Less & Anor v Hussain (Rev 1) [2012] EWHC 3513 (QB)

[2012] EWHC 3513 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/12/2012

Before

HIS HONOUR JUDGE COTTER Q.C.

Between

DENISE LESSClaimants

MICHAEL CARTERClaimant

SARAH HUSSAINDefendant

Katie Gollop (instructed by Irwin Mitchell) for Claimants

John De Bono (instructed by Fishburns) for Defendant

Hearing Hearing dates: 26 th, 27 th 28 th November and 6 th December 2012

Approved Judgment

His Honour Judge Cotter Q.C.

[1]The Claimants claim damages for physical and psychiatric injury and consequential loss arising out of Ms Less’ conception of their son, Luis, who was born without a heartbeat at Whipp’s Cross Hospital (“the hospital”) on 6th May 2007.

[2]The Defendant, Mrs Hussain, was a consultant gynaecologist with a private practice. On 12th November 2005, Ms Less went to see her privately for advice (“the consultation”). At the time of the consultation Ms Less and Mr. Carter were partners.

[3]The reason for seeking advice was that Ms Less had a complicated past medical and obstetric history. She had a thromboembolic condition which had led to DVTs (the last suffered in September 2005) and, in a previous pregnancy, a pulmonary embolism (“PE”). She also had multiple fibroids including one very large fibroid. She and Mr. Carter both had children from previous relationships but they wished to have a child together. They realized that a pregnancy might not be straightforward and they wanted to get advice before deciding whether or not to try.

[4]Mr Less had the understanding following the consultation that the fibroid did not have to be removed and was not a problem and also that provided she sought early antenatal care for management of her thromboembolic condition should she fall pregnant, there was no reason not to conceive and they could “go ahead”. It is her case that the Mrs Hussian was negligent and in breach of contract as regards the advice given. It was a central feature of the defence that Ms Less was told by Mrs Hussain to arrange a further appointment following a scan, however she never did so, and as a result the advice was not complete.

[5]Eight months after the consultation in July 2006, Ms Less had her coil removed and Luis was conceived in November 2006. Unfortunately, the pregnancy was extremely painful and very difficult up to around 22 weeks, because of a condition associated with the fibroids called Red Degeneration. Ms Less had to be admitted to hospital twice because of this condition.

[6]On or about 4th May 2007 Ms Less had realised that she could not feel foetal movement and went to the hospital; Mr. Carter went with her. They were together when a heartbeat could not be seen on a trace and death in utero was diagnosed. Ms Less was given tablets to induce labour and she was allowed to remain in hospital, Mr. Carter staying with her. On 6th May 2007, Luis was delivered stillborn. Both his parents held him. Then he was taken away. Photographs of him were brought wearing a dress because, despite his sex, that was all that could be found. Ms Less’ account of these experiences was set out in a moving letter of complaint to the hospital

[7]At post-mortem it was found that Luis was very small indeed (below the 9th centile) weighing only 645g and his growth rate asymmetric as well as restricted. The cause of this was determined to be hypercoiling of the umbilical cord. It is agreed that the cause of Luis’ death was unrelated to the fibroids or history of DVT.

[8]Shortly after Luis’ birth, Ms Less and Mr. Carter separated and their relationship ended. They have since come back together as a couple but they no longer live together. Mr Less suffered prolonged psychiatric symptoms and Dr. Denman, a consultant psychiatrist in Psychotherapy diagnosed a bereavement reaction that met the criteria for an adjustment disorder. She required counselling, and as at March 2012 her recovery was said to have stalled. Dr Bradley a consultant psychiatrist instructed on behalf of the Defendant did not think that Ms Less’ symptoms still satisfied the ICD definition some five years after the event. However, he was of the view that there was a prolonged grief reaction and it was not in dispute that Ms Less suffered a psychiatric reaction to the loss of her son.

[9]There was more of a dispute as regards Mr Carter. Again Dr Denman prepared reports and gave the opinion that he had a bereavement reaction that was sufficiently severe to amount to a formal diagnosis of a mild adjustment reaction. Dr Bradley found it difficult to make a firm diagnosis that would satisfy ICD10 and DSMIV criteria. He stated that unhappiness is part of the human condition and does not constitute a psychiatric condition.

[10]Damages are claimed for psychiatric injury, for consequential financial losses and also by way of a “Rees Award”( Rees v. Darlington

[2004] 1 AC 309

to mark the parents’ loss of autonomy.

The respective cases

[11]It is the Claimant’s case that the advice that Ms Hussain actually gave to Ms Less about the risks of pregnancy and also the advice she would have given had there been any follow up appointment fell below a reasonable standard. Indeed it is suggested that no matter how many consultations there had been , the Defendant would never have given advice that met a reasonable standard.

[12]Further if Ms Less had received proper and adequate advice she would not have fallen pregnant.

[13]It is conceded on behalf of the Defendant that, in light of the agreement of the gynaecology experts that there should have been a ‘failsafe’ mechanism to secure the attendance of Ms Less at a second appointment, Mrs Hussain was in breach of duty in failing to write to Ms Less to remind her of the need to attend a second appointment in order that she could complete her advice on the risks to Ms Less of pregnancy from a thromboembolism and fibroids. Otherwise breach of duty was denied. Further, it was Mrs Hussain’s case that where the death of the Claimants’ baby was for reasons unconnected with any breach of duty she could not be liable for the death or the psychological consequences for either parent. Put another way the death of Luis and his mother’s consequent psychiatric injury were outwith the scope of the duty owed by Mrs Hussain.

[14]As regards causation Me De Bono set out within his skeleton argument that Causation – the Claimant would probably have become pregnant anyway The Defendant contends that it was ‘safe’ for Ms Less to become pregnant and that she would have done so in any event because, understandably, she wanted to become pregnant by Mr Carter. It follows that the claim fails on causation.

[15]The right to a “Rees” award and Mr Carter’s right to recover any damages were also denied.

Evidence

[16]I heard oral evidence from the Claimants, Mr Maguire (who performed a scan) and the Defendant. The evidence of Ms Malik ( a nurse) was agreed.

[17]It has never been any stage been suggested that the Claimants were other than honest witnesses, doing their best to recall what was an extremely difficult and stressful period for anyone to endure. However that does not mean that their recollections or retrospective assessments were accepted as accurate by the Defendant. Mr De Bono stated that as with many other litigants they are likely to have spent much time discussing what happened and what might have been. There is always a danger that this can render inaccurate what an individual believes to be truthful and honest reflections.

[18]I also had the benefit of reports from two gynaecology experts Mr Wood, who compiled a report having been instructed on behalf of the Claimants and Mr Kenney who had received instructions on behalf of the Defendant. Having prepared a joint statement both gave oral evidence. Finally I had the medical reports from two psychiatrists Dr Denman and Mr Bartlett. Findings of fact.

[19]Having carefully considered all the evidence I find that the relevant chronology was as now follows.

[20]In 1988, 1992 and 2005 Ms Less had deep vein thromboses ( “DVT”). From 2005 onwards she was on Warfarin. In 1992 she had a normal delivery of a boy (Luke) weighing 5lbs and 9oz.

[21]In December 1992 whilst pregnant for a second time she had a pulmonary embolism. She was diagnosed using a ventilation /perfusion scan and was treated with anti-coagulants. Happily in 1993 she had a normal delivery at 39 weeks of a girl (Latifa) weighing 6lbs 2oz. She stated in oral evidence that during the pregnancy she had sub-cutaneous injections (I presume of heparin) and that “ they said so long as I took mediation I would be O.K.”

[22]In November 2004 Ms Less saw Ms Hargreaves, a Consultant Obstetrician and Gynaecologist about her fibroids. Abdominal examination revealed a pelvic mass of about 18 weeks size; a fibroid uterus and a scan was performed. The letter of 25th November 2004 made no reference to any future pregnancy related risks and concluded “ As she has no complaints I have reassured her and advised that we take no further action. She knows that she can contact me if she thinks that there is any change” Ms Lees was then aged 38. She stated in cross-examination that she was in a relationship with Mr Carter at this time, but that she had not considered having a child. She said and I accept correctly, that there was no conversation about pregnancy. Specifically, Ms Hargreaves did not advise her that she should never become pregnant. Indeed had she done so it would have been a startling omission from the letter.

[23]On 16th September 2005 Ms Less was diagnosed with a third deep vein thrombosis in her left leg and was treated with Warfarin. On 1st November 2005, she was referred to a vascular surgeon, Mr. Crinnion, in light of the DVT. She saw Mr. Crinnion on 3rd November 2005 and at that consultation explained that she wanted to consider a further pregnancy. It was Mr. Crinnion who referred her to the Defendant for specialist advice stating ; “The patient has expressed a wish that she might like to become pregnant again but is concerned about the risks and I would be grateful if you would discuss this matter with her.”

[24]On the same day, he wrote to Ms Less stating:

“I have also referred you to Mrs. Sarah Hussain, Consultant Obstetrician and Gynaecologist so that she can discuss with you any potential problems with a future pregnancy.”

[25]Following that referral, Ms Less went to see Ms Husain on Saturday 12th November 2005; Mr. Carter did not attend.

.Saturday 12th November 2005

[26]Ms Less was aged 39 and had two children from her marriage. She had been in a settled relationship with Mr Carter since 2000. This was a very important meeting for her. For Ms Hussain this was one of many appointments that day. Further, Ms Hussain was not alerted to any problem with the consultation until some years later.

[27]Ms Hussain had been a Consultant in Obstetrics and Gyanaecology at Whipps Cross Hospital since 13th February 1995 ; so for over ten years . She started her private practice six months after becoming and NHS consultant. She made the following computer record of the consultation “ Fibroid for USS and then decide about ? operation DVT x2 on Warfarin This is the only record that was made of the consultation . It hardly needed the confirmation of experts to arrive at the opinion that Mrs Hussian’s note keeping was substandard and grossly inadequate. DVT x2 on Warfarin

[28]Immediately after the consultation and at Mrs Hussain’s request, Ms Less had an ultrasound scan performed by Mr. Maguire. It seems clear from the evidence of Mr Kenney that Mr Maguire was and is a very highly regarded practitioner. Amongst other things, the scan indicated that Ms Less was fitted with a contraceptive coil and Mr. Maguire documented in his report that the coil was sitting low. When asked why this information was not passed onto Ms Less Mrs Hussain stated in cross examination that IUCD “was doing its job” and was “providing safe and reliable prophylaxis”. I find that this was a rather remarkable answer. It was certainly one that did not impress either expert. The information the coil might not be providing reliable prophylaxis clearly should have passed onto Ms Less.

[29]Ms Less recorded her recollection of this consultation in her statement as follows at paragraphs 10-14 “On 12th November 2005 I saw Mr Hussain. The sole purpose of the consultation was to ask Mrs Hussain if it would be safe for me to conceive, carry a baby during pregnancy and that both me and the baby would be healthy because of my medial history. The appointment was of about 20 minutes length . This was the first and only time I met Mrs Hussain. I explained to Mrs Hussain that I would like to try for a baby but was worried about the risks. During the consultation Mrs Hussain felt my tummy. I asked Mrs Hussain about my fibroids and whether I needed treatment for the fibroids. Mrs Hussain said that surgery to remove the fibroids could result in bleeding possibly leading to a hysterectomy . She discouraged me from surgery . I asked Mrs Hussain if she knew of any women with fibroids getting pregnant . Mrs Hussain said that plenty of women with fibroids had fallen pregnant and given birth to healthy babies. Mrs Hussain told me about a lady who had given birth to a baby successfully despite having a fibroid the size of a football. Mrs Hussain said I should go to my doctor early on in a future pregnancy so that I could be monitored. Mrs Hussain said that I would need to have a pelvic scan. Mrs Husain said that she would contact my G.P. with the results of the pelvic scan. After the appointment with Mrs Hussain I had the pelvic scan on the same day. My understanding was that it would be entirely safe for me to have a baby and there was no mecial reason why me and the baby would not be safe and healthy. I told Micahel what Mrs Hussain had advised” and at paragraph 15 “ Mrs Hussain told me that I should undergo a pelvic scan and that she would send the results to my G.P. However, Msr Hussain did not tell me that it was necessary to have an ultrasound scan to assess thesize and site of the fibroids and to return to discuss the results” and “ ……she did not say that her advice was qualified on the basis that surgical intervention might need to be considered depending on the size and position of the fibroids” and “ Mrs Hussian did not advise me that the risks of post partum haemorrhage would be substantially increased” And “ Mrs Hussain did not ask me to make a further appointment to see her after the scan results were available. I would have made an appointment to see Mrs Hussain had she asked me to do so”

[30]In cross-examination Ms Less said that fibroids were her main concern but that she was worried about the whole picture. That fibroids were indeed uppermost in her mind is evidenced by her answer on the information sheet to when symptoms arose ; her answer concerning the onset of symptoms was in relation to the fibroids. When pressed as to how she could have been content to leave matters that day after Mr Maguire’s scan although she did not know if the fibroids were inside or outside the cavity she stated “ she told me that the fibroids didn’t affect pregnancy. She told me it was safe and no problem. She said get the scan done and I will write to your doctor”. When asked about her recollection about any discussion concerning DVT or embolism, Mr Less’ recollection was “ Ms Hussain said as (I was) on Warfarin would have to change to Heparin .She explained because of crossing over into the placenta. I had no questions as it happened before So Ms Less recollects that Mrs Hussain advised about risks arising from the DVT. However I find that her main focus was the fibroids as the effects of the DVT and pulmonary embolism were relatively familiar territory.

[31]Ms Hussain commenced the consultation with, in effect only two pieces of paper before her. Firstly, she had the letter of 3rd November 2005 from Mr Crinnion, which referred in the first sentence to both a history of a large fibroid and also three documented episodes of thromboemloism. Secondly, she had the patient information sheet filled in by Ms Less that made express references to the DVTs and pulmonary embolism but not to her fibroids. However Ms Less stated that the date of onset of symptoms ( October 2004) was meant to refer her fibroids.

[32]Ms Hussain’s recollection is different to that of Ms Less as she recalled that the fibroid “ was not her main concern” . I prefer the evidence of Ms Less. However I find that nothing turns on the differing recollections as to emphasis. Both issues were considered at the consultation.

[33]When challenged by Ms Gollop during cross-examination Mrs Hussain gave firm evidence that did also advise about the risk of a post partum haemorrhage and that there was an increased risk of bleeding on Heparin. However, I also prefer the evidence of Ms less on this issue.

[34]As regards fibroids she stated “ I practice in an ethnically diverse part of the United Kingdom : at least 25% of my patients are of Afro-Caribbean descent. It is medically acknowledged that fibroids are approximately three times more common in women of Afro-Caribbean descent. As a consequence , nearly a quarter of all of my patients suffer from fibroids, and, in those circumstances, I have considerable experience in providing and recommending treatment to women with fibroids.”

[35]As I have set out at the time of the consultation she had been an NHS consultant at the Whipps Cross hospital for 10 years. As a result of her experience I have no doubt that consideration of potential effects fibroids upon conception and pregnancy was relatively routine.

[36]I find as a fact that Ms Hussain was incorrect when she stated that she had some memory of Ms Less’ demeanour and that she was particularly concerned about advice that she had received from another consultant who had told her that he should never fall pregnant again, due to his history of thromboembolism and DVT. In her oral evidence she described Ms Less as “very desperate to know if she could have a baby or not” I believe that she is simply remembering comments made a different patient at some other consultation. She stated that she had some memory of Ms Lees but would not recognise her is she saw her. I find that she is honestly mistaken.

[37]Mrs Hussain also stated “ I advised Ms Less that it was necessary for her to have an ultrasound scan of the abdomen to assess the size and site of the fibroid/fibroids, and to return to me with the results” and “ I would have qualified my advice to Ms Less on the basis that any management plan which we devised would be dependent upon the results of the ultrasound scan, which we would have to discuss when she returned to see me at her follow-up appointment” And “I always ask my private patients to arrange their follow-up consultations by speaking to the receptionist as they are leaving the consultation or by telephoning the outpatients appointments line”

[38]Mr. Maguire had his room about 20 yards around the corner on the same floor and Ms Less had her scan immediately. Ms Hussain stated that ordinarily the nurse would take the patient around to Mr Maguire. I had before me by agreement a statement from Wendy Malik. Unsurprisingly she had no memory of Ms Less or her consultation but was able to confirm the usual practice. She states that Mrs Hussain would tell the patient that they needed to return to see her after the scan. Ms Malik stated that she would always reiterate to the patient that they needed to make a further appointment after the scan had been performed to discuss the results with Mrs Hussain. I am satisfied that what both Mrs Hussain and Ms Malik set out was indeed the usual practice when they worked in tandem. However there can be exceptions to a usual practice. I am satisfied that Mrs Hussain was honestly stating what her usual practice was, however that was not the practice adopted for Ms Less.

[39]I reject the suggestion that Ms Less was told to arrange a further appointment and chose not to do so. She was concerned to get best advice and I think that it is inherently implausible that she would have chosen to ignore an express request to arrange a further appointment.

[40]Something went wrong with the usual practice. I am unable to find on balance what it was that went wrong ; I strongly suspect that there is a piece of the jigsaw missing ; but will not speculate what it was. She was simply not told to arrange a further appointment.

[41]As I find that Ms Less was not told the fault for not informing Ms Less of the need for a further appointment must lie at the door of either Ms Hussain and/or her employees or agents

[42]The effect was to leave Ms Less with only a part of the advice that she should have received.

[43]It is also my finding that the two issues identified by Mr. Crinnion – history of thromboembolism and fibroid - were the only two topics that were covered on 12th November 2005. Mrs Hussain advised Ms Less about the risk of developing another DVT or PE in pregnancy and the need to seek early antenatal care so that her anti-coagulation medication could be changed. There was also a discussion about surgical treatment for the fibroid and the Mrs Hussain advised that if there were complications of such treatment then Ms Less could end up with a hysterectomy.

[44]It is Mrs Hussain’s case that had there been a further consultation, there would have been a fuller discussion and she would have warned Ms Less of the risk of red degeneration likely to cause pain. However it was not her evidence that she did or ever would have advised of the risk of miscarriage. Nor that she did or ever would have, advised of any age related risks.

[45]Mr Hussain’s statement originally set out that at a subsequent consultation she “would have indicated that there was no particular contra-indication to her falling pregnant, based on her medical history and the result of the ultrasound scan of 12 November 2005”. That accords with Ms Less’s account that the consultation was reassuring and encouraging. Mrs Hussain sought to change the word “particular” to “absolute” at the outset of her evidence

[46]Following the consultation a letter was sent. It did not reach Ms Less. Even if it had reached her it was deficient in two respects. Firstly it failed to advise Ms Less of the need for a further /follow up appointment. Secondly it failed to advise her that her IUD device was sitting low and out of position which meant there was a risk that it was not as efficacious as it should have been.

[47]As regard the first there it is admitted that this constituted a breach of duty. As I have set out as regards the IUD device it is my judgment that given that the advice concerned risks from pregnancy it was a significant failure of the duty of care owed not to have alerted Ms Less of this fact and its potential repercussions.

The post consultation letter

[48]Mr Maguire sent a report of his findings to the Defendant on Monday 14th November and on the same day, the Defendant wrote to Mr. Crinnion. The letter is stated to be “cced” to Ms Less but it was the evidence of Ms Less, which I accept, that she did not receive it. The content of letter was as follows “Dear Jammie, … Thank you very much for referring this very pleasant lady with fibroids. How periods are not particularly heavy and she does not have any major symptoms at present. Her only concern is whether she will be safe to have another baby. Of note is that she has multiple fibroids the largest being fundal measuring about 10cm in diameter. She has also had two confirmed DVT is and one pulmonary embolism. Obviously if she falls pregnant she has are high risk of developing a further DVT or indeed pulmonary embolism. She is currently taking Warfarin therefore she will have to change over to heparin or the equivalent. There is therefore indeed a risk of postpartum haemorrhage. If she does plan to try for a pregnancy than she will have to book early so that the appropriate steps may be undertaken to have a safe pregnancy outcome. With kind regards…” With kind regards…”

[49]It was Ms Hussain’s evidence that despite the lack of any mention of this in the letter, in fact the information giving process was not complete and she had not advised fully. She said that at the consultation, she had asked Ms Less to come and see her again once she had had her scan and that she was therefore expecting to see Ms Less for a second consultation. However as I have already stated I much prefer the evidence of Ms Less on this issue. For whatever reason it was not properly communicated to her that a second appointment was necessary. If it had been communicated she would have attended.

[50]As Mrs Hussain has admitted breach of duty in failing to provide a failsafe, and it is my finding that there was no active decision by Miss Less not to return, but a failure to tell her to do so, there was a breach of duty in failing to secure the return of Ms Less for a second appointment. “But for” this breach the Claimant would have returned.

What would have been discussed at a Second appointment

[51]Mr De Bono submitted that Mrs Hussain would have given fuller advice as set out in her witness statement, see page 74, para. 37 et seq which she confirmed as correct in oral evidence. She also confirmed in cross-examination that other advice, including as to risk of miscarriage and foetal anomalies e.g. Down’s, would have depended on what course the consultation took. Mr De Bono submitted that the court should be cautious of being too dogmatic about what would or wouldn’t, should or shouldn’t have been discussed because it would have been reasonable for the discussion to evolve according to the Claimant’s particular concerns. I think that there is force in this submission. However, on balance, I do not think that she would have adequately advised upon all the relevant risks. I think her basic approach to her remit can be seen as summed by her evidence that :

“There was no discussion about age. Not my role. My role was DVT and fibroids.”

[52]I accept that she would have gone on to repeat advice about the need to see her doctor a soon as pregnant and change anti-coagulation medicine .

[53]However in my judgment she would not have mentioned any risk of maternal death. As she stated “ its so low usually don’t talk about death , the risk could be higher but very low, generally.. wouldn’t tell her” and “ I assume she knows that there is an increased risk, she knows and increase risk so I didn’t think frightening her of the increased risk of death was justified”

[54]In my judgment she also would not have mentioned the risk of miscarriage from age and the fibroids or the risk of premature labour

[55]Mrs Hussain agreed that there was an increased risk of miscarriage and premature labour. She stated, rather confusingly, in cross-examination “I wouldn’t have mentioned miscarriage I might have mentioned premature labour… I ‘m not sure I’d ever say that.. I am, thinking about medical textbooks.. can we please recall that I’d think about early labour if inside the uterine cavity ”

[56]When it was pointed out that the experts had agreed that she should have advised Ms Less of these risks, Mrs Hussain, with some hesitation, agreed. However it appeared to me that that she was still focussing on any increase in the risk of miscarriage solely by reason of the fibroids. She added “ I agree possibly some evidence in literature and I should tell a patient about that.. no studies I am aware of.. if increased risk.. I’m not sure its all lumps, fibroids inside ..in my mind I’m confused if fibroids outside if there is an increased risk , that’s why I am confused”.

[57]This evidence was in line with her view , as expressed in cross-examination, that her role was no to give pre –conception advice ; that she was “ not in that position” and that “ I was completely involved in the DVT and them moved over to the fibroids”

[58]As for age related risks she stated “ A lot of ladies I talk about age etc but its difficult to say what I would have said” and “ they prompt me.. normally when I see a patient we do have that discussion”. I find if Ms Less had not raised age related risks, and it was not suggested to her that she would have done, they would not have been covered by advice. I find the same applies as regards the increased risk of chromosomal abnormality . Mrs Husain stated “I’m sure I would have had the conversation, but not sure how it would have evolved”

[59]As for mentioning the risk of premature labour she stated that she was “ not sure”. However, having considered her general approach I do not think that she would have raised it.

[60]As for haemorrhage she said she would have mentioned (as she said she did at the consultation that did take place) postpartum haemorrhage as a risk arising from anti-coagulation. She was not sure of she would have mentioned antepartum haemorrhage as the fibroids were not in the cavity.

[61]As I have set out at the outset of her evidence Mrs Hussain stated that she wished to alter her statement as regards what would have been said at a follow up appointment. The statement set out that “ I would have indicated that there was no particular contraindication to her falling pregnant , based on her medical history and the results of the ultrasound scan.” She wished to change the word particular to absolute. In my judgment this change came as a result of over-analysis of the position in light of expert evidence and no doubt much anxious consideration. However, it would significantly change the advice. In my judgment the statement as originally prepared was accurate in this regard i.e. that she would have advised Ms Less that there was “No particular contraindication”. It is consistent with paragraph 26 of the Defence which was also no doubt carefully considered by Mrs Hussain before she signed it

[62]I find that he advice would have been “try to conceive as she wished to”. However I find that Mrs Hussain is accurate when she stated as regards the fibroids “ I would have advised her that, if she did fall pregnant, there was a significant risk that she would develop red degeneration of her fibroids. I would have explained that red degeneration is quiet a common problem in women with fibroids, and that it can be very painful and can occasionally require hospitalisation . I would have explained that red degeneration of fibroids is managed conservatively, with analgesia, and it is generally not harmful to the baby”

[63]It must be borne in mind that as I have set out fibroids were a common occurrence in Mrs Hussain’s normal practice. She added in oral evidence that about 30% of women with fibroids have Red Degeneration and that if a woman does it is usually within the first 16-18 weeks after which it resolves. If it is very severe it can require hospitalisation ; usually for 1 or 2 days after which the patient can go home with painkillers. She stated “ very few have it as bad as she did

[64]So I find that she would have given advice in the general terms as set out above subject to the caveat that she would have answered any questions posed of her by Ms Less as she did in her oral explanation. I find the overall tenor would have been reassuring. As Ms Hussain set out in her statement “ Therefore my advice to Ms Less would have been that she could proceed to try and conceive”

[65]The defence uses the word ‘encouraged’ to describe the advice to get pregnant. Me De Bono submitted that this was pleaded in the context of the particulars of claim which suggested at page 9, allegation 25.6(d) that Mrs Hussain should have been ‘discouraging of any pregnancy’. In my view little is gained from close semantic analysis. The thrust of the advice as communicated was “she could go ahead”.

Reliance upon the advice

[66]Ms Less’s understanding of the Defendant’s advice was that the fibroid did not have to be removed and was not a problem and also that provided she sought early antenatal care for management of her thromboembolic condition should she fall pregnant, there was no reason not to conceive and they could “go ahead” After the consultation she explained to Mr. Carter what the Defendant had said. In due course, relying on the Defendant’s advice, they decided to try.

Death of Luis

[67]The death of Luis left both the Claimants devastated.

[68]In a letter dated 9th July 2007 which Ms Less sent to the Chief Executive of the hospital (Bundle 2/572) she expressed he “complete dissatisfaction” at the interpretation of a scan undertaken on 26th April 2007, treatment given on 1st May 2007 and what took place after the birth of Luis. Indeed as she stated in cross-examination her main focus initially was the failings of the hospital. She told Dr Denman that she had decided to take legal action against the hospital. It is also of some significance that in response to my question she confirmed that when this action was commenced against Mrs Hussain that she believed that the risks at the heart of the case had played a part in Luis’ death.

Subsequent advice

[69]After the death of Luis Ms Less received advice from two other Consultant Obstetrician and Gynaecologists; Miss Agnihotri at the Whipps Cross Hosiptal in 2007 and Mr Annan at Holly House Hospital in 2009/2010.

[70]Ms Less had a meeting with Miss Agnihotri and Mrs Wren, the Director of midwifery on October 2007 to discuss “the detailed post mortem report for baby Luis, the preceding pregnancy and future pregnancies”.

[71]Following this meeting a letter of 16th October 2007 set out the management plan for any “subsequent pregnancy”, stating “ I have advised that she start folic acid as part of routine pre-conceptual care” also that “the pregnancy would be a high risk one and so antenatal care would be entirely hospital based”. It confirmed “.. to answer a question raised by Denise and Michael, we have arranged an HSG to assess the shape of the uterine cavity and confirm tubal patency”. This would have been an invasive test.

[72]The letter also set out “Conservative management is advisable, as Denise is not currently symptomatic. Medical management is not indicated as there will be no benefit gained and conception would be delayed . Arterial embolization is indicated in cases where the family is complete and is not an option either. Myomectomy ..would be indicated if the fibroids are preventing conception i.e. for fertility reasons….. In general terms Denise and Michael are well and understand that a future pregnancy will be emotionally taxing”

[73]Mr Wood repeatedly stated that this letter must be seen in the context of the recent bereavement. I accept that this is so. I have also consider the evidence of Ms Less and Mr Carter on this point. However in my judgment the content points clearly to Ms Less and Mr Carter actively considering another pregnancy. The very fact of the issue having been raised and the test undertaken speaks volumes. Also it is important to note that pregnancy was being considered without removal of the fibroids, with the consequential risks arising. When Mr De Bono pressed Ms Less about this letter she could not remember discussing pregnancy with Miss Agnihotri and that pregnancy was not high up on her agenda at this time. However I am sure that she did discuss it and was higher up on the agenda that she now recollects.

[74]Ms Less first saw Mr Annan at Holly House Hospital on 7th November 2009 having been referred by her G.P. Dr S Ahmad due to a history of menorrhagia and for consideration of a myomectomy. Not surprisingly the G.P. pointed out that “she previously has had a pulmonary emboli and DVT and is on Warfarin”. After the operation had taken place (and 14 fibroids removed but the cavity not entered) and it appeared successful it was noted in the history sheet that she wished to have another child. This must have reflected some conversation on the topic. The discharge letter dated 13th March 2010 ; discharging back to the care of Dr Ahmad stated “ She wishes to have another child and I can see no contra-indication to this and if she does become pregnant there is no need for her to have a caesarean section as we did not enter the endometrial cavity at the myomectomy”

[75]She was then aged 43 years 9 months. Clearly the pregnancy associated risks arising from the fibroids has materially altered and reduced from the date of the consultation with Ms Hussain. However, all other risks including those arising from the DVT/pulmonary emboli, were the same or given that she was now nearly four and a half years older increased. Conscious as he clearly was from the records that Ms Less was on anti-coagulant medication there is no record that Mr Annan ever advised her of any relevant associated risks. He certainly did not advise the G.P. into whose care he was discharging her. Ms Less confirmed in cross-examination that she was not given any advice about age related risks and that “ No I just wanted the factors regards the fibroids”

[76]Pressed by Mr de Bono about her intentions at this time Ms Less stated that Michael wanted a child more than her and that she just wanted all the facts in front of her.

[77]The advice of Ms Agnihotri and Mr Annan is instructive in two important respects

[78]Firstly, it evidences how to other consultants approached the combined risks associated with pregnancy. Most importantly neither gave the advice that pregnancy should be avoided or addressed the risks in a manner that “discouraged” Ms Less

[79]Secondly, it reveals that despite the tragedy, its repercussions including the ongoing bereavement reaction, and the severe pain suffered during the pregnancy with Luis ; Ms Less had not ruled out a further pregnancy. This was because of the strong desire for a child that persisted despite all that she had endured. Mr Carter said in evidence that a in 2005/6 a child was “the natural thing to do”. He also described it as the icing on the cake and “not a necessity”. However I believe that in 2012 he is failing to do justice to their desire for child in 2005/6. In her report upon Mr Carter complied in August 2010 Dr Denman sets out that “ Mr Carter told me that he would have wanted more children because although they both have children by previous relationships they do not have any together. He said Luis was planned and was their chance but now it seems not a good idea for his partner’s health to have further children and he feels cheated”

[80]Ms Less told Dr Denman in August 2012 that “ initially she had some thought of having another child but was unable to decide on it because she feared that the same series of events would recur”. She also told Dr Denman that “her partner had refused to agree to the option on the grounds of the threat to Ms less’ health” and that she accepted that she was older and the risk of a pregnancy was now too great to contemplate.

[81]Having considered all the available evidence it is my finding that there has always been a strong and combined desire for a child and a new family life together. When mentally well as she was in 2006 and stripped of the experience of the pain and the effects of the tragedy this desire would have been very much stronger and it would taken very firm advice that she should not proceed to pregnancy to prevent her from doing what she wished to do.

What advice should have been given ?

[82]As a starting point I take the fact that the experts agreed that:

“The risks of complications were high. The relative risks of another pregnancy were significant and this was not a decision to be taken lightly. There was a need to emphasise the extreme importance of anticoagulation which would have substantially reduced these risks (and did) .”

[83]Mr Wood and Mr Kenney agreed within the joint statement that the reasonable gynaecologist would have given some advice about the potential effects of fibroids on pregnancy. They disagree as to whether it should have been advice given at a first or second consultation. However, given my findings in relation to the failure to ensure that Ms Less knew of the need for a follow-up appointment, this is of academic interest. In the event that it was necessary to determine the issue I would have preferred the view of Mr Kenney given the need for any advice to take into account the positioning of the fibroids as determined on a scan.

[84]As for the fibroid/pregnancy related matters that should have been covered in the advice given these were as agreed within the joint statement. I will deal with them in detail.

[85]The experts identified risks of miscarriage, premature labour, and late pregnancy loss, together with ante partum haemorrhage, as risks to mother and baby. Mr Wood stated that the risks to the baby needed to be “spelt out”. Mr Kenney stated that the risks to the baby “were not particularly high” unless the fibroids are sub-cutaneous and distort the cavity ; and Ms Less’ fibroids did not do this, so the fibroids related risks added little beyond the age related risk of miscarriage.

[86]The age related risk of miscarriage was agreed by the experts to have been 40-50% and within the joint statement they also agreed that “she should have been advised there was a high risk of miscarriage not only because of her age but also because of fibroids”. Mr. Wood said that 40-50% was the baseline risk for age and it was increased by the fibroids to over 50%. And “the vast majority of miscarriages will be early but the fibroid adds to the risk of miscarriage thereafter”. He talked about the risk of expulsion of the uterine contents linking to later miscarriage or pre-term birth.

[87]Mr Kenney was of the view that the risks to the baby “were not particularly high” unless the fibroids were sub-cutaneous and distorted the cavity ; and Ms Less’ fibroids did not do this ; so the fibroids related risks added little beyond the age related risk of miscarriage. He said the risk of a miscarriage was “about 50%”. He also pointed out that when interpreting this figure it should be noted that many miscarriages occur early.

[88]Ms Gollop submitted that the reasonable gynaecologist “should have explained the risks and explained that if Cs chose to go ahead that in addition to the risks, there was about a 50/50 chance of a live birth”

[89]However, in my judgment having heard the views of the experts as to what reasonable consultant should have said Ms Less should have been told that the risk of miscarriage from age, and fibroids, was over 50%.

[90]However, when considering what she should have been told and having regard to the fact that it would have been within a conversation with an intelligent woman who not a pirmagravida, it is necessary to note when considering Mr Less’ reaction to this information, her knowledge of the extent of such risks that she had already faced. I have no doubt Ms Less knew that there was risk of miscarriages in all pregnancies. In fact it was 25% of all pregnancies as estimated Mrs Hussain. Mr Wood said for a younger woman 1 in 6. So I find that she knew there was always a risk and that had she pressed for more detailed information she would have learned in effect that there was a significant increase upon what was always a significant risk.

[91]As regards the implication of a miscarriage, something that Ms Less’ may well have had in mind and could have raised in this context, Mr Kenney also said that only 1% of miscarriages occur after 13 weeks.

[92]For the sake of completeness I should note that Ms Gollop put it to Mr Kenney and thereafter set out within closing submissions that in giving this opinion Mr Kenney had resiled form the joint statement about there being fibroid related increased risks of miscarriage and premature labour. She pointed out that there is nothing in the joint report to say that the risks of(a) miscarriage or

(b) premature labour could be discounted once the scan report was in and showed that the fibroids were sub-mucosal and not encroaching on the uterine cavity. Indeed at Q22 the question posed was “ Do you agree that Ms Less should have been told that there was a bout a 40-50% risk of miscarriage because of her age; it is stated “Agreed. She should have been advised that there was a high risk of miscarriage not only because of her agebut also because of fibroids.” Ms Gollop submitted that it was impossible to see how Mr. Kenney could have agreed this if he thought that in fact, there was no risk of miscarriage because of fibroids given where the fibroids were. I was not attracted to these submissions. Mr Kenney was obviously a very careful and fair witness. As he stated there was indeed within the literature an acknowledged increased risk from fibroids. His answers clarified his position as regards both risks and the reality was that it did not greatly alter the picture given that there was little between the experts including as to the final appropriate percentage risk.

[93]As for foetal malposition, complicated caesarean section and antepartum and post-partum haemorrhage it was Mr Kenney’s view that Mrs Hussain could only have given a reasonably accurate assessment of the risks after an ultrasound report. Mr Wood saw the risk of foetal malposition due to involvement of the fibroids and as a result a mother could face a caesarean section . He saw an antepartum haemorrhage as a risk of coagulation. As regards the level of risk Mr Kenney was of the view that, given the scan results, which did not reveal a pelvic fibroid and showed their position and size there was only a “theoretical risk of malposition of the baby” and that whilst the textbooks will say that there is an increased risk to the baby from the fibroids of premature labour it was “pretty small”. When pressed by Ms Gollop on the existence and level risk to the baby from the fibroids Mr Kenney stated, by way in effect of overview “ because none in the cavity I don’t think that they did pose any risk to baby”.

[94]As for the risk of red degeneration, Mr Wood stated that the advice that he would have given was that, if it occurred, she would experience pain and the only treatment would be supportive, possibly with admission and conservative management. Mr Kenney said that he would have told Ms Less that “ it probably won’t happen ; but a 1 in 3 chance of getting what is usually pain and tenderness which is not usually that bad (and needing) simple painkillers”. He said that it was unusual to have the degree of pain that Ms Less had and “I don’t think that I would have warned her of the risk of the terrible time she had”

[95]As regards the assessment of thromboembolic risks it was agreed that Ms Less should have been “put on notice” of the risk of maternal death from pulmonary embolism albeit a risk substantially minimized with anticoagulation in pregnancy. It was also agreed that she should have been advised of the risk of haemorrhage from anticoagulation.

[96]As regards death from bleeding relating to anti-coagulation whilst the experts agreed that Ms Less needed to be informed, Mr Wood conceded that he had only ever seen one related a death and that was a lady who was a Jehovah’s Witness, which I presume meant that there were religious issues impacting upon treatment. In Mr Kenney’s extensive experience, including at St Thomas Hospital, he had never seen a patient die from pulmonary embolism or DVT who was on ant-coagulants. He said sub-cutaneous heparin is a “hugely effective treatment”. So, I think it reasonable to assume that any reasonably competent consultant would have been unlikely to have any or certainly much experience of this risk materialising. I believe that this would be likely to find its way into the approach to addressing this risk with Ms Less. Indeed Mr Kenney stated that he may even have “flunked” the word die and used “really dangerous” instead as he would not want to frighten patient. He would have said that it was “really really important to use and continue to use sub-cutaneous heparin meticulously.” It was his view that there were dangers but that they were “ preventable with sub-cutanoeus heparin”.

[97]It was also agreed that she should have been advised that there was a link between fibroids and thromboembolic disease. That is because “ fibroids impacted in the pelvis can cause pressure on pelvic veins and predispose to thromboembolic disease ; however the risk of DVY would be minimised anticoagulation.” . However as Mr Kennet stared, “ the fact is that she did not have one in the pelvis” .

[98]Finally there were age related risks of Fetal chromosomal abnormalities (increasing risk of Downs because of age), hypertensive disease and glucose intolerance/gestational diabetes. As to the quantification of these risks Mr Wood stated that it would be difficult to be precise. Mr Kenney pointed out that the risks the risk of Down’s syndrome or fetal abnormality could be substantially reduced by testing of the sort which the Claimant underwent in any event. I also accept that by the time of a third pregnancy and given previous advice most women know of the increased risk of Down’s with increased age. Ms Less did not have hypertensive disease.

[99]In his report at paragraph 2.14 Mr Wood set out the opinion that “Faced with the appalling past medical history, her age, her previous deliveries and the significant extent to which her uterus was enlarged by fibroids, I believe it behoved any Obstetrician and Gynaecologist to express great caution about the wisdom of a future pregnancy to Ms Less.” The phrase “great caution” underpinned the question 19 on the joint agenda

[100]Dr Wood saw a synergistic effect by reason of age past medical history and the presence of the fibroid mass He said that it was “ acomplicated case with features you don’t see commonly, so not reasonable to define the risk ; just say its there and not to be sniffed at “.

[101]Mr Kenney set out within the joint statement that whilst a reasonable gynaecologist should have expressed great caution about a further pregnancy “ in practice… there was a substantial risk of red degeneration of the fibroid but serious risks were quite small provided she received proper anticoagulation and antenatal care”

[102]When asked if he agreed with Mr Kenney’s assessment i.e. that the serious risks were “ quite small” provided she received proper anti coagulation and antenatal care , Mr Wood said that he would not classify them as small. He did not give further detail.

[103]However, apparent within Mr Wood’s analysis of the factors at play were elements of an approach which I have no doubt very many of his professional colleagues would find tended towards being overly intrusive and paternalistic. Whilst he stated that the “ultimate decision” was one for the parents to be taken on full and accurate advice, he explained that in his view when planning a future pregnancy domestic and personal circumstances played a part and that here Ms Less had already been “blessed” with two children. In my judgment it was clear that Mr Wood would have sought to provide a relatively strong “steer” to Ms Lees not to try and conceive again and such a steer would have involved if not, as Mr De Bono suggested, “overplaying” the risks, certainly highlighting them in within a consistent theme of the risks outweighing the benefits. However, it is my view that any guidance based on broader considerations of existing family size would have fallen on deaf ears if presented to Ms Less and Mr Carter. They are intelligent and thoughtful people who sought medial expert opinion on risks ; not wider guidance on family size.

[104]Mr Kenney stated that when advising he would not factor in the fact that Ms Less already had two children stating “ ..its for the couple and I’d try not to impose my own views on the patient”. In my judgment the majority of consultants faced with the relevant circumstances here would echo this statement. I believe that it would have been the approach of a reasonable consultant to adopt this view

[105]Mr Carter stated that the first time that the Claimants fully appreciated all the risk that were involved was when they saw Mr Wood’s report. However, the detailed presentation ex post facto in a comprehensive medico-legal report can be misleading when considering what would have been your approach at the time when the information was imparted in the usual way. Further, the focus has to be on what would have been the advice that should have been given by a reasonably competent consultant and in this regard it must not be forgotten that a consultation with Ms Less would not have been a monologue. She would have asked questions and I have set out the analysis of the experts of the true extent of each risk and its impact. In my judgment regard needs to be had to the specific features of her case and the answers to any request including by reference to what has happened in past cases within the consultant’s experience. I take as a paradigm example the risk of maternal death through bleeding as a result of anticoagulation. The reports set out that it was a risk that need to be referred to. However when asked for personal experience neither of the very experienced experts had ever really encountered it. If Ms Less were to have received such information then coupled with her own past experience of her condition being managed whilst it was a risk of death ; it was likely to have been a risk that was nowhere near as alarming as it may have seemed would have been the case when she first read it in Mr Wood’s report.

[106]Importantly, whilst it was necessary for the reasonably competent consultant to make reference to the variety of risks I have outlined, the presentation of conclusion, was something upon which there could properly have been a range of expression and advice. As Mr Wood stated “ There is a range of opinion but the content of the advice needed to stated… there is arrange of emphasis but I would draw the line at encouraging.. (that is) outside the band.. neutral would be in the band”

[107]Mr Kenney, within a very balanced and persuasive analysis stated that “ in the circumstances I wouldn’t have discouraged pregnancy. I’d emphasise the risks . (But) the risk are not high enough to say she shouldn’t embark on a pregnancy” And by way of summary he explained his overview in cross-examination as follows “ I wouldn’t encourage pregnancy . After they scan I’d say; if you want to get pregnant that is fine but it really is quite dangerous not to use medication …..and there is a risk of red degeneration from fibroids.. and as you know at your age there is a risk of Down syndrome (and a need for) amniocentesis.. and an appreciable risk of miscarriage “

[108]Headded that the risk of miscarriage would mostly be in the first 12 weeks with mid trimester miscarriage quite rare. He said that when translating the advice that there was potentially a degree of steering, “.. if I was you” ; but the decision should ultimately one for the patient.

[109]So the experts in effect agreed that at the very least it would certainly have been open to a reasonable consultant to adopt a neutral position as to whether she should go on any take the risks or not. Mr Kenney went further and stated that this was the position that should be adopted in such circumstances .

[110]Sadly, as is often the rather unhelpfully the case in litigation, two extreme positions on this issue had been presented within the respective cases. The pleaded case on behalf of the Claimants was that in the circumstances, and taking into account Ms Less’ age (being 39 years old) pregnancy should have been “discouraged”. At the other end of the spectrum it was the Defendant’s case as originally pleaded that she would have advised Ms Less that there was no particular contra-indication (later in effect amended to absolute) to pregnancy and that she would have “encouraged” the Ms Less to try conceive.

[111]The reality is that when imparting advice in a context such as this the process of delivery of the information and interpretation often betrays the personal as opposed to strictly professional perspective. Such is a facet of human nature. Some consultants would appear to a patient be more “positive” than others. In the present case Ms Hussain would in my opinion clearly have always been towards the positive whereas Mr Wood would be towards the negative. The neutral position was clearly an option for the reasonable consultant. However, in my judgment this was not only probably the proper approach to patient autonomy in strict textbook terms but the one most consultants would try to adopt. In so far as such vague descriptions apply, the neutral course was the course that would have been adopted by Mr Kenney and I was greatly impressed by his balanced and careful approach. I think he was right when he said it was the proper approach to adopt. The risks needed to be explained carefully within the dynamic of the discussion and the information having been imparted the decision left to the patient.

[112]When considering the range of ways that the necessary advice could have been properly delivered it is illuminating to consider the advice actually given by the two other Consultants. Certainly, and at the very least, when the issue was before them, neither actively discouraged pregnancy.

[113]Also whilst it is necessary to be very careful given the lack of evidence as to the context in which Ms Hargreaves gave advice and the evidence of Ms Less (which I accept on this point) is that she was not considering pregnancy, she gave no firm advice against any future pregnancy either.

Conclusions upon breach of duty

[114]It is not in dispute that the scope of the duty of care owed by Mrs Hussain was wider than that pleaded in the defence and properly extended to cover all the risks of which Ms Less should specifically have advised.

[115]As I have set out I find that there was a breach of duty in that Ms Lees was not informed, adequately or at all of the need for a second appointment in order for her to receive further advice, after sight of the scan, upon the risks arising from a pregnancy.

[116]Further, it was accepted at the outset of the hearing that, given the agreement of the gynaecology experts that there should have been a ‘failsafe’ mechanism to secure the attendance of Ms Less at a second appointment, that Mr Hussain was in breach of duty in failing to write to Ms Less to remind her of the need to attend a second appointment.

[117]The combined effect of these two breaches of duty is that Ms Less was not provided with adequate advice.

[118]However, taking these breaches and logically progressing on, based on the expert evidence, even had there been a second appointment the advice that Mrs Hussain would have given about the risks would have given fell below a reasonable standard. Specifically, she would never have adequately addressed the full range of risks

[119]Although he conceded that the scope of the duty of care owed by Mrs Hussain was wider than that pleaded in the defence Mr De Bono submitted that Mrs Hussain did not assume the risk of the well-being of any future pregnancy. The death of Luis from hypercoiling was tragic but not the result of any of the matters about which Mrs Hussain either advised or should have advised. It was not the result of fibroids, in any way, or DVT/ PE or maternal age.

[120]Questions of scope of duty do not normally arise in clinical negligence cases because if you suffer injury as a result of an act or omission of a doctor then almost always that injury will be within the scope of the duty owed by that doctor. However Mr De Bono submitted that clear questions arose in this case because it is an ‘advice’ case.

[121]I shall return to this issue in due course

The pregnancy

[122]I return to my findings of fact. As Ms Less explained “ as I grew bigger I was in constant pain ; constantly sick, it was lot of pain and affected our relationship”. She required two admissions to hospital and clearly had a terrible time due to severe pain. Causation

[123]There were clear issues of fact that required to be addressed on causation. The relevant questions were stated by Ms Gollop to be : a) Whether Ms Less relied on the advice given by the Defendant when she had her coil removed and subsequently conceived. b) Whether Mr. Carter similarly relied on that advice. c) Whether they would have chosen to avoid conception had they been properly advised.

[124]In my judgment the first two questions could be answered in the affirmative with very little hesitation

[125]However the third question, was far more difficult to answer. It was further defined by Ms Gollop as ; what was decision the Claimants would have made had they been properly advised of all the risks and told that the risks of complication were high ?. Certainly by the time of closing submissions both Counsel appreciated that this was a question upon which liability may well turn. Indeed Ms Gollop in her oral submissions stated that “ the difficult issue in this case is factual causation”

[126]Surprisingly, within closing submissions there was something towards a dispute as to the extent that the defendant could raise the issue. Ms Gollop conceded that the Claimants could be put to proof on the issue i.e. they still bore a burden of establishing causation on balance of probabilities. However she submitted “D should not be allowed to submit that Cs would have gone ahead had they been given information in addition to that she gave - see paragraph 26 at C22 and also paragraph 45 of Cs’ Skeleton. There has never been an application to amend. D should not be allowed to do more than put Cs to proof.

[127]I found this somewhat puzzling distinction given the presentation of the case by both sides. Indeed her own skeleton opening submission set out that causation remained a key issue in dispute. She set out at para 29.2 Causation 1.1 The issues are: d) Whether Ms Less relied on the advice given by the Defendant when she had her coil removed and subsequently conceived. e) Whether Mr. Carter similarly relied on that advice. f) Whether they would have chosen to avoid conception had they been properly advised. And at paragraphs 42 -45 CAUSATION128. Whether it is likely that the Claimants would have chosen to avoid conception if properly advised is a matter for evidence.

129. If they do not prove that then the claim must fail.

130. In the Defence, it is averred that had the Defendant had the opportunity to see Ms Less again she would have explained more fully some of the thromboembolic and fibroid risks and would have encouraged Ms Less to conceive (see paragraphs 18, 26 and 29 of the Defence). It is averred that given that advice and encouragement, Ms Less would have gone ahead and the pregnancy outcome would have been the same. Whether or not correct, this is irrelevant. The relevant issue is what decision the Claimants would have made had they been properly advised of all the risks and told that the risks of complication were high.

131. The Defence fails to plead any case in relation to that issue – see the way that paragraphs 25.1 and 25.6 of the Particulars of Claim (C809) are glossed over in paragraph 23 of the Defence (C20-21). Further, paragraph 28 of the Particulars of Claim (C10) is expressly not admitted (see paragraph 30 of the Defence at C23). It is not now open to the Defendant to deny the Claimants’ case on causation rather than put them to proof of it.

CAUSATION

[128]At paragraph 5 of his skeleton argument Me De Bono set out the Defendant’s case that Causation – the Claimant would probably have become pregnant anyway The Defendant contends that it was ‘safe’ for Ms Less to become pregnant and that she would have done so in any event because, understandably, she wanted to become pregnant by Mr Carter. It follows that the claim fails on causation.

[129]Referring back to the pleadings, paragraph 28 of the Particulars of Claim pleaded “had the (sic) Ms Less been properly advised about the risk and advisability of pregnancy and/or the fact that it was far from clear that a pregnancy would be safe or would have a safe outcome , she and Mr carter would have decided against conception”

[130]At paragraph 28 of the defence under the rubric “causation” it is stated “paragraph 28 is denied” with the balance of the paragraph dealing with what would have happened had there been a second appointment. On any reading this meant it was the subject of dispute by the Defendant

[131]In my opinion the issue of causation has always been appreciated to be a live one and also one known to be central to the determination of liability. The Defendant did no more at trial than cross-examine the Claimants on the content of their own statements and medical records in line with a clear opening statement. There was no additional positive evidence or indeed “case put” and I presume it was as a consequence of this that no objection was taken to any questions put.

[132]I saw no bar to the Defendant raising any argument on this issue that was supportable on the evidence placed before me. However, in practical terms . this has amounted to no more than an overarching submission that the Claimants had not satisfied the burden upon them of establishing causation What would have happened if reasonable/non negligent advice had been given ?.

[133]This question throws the focus back upon the matters that I have already set out concerning the way that the various risks were presented, separately and as a whole, to Ms Less.

[134]Ms Less set out her view in her witness statement at paragraph 29-30 “In 2005 if Mrs Hussain had told me that pregnancy was risky for me and my baby, Michael and I would naturally have been disappointed .However having a baby together was not something we needed to do to complete our relationship. We both have children from previous relationships and families that we are close to. Michael and I would have continued taking steps to avoid me becoming pregnant knowing that it would be risky for both me and the child if I did so”

[135]Mr De Bono stated that “the real question”, was why would Ms Less have chosen not to become pregnant had she received fuller information? He submitted that it was striking that both Claimants said that it was only when they had read Mr Wood’s report that they realised ‘the full facts’ and formed the view that had they been given this information they would not have wanted to risk a pregnancy. However, he stated that the need to ‘discourage’ pregnancy had been overplayed by Mr Wood and as a result the proper conclusion should be that had reasonable advice been given it would not have ‘discouraged’ pregnancy in the sense of actively steering the Claimant away from pregnancy. Indeed he submitted such was the strength of the evidence in favour of the argument that Miss Less would have become pregnant in any event (unless she had been told ‘you must not’) that whatever the court’s precise findings as to what would or should have been said by, Mrs Hussain at a second consultation or indeed said by any reasonable consultant, the claims fail on this issue

[136]Ms Gollop submitted, and in my opinion was undoubtedly correct to do so, that the Claimants found giving evidence on what they would have done if properly advised to be a very difficult exercise for several reasons including:(a) “reasonable advice” remained undetermined , so they had the conceptual difficulties to contend with

(b) that being questioned on a range of different possible advice scenarios was probably to a degree bewildering, and

[137]She also submitted that there should be great caution before drawing any inferences or deriving any assistance from the Agnihotri and Anan letters. Ms Less was honest and open about the fact that after Luis, she did not close the door on pregnancy but this is not evidence that she would have decided to try for a baby even if properly advised. There is a big difference between keeping your options open and deciding to try for a baby. Further, the letters give the doctors’ perspective, whereas the evidence of the Claimants gave another view.

[138]Ms Gollop also relied upon the fact that Ms Less has not got pregnant since Luis. Ms Less was cross examined about this and said that they had not in fact tried. She submitted that evidence should be accepted ; and it is indeed the case that I accept it Findings on

Causation

[139]It is my opinion that the understandable but powerful influence of hindsight has been at play. It is, as I have set out in other cases, unforgiving and does not afford the latitude of the truly balanced consideration of competing options which is a normal and essential part of everyday life. With the perfect vision of hindsight it is all too easy to perceive matters are more certain, events that occurred to have been more predictable, than in fact was actually the case.

[140]Mr Less had two children ; Luke aged 13.5 years and Latifa aged 12.5 years. She had been in a loving relationship since 2000. Mr Carter was clearly keener within the partnership on them having a further child; but the mutual desire was, as I have indicated a strong one.

[141]Ms Less had suffered DVT and a pulmonary embolism. She had “terrible” morning sickness in her first pregnancy up to five or six months. She got through it and proceeded to have a second child. Child birth itself is of course not to be underestimated as a painful experience. The strong impression I formed of Ms Less is that she is a stoic and strong willed individual.

[142]Also unlike the position after Luis’ death Ms Less and Mr Carter were both happy and fully focused on building a family life as at 2006

[143]So what would she have done if given proper advice?

[144]For the avoidance of doubt I should add in this regard that I have no doubt that Ms Hussain would have been positive as regards pregnancy. Had she identified all the relevant risks she would have had a clear tendency to underplay rather than overplay or highlight them. However, as I have set out given the obligation to refer to the risks that have been set out by the experts there is acknowledged to be a range of concluding presentations and emphasis. However, I take as my starting point for the consideration of the causation issue the adoption by a reasonable gynaecologist of a neutral approach once all the risks had been properly identified. In other words I have assumed a consultant giving clear advice and fully setting out all the risks within the consultation but in conclusion not actively seeking to encourage or discourage Ms Less from trying to conceive.

[145]At the heart of Ms Less’s concerns at the time of the consultation was the effects of her fibroids. Although she was concerned and wanted advice upon the effects of the DVT and pulmonary embolism these were to a degree familiar territory for her.

[146]As regards the fibroids although the main risk that should have been highlighted was red degeneration, it is not the case that reasonable and proper advice should have highlighted a very significant risk of the type of severe problems she went onto experience. When I asked her about what her decision would have been had she received proper advice about the risk factors she answered “ I don’t think I would have carried on. I wouldn’t want to put myself through pain in a pregnancy. Having to go through the majority of pregnancy in pain is not something I’d go through” When shown Ms Hussain statement and the advice that she sets out that she would have given at a follow up appointment regarding red degeneration Ms less stated “ It not something I’d say I’d want to go through, no”

[147]However in my judgment this evidence is, quite understandably given all that occurred, very heavily affected by hindsight. Indeed I find that, on balance, Ms Less is not correct in her assessment of what decision she would have reached with Mr Carter in 2005/6.

[148]I have no doubt that the decision would have been well thought through. Even after the advice given they did not rush into matters as Ms Less stated “ we weren’t ready, we didn’t want a baby until we were living together”. However, having carefully considered each risk separately and also the cumulative effect, it is my judgment that the risks if they had been adequately explained, including those in relation pain and potential hospitalisation from red degeneration, would not have weighed sufficiently in the balance to mean that she would not have proceeded to pregnancy. She had faced DVT and a pulmonary embolism before and would have been advised that anti-coagulation would substantially reduce the associated risks. She would have taken the risk with red degeneration and also chosen to face the other risks.

[149]My finding of fact on this issue also gains support from the evidence as regards the meetings with the two consultants in 2007 and 2009/10. Indeed in my judgment these meetings provide the key to assessing just how keen Ms Less and Mr Carter were to try for another child. These meetings were after the terrible pain during pregnancy and loss of Luis, yet such was the desire for a child that serious consideration was obviously being given to a further pregnancy. There is no other explanation for the procedure in 2007. In March 2010 and despite her increased age and the risks associated with DVT and pulmonary embolism, the intent was clearly set out. In my judgment the desire for a child has always been much stronger than the evidence of Ms Less has suggested. I find that for it to be overcome there would have had to have been advice as to such serious and very significant risks to either her health or that of her baby that she should not proceed.

[150]Of course the most likely risks, those of miscarriage and of red degeneration would certainly have concerned Ms Less. However, as I have indicated she suffered illness by way of severe morning sickness during her first pregnancy yet went onto have a second pregnancy. Shorn of the prefect vision of hindsight, it is my judgment that the risk of miscarriage and reasonably articulated risk of pain, even of the relatively small risk of such significant pain and discomfort that she required hospital treatment, would not have put her off. Of course had she been advised of a very significant risk of the type of unusually severe pain she did experience that would have been more likely to have caused significantly more and anxious reflection. However in my judgment she would not have been so advised by Mrs Hussain at any stage and would it would not have been necessary for any reasonably competent consultant in her position to have advised her as such. What happened was that as a rare complication Ms Less had particularly severe pain from red degeneration.

[151]It is also my judgment that advice as to the very serious risks were she not to continue with anti-coagulants would not have so concerned her as to divert her form a wish to have a further child. She had faced a risk of this nature before during her two pregnancies and I see no reason to believe that she would not have trusted herself to be compliant with medication.

[152]As for the other risks whilst they amounted to a formidable battery on paper when the Claimants first saw them in Mr Wood’s report, when reasonably explained I do not believe that they would have weighed sufficiently to alter the course Ms Less and Mr Carter wanted to adopt. Age related risks would not in my opinion have deterred her and it was only after the spring but at or before the summer of 2010 that she had formed the view that she was now too old.

[153]Indeed I am of the view that even if the consultant had, after properly setting out the risks, sought to actively discourage Ms Less from trying to conceive with the reasoning advanced that she already had been blessed with two children, that this would not have stopped her. What she wanted, but never got was balanced and comprehensive advice. She would then have taken time with Mr Carter to reach a decision. But in the end I favour Mr De Bono submission that what was really required to stop them taking the step was nothing short of advice that they could not or must not try for another child.

[154]So I am satisfied on balance of probabilities that Ms Less would have continued to pregnancy. Of course this means that the Claimants have not satisfied the burden upon them of establishing causation.

Issues of law

[155]The case required detailed submissions on points of law arising from its uniquely complicated features . Although I have made a finding which results in both claims failing I believe that it is nevertheless necessary for me to give my judgment upon these issues.

[156]The issues are as follows :(a) Whether any or all or part – and if part, which parts – of Ms Less’s physical and psychiatric injuries were within the scope of the duty of care.

(b) Whether a Reesaward should be made at all and if so, whether to Ms Less or to both parents.

(d) Whether Mr. Carter has suffered a recognized psychiatric injury. a) If he has, whether a psychiatric injury was reasonably foreseeable. b) Whether that injury has been caused by shock (that is, whether the Alcock tests are met.

(e) Whether Mr Carter can recover damages for mental distress that falls short of a recognized psychiatric illness pursuant to breach of a contract

[157]I shall will deal with these issues by taking the cases on behalf of Ms Less and Mr Carter in turn.

Recovery by Ms Less ; Scope of the duty

[158]It is my judgment that that conception, pregnancy, red degeneration pain in pregnancy, stillbirth and psychiatric injury were all within the scope of the duty of care, as reasonably foreseeable and caused by Ms Hussains’ breach of duty.

[159]As this is a novel point and to accord due respect to the care with which the respective submissions were advanced I shall set out my reasoning.

[160]Luis died as a result of hypercoiling of the umbilical cord and it is agreed that it was not as the result of any matter about which the Mrs Hussain’s advice was sought by Ms Less or represented a risk or complication that should have been addressed by the Ms Hussain. As a result, submitted Mr De Bono, the death of Luis and his mother’s consequent psychiatric injury were outwith the scope of the duty owed by Mrs Hussain and damages in respect of these losses are not recoverable. She did not assume responsibility for Ms Less’ future pregnancy, she assumed responsibility only for the specific risks in respect of which she was asked to, or should have, advised

[161]It was conceded that the scope of the duty did extend to red degeneration as a risk or complication that should have been addressed by the Ms Hussain. Therefore as it is my finding was that as a result of a breach of duty on the part of Mrs Hussain the Claimant became pregnant when she would otherwise not have done, it is accepted that Ms Less is entitled to damages in respect of the pain and suffering associated with red degeneration.

[162]Mr De Bono submitted that as regards the losses other than those associated with the development of red degeneration it was not sufficient to enable recovery to say that, but for Mrs Hussain’s negligence, Ms Less would not have become pregnant. It is was necessary to carefully determine the scope of the duty by reference to the kind of damage from which Ms Hussain had to take care to save Ms Less harm from.

[163]Mr De Bono relied on two cases in very different factual contexts to support his submission that the losses were outside of scope. In Calvert v. William Hill

[2008] EWCA Civ 1427

, the court found that a telephone betting company who had dealings with a man who, at times of lucidity, recognised his own addiction and tried to prevent himself from placing bets, did not assume responsibility to prevent him from gambling. They only assumed a responsibility not to allow him to place telephone bets with them ; see the judgment of the court at paragraphs 43 to 47. In Darby v. National Trust

[2001] EWCA Civ 189

, the Claimant argued that there should have been a sign warning against the risk of Weil’s disease, and this would have discouraged the deceased from swimming in the lake with the consequence that he would not have drowned. May LJ:

“Unpleasant though Weils disease, I have no doubt, is, it was not the kind of risk or damage which Mr Darby suffered, and any duty to warn against Weils disease cannot in my judgment, support a claim for damages resulting from a quite different cause.”

[164]Mr De Bono submitted that the failure of the Claimant to identify what harm it is said that Mrs Hussain assumed responsibility for is evident from consideration of this question; in what circumstances would Miss Less have considered herself to have suffered any injury? In wrongful conception/wrongful birth cases ; see McFarlane v. Tayside Health Board

[2000] 2 AC 59

; Parkinson v. St James

[2002] QB 266

; Groom v. Selby [2002] Lloyds MR 1 as soon as the Claimant/ pursuer realised that they were pregnant they considered themselves to be the victim of a legal wrong or to have suffered injury. In contrast when Ms Less discovered she was pregnant she was delighted, it was what she wanted. He submitted that if the Claimant were right in her analysis then even if everything had gone well with the pregnancy and Luis had been born without problems and were alive now she would still be entitled to damages for the injury of being pregnant and having to go through birth. He submitted that could not be right.

[165]Ms Gollop submitted that the losses fell within the scope of the duty. Luis’s abnormal and restricted growth and his in utero death were foreseeable and naturally occurring events. The Defendant should have warned of a painful pregnancy and a high risk of miscarriage but negligently did not ; a painful pregnancy and death in utero are sadly what followed. The beginning, middle, end of the pregnancy and its aftermath should be taken as an indivisible injury which should not be parcelled out into component parts. Foreseeability plus the absence of a novus actus was enough to enable recovery for all losses.

[166]Further, there needed be no direct connection between the negligence and a congenital disability. As a result if the Claimants prove that properly advised they would have decided to avoid conception, they should recover in full. It would not be fair, just or reasonable for the Defendant to escape liability because, whilst miscarriage was foreseeable and some form of death in utero should have been foreseen and warned of, the precise mechanism of the actual stillbirth could not have been foreseen.

[167]I do not accept Mr De Bono’s submissions as to the scope of the duty and much prefer Ms Gollop’s analysis.

[168]To satisfy the duty of care (or contractual duty), the doctor must give the patient sufficient information to enable the patient to make a balanced judgment. Here that did not happen and the Ms Less fell pregnant. The starting point is that the personal injury is conception not birth ; see Walkin v South Manchester Health Authority

1995 1 WLR 1543

as approved in McFarlane v Tayside Health Board

[2000] 2 AC 59

[169]As the injury is conception, once this has taken place and assuming the mother remains alive, pregnancy must come to an end and there are only three ways(a) Loss of the baby during term

(b) Birth of a healthy child

[170]Hypercoiling or other causes of death of the baby are an ever present risk of, rather than being concomitant with, pregnancy. For want of another better phrase such risks are part and parcel of the process of foetal development that cannot be avoided by whatever means adopted. Successfully conceiving is no guarantee of giving birth to a living baby a fortiori one objectively considered entirely healthy. Such risks being part of the natural process they axiomatically flow with conception. These matters are matters of ordinary common knowledge and this eminently foreseeable.

[171]Remoteness was specifically addressed in Groom v Selby[2002] Lloyds Reports Medical 1. Hale LJ made it clear and explicit that in a wrongful conception case resulting in a disabled child:

“…there is no direct connection between the negligence and the disability.”

[172]Lord Hoffman in South Australia Asset Management Corporation v. York Montagu Limited [1997] AC refers to the example of the mountaineer who should have been advised by his doctor not to go on an expedition because of the condition of his knee. The doctor negligently fails to give the right advice and the mountaineer goes on the expedition suffering injury for reasons unconnected to the knee. He cannot recover damages from the doctor on the basis that, but for the doctor’s negligent failure to give adequate advice, he would not have been on the expedition and would not have suffered injury. However it seems to me that this example prayed in aid by Mr de Bono is not, as he seeks to suggests, particularly apposite. Of course there are boundaries. Were the claim to have been that Mr Less could recover damages because, without any previous problems, she hurt her back when heavily pregnant it would be strongly arguable that would be outwith the scope of the duty. However I return to the fact that death in utero is an unavoidable risk in the development of the child.

[173]Further, if Ms Less had to have for some reason another consultation and been fully and properly appraised of the risks early during the pregnancy and having realised the true extent of the risks decided upon termination it seems to be that she would obviously have considered herself to have suffered an injury including through the termination. To my mind it would be difficult to see how an argument could have been mounted that the damages reflecting the termination would not be recoverable given the scope of the duty.

[174]Considering the forseeability of loss of the baby during term as a potential outcome given pregnancy and the agreement of the experts that some specific risks to the baby had to be considered by the Defendant, I consider the restriction contended for by Mr De Bono to be artificial and wrong in principle. Given that this was advice about conception it is my judgment loss of the baby during term was a kind of loss in respect of which a duty was owed and it makes no difference that the precise mechanism was not foreseen.

[175]I also have little hesitation in finding that it is fair, just and reasonable for the Defendant to compensate the Ms Less for her injuries. If the law permits the mother of a disabled child born following a wrongful conception to recover damages for the much larger financial damages associated with bringing up a disabled child even when there is no direct connection between the negligence and the disability, there it should surely follow that here Ms Less should recover for the very much more modest damages for pain and suffering even though there was no direct connection between the negligence and the hypercoiling. Indeed it was much more foreseeable that Ms Less would have a miscarriage/stillbirth than that Mrs. Parkinson would have a disabled baby.

[176]As a result had causation been established Ms Less would have recovered for all loses flowing from the death of Luis.

Rees award

[177]In Rees v. Darlington

[2004] 1 AC 309

it was decided that when a child is born as a result of wrongful conception or wrongful continuation of a pregnancy, a conventional award to mark the parents’ loss of autonomy should be made and this conventional award was set at £15,000. Such a conventional award had previously been canvassed by Lord Millett in McFarlane v Tayside Health Board

[2000] 2 AC 59

). He suggested a figure of £5,000, but the suggestion did not find favour with the other members of the House. Lord Millett returned to this conventional award in Rees saying (page 349 at paragraph 123):

“I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damage, not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law. The loss of this right is not an abstract of theoretical one. As my noble and learned friend Lord Bingham of Cornhill has pointed out, the parents have lost the opportunity to live their lives in the way that they wished and planned to do. The loss of this opportunity, whether characterized as a right or freedom, is a proper subject for compensation by way of damages.”

[178]In Rees Lord Bingham stated at 317E:

“The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.”

[179]Ms Gollop submitted that, as with injury, the loss of autonomy starts at conception and the award should not be dependent on either a live birth or the length of the child’s life. The Claimants lost the right to make an informed decision. If causation is found in their favour then they would have avoided conception and chosen to live their lives as a childless couple. Lord Millett specifically said that the award of the conventional sum is for loss of autonomy, “not for the birth of the child”. The award in Rees, being a non-compensatory mark of a loss of autonomy, should be awarded jointly to both parents.

[180]I do not agree. When the law allows deviation from the compensatory principle every incremental development needs careful consideration. The existence of a legal wrong remains the starting point. Here for the reasons that I have outlined Ms Less would have recovered for all losses associated with the pregnancy. However in my judgment on any careful analysis of the judgments of either Lord Bingham or Lord Millet they were recognising that ordinarily the parents of a child born as a result of a legal wrong will, within the “mixed blessings” of parenthood suffer real as opposed to theoretical losses. This I see as a driver behind their approaches to the issue and support of the award given. In the present case there are no such losses. Absent such losses I do not believe that an award should be made.

[181]Accordingly had Ms Less’ claim been successful she would have received damages for pain, suffering and loss of amenity which I would have awarded in the sum of £25,000 together with special damages of £11,485.94.

Mr Carter

[182]Because Mr. Carter suffered no physical injury, his ability to recover damages for psychiatric injury depends on whether the cause of action is tort or breach of contract.

[183]In Page v. Smith

[1996] AC 155

the House of Lords recognised a distinction between primary and second victims of a tortfeasor. Primary victims are those within the range of foreseeable physical injury whereas secondary victims were not. In Page Lord Lloyd stated as follows at 184C:

“In the same case Lord Oliver said at p. 407, of cases in which damages are claimed for nervous shock: “Broadly they divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.” “Later in the same speech, a pp410-411, he referred to those who are directly involved in an accident as the primary victims, and to those who are not directly involved, but who suffer from what they see or hear, as the secondary victims. This is in my opinion, the most convenient and appropriate terminology.”

[184]Ms Gollop submitted that there was sufficient proximity between the Defendant and Mr. Carter to found a claim. She argued that the class of persons to whom a primary duty was owed is limited to two and that as a result it is fair, just and reasonable that there be a duty of care owed by the Defendant to the father on the facts of this case.

[185]I do not agree. I find that Mr Carter was not a primary victim. Mrs Hussain had an appointment with Ms Less alone. Nothing that she said or failed to say could foreseeably cause Mr Carter physical injury and in my judgment he cannot therefore be regarded as a primary victim. Indeed it is usually the case that relatives of a patient in a clinical negligence are categorised as secondary victims.

[186]For any secondary victim the criteria for nervous shock remain those set out in Alcock v. Chief Constable of South Yorkshire

[1992] 1 AC 310

. See Lord Ackner, 401F:

““Shock”, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

[187]In my judgment there can be no doubt that the circumstances of being present when your son is born dead are capable of giving rise to psychiatric injury induced by shock. Not surprisingly Mr De Bono does not argue otherwise. Rather he submits that on the facts of and supporting evidence for Mr Carter’s claim it does not support a claim for nervous shock claim i.e. there is no evidential basis for the court making such a finding. He submitted that even were the court to make a finding that Mr Carter had suffered psychiatric injury and there were circumstances which objectively considered might have been sufficient to amount to ‘shock’ in the Alcock sense, this does not suffice to support a finding that shock has actually caused the injury

[188]He argued that the claim was not presented in the Particulars of Claim as one for nervous shock and there was nothing in either in Mr Carter’s own witness statement or in the two reports from Dr Denman to substantiate the assertion that the injury was indeed induced by ‘shock’ as opposed to bereavement. Further, he submits that the position is weakened further by the fact that such psychiatric injury as Mr Carter may have suffered is not well supported by expert medical evidence. Dr Denman stated that at a stretch it could qualify as an adjustment disorder but Dr Bradley disagrees. Dr Denman does not explain on what basis she considers the injury serious enough to warrant a formal diagnosis. There is no evidence of time off work as a result of the injury, no evidence of any medical advice or counselling being sought by Mr Carter.

[189]Ms Gollop submitted that the Alcock requirements were met. Mr. Carter was present throughout the events that took place between 4th and 6th May and he was Luis’s father. Those events were shocking and horrifying and his psychiatric injury was caused in whole or in part by a sudden appreciation of them. A shocking a horrifying event can have a number of component parts and material contribution can found a claim

[190]Turning to the medical evidence Dr Denman, the Consultant psychiatrist instructed on behalf of Mr Carter, set out that Mr Carter who was present throughout Luis’ birth was very distressed when he was given a photograph of his son, that meeting other family members elsewhere in the hospital “cut him up” and that burying his child was “ the hardest thing that he had done” and that this was when his relationship with Ms Less went wrong as they “were he supposed grieving separately and were unable to talk to each other”. Although Mr Carter did not consider himself to be psychiatrically unwell at the time of the examination Dr Denman stated that she believed that Mrs Carter “ is best thought of as suffering a bereavement reaction in relation to the death of his child. I would consider this reaction sufficiently severe that, at its peak it amounted to a formal diagnosis of adjustment reaction (DSM 209.0)” ( my emphasis) The Defendant relies on Dr Bradley and says that Mr Carter has suffered from the effects of bereavement rather than any formal psychiatric illness.

[191]In my judgment to the extent that Mr Carter suffered psychiatric illness by virtue of the categorisation of his bereavement reaction as a adjustment reaction when “at its peak”, the evidence, including his oral evidence, simply does not pass the threshold of establishing that it was caused by the result of shock, that is, the sudden appreciation by sight or sound of the hugely distressing events he witnessed. I am bound to apply the Alcock controls and when those controls are applied to the evidence in this case the claim is not made out. None of this should be taken as me underestimating his bereavement reaction.

Mental distress

[192]It is well settled law that damages for mental distress are not recoverable in negligence. See Page v. Smith, p.189G, per Lord Lloyd:

“Shock by itself is not the subject of compensation, any more than fear or grief or any other human emotion occasioned by the defendant’s negligent conduct. It is only when shock is followed by recognisable psychiatric illness that the defendant may be held liable.”

[193]However Mr Gollop submitted that at the very least, Mr. Carter had suffered mental distress which was a foreseeable consequence of a breach of contract. Further, the contract pursuant to which Ms Less consulted the Defendant was not only for her benefit but also for Mr. Carter’s and she relied upon Jackson v Horizon Holidays

[1975] 1 WLR 1468

as authority for the proposition that if the contract is broken, the contracting party can recover damages for the benefit of the third party. Further, that decision envisaged that the third party could be joined as a claimant (see page 1473 at E-G).

[194]She argued that the or an important purpose of the contract was for the Claimants to gain information which they could use to make an informed decision about whether to conceive a child and in becoming so informed, gain some “comfort, peace of mind or other non-pecuniary personal or family benefits”. In this respect, this claim is similar to the otherwise very different case of Yearworth v North Bristol NHS Trust CA [2009] LS Law Med 126 and damages should be recoverable given that there is a contract in this case.

[195]Mr De Bono submitted that damages for mental distress following breach of contract are not normally recoverable but will be where the predominant purpose of the contract was the provision of some mental satisfaction – the classic example being the case of a ruined holiday. He referred to the judgment of Bingham LJ in Watts v. Morrow

[1991] 1 WLR 1421

, CA:

“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they are surely are or may be, but on considerations of policy. But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.”

[196]He also submitted that the development of the principle in Jarvis has been on a case by case basis as exceptions to the general rule and that there is no good reason to extend, for the first time, the categories of cases for which mental distress may be suffered to cases such as Mr Carter’s. He pointed to the risk of claims being brought by a range of third parties who also stood to benefit from a contract of the present type

[197]I recognise that the court should be slow to allow claims for mental distress to creep into the forum of clinical negligence, particularly in relation to claims by third parties i.e. relatives rather than patients themselves. The development of the law of nervous shock in relation to secondary victims shows the reluctance of the courts to open up new avenues by which damages may be recovered. However this was a commercial contract entered into with a clear and obvious purpose. It was to advise a prospective parent about the possibility and safety of pregnancy given an identified medical history.

[198]In my judgment it is important to note the overview given Lord Chief Justice Judge in Yearworth . He stated Under their causes of action in bailment, the measure of any damages to be awarded to the men may be more akin to that referable to breach of contract than to tort: see 48(i), 49(f) and 50 above. So the question arises: had the loss of the sperm arisen as a result of breach of a contract to store it, could the men have recovered damages for psychiatric injury or distress foreseeably suffered as a result of the breach? For the purposes of the law of contract, recovery for mental distress (and a fortiori for psychiatric injury) caused by breach of contract was introduced by the decision of this court in Jarvis v Swans Tours Ltd

[1973] QB 233

[1973] 1 All ER 71

[1972] 3 WLR 954

. The court there limited such recovery to breach of certain categories of contract, such as “a contract for a holiday, or any other contract to provide entertainment and enjoyment”: per Lord Denning MR at 238A. Since then the categories of contract which, if broken, can lead to such recovery have been successively enlarged. By 1991 the test had become whether “the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation”: Watts v Morrow

[1991] 4 All ER 937

[1991] 1 WLR 1421

at 1445G, 23 HLR 608, per Bingham LJ by 2001 the requirement that such provision should be “the very object” of the contract had become only that it should be “a major or important object” of it: Farley v Skinner

[2001] UKHL 49

[2002] 2 AC 732

at 24,

[2001] 4 All ER 801

, per Lord Steyn. Indeed in another decision of the House in the same year the categories were defined as “contracts which are not purely commercial but which have as their object the provision of enjoyment, comfort, peace of mind or other non-pecuniary personal or family benefits”: Johnson v Unisys Ltd

[2001] UKHL 13

[2003] 1 AC 518

, at 70,

[2001] 2 All ER 801

, per Lord Millett. [57] It seems clear to us that the arrangements between the men and the Trust for the storage of their sperm were closely akin to contracts and should fall within the ambit of these principles. The reference to peace of mind admirably fits the object of arrangements designed to preserve the ability of men to become fathers notwithstanding an imminent threat to their natural fertility. The arrangements were not in any way commercial and their object was, only too obviously, the provision to the men of non-pecuniary personal or family benefits. Any award of damages should reflect the realities behind these arrangements and their intended purpose.

[199]It seems to me that the very object or dominant purpose of this contract was to secure peace of mind as regards proceeding to pregnancy given the risks to the health of mother and baby. Mrs Hussain well knew that in broad terms this was the object to be achieved.

[200]However, it also seems to me that it is a necessary element of the claim as advanced that the existence or identity of the partner said to been intended to benefit from the contract must have been identified or identifiable from the information provided at the time of either entering into or performing the contract. Unlike the circumstances in the typical holiday case where the booking speaks for itself, or the circumstances in Yearworth there was nothing on the evidence before me that put Ms Hussain on notice of the intended wider nature of the benefit. Put simply she does not appear to have had any reason to believe that she was contracting with and as a result advising anyone other than the person before her or indeed that an imminent decision was to be taken ( which it was not). Ms Less set out in her witness statement “ the sole purpose of the consultation was to ask Mrs Hussain if it would be safe for me to conceive, carry a baby during pregnancy and that both me and the baby would be healthy because of my medial history”

[201]Of course there was the biological necessity of fertilization to consider, however in the modern world this need not have been necessarily equated to a relationship a fortiori an existing relationship with a partner who was to share the advice. In this regard the claim as advanced by Ms Gollop assumed what it needed to prove. I think that there is force in Mr De Bono’s submission that by parity of reasoning a number of different third parties would fall within the potential scope of intended benefit were such a lax approach to identity to be taken.

[202]Accordingly I would not have awarded damages for mental distress to Mr Carter.

[203]However returning to the case as a whole it fails for both Claimants.

[204]I ask Counsel to consider the form of an order, or if a further hearing is necessary and to let me know by e-mail.

Cited in 1 later judgment

Wild & Anor v Southend University Hospital NHS Foundation Trust 2014