrived. He told me that he did not notice which personnel were on which ambulance. In her witness statement, Ms Stewart put the time interval between the arrival of the two ambulances at about five minutes. She said that the second ambulance “came with paramedics”. In her oral evidence, she at first suggested that the time interval between the arrival of the two ambulances may have been three minutes, but later said that she could not be sure and agreed that it could have been as long as eight minutes.

The telephone records

[59]The telephone records for the relevant quarter relating to the landline at 19 Paxton Way have been obtained. Unfortunately, they are of little assistance, since calls costing less than five pence are not listed. Local calls of short duration do not therefore appear. Only one call on 29 November 1995 is listed. That was a call lasting four minutes, 40 seconds, made to APH at 10:54pm. Mrs Sheridan said that she did not make that call. Mr Peter Jones and Ms Stewart did not know who made the call, although Ms Stewart suggested that it could have been Mrs Sheridan or Ms Adamson. It was plainly not Ms Jones or Ms Foggarty since they were upstairs. I shall deal with the potential significance of that call in due course.

[60]Once Ms Jones had been transferred to the ambulance, it took her to APH. Ms Foggarty and Mrs Sheridan followed in Mr Terry Jones’ car, while Mr Peter Jones, Ms Stewart and Ms Adamson stayed at 19 Paxton Way with Jasmine. The defendants’ evidence The mobilisation of the Flying Squad

The defendants’ evidence

[61]Mrs Askew said that she had come on duty in the labour ward of the maternity unit at 9:15pm. After that, there would be a 15 minute handover. Then, her duties would take her in and out of the delivery rooms. She would also spend time at the nursing station, where the ward telephone was situated.

[62]Mrs Askew said that she was standing near the nursing station when a telephone call came in about Ms Jones. A midwife (whose identity she could not now recall, but who was definitely not Mrs Anderton) took the call, which lasted longer than usual. She said that she remembered the midwife telling the caller to go away and advise the patient to go onto all fours or to adopt the “knee/ chest position”. The midwife told the caller to come back and report to her that this had been done. The advice she was giving alerted Mrs Askew to the fact that a cord prolapse must have occurred.

[63]Mrs Askew said that a cord prolapse is an obstetric emergency and demands immediate attention. At that time, the maternity unit had a Flying Squad. There was a dedicated telephone to be used to contact the hospital switchboard when the Flying Squad was required. This telephone would be answered immediately and the switchboard would then contact ambulance control and make arrangements for the Flying Squad to be mobilised.

[64]In her witness statement, Mrs Askew said that she could not recall whether she or the midwife who took the original call made the request for the Flying Squad to be mobilised. In oral evidence, she said that she used the dedicated telephone to make the necessary request. She said that she then set about gathering together the necessary personnel and equipment.

[65]A registrar and midwife were required to attend. Dr Qureshi, one of the two registrars on duty that evening, was working on the labour ward at the time. Mrs Askew thought that he was in a delivery room with a patient. She said that she went to get him herself or delegated someone else to do so. She then contacted Mrs Anderton, the senior midwife on duty. Her evidence was that Mrs Anderton was caring for a patient who had just undergone an operation; she had taken the patient up to the ward, which was situated on the first floor of the unit. Mrs Askew said that she rang the ward, spoke to Mrs Anderton and told her that she was needed to go out with the Flying Squad. Mrs Askew was adamant that there was no delay in finding a midwife to go with the Flying Squad. She said that, if Mrs Anderton had been unavailable, she would have instructed another midwife to go in her place and would herself have replaced that midwife in whatever task she was undertaking at the time.

[66]Mrs Askew said that she arranged for porters to move the necessary equipment from the Flying Squad room to the entrance door of the maternity unit. She went with another member of staff to draw out a quantity of pethidine from the controlled drugs cupboard, in case the baby had to be delivered at Ms Jones’ home and Ms Jones required analgesia. She went to the entrance door of the maternity unit, where she met Mrs Anderton and handed over the drugs. She could not remember whether she had been present when the ambulance carrying the Flying Squad left.

[67]Mrs Anderton said that she remembered the events of 29 November 1995, because they were unusual. She said that it was only the third time she had been out with the Flying Squad. It was the first time she had encountered a cord prolapse outside hospital. She confirmed that a cord prolapse would be treated as an obstetric emergency.

[68]Mrs Anderton said, during the early part of her shift, she had assisted in a surgical procedure carried out in the operating theatre. After completion of the procedure, she had supervised the patient in the recovery room and had then accompanied her up to the ward. She was carrying out the handover of the patient to ward staff when she received a call from Mrs Askew. Mrs Askew told her that she was needed for the Flying Squad, which had been called out to a patient with a cord prolapse. Mrs Anderton said that she left the ward immediately. She was in her theatre “scrubs” so she went downstairs to the changing room near the theatre and changed into her midwife’s uniform. She estimated that this took about five minutes. She then made her way to the main entrance door of the unit. She said that, when she arrived there, members of staff (she thought they were midwives, not porters) were bringing out the necessary equipment. Mrs Askew brought her the controlled drugs that would be required. The ambulance arrived and she, Dr Qureshi and the boxes of equipment were loaded into the back. The ambulance crew travelled in front.

Timing

[69]Mrs Askew could not now remember what time the telephone call reporting the cord prolapse was received at the unit. The note made by Mrs Anderton in the Flying Squad logbook states: “Call → 22.45. Patient’s mother reported she could see the cord hanging out and required help. Advised patient to adopt knee chest position. FS Team called”.

[70]Mrs Anderton said that she was given this information by someone else, presumably either Mrs Askew or the midwife who took the telephone call.

[71]The computerised ambulance record shows the time of the telephone call from APH to ambulance control as 10:47pm. The same record shows that the first ambulance was allocated at 10:47pm, was mobile at 10:48pm and arrived at 19 Paxton Way at 10:50pm. If those timings are correct, the ambulance must have been in a position somewhere near 19 Paxton Way at the time its crew received their instructions to attend there. It could not have been at the hospital, since a travel time of two minutes would have been insufficient to make the journey from APH to 19 Paxton Way. Still less could it have had time to load up the Flying Squad’s personnel and equipment before travelling to 19 Paxton Way.

[72]The record shows that a second ambulance was allocated at 10:50pm, mobile at the same time and reached 19 Paxton Way at 10:58pm. It is clear from the evidence that it must have been this ambulance that carried the Flying Squad.

[73]In the Flying Squad logbook, Mrs Anderton recorded that the ambulance in which she travelled “arrived” (by which it seems she meant arrived at the maternity unit entrance) at 10:51pm and reached the patient’s house at 10:58pm. She said that she checked those times herself on the fob watch she wore on her uniform. These times are entirely consistent with the ambulance record.

Events at 19 Paxton Way

[74]Mrs Anderton described how, when she arrived at 19 Paxton Way, another ambulance and two ambulance men were already at the scene. She found Ms Jones lying on a blanket. Her recollection was that she was lying on her side. Mrs Anderton performed an internal examination in order to ascertain whether it would be possible to deliver the baby vaginally. In the event, Ms Jones’ cervix was only three centimetres dilated, so the decision was taken to transfer her to APH for an emergency caesarean section. Mrs Anderton said that she got Ms Jones onto all fours and placed her fingers in Ms Jones’ vagina to support the fetal head. There was discussion about how Ms Jones should be moved, whilst maintaining her position on all fours. It was decided to place her on an ambulance chair. In this way, she was taken downstairs and into the ambulance. This involved getting her over rubble and a trench that had been dug outside the house.

[75]The entry in the Flying Squad logbook in relation to these events reads: “ Patient lying on her side on the landing. Ambulance man had his hand in patient’s vagina supporting fetal head. On examination – cord loop was hanging out of vagina, cervix 3 cm dilated, pulse in cord felt. Patient moved from house in knee chest position on a chair in very difficult circumstances through a building site conditions. Patient transferred in knee chest position with my hand supporting fetal head”.

[76]In oral evidence, Mrs Anderton said that she did not now remember that one of the ambulance men had been supporting the fetal head in Ms Jones’ vagina when she arrived although, if he was doing so, that would have been the correct procedure.

[77]The ambulance record shows that the second ambulance to arrive at 19 Paxton Way left the address at 11:10pm and the other ambulance left at 11:11pm. It is clear that the ambulance carrying Ms Jones would have left first. Mrs Anderton said that she travelled in that ambulance, together with Ms Jones, Dr Qureshi and the ambulance crew.

[78]Mrs Anderton told me that neither she nor any other member of the ambulance crews or Flying Squad had any communication with the hospital from 19 Paxton Way. At Dr Qureshi’s request, a member of the ambulance crew telephoned the maternity unit from the ambulance to warn staff to have the ultrasound scanning unit ready and the theatre prepared for their arrival. Mrs Anderton said that, when they reached the hospital, the ambulance crew carried Ms Jones to the labour ward. Dr Qureshi carried out an ultrasound scan to find out whether the fetus was viable. Ms Jones was then taken to theatre. Mrs Anderton, who had been supporting the fetal head throughout, ceased to do so only when the surgical incision was made.

[79]Mrs Anderton then left the theatre, leaving Mrs Askew to carry out the midwife’s duties. She went to see members of Ms Jones’ family who were waiting outside. She said to them, “Thank God, we have a live baby”. She told me that Mrs Sheridan answered, “There’d better be”, or words to that effect. In her witness statement, she described Mrs Sheridan as “very upset and angry”. She said that she did not attach any particular significance to Mrs Sheridan’s reaction since she had experienced similar responses to extreme emotion in the past. She was not made aware at that time – or indeed until years later – of any feeling on the family’s part that there had been an untoward delay in the arrival of the ambulance. She said that she did not remember Ms Jones asking why the ambulance had taken so long.

[80]The last part of the entry in the Flying Squad logbook made by Mrs Anderton reads:

“23:25 arrived at LW [labour ward] and scanned immediately – FH [fetal heart] seen 23:35 live male delivered by emergency LUSCS [lower segment caesarean section] under GA [general anaesthetic]. ”

[81]Mrs Anderton acknowledged that these timings were inaccurate. They do not correspond with the timings in the other contemporaneous records, which record the time of the arrival of the ambulance at hospital at 11:15pm and the time of delivery at 11:25pm. Mrs Anderton said that, because of her role in supporting the fetal head, she was not able to check and record those times herself as events occurred. Instead, she had obtained them from others later. This, she said, would account for any inaccuracies. The entry in the logbook was, she said, made about one to one and a half hours after the claimant’s delivery, after Mrs Anderton had seen the family and had a cup of tea.

[82]Dr Qureshi’s evidence was that he was called to accompany the Flying Squad and travelled with Mrs Anderton to 19 Paxton Way. There, Mrs Anderton examined Ms Jones and he then took the decision that an emergency caesarean section should be performed. He recalled that there was some difficulty in transferring Ms Jones to the ambulance because of the building work that was going on outside the house. Dr Qureshi did not specifically recall asking the ambulance crew to contact the hospital and prepare for Ms Jones’ arrival, but said that that would have been the practice at the time. He would have made the request once in the ambulance. Dr Qureshi said that, on arrival at the hospital, he performed an ultrasound scan to check fetal viability. When viability was established, he proceeded to an emergency caesarean section within a very short time.

[83]Following these events, Dr Qureshi made the following note:

“29/11/95 22.58 [this is somewhat difficult to read but Dr Qureshi believed that the time recorded was 22.58] Pt [patient] home attended by obstetrical Flying Squad. Pt examined by m/w [midwife] 3 cm dil [dilated], cord prolapse – cord still pulsating Rushed → APH 23:15 USS [ultrasound scan]: fetal heart present → Em LSCS [emergency lower segment caesarean section]”

Rushed → APH → Em LSCS [emergency lower segment caesarean section]”

Rushed → APH

[84]It was suggested to Dr Qureshi in cross-examination that the times in the note had been changed and, indeed, on examining the original, it did appear that some alterations had been made. Dr Qureshi did not dispute that the times had been altered, but said that he could not tell what figures had been written originally. He was, however, satisfied that he had not (as was suggested to him by Mr Spencer) altered times that had been written by another member of staff. He said that he would not do that and, in any event, he believed that all the writing on the relevant page was his.

[85]It was accepted on behalf of the claimant that Ms Jones could not have received better or more prompt treatment once she reached APH and that the delivery was carried out with commendable speed.

The attendance of the Special Care Baby Unit personnel

[86]There is no doubt that two nurses from the SCBU went to 19 Paxton Way, taking with them an incubator for use in the event that the baby had to be delivered there. The Flying Squad logbook records their attendance and some of the witnesses recall seeing them and the incubator at the scene. What is not clear is who alerted them and how they got to 19 Paxton Way. Mrs Askew did not remember notifying the SCBU staff of the emergency. She said that there would not have been space in the second ambulance for the two nurses, as well as for Mrs Anderton, Dr Qureshi and all the equipment.

[87]Mrs Anderton remembered two SCBU nurses bringing an incubator to the front door of the maternity unit. However, she said that the nurses did not travel in the same ambulance as Dr Qureshi and herself. If they had done so, it would have been very squashed and she thought she would remember that. She could not say whether there had been a third ambulance which might have transported them.

[88]Dr Qureshi could not shed any light on this issue.

The theatre record

[89]The other contemporaneous record relevant to timing is the theatre record. This records, in respect of each surgical procedure carried out in the unit, the time the patient went “in” and “out” of theatre. The record shows that an operation had been performed earlier in the evening of 29 November 1995, for which the patient had entered the theatre at 9:35pm and left at 10:30pm. There was considerable debate during the course of the evidence about whether the time “in” denoted the time when the patient entered the operating theatre itself, or whether it was the time when the patient entered the anaesthetic room. Similarly, there was an issue about whether the time “out” represented the time the patient left the operating theatre for the recovery room, or the time when she left the recovery room for the ward.

[90]Mrs Askew’s evidence was that the theatre record recorded the times the patient entered and left the operating theatre itself, and did not include time spent in the anaesthetic or the recovery rooms. Mrs Anderton was somewhat inconsistent in her evidence as to whether the times in the theatre record related to entry into and departure from the operating theatre itself, or to entry into the anaesthetic room and departure from the recovery room. In the end, she appeared to accept that the times recorded should relate to the period spent in the operating theatre itself. However, she suggested that whether or not the times were recorded in that way might depend on who was making the record.

[91]Dr Qureshi’s evidence was also somewhat equivocal. He agreed that the correct procedure was to document the time actually spent in the operating theatre although he appeared to suggest that this might not always be done.

[92]The relevance of all this evidence related to the reliability of Mrs Anderton’s evidence. She said that, after the surgical procedure was finished, she had accompanied the patient out of the theatre and into the recovery room. She had then monitored her recovery from the effects of the anaesthetic. Her evidence was that recovery would take at least 15 minutes and possibly as much as 30 minutes to an hour. She had then taken the patient to the ward and begun the handover to the nursing staff there. She estimated that that would have taken a further 15 minutes or so. Mr Spencer pointed out that, if the “out” timing in the theatre record were to be interpreted as showing the time a patient left the operating theatre and went to the recovery room, then, since the relevant patient was recorded as having an “out” time of 10.30pm, it would have been impossible for Mrs Anderton to have been on an ambulance that left the maternity unit at 10.58pm. Thus, he said, her evidence about her involvement with the previous patient and her activities before receiving the telephone call from Mrs Askew must be inaccurate. The parties’ submissions The defendants

The parties’ submissions

[93]The defendants point to inconsistencies in the evidence of the claimants’ witnesses regarding timing. Mr Wood submits that there is no single event which the witnesses can use as a reference point for the timings they have given. Some of the witnesses have mentioned events which they said occurred during “News at Ten”. However, that was, he said, of little assistance in fixing the timing since the programme lasted for half an hour. He argues that I should view with scepticism assertions by the claimant’s witnesses that they were able, at this distance in time, to pinpoint the timing of events with any accuracy. In making this submission, he does not suggest that the claimant’s witnesses were consciously tailoring their evidence in order to assist the claimant’s case. He suggests that they were looking for a reason for the claimant’s disabilities and that, having discussed events at length amongst themselves, they had in effect persuaded themselves that the period they had spent waiting for an ambulance to arrive had been much longer than was in fact the case.

[94]Mr Wood points out that, if the contentions made on behalf of the claimant were correct, this would mean that there had been a delay, between the notification of the cord prolapse and the arrival of the first ambulance, of about 40 minutes. He argues that a delay of this magnitude is inherently improbable, particularly when contrasted with the efficiency with which the labour ward staff acted when Ms Jones reached hospital. He suggests that, if such a delay had indeed occurred, Mrs Askew must have been misleading the court when she claimed to have acted immediately to deal with what she considered to be an obstetric emergency. He submits that is just not credible.

[95]Mr Wood also suggests that, if there had been a delay of the degree alleged, it is inconceivable that no complaint would have been made either that evening or later. Yet neither the hospital records, nor Ms Jones’ GP records, contain any evidence of a complaint having been made. The only possible indications of dissatisfaction which the claimant could point to were the remark made by Mrs Sheridan about which Mrs Anderton spoke and the question Ms Jones claimed to have asked as to why the ambulance had taken so long.

[96]Mr Wood relies on the timings referred to in the defendants’ contemporaneous documents which, he says, provide the best picture of the events of the evening in question. He acknowledges that the timings of the two telephone calls recorded by Mrs Anderton in the Flying Squad logbook may not be precisely correct. However, he argues that, taken as a whole, the documents support the defendants’ contention that no untoward delay occurred. He suggests that the perception of the claimants’ witnesses that culpable delay had occurred may well have been caused by the extreme concern which they were experiencing, together with the interval between the arrival of the two ambulances and the time which the ambulance crew spent at the house before Ms Jones was transferred to hospital.

The claimant

[97]For the claimant, Mr Spencer submits that, if the defendants’ version of events were correct, no one could have believed that any delay had occurred. According to the documents, Mrs Sheridan’s second telephone call was made at 10:45pm and the first ambulance arrived at 19 Paxton Way at 10:50pm. Mr Spencer relies in particular on the evidence of Ms Jones and Ms Foggarty, who were together throughout the period from the second telephone call until the first ambulance arrived. The period of 30-35 minutes for which they estimated they had waited could not, he says, be mistaken for a wait of a few minutes.

[98]Mr Spencer argues that the effect of the claimant’s evidence as a whole is that the SROM occurred before 10pm, well before the time that, according to the Flying Squad logbook, the first telephone call was made. He suggests that the time of the first telephone call, as recorded in the logbook, is wrong. He points out that the times of the relevant calls as recorded in the logbook (10:30pm and 10:45pm) are both expressed on the quarter hour and may well be estimates. Certainly, the timings were not within the personal knowledge of Mrs Anderton, who made the relevant entry. Mr Spencer points out also that, if the second telephone call had been made at 10:45pm, there would have been insufficient time for a third and fourth telephone call to be made before the arrival of the ambulance, as the claimant’s witnesses claim occurred.

[99]Mr Spencer refers to what he says are gaps in the defendants’ evidence. There is no evidence from the ambulance crews who attended, or from the SCBU staff. There has been no explanation of how the latter reached 19 Paxton Way. It is, he says, impossible for them to have arrived in the first ambulance, having regard to the rapidity with which it reached 19 Paxton Way. The defendants’ evidence suggests that they did not travel in the second ambulance. If that is right, there must have been a third ambulance. This may have arrived at the same time as the first ambulance (as Mrs Sheridan suggested), or later. No evidence about it has been adduced. Mr Spencer also points to the inconsistencies of timing in Mrs Anderton’s evidence. He suggests that her evidence that the theatre records showed the time of departure from the recovery room (rather than the operating theatre itself) constituted an attempt to eliminate those inconsistencies and raised doubts as to the credibility and reliability of her evidence. He points to the last two timings contained in the entry in the Flying Squad logbook which, Mrs Anderton concedes, were inaccurate.

[100]Mr Spencer argues that, if the telephone call which Mrs Askew overheard was, as she believes, Mrs Sheridan’s second telephone call, then neither Mrs Askew, nor the midwife who spoke to Mrs Sheridan, can have taken immediate action to mobilise the Flying Squad. However, he submits that there is another possibility. The call overheard by Mrs Askew might have been, not the second telephone call made by Mrs Sheridan, but the third. He suggests that the second call (reporting the cord prolapse) may have been received earlier by a member of staff who for some reason did not take the appropriate action. It was only when Mrs Sheridan made a further (third) call (the call overheard by Mrs Askew), asking where the ambulance was, that Mrs Askew became aware of the emergency and took appropriate action. He suggests that the second call might even have been wrongly directed to the SCBU and have been taken by a member of staff who failed to pass the message on to the labour ward. That might, he suggests, explain how the SCBU staff came to attend without apparently having been alerted by staff on the labour ward. Mr Spencer concedes that it is perhaps improbable that a member of staff would fail to act in circumstances that constituted an obvious emergency. Nevertheless, he submits that the fact that it is improbable should not of itself cause me to reject the claimant’s evidence.

Discussion and conclusions

[101]In considering the evidence in this case, I have found it helpful to start with the ambulance record. Although there were attempts to suggest that it may not have been made contemporaneously and may contain errors, I am satisfied that that is unlikely to be the case and that it provides an accurate record of the timings of the events recorded therein, including the time when the switchboard at APH contacted ambulance control and requested that an ambulance should be mobilised to take the Flying Squad to Ms Jones’ home. The time of that request is recorded as 10:47pm.

[102]The call from the hospital switchboard to ambulance control was clearly made in response to a call to the switchboard from a member of staff in the maternity unit. There is no suggestion that the switchboard staff delayed in passing on the request, so it can safely be assumed that the call from the maternity unit was made shortly before 10:47pm, no earlier than about 10:45pm.

[103]The call from the maternity unit to the hospital switchboard was in turn made in response to a telephone call made by Mrs Sheridan. In her witness statement, Mrs Askew said that she could not remember whether she or the midwife who spoke to Mrs Sheridan had made the call to the switchboard. In her oral evidence, however, she said that it was she who made the telephone call to the hospital switchboard and that she did so at a time when the midwife was still speaking to Mrs Sheridan.

[104]While it is quite possible that Mrs Askew made the call to the switchboard as she now recalls, it seems to me that she is unlikely to be right in saying that she did so while the telephone conversation between Mrs Sheridan and the midwife was still going on. First of all, I consider it probable that Mrs Askew would have wanted to know the precise nature of Ms Jones’ condition before she took the step of mobilising the Flying Squad. Second, she would have needed details about Ms Jones (including her name and address) to give the switchboard. Mrs Askew was unable to say when she obtained those details and appeared to suggest that it may have been some time later. That cannot be right, however, since the first ambulance was mobilised at 10.48pm and arrived at Ms Jones’ home at 10.50pm. The hospital switchboard must have passed the relevant details to ambulance control at 10.47pm and the switchboard operator can only have obtained those details from the member of the maternity unit staff who requested the Flying Squad. That makes it highly probable that Mrs Askew waited for the end of the telephone call with Mrs Sheridan before discussing the call with the midwife and either telephoning the hospital switchboard herself or authorising the midwife to do so.

[105]Mrs Sheridan’s call to the maternity unit probably lasted 3 minutes or so. It cannot have lasted much longer or it would appear on the telephone billing record. It is unlikely to have taken a significantly shorter time since it was interrupted by Mrs Sheridan going upstairs to give directions to Ms Jones and to check that the cord was pulsating. Taking into account the duration of that call, and allowing a short time for discussion between Mrs Askew and her colleague before the call to the hospital switchboard was made, it is probable in my view that Mrs Sheridan’s telephone call to the hospital was initiated at about 10:40pm.

[106]The Flying Squad logbook times Mrs Sheridan’s call at 10:45pm. I accept that this time (and the time of the earlier call said to have been made at 10:30pm) appear to be “round” times and are probably not entirely accurate. They represent someone’s estimate of timing made later the same night. It would therefore not be at all surprising if a call that had in fact been made at or about 10:40pm was subsequently recorded as having taken place at 10:45pm.

[107]The discussion contained in the preceding paragraphs is, of course, based on the premise that Mrs Askew’s evidence is broadly correct and that either she or her colleague responded immediately to Mrs Sheridan’s second telephone call. However, the claimant’s case is that Mrs Sheridan’s second telephone call was made at or about 10:10pm. If that were right and the call from the maternity unit to ambulance control was made (as I find it was) at about 10:45pm, what could have caused the delay?

[108]Mr Spencer submits that, assuming that Mrs Askew is right in thinking that it was Mrs Sheridan’s second telephone call that she overheard, both she and the midwife who took the call must have failed to alert the switchboard for 35 minutes or so after receiving the call. What could have accounted for such a delay? It was suggested at one stage that, before making the call to the switchboard, Mrs Askew might have set about organising the personnel for the Flying Squad. This seems inherently unlikely but it is a possibility that must be considered.

[109]The evidence is that, if Mrs Anderton had not been available to go with the Flying Squad (which, in the light of the evidence about her participation in the surgical procedure carried out earlier in the shift, is likely to have been the case at 10:10pm and for some time thereafter), there were other midwives available to go. Dr Qureshi (who performed the earlier surgical procedure and who is also unlikely to have been available at 10:10pm) was one of two registrars on duty that shift and the only one engaged in surgery. There would seem to have been no reason why his colleague could not have gone with the Flying Squad. Therefore, even if Mrs Askew had organised the personnel before telephoning the hospital switchboard (and even if Mrs Anderton and Dr Qureshi had not been available at the time), there would have been no reason to wait until they became available and to delay the call to the hospital switchboard for 35 minutes or more. Indeed, if Mrs Sheridan’s telephone call had been made at or about 10:10pm and if Mrs Askew had responded by immediately organising the personnel for the Flying Squad, the likelihood is that Mrs Anderton and Dr Qureshi would not have been the members of staff who attended.

[110]If that was not the explanation for the delay, then it would seem that both Mrs Askew and the midwife must have simply forgotten to telephone the switchboard, presumably because they were distracted in some way. This would have involved a failure on both their parts to respond to what Mrs Askew at least plainly recognised was an obstetric emergency. It would also mean that, realising the error some time later that evening (as they must have done), Mrs Askew and/or the midwife must have knowingly concealed it and must have misled Mrs Anderton (whether directly or through a third party) about the time Mrs Sheridan’s telephone call reporting the cord prolapse had been received. It would also mean that Mrs Askew was dishonest in the evidence she gave to the court.

[111]I do not accept that any of these events occurred. I found Mrs Askew to be an honest witness. That is not to say that I regard her evidence as in all respects accurate. I have already observed, for example, that I believe she was mistaken in thinking that she telephoned the hospital switchboard while the midwife was still on the telephone to Mrs Sheridan. I have no doubt that the time which has elapsed since the relevant events has affected the accuracy of her recollection in some respects. But I accept the thrust of her evidence, which was that she overheard a telephone call from Mrs Sheridan and acted on it immediately. I formed the view that she was a conscientious and responsible individual who took her professional responsibilities seriously. I regard it as in the highest degree improbable that she would have failed to take proper steps to deal with the obstetric emergency that presented itself and would thereafter have sought to conceal that failure.

[112]The other possibility canvassed by Mr Spencer was that the call Mrs Askew spoke of was in fact the third telephone call made by Mrs Sheridan, the second call having been taken by some unknown member of staff (whether on the labour ward or the SCBU) who failed to act on it. The person who took the second telephone call plainly recognised the risks associated with cord prolapse and the steps to be taken to reduce those risks. She gave the correct advice. Knowing of the risks and being aware that, in accordance with her advice, the patient would be adopting an uncomfortable position on all fours, it seems extremely unlikely that she would walk away from the telephone and immediately forget the emergency of which she had just been told.

[113]Furthermore, the evidence strongly suggests that the call overheard by Mrs Askew was the second, not the third, telephone call. The record of the call made by Mrs Anderton in the Flying Squad logbook noted:

“Call → 22.45 Patient’s mother reported she could see cord hanging out and required help. Advised patient to adopt knee chest position. Flying Squad Team called.”

Flying Squad Team called.”

[114]That note accords with the account of the second telephone call given by Ms Jones and Mrs Sheridan and by Mrs Askew. If the call had been the third call made by Mrs Sheridan, it is unlikely that Mrs Askew would have been unaware of that. The claimants’ witnesses speak of Mrs Sheridan’s vociferous complaints about the failure of the ambulance to arrive. If the midwife had been dealing with a caller who was making such complaints, it would surely have been evident to Mrs Askew. Furthermore, if Mrs Askew had become aware that there had been a long delay in mobilising the Flying Squad, I should have expected her, as the person in charge, to have instituted some sort of enquiry as to who was responsible. I should also have expected there to be some mention of the delay in the contemporaneous documents. For all these reasons, this second explanation for the delay advanced on behalf of the claimant seems to me to be highly improbable. I accept, however, as Mr Spencer has submitted, that the fact that an event is improbable does not mean that it did not occur. It is just one of the factors to take into account when considering the evidence as a whole.

[115]Before going on to consider the evidence of the claimant’s witnesses, I shall deal briefly with the other contentions made about the defendants’ evidence. The evidence I have heard does not explain how the SCBU staff reached 19 Paxton Way. It is, I suppose, possible that a third ambulance attended although, if it did, I would have expected the ambulance record to show this. It is more likely in my view that Mrs Anderton is mistaken in her recollection that the SCBU staff did not travel to 19 Paxton Way in the same ambulance as herself and Dr Qureshi. Whatever the truth of this, it does not have any significant bearing on the decisions I have to make. The uncertainty is merely a reflection of the time that has elapsed and the unavailability of the full contemporaneous documentation.

[116]The claimant sought to challenge the reliability and accuracy of Mrs Anderton’s evidence, in particular by reference to the theatre record. I accept that her recollection (and that of Mrs Askew) about her involvement with the patient who underwent a surgical procedure earlier in the evening of 29 November 1995 may not be entirely accurate and that she may not have supervised the patient’s recovery and/or spent as long with her on the ward as she and Mrs Askew now believe. I am satisfied, however, that Mrs Anderton had some involvement with the surgical procedure; her evidence about having to change out of her theatre “scrubs” was very compelling. There can be no doubt that she attended Ms Jones’ home with the Flying Squad and that she was the author of the entry in the Flying Squad logbook. It does not seem to me that the lack of a completely accurate recollection of what happened earlier in the evening should cause me to doubt the general reliability of her evidence. Nor do I consider that the admitted inaccuracy of the last two timings contained in the Flying Squad logbook necessarily means that other timings in that document are also inaccurate. By contrast, the preceding timings (for the arrival of the Flying Squad ambulance at the hospital entrance and at 19 Paxton Way) are consistent with the ambulance record. The timings of the two telephone calls were plainly derived from other people and their accuracy is likely to be dependent upon the people who gave that information to Mrs Anderton, rather than upon the reliability of Mrs Anderton herself.

[117]As for Dr Qureshi, I did not consider that there was anything sinister about the alteration in the timings contained in the note which he made. In particular, there is in my view no reason to believe that the note was started by another person and then altered or written over by Dr Qureshi.

[118]At the heart of the claimant’s case are the timings put forward by his witnesses, and the contention that those witnesses cannot have mistaken a delay of only ten minutes or so between the making of the second telephone call and the first ambulance arriving for the much longer delay which they allege occurred.

[119]The only reference point to which the claimant’s witnesses were able to link the timing of the various events was ITV’s “News at Ten”. In her witness statement, Mrs Sheridan said that, when she arrived at 19 Paxton Way, the ITV News had “just started”. None of the other witnesses mentioned the programme in their witness statements. However, in oral evidence, Mr Peter Jones said that he and Ms Stewart arrived at 19 Paxton Way at 10:10pm, shortly after “News at Ten” started. Ms Stewart said that the News (which I take to be “News at Ten”) was on when Mr Peter Jones woke her to tell her that Ms Jones’ waters had broken.

[120]I am not persuaded that “News at Ten” provides a reliable reference point for timing. First of all, it lasts for 30 minutes. Even if it had been on when Mrs Sheridan and/or Mr Peter Jones and Ms Stewart arrived at 19 Paxton Way, it does not necessarily mean that they arrived at any particular time within that half hour period. It was not clear on what basis Mrs Sheridan and Mr Peter Jones were able to say that the programme had “just started” (or had started shortly before) at the time of their arrival. Second, I have some doubts as to whether the television in the living room at 19 Paxton Way was showing “News at Ten” at all. The evidence was that Jasmine had been watching television with her mother and, when Ms Jones’ waters broke, was left in front of the television. It seems somewhat unlikely that she would have been watching “News at Ten”, or indeed the adult programme preceding it. I note that Ms Stewart believed that, when she arrived, Jasmine was watching children’s TV, not the News.

[121]I have no doubt that, following the events of 29 November 1995, and the tragic realisation that the claimant had severe disabilities, members of the claimant’s family – together with Ms Foggarty – discussed the events of that evening at some length and on a number of occasions. That would be entirely understandable. I consider it likely that someone (probably Mrs Sheridan) linked the timing of his/her involvement to the start of “News at Ten” and that that assertion influenced the belief of the others as to the timing of events. All (except Ms Stewart) were convinced that they became aware of the SROM before 10pm, although they were unable to explain the basis of their certainty. Moreover their evidence was mutually inconsistent in a number of respects. For example, Mr Peter Jones said he became aware of the SROM between about 9.30pm and 9.45pm. Yet Mrs Sheridan did not telephone Ms Stewart’s home until after her arrival at 19 Paxton Way, which she estimates at around 10pm. As I have said, her recollection is that she did not contact Mr Peter Jones until somewhat later, after the cord prolapse occurred, although she is plainly mistaken about that. Mr Peter Jones’ evidence about the time when he heard about the SROM conflicts with that of Ms Stewart, who says that the message reached him at a time when the News was on, i.e. after 10pm.

[122]It is not surprising that there is uncertainty about the timing of the SROM. At the time it occurred, it does not seem that there was any degree of urgency. Ms Jones telephoned her mother and Ms Foggarty, but left the calls to APH and to Ms Stewart’s home until her mother arrived. She had experienced a SROM previously and was aware that she was not in labour. She was only minutes from the hospital. She described things as “all quite laid back at that time”.

[123]Ms Jones said that, once her mother arrived, she remained downstairs for 5-10 minutes. It is likely that she remained downstairs rather longer than that. It seems that her mother must have telephoned Mr Peter Jones before telephoning the hospital. Both Mr Peter Jones and Ms Stewart told me that Mrs Sheridan was on the telephone to the hospital (for the first time) when they arrived and that Ms Jones was going upstairs to collect her bag at that time. If that is right, there must have been a significant interval between Mrs Sheridan’s arrival at 19 Paxton Way and the first telephone call to the hospital. Mr Peter Jones said that it took himself and Ms Stewart 20-25 minutes to dress and get to 19 Paxton Way, although Ms Stewart estimated that it took only 5-6 minutes. They put their time of arrival at somewhere between 10:10pm and 10:15pm. It can readily be appreciated that, if they became aware of the SROM after 10pm (which, on the evidence, must have been the case) and if they took 20 minutes or so to get to 19 Paxton Way, that would mean that Mrs Sheridan must have made the first telephone call to the hospital significantly later than she claimed - at about 10.20pm or even later.

[124]Ms Foggarty’s evidence was that she reached 19 Paxton Way within about 10-15 minutes of Ms Jones’ telephone call to her. It does not seem to me that she can be right about that. During the period between Ms Jones’ telephone call to Ms Foggarty and her arrival at 19 Paxton Way, a number of events occurred. Mrs Sheridan arrived at 19 Paxton Way and telephoned Mr Peter Jones and Ms Stewart, who got themselves dressed and walked to 19 Paxton Way. Ms Foggarty said that there were “other faces” there also when she arrived – presumably Mr Terry Jones and Ms Adamson. Someone (Mrs Sheridan said that it was Mr Peter Jones) must have contacted them to inform them what was happening and they made their way to Ms Jones’ home. The first telephone call to the hospital had been made and the cord prolapse had occurred. According to Ms Foggarty and Mrs Sheridan, Ms Foggarty arrived at about the time of Mrs Sheridan’s second telephone call to the hospital, reporting the cord prolapse. Given all that occurred before she arrived at 19 Paxton Way, a longer period of time must have elapsed than Ms Foggarty now recalls. The fact that she did not attend as rapidly as she now believes would accord with the absence (until the cord prolapse occurred) of any particular sense of urgency.

[125]I do not believe that the claimants’ witnesses were seeking in any way to deceive me. They had no reason to keep a close eye on timing that evening. At the start of the relevant events, there was no great urgency. Once the cord prolapse occurred, they were all suffering various degrees of anxiety and distress. These factors, together with the time that has elapsed since these events occurred, make it unsurprising that they cannot recall the events of the evening – and, in particular, the timing - with any great clarity.

[126]Mrs Sheridan in particular had a poor recollection of many of the events of the evening. It was clear that she was mistaken about the arrangements for Jasmine’s care which had originally been made. Her recollection that she had telephoned Mr Peter Jones and Ms Stewart after (rather than before) the cord prolapse occurred was plainly wrong. Her suggestion that Ms Jones was to be admitted to hospital for a caesarean section on 30 November 1995 also seems to have been mistaken. There were aspects of her evidence that I was unable to accept. One of these was her assertion, made for the first time in cross-examination, that she had looked at the clock at the time she received Ms Jones’ telephone call, telling her of the SROM. While she may have persuaded herself that that was the case, I am satisfied that it was not. As with the other witnesses, it is not surprising that Mrs Sheridan cannot remember these events clearly. They happened a long time ago and were very distressing for her. It is clear, although she was reluctant to admit it, that, after she became aware of the cord prolapse, she was in a state of panic. That fact – and the consequent “chaos” which the witnesses described as reigning downstairs - cannot have assisted her or the other witnesses to retain an accurate recollection of the sequence or timing of the various events that occurred.

[127]In general, I do not find the evidence of the claimant’s witnesses as to the timing of events reliable and must look to other evidence that a delay occurred.

[128]What all the claimant’s witnesses are clear about is that there was a long wait before an ambulance appeared. Ms Jones put the time at about 35 minutes. Mrs Sheridan said that it was 35-40 minutes. Ms Foggarty estimated it at 30-40 minutes. Mr Peter Jones said that the ambulance arrived 30-35 minutes (possibly 25 minutes) after his arrival at the house. Ms Stewart said that it arrived 30-35 minutes after her arrival. If, as Mrs Sheridan maintains, she made her second telephone call at or about 10:10pm, an interval of 40 minutes or so before the arrival of the first ambulance would indeed have elapsed.

[129]If, however, the second telephone call had been made at about 10:40pm (as, on the defendant’s case, it must have been), how could the claimant’s witnesses believe that a delay of 35 minutes or more had occurred? A period of only ten minutes would have elapsed before the arrival of the first ambulance, a far shorter delay than the claimant’s witnesses alleged. However, the emergency was not over then. The crew of the first ambulance did not take Ms Jones immediately to APH. Instead, they awaited the arrival of the ambulance carrying the Flying Squad. One member of the crew attempted to support the fetal head; otherwise, no action was taken to treat Ms Jones or to deliver the claimant. The Flying Squad ambulance did not arrive for a further eight minutes. By that time, about 18 minutes would have passed since the second telephone call.

[130]The claimant’s witnesses made no mention of any delay between the arrival of the two ambulances. However, it is significant in my view that, at 10:54pm, during the eight-minute interval between the arrival of the two ambulances, a telephone call was made from 19 Paxton Way to APH. That call must have been made by a member of Ms Jones’ family, probably Mrs Sheridan. Although it was at one time suggested that the call might have been made by a member of one of the ambulance crews, the evidence did not support such a finding. The purpose of the telephone call can only have been to ask when the ambulance carrying medical help would arrive. This demonstrates that the period of the family’s concern about delay did not end with the arrival of the first ambulance. Instead, it included the time spent waiting for the second ambulance. That would be entirely understandable, since no positive step was being taken to treat Ms Jones or get her to hospital pending arrival of the second ambulance.

[131]I note that, in her witness statement, Ms Jones said that she had asked “why it was taking so long for the ambulance to come” and was told that “they were putting equipment in the ambulance”. That question and response would be entirely consistent with Ms Jones expressing concern after the arrival of the first ambulance about the delay in the arrival of medical help in the second ambulance. In her oral evidence, Ms Jones said that she had asked a rather different question (namely “why it had taken so long”) when she was in the ambulance. While I recognise that Ms Jones says she asked her question of a female nurse, it seems to me more likely that it was in fact directed at a member of the crew of the first ambulance to arrive and that it reflected her concern at the time interval between the arrival of the two ambulances.

[132]Even when the second ambulance did arrive, there was a further period of 12 minutes (20 minutes after the arrival of the first ambulance) before Ms Jones was transferred to an ambulance and taken to hospital. The ambulance in which she was travelling left at 11.10pm, about 30 minutes after (on the defendants’ evidence) the call reporting the cord prolapse had been made.

[133]I am satisfied that this period of about 30 minutes is sufficient to account for the perception on the part of the claimant’s witnesses that there was a significant delay by the defendants in responding to the emergency call. Ms Jones was naturally anxious about the welfare of her unborn child and was in a position of acute physical discomfort throughout these events. Ms Foggarty was observing and sharing her worries. For both of them, time must have passed very slowly as they waited for help to arrive. Mrs Sheridan was frightened and panicky and her condition can only have served to increase the anxiety of those around her. Both Mr Peter Jones and Ms Stewart had been under the impression from the time of their arrival at 19 Paxton Way that an ambulance was expected imminently. Ms Stewart’s evidence was that they had been out looking for the ambulance shortly after their arrival at 19 Paxton Way, at a time before the cord prolapse occurred and when (although they were unaware of the fact) no ambulance had in fact been called. Their misunderstanding of the position would, naturally, reinforce their perception (both during and after the relevant events) that a long period of delay had occurred after the ambulance was summoned. I am satisfied that, over time, the claimant’s witnesses have come to elide the events of the evening and have persuaded themselves and each other that the time that elapsed between Mrs Sheridan’s telephone call reporting the cord prolapse and Ms Jones’ arrival at APH was primarily attributable to a failure promptly to respond to that call.

[134]If there had been a delay of 35 minutes or more before the arrival of the first ambulance, it would be surprising if that fact had not been the subject of a complaint at the time. Yet it is accepted that no such complaint was made, even informally. The remark made by Mrs Sheridan in response to the news of the claimant’s birth cannot necessarily be construed as a complaint. It could be interpreted, as Mrs Anderton suggested, as a response to a period of emotional strain. Mrs Sheridan herself did not even recall making the remark. Nor, in my view, did Ms Jones’ enquiry why the ambulance had taken (or was taking) so long to arrive amount to a complaint. If either Ms Jones or her mother had believed that there had been a serious delay which may have resulted in the claimant’s poor condition at birth, I would expect them to have made their views known in the days or weeks following the birth. The lack of a contemporaneous complaint, while not in itself determinative, tends to support my view that the witnesses’ belief that a lengthy delay occurred evolved over time as the extent of the claimant’s disabilities was recognised.

[135]Having considered all the evidence, I find on a balance of probabilities that the first telephone call to the hospital was made between 10.20pm and 10.30pm. A call made at 10.20pm or 10.25pm could well have been estimated some time later as having been made at 10.30pm, the time recorded in the Flying Squad logbook. That call was of a relatively routine nature and there would be no reason for the member of staff who took it to remember the time with any great accuracy. I find that the SROM had probably occurred about 30 minutes or so before that telephone call was made.

[136]I find in addition that the second telephone call was made at about 10.40pm, the cord prolapse having occurred shortly before that call but in any event no earlier than about 10.35pm. I am satisfied that both defendants’ staff responded promptly and appropriately to the second telephone call and that there was no negligence on their part. I am satisfied also that the claimant’s witnesses are mistaken in believing that a delay of 35 minutes or more elapsed between the second telephone call and the arrival of the first ambulance. There was a time interval of about 30 minutes between the second telephone call and the time Ms Jones left 19 Paxton Way for hospital and I find that it is that interval which gave rise to the belief on the part of the claimant’s witnesses that avoidable and negligent delay had been responsible for the claimant’s injuries.

[137]I find also that there was a third telephone call, made at 10.54pm, in the course of which Mrs Sheridan complained about the delay in the attendance of the second ambulance carrying the medical personnel. It is probable that Ms Adamson intervened in that call. By that time, the second ambulance carrying the Flying Squad was already on its way. It must have arrived within a short time of that telephone call ending. I regard it as unlikely that Mrs Sheridan made any other telephone calls to the hospital.

[138]It follows from my findings that the claimant’s claim must fail and there must be judgment for the defendants.