John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 (QB)

Case No 2MA90025[2016] EWHC 407 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2/3/2016
Before
THE HONOURABLE MR JUSTICE PICKEN
Between
DR SIDO JOHNClaimantCENTRAL MANCHESTER AND MANCHESTER CHILDREN’S UNIVERSITY HOSPITALS NHS FOUNDATION TRUSTDefendant
Darryl Allen QC (instructed by Slater & Gordon (UK) LLP, Manchester) for ClaimantAndrew Kennedy (instructed by Hempsons, Manchester) for DefendantHearing Hearing dates: 1, 2, 3, 4, 5, 8, 10 and 15 February 2016
JudgmentTHE HON. MR JUSTICE PICKEN:Introduction
[1]The Claimant in these proceedings, Sido John, is now 44 years old. He graduated in Medicine from Manchester University in 2000 after initially obtaining a degree in Physiology from Leeds University in 1994. He subsequently completed his medical training in 2005 when, after various Senior House Officer posts in various Manchester hospitals, he became a General Practitioner. That Dr John managed to become a doctor represents a significant achievement on his part. This is because, when he was 16 years old, Dr John developed a left-sided empyema or intra-cranial infection which required surgery and which meant that he underwent a left-sided craniotomy. This left him with a mild right-sided hemiparesis which, although it improved over time, required him to learn to use his left hand (he had been right-handed), and which caused him to have a right foot drop and so to have certain walking difficulties.[2]As a General Practitioner, Dr John worked as a locum across five different surgeries, again in the Manchester area, and also worked as a locum prison doctor. Dr John was earning substantial sums of money; he had developed a successful practice. This was, however, to change after a night out with friends on Saturday 22 December 2007. Returning to his flat at about 4 am on Sunday 23 December 2007, Dr John lost his footing as he was climbing some stairs in the common hallway and fell backwards. Two hours or so later, Dr John was found by a neighbour, another doctor, (then Dr and now Mr) Ben Grey. He had vomited and was unable to say anything intelligible. Mr Grey thought that he had sustained some sort of head injury. An ambulance was called and Dr John was taken to Manchester Royal Infirmary (the ‘MRI’), for which the Defendant is responsible. Dr John was admitted to the MRI at about 6.52 am, when he was triaged and seen by a Dr Dafalla Musa, who compiled a management plan which included Dr John undergoing a CT scan on his brain. In the event that CT scan was not performed until 1.12 pm, and it is Dr John’s case in these proceedings that the delay involved in undertaking that scan was the result of negligence on the part of the Defendant’s staff at the MRI.[3]Dr John’s case is that, had the CT brain scan been carried out sooner, there would have been a transfer much earlier than was the case and this would have meant that he would have been transferred to The Hope Hospital in Salford (the ‘Hope’) earlier than he was and that, as a result, he would have had surgery earlier than he did, which was at about 7.30 pm on 23 December 2007 when he underwent a left fronto-parietal craniotomy and evacuation of his acute sub-dural haematoma. It is additionally alleged by Dr John that, after the CT brain scan had shown the presence of an acute sub-dural haematoma on Dr John’s brain, there was then further negligence later in the day in arranging a ‘blue light’ ambulance, with the consequence that, even if there was not the negligence which is alleged in relation to the carrying out of the CT brain scan, Dr John still was operated on later than ought to have been the case. As a result of the delay in surgery, whether the delay of several hours entailed in the negligence alleged in relation to the performance of the CT brain scan or the shorter period of delay associated with the negligence which it is suggested there was in the ordering of an ambulance to take Dr John to the Hope, it is Dr John’s case that he suffered an extended period of raised intra-cranial pressure which materially contributed to the cognitive and neuropsychological deficits which he now has and which have meant that, sadly, for the past eight years, Dr John has not been able to work as a doctor and which make it unlikely that he will ever work as a doctor again.[4]The Defendant denies liability and takes issue also with causation (as well as with quantum). As to causation, the Defendant points out that, in addition to the initial head injury suffered by Dr John in the fall as he was mounting the stairs and any raised intra-cranial pressure resulting from the Defendant’s alleged negligence, it is necessary also to take account of the fact that, after undergoing surgery at the Hope on the evening of 23 December 2007, it was discovered through a CT brain scan performed on 8 January 2008 that Dr John was suffering from a post-operative infection, which meant that the next day he had to undergo further surgery, namely removal, debridement of sub-dural empyema, and removal of post craniotomy left parietal bone flap. The Defendant’s case, at least in opening, was that it is only if it can be established that damaging raised intra-cranial pressure caused by negligence on the part of the Defendant is the cause of Dr John’s neuropsychological deficits that, applying what might be described as the classic ‘but for’ test of causation, Dr John can recover as against the Defendant. As I shall explain later, by the end of the trial the Defendant’s case on causation had changed. It was accepted that the correct approach in a case such as this is to ask whether, if there was damaging raised intra-cranial pressure caused by negligence on the part of the Defendant, that raised intra-cranial pressure made a ‘material contribution’ to the damage which Dr John has suffered. The Defendant’s position, however, is that it is then necessary to go on to apportion damages between the damaging raised intra-cranial pressure caused by negligence on the part of the Defendant (the tortious cause), on the one hand, and the initial head injury and the post-operative infection (the non-tortious causes), on the other. The Defendant, therefore, takes issue with Dr John’s reliance on the approach adopted in Bailey v The Ministry of Defence[2008] EWCA Civ 883, [2009] 1 WLR 1052, where a claimant was permitted to recover in respect of the totality of his injuries without reduction in a case where, as Waller LJ put it at [46], “medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible”.[5]I shall return to these matters in due course, after first saying something about the witnesses who gave evidence at trial and then dealing with the factual background in more detail.

The witnesses

[6]In total, there were eighteen (factual and expert) witnesses in this case. The factual witnesses were: Dr John, Dr Robby Bajaj, Nurse Gill Johnson and Dr Jill John, Dr John’s mother, and Professor Andrew King, all of whom gave evidence in support of Dr John’s case (albeit that the Defendant did not require to cross-examine Dr Jill John); and Mr James Stuart, Professor Richard Body, Nurse Emma Harkins (formerly Gilmore), Mr Christopher Jones, Mr Jared Walton-Pollard, Dr Michael Sharman and Dr Musa, who all gave evidence on the Defendant’s behalf. In addition, there was a joint witness statement provided by Mr Grey. The reason why this was the case is that, as Mr Grey explained, having in December 2007 been a Research Fellow at Salford Royal Hospital, he is now employed by the Defendant as a Consultant Urological Surgeon working at the MRI and at Trafford General Hospital. I set out my impressions of these witnesses in what follows.[7]Starting with Dr John, he gave evidence in a straightforward fashion. His health difficulties were apparent but they did not prevent him from giving evidence which was quite obviously truthful and unvarnished. He is clearly a person of considerable resolve and determination, as demonstrated by the way in which he was able to overcome his previous (again brain-related) health issues and qualify as a doctor. As for Dr Bajaj, he is a friend of Dr John. He gave evidence concerning the night which he, Dr John and their friends had spent on 22 December 2007. Specifically, he explained that he and Dr John had met in a restaurant in Manchester, The Living Room, at about 10 pm in the evening and that their group had stayed there until about 3.30 am, when he and Dr John shared a taxi to Didsbury, the area where Dr John lived and where Dr Bajaj, who had come up to Manchester from London for the weekend, was staying with his sister-in-law. He described Dr John being dropped off by the taxi and watching Dr John walk to the door of the property where Dr John’s flat as the taxi driver drove him the short further distance to his sister-in-law’s property. Dr Bajaj was clearly a witness who, like Dr John, was straightforward and doing his best to assist the Court.[8]So, too, were Mr Grey and Nurse Johnson. Mr Grey was the person who found Dr John at the foot of the stairs at about 6 am on 23 December 2007. It is equally plain that, had it not been for Mr Grey calling an ambulance and helping Dr John, the outcome for Dr John would have been even more serious than it was. As for Ms Johnson, who (like Mr Grey) works for the Defendant at the MRI, in her case as an Advanced Nurse Practitioner, she explained that on the night of 22 December 2007 she was the Sister in charge in the Accident and Emergency Department at the MRI (‘A&E’), and that she recognised Dr John as the paramedics who had brought him in the ambulance to the MRI were handing him over to one of the A&E doctors working in the ‘resus’ room. She had previously worked with Dr John when they had worked together at the MRI during the course of 2001, and so some six years earlier, although she was friendly with an ex-girlfriend of Dr John and as a result she continued to know what Dr John was doing in the intervening period. It was based on this and her own knowledge of Dr John when they had worked together that Nurse Johnson explained that she told the paramedics and the doctor to whom they were handing over that Dr John did not take drugs and had had a previous brain injury.[9]This leaves, as far as Dr John’s witnesses are concerned, Dr John’s mother, Dr Jill John, and Professor King. I need say very little about Dr Jill John in circumstances where Mr Andrew Kennedy, counsel for the Defendant, did not require her for cross-examination. Her evidence was understandably not controversial, comprising as it did evidence concerning the difficulties experienced by her son in the wake of the events of 22/23 December 2007. As for Professor King, he gave evidence in a somewhat unheralded way, in that it was not until after the expert evidence had started to be given that a witness statement was obtained from him and served on the Defendant. There was, in the circumstances, an issue as to whether Dr John should be allowed to call Professor King as a witness. This was a matter on which I had to rule, deciding that in the particular circumstances this should be permitted, there being no prejudice caused to the Defendant by Professor King giving evidence notwithstanding not only the lateness with which the witness statement had been obtained but the lateness, in January this year, with which Professor King had first been approached with a view to his being a witness. Professor King is a Consultant Neurosurgeon at the Hope (now known as Salford Royal Hospital) and was one of two surgeons, the other being a Registrar, a Dr Coope, who operated on Dr John in the evening of 23 December 2007. He gave evidence concerning what the position with Dr John’s brain was found to be. He was an impressive witness.[10]Turning to the Defendant’s witnesses, again I was broadly impressed by the evidence which the various witnesses gave. The possible exception concerns the evidence given by Mr Stuart, whose evidence it is more appropriate that I address in the context of the breach of duty allegations which are made by Mr Darryl Allen QC on Dr John’s behalf, rather than in a freestanding way. This is because, as will appear, there is an important factual dispute as to whether Mr Stuart saw Dr John soon after he came on duty at about 9.30 am on 23 December 2007 and, if so, what this meeting entailed. Mr Stuart was the A&E Consultant on call at the MRI on 23 December 2007. He gave evidence that his usual practice, when on call, would be to arrive at the MRI at about 9.30 am and that, on arrival, he would review the records of the patients who had “been through” A&E the previous night, before then examining and assessing all those patients who were still present. Mr Stuart and Dr John knew each other, Dr John having worked as a Senior House Officer in A&E at North Manchester General Hospital in 2001/2002 when Mr Stuart was one of the A&E Consultants at that hospital. Mr Stuart stated in his witness statement as follows:
“I recall that when I spoke to Sido, he recognised my voice and sat up and he began to talk to me. I spent about 10-15 minutes with him, examining his cranial nerves and reviewing the available A&E card and observations. I recall the scene very clearly. He and I chatted about old times at North Manchester General Hospital. For example, I recall having a conversation with him about my ex-wife as he had met her a few times when we had worked together. Throughout the time that we chatted, he was lucid and compliant. He was alert, orientated and his eyes were open. My assessment was that his GCS was 15/15.”
I should explain that GCS stands for ‘Glasgow Coma Score’ which is a very well-known neurological scoring system adopted to monitor a patient’s neurological state, in particular to identify abnormality and deterioration/improvement over time. It has three indices: E = Eye Opening (score 1-4); V = Verbal Response (1-5); M = Motor Response (1-6). On the basis of Dr John’s GCS as assessed by him, Mr Stuart explained, he decided that a CT brain scan was not required at that stage and that Dr John should be subject to hourly observations on the MRI’s Clinical Decision Unit (‘CLDU’).[11]I propose, in the circumstances, likewise to address later on the evidence given by Mr Jared Walton-Pollard. At the time when Dr John was admitted to the MRI on 23 December 2007, Mr Walton-Pollard was a Senior Charge Nurse (Band 7) and, specifically, the Department Co-Ordinator in A&E, and who gave evidence that he saw Mr Stuart speaking to Dr John after Mr Stuart had come on duty at about 9.30 am, and that after doing this Mr Stuart told him that Dr John did not need a CT brain scan and that he should be transferred to CLDU.[12]As to the other witnesses called by the Defendant, as I have already mentioned, Dr Musa was the doctor who saw Dr John when he was admitted to the MRI shortly before 7 am on 23 December 2007. He was the person whose management plan entailed Dr John undergoing a CT brain scan. Although, as will appear, during the course of cross-examination Mr Allen QC raised a number of criticisms with Dr Musa concerning other aspects of the examination of Dr John which he carried out, criticisms which were repeated in Mr Allen QC’s Written Closing Submissions, these are not matters which have direct relevance to the case which is advanced by Mr Allen QC on Dr John’s behalf. Indeed, it is the foundation stone of the negligence case which is put forward that Dr Musa was right to take the view that a CT brain scan was required, and that Dr Musa’s colleagues who took over from him when his shift ended at 8.00 am were negligent in not carrying through with the CT brain scan which Dr Musa had considered was required. I considered Dr Musa to be a witness who was doing his best in recalling events which took place an appreciable period of time ago. He did not adopt an overly defensive stance when Mr Allen QC put to him the further (and unpleaded) allegations which I have mentioned. He rejected those allegations but he did so in a manner which served to underline his clear desire to assist the Court. The fact that he was giving his evidence over a video-link at 5.00 am in the morning in Canada, where he was at the time, further demonstrates that this was the position.[13]Professor Body and Nurse Harkins both gave evidence concerning Dr John’s transfer to CLDU. Professor Body was at the time a Specialist Registrar in Emergency Medicine at the MRI; he is now a Consultant in Emergency Medicine at the MRI. Nurse Harkins is, and was in December 2007, an Upper Band Level 5 Nurse. Together, Professor Body and Nurse Harkins were working in CLDU on 23 December 2007 when Dr John was transferred from A&E to CLDU. Nurse Harkins gave evidence concerning an Incident Report which she made concerning the transfer, in which she described her concern that Dr John was not in a condition which made it appropriate that he be transferred to CLDU. Professor Body gave evidence that Dr John was semi-conscious on arrival in CLDU and that he was found by him to have expressive dysphasia. He went on to explain that he arranged an urgent CT brain scan, that he accompanied Dr John to that scan and that, in the light of its findings, he immediately re-admitted Dr John to A&E and telephoned the Hope to request that Dr John be transferred there. I will come on later to address these aspects in more detail. Suffice to say, for present purposes, however, I regarded both Professor Body and Nurse Harkins as impressive witnesses. I was clear that I could have confidence in the reliability of the evidence which each of them gave in an honest and open way.[14]The same applies to Nurse Jones, at the time a Band 5 Senior Staff Nurse at the MRI and now a Trainee Advanced Nurse Practitioner at Stockport NHS Trust, who gave evidence concerning the care provided to Dr John in the ‘resus’ area of A&E after he had been re-admitted from CLDU and in the lead-up to his transfer to the Hope, as well as concerning Dr John’s transfer to the Hope. Nurse Jones was the most senior nurse in ‘resus’ at the time and, although he explained that he had no particular recollection of Dr John’s transfer, it was Nurse Jones who accompanied Dr John (together with Dr Sharman) on the journey to the Hope. He gave evidence in relation to his efforts to secure an ambulance. Nurse Jones was a witness who, like Professor Body and Nurse Harkins, was doing his best to assist the Court in the evidence which he gave. So also was Dr Sharman, who (with Nurse Jones) prepared Dr John for transfer to the Hope and who accompanied him on the short journey there by ambulance, Dr Sharman was a Specialist Registrar in the Intensive Care Unit (‘ICU’) at the MRI.[15]A number of experts also gave evidence across a range of disciplines. On the breach of duty issue, Dr John’s expert was Dr Alan Fletcher, who is a Consultant in Emergency Medicine and Acute General Medicine at Sheffield Teaching Hospitals NHS Foundation Trust, and the expert instructed by the Defendant was Mr John Heyworth, who was a Consultant in the Emergency Department at University Hospital Southampton until June 2012. As to causation, the expert instructed by Dr John was Professor Paul Marks, a Consultant Neurosurgeon at Leeds General Infirmary and Senior Lecturer in Neurosurgery at the University of Leeds. The Defendant’s expert on this issue was Mr Alistair Jenkins, a Consultant Neurosurgeon and Honorary Clinical Senior Lecturer in the Department of Neurosurgery at the Royal Victoria Infirmary in Newcastle. There was also neuropsychology evidence: on behalf of Dr John from Dr Koseen Ford, who currently acts as Adviser and Consultant Clinical Psychologist to Health and Justice Commissioning NHS England (Yorkshire region) and is a Consultant Clinical Psychologist and Neuropsychologist at the (private) Nuffield Hospital in Leeds; and on the Defendant’s behalf from Dr John Mallen, a Specialist Clinical Neuropsychologist working in private practice. In addition, although neither witness was ultimately required to give evidence in person, reports were prepared on Dr John’s behalf from Dr Kanu Achinivu, a Consultant Neuropsychiatrist at the National Centre for Mental Health in Birmingham, and on the Defendant’s behalf Dr Bruce Scheepers, a Consultant Neuropsychiatrist who for 8 years prior to his retirement in 2011 worked at North Staffordshire Combined Healthcare NHS Trust.[16]I will, to the extent necessary, address the detail of the expert evidence later, when dealing with the substantive issues which arise in this case, but overall I considered that each of the experts from whom I heard was doing his or her best to assist the Court. There were nonetheless some instances where I considered that positions were being adopted which caused me to be cautious over certain of the opinions expressed. As I shall come on to explain, this applies, in particular, to the Defendant’s experts, Mr Heyworth, Dr Mallen and Mr Jenkins, in relation to whom Mr Allen QC made detailed criticisms. However, again as I shall come on to explain, there are also aspects of the expert evidence given by Dr John’s experts to which Mr Kennedy was legitimately able to point when making the submission that I should exercise care in evaluating the expert evidence which was given by those experts, specifically Professor Marks whose first report was somewhat lacking in detail in an important respect and Dr Ford who did not in her second report deal with the effects of Dr John’s post-operative infection (something she acknowledged in the experts’ joint statement she ought to have done). It is right that I observe at this juncture also that, in the case of Dr Mallen, there is an additional point to be made. This is that, although clearly Dr Mallen has some experience of neuropsychology in private practice, he has never been involved in the treatment of head injury patients, his experience instead being in patient assessment and this only in the context of carrying out medico-legal work: he has never worked in the NHS; nor has he ever held a consultant’s post in a private hospital; he has worked at all times on his own from home. Furthermore, for the last five years or so, his medico-legal work has been exclusively for defendants. In contrast, Dr Ford is a Consultant Neuropsychologist with over 20 years’ experience in the assessment, treatment, management and rehabilitation of patients suffering from, inter alia, traumatic brain injury. There can be no doubt as to her expertise.

Factual narrative

[17]I have already summarised the essential facts. It is, however, necessary that the relevant events are explored in somewhat more detail in order that the breach of duty case advanced on Dr John’s behalf can be properly understood. The same applies also to the causation issue. Although these matters are very much in dispute, the facts are largely not controversial. Indeed, were it not for the fact that the Defendant has been unable to locate certain of Dr John’s patient records, there might well have been more common ground still since the absence of these records has necessarily had an impact on witnesses’ ability to recall events which by the time of trial had taken place over eight years earlier. An important aspect which is very much in dispute and in relation to which I shall have to make findings is whether Mr Stuart examined Dr John in the way in which he stated he did in the morning of Sunday 23 December 2007, and specifically whether, if he did so, when the examination happened. This is a matter which I shall address later when dealing with the question of breach of duty since it is more convenient to do this after first relating the essentially uncontroversial narrative. As to that narrative, in what follows I have to some extent drawn on the useful summary set out in Mr Allen QC’s Written Opening Submissions, together with Mr Kennedy’s equally helpful (and somewhat briefer) summary in his Written Closing Submissions. I nonetheless make it clear that I have myself looked in detail at the relevant underlying documentation. I have also taken into account the evidence which was given by the various witnesses, specifically those who were involved in Dr John’s care.[18]As I have mentioned, on 22 December 2007, Dr John had gone out for a night with friends, ending up at The Living Room in Manchester in the company of Dr Bajaj. Dr Bajaj stated in evidence that he thought it likely that he and Dr John had about 4 or 5 drinks, probably some type of spirit like whisky or rum, although since Dr John had not met up with Dr Bajaj until about 10.00 pm and Dr John had been at a restaurant with other friends before this, it is likely that Dr John had, in fact, had more to drink than this. Dr Bajaj and Dr John left the bar at about 3.00 am to 3.30 am the following morning, 23 December 2007. They shared a taxi home or, more accurately, since they were staying in different places, to those respective places: in Dr John’s case to his flat and in Dr Bajaj’s case to the address of his sister-in-law. Dr John was dropped off first at his home address at about 4.00 am. Dr Bajaj stayed in the taxi for about another minute as where he was staying was very near Dr John’s flat. Dr Bajaj described seeing Dr John walking to his property, crossing the road as he did so. He explained that he was not at all concerned about Dr John’s condition when he left him.[19]However, in order to get to his flat, Dr John had to climb a flight of stairs. It appears that, as he did so, he must have lost his footing, falling backwards and, as he explained in his evidence, striking his head on the wall at the bottom of the stairs. There Dr John laid, alone, for about two hours when, fortunately in the circumstances, Mr Grey found him at or shortly before 6.00 am as he returned from a night shift working as a Research Fellow at Salford Royal Hospital. His evidence, which clearly I accept, was that he found Dr John slumped at the bottom of the stairs covered in vomit. He explained that he asked Dr John what had happened but that it was clear to him that he was, as he put it, “in a bad way”. Dr John was unable to give an account of what had happened and Mr Grey thought that he may have sustained a head injury, noting that Dr John was abnormally listless and agitated and also unable to stand. He additionally noted an injury on the side of Dr John’s head. It was apparent to Mr Grey that Dr John was, again as he put it, “confused at best”. Mr Grey called for an ambulance immediately, telling the operator that Dr John was “semi conscious at the bottom of the stairs, covered in vomit” and that he did not “know whether this is alcohol induced but he’s got a bump to his head”.[20]The ambulance arrived at 6.11 am, the paramedics assessing Dr John as having a GCS of 9 out of 15. The paramedics noted, in particular, that Dr John’s verbal response was “incomprehensive”, going on to record the following in the record which they prepared (“MOI” standing for Mechanism of Injury):
“PRESENTING CONDITION/MECHANISM OF INJURY (M) – Intoxicated. Found by friend in collapsed state in his property. Q1? ON EXAMINATION O/E Pt intoxicated. Covered head to toe in vomit. Haematoma to head. Difficult to obtain medical history and M.O.I. O 2 Mon. T.L.C. … Temp: 35.9”
. Dr John’s pupils were, at this stage at least, before his arrival at the MRI, observed to be equal and reactive to light, and so not “pinpoint” or abnormal. ON EXAMINATION

O 2 Mon. T.L.C. …

[21]Dr John was then taken in the ambulance to the MRI, where he arrived at about 6.38 am and where at about 6.52 am he saw Dr Musa in A&E. At this point, indeed for some time still to come, Dr John’s name was not known. This is apparent from an A&E clerking note which was prepared and which gave his name as “CEDAR”, the name recorded by the paramedics presumably based on what Mr Grey told them was Dr John’s name albeit without, understandably in the circumstances, giving the spelling of Sido, Dr John’s first name. The same clerking note stated that Dr John had been “Found collapsed at home unresponsive covered in vomit”, presumably based on what the paramedics had reported, and that he was “Unresponsive”.[22]This, then, was the context in which Dr Musa came to examine Dr John. As Mr Kennedy accurately described the position in his Written Closing Submissions, Dr John’s condition on admission to the MRI was very grave: he was hypothermic, hypotensive (i.e. low blood pressure), he had a GCS of just 9 out of 15; and without active resuscitative intervention, his condition could have proved fatal. In his note Dr Musa wrote as follows:
“06:52 40 year old male BIBA Found collapsed at bottom of stairs in the building where he normally lives. Covered in vomit. Very wet & cold. No blood on stairs on floor. Allergies: ? PMH: ? Meds: ? O/E Airway: clear + maintained C-spine: No signs of injury (Not protected) Breathing: Spontaneous RR 16 Circulation: P78 BP 63/46 Disability: GCS E2 V2 M5 = 9 Pupils: pinpoint BM (6) Exposure: Very wet clothes T 34oC MX - Monitor/IV access & bloods - Bair hugger to warm pt - Naloxone  GCS improved to 12/15 Pupils improved to 3+mm + Good reaction - For naloxone infusion - CT Brain”
. By way of explanation of some of these terms: “BIBA” stands for ‘Brought In By Ambulance’; “O/E” means ‘On Examination’; ‘C-spine’ is ‘Cervical Spine’; “RR” is ‘Respiratory Rate’; and by “MX” is meant ‘Management’. 40 year old male BIBA Found collapsed at bottom of stairs in the building where he normally lives. Covered in vomit. Very wet & cold. No blood on stairs on floor. Allergies: ? PMH: ? Meds: ? O/E Airway: clear + maintained C-spine: No signs of injury (Not protected) Breathing: Spontaneous RR 16 Circulation: P78 BP 63/46 Disability: GCS E2 V2 M5 = 9 Pupils: pinpoint BM (6) Exposure: Very wet clothes T 34oC MX - Monitor/IV access & bloods - Bair hugger to warm pt - Naloxone  GCS improved to 12/15 Pupils improved to 3+mm + Good reaction - For naloxone infusion - CT Brain”.[23]Importantly, therefore, Dr Musa intended that Dr John should undergo a CT brain scan but after the various other steps identified in the list under “MX” had been carried out. As can be seen from his notes and as Dr Musa confirmed in evidence, these other measures included active warming, the administration of warm IV fluids and Naloxone, which it was common ground between the parties is a drug typically administered where there is suspected opiate ingestion. It should be made clear that there was no suggestion made by Mr Kennedy during the course of the trial that Dr John had, in fact, taken opiates. His only point, which was not disputed by Mr Allen QC, was that giving Dr John Naxolone was a reasonable measure in circumstances where, by the time that Dr Musa came to see him, Dr John’s pupils were “pinpoint” which can indicate that opiates have been used (albeit that pupils can be “pinpoint” for other reasons as well). In the circumstances, I say no more about that matter.[24]What matters anyway is that, after a series of doses of Naloxone rather than a single dose which is generally all that is required if opiates have been used, and after he had received intravenous fluids and been warmed, Dr John’s GCS improved from 9/15 to 12/15. This is shown by Dr Musa’s notes with the reference to Dr John’s GCS having “improved to 12/15”, those notes having been written up by Dr Musa as he was ending his shift at about 8.00 am and so just over an hour after he had first seen Dr John. Dr Musa explained, indeed, that he spent between 40 and 60 minutes with Dr John, adding that in this time he would have carried out a careful top-to-toe examination known as a “secondary survey”. This is also mentioned in the notes, Dr Musa observing that Dr John’s right wrist was swollen and bruised, so requiring an X-ray to be performed. As I have observed, during the course of his cross-examination of Dr Musa, Mr Allen QC explored with Dr Musa the nature and quality of this “secondary survey”. He made a number of criticisms, including the suggestion that Dr Musa did not examine Dr John’s head, there being no reference to his having done so in his notes. This, despite the fact that, as Dr Musa accepted when questioned, Dr John’s scars from the surgery he had as a youth were visible at conversational distance. Mr Allen QC also criticised Dr Musa for not stabilising Dr John’s spine with a stiff collar or spinal blocks until such time as any spinal injury could be excluded by X–ray or CT scan. Dr Musa’s response was to say that he did these things but that he did not record them. In the circumstances and as I have explained, I do not find it necessary to reach firm conclusions as to whether that is what happened. This is because the case in negligence which is advanced on Dr John’s behalf is a case which has as its focus, in its primary form, the allegation that what Dr Musa had planned should happen, namely that a CT brain scan would be obtained after Dr John had stabilised, did not happen. This is a case which relies upon Dr Musa having (correctly) reached the view that a CT brain scan was needed; it is not a case which requires any determination as to the adequacy of Dr Musa’s examination of Dr John more generally. Had I felt it necessary, contrary to what I have just stated, to make more general findings, I would have been reluctant to have decided that Dr Musa failed to take the measures which Mr Allen QC suggested he did not take. I acknowledge that, had he done so, it is to be expected that he would have made a note reflecting what he had done. However, Dr Musa would not be the first person, indeed doctor, to omit to record everything he did, all the more so in circumstances where he was coming to the end of what was, no doubt, a tiring night shift on the Saturday before Christmas. I regard it as especially unlikely that Dr Musa would fail to examine Dr John’s head in circumstances where he decided that a CT brain scan was required. Clearly Dr Musa ought to have recorded more fully what he did. The fact that he did not do so does not, however, lead me to conclude that he made the examination errors (as opposed to the recording errors) which Mr Allen QC suggested.[25]Returning to the chronology, Dr Musa having ended his shift at 8.00 am, notwithstanding that, as Mr Allen QC pointed out, in his notes the word “Handed” has been crossed out, I conclude that Dr Musa must have handed over Dr John’s care to Dr Khawja, who was the Specialist Registrar in A&E during the day on 23 December 2007 and who, therefore, was effectively taking over from Dr Musa when his shift came to an end. It is hardly surprising that so long after the event Dr Musa should have no actual recollection of the handover. As a matter of probability, however, there would have been a handover since that was (and is) normal practice. There having been a handover, it is nonetheless striking that Dr Musa’s request that Dr John should have a CT brain scan was not in-putted on to the computer until some two hours after the handover, at 10.17 am, when this was done by Dr Khawja. The precise circumstances in which this came to be done are obscure, not least because Dr Khawja was not called to give evidence by the Defendant. Mr Kennedy explained that the reason why Dr Khawja was not a witness was that he had no recollection of Dr John’s case. However, if that is the case, Dr Khawja would not be alone since a number of the witnesses who gave evidence before me were unable to recall events other than by reference to contemporaneous documents. Mr Kennedy suggested that in Dr Khawja’s case there are no such documents, the clinical and observation notes relating to Dr John for the period following Dr Musa’s notes until 12.30 pm no longer being available. That nonetheless does not seem to me to represent an answer. This is because not only is there a computer record (described as a “Clinical Work Station – [All Orders]” record) which shows that it was Dr Khawja who ordered the CT brain scan at 10.17 am, but there are also other, albeit limited, documents which could have been put to Dr Khawja had he been called to give evidence in this case. Even just focusing on the computer record which refers to Dr Khawja ordering the CT brain scan, it is significant that the order was accompanied by clinical information, which is also to be found on the computer record, stating:
“found collapsed near stairs at building entrance wit vomitus gcs 13/15 even on narcan infusion contusion posterior aspect”
. It is clear, and I find, that this information was referring to an assessment which was made after Dr Musa had handed Dr John over to the care of Dr Khawja. This must be the case because the record refers to Dr John having a GCS of 13 out of 15 whereas Dr Musa had recorded in his notes (the notes which would have been handed over with Dr John) that Dr John had a lower GCS, namely 12/15. Somebody, most likely Dr Khawja as the doctor then in charge of Dr John’s care, must have carried out a GCS assessment in order for a different (higher) score to be recorded. This is not the only reason why I have formed the view that somebody, most likely Dr Khawja, must have made an assessment of Dr John in the meantime, which is to say after Dr Musa had handed over Dr John to the care of the A&E day staff. The other reason is that the entry goes on to make it clear that the increased GCS score of 13/15 was a score which had been arrived at even though Dr John was on what was described as “narcan infusion”. It is common ground that this is a reference to Naloxone infusion, and this is significant because Dr Musa’s evidence was that, Naloxone administered by him having improved Dr John’s GCS, he recommended an infusion of the drug, and it is apparent from an ‘Intravenous Fluid Prescription Chart’ which the Defendant has disclosed that the infusions started at 8.10 am. That same chart gives the “Prescriber’s Signature” as being that of Dr Khawja. This confirms that Dr John must have been assessed, probably by Dr Khawja but anyway by somebody who reported to Dr Khawja, when he was on the Naloxone infusion. It is that assessment, recorded as involving a GCS of 13/15, which appears in the clinical information associated with Dr Khawja’s 10.17 am request for a CT brain scan. The particular reason why this matters is that, as I have explained and as I shall come on to address in more detail still when dealing with the first way in which the negligence case is put by Mr Allen QC on behalf of Dr John, there is an important issue as to whether Mr Stuart saw Dr John after he came on duty in the morning of 23 December 2007 and, if so, when this happened. The fact that it was Dr Khawja who ordered the CT brain scan at 10.17 am (after Mr Stuart maintained that he saw Dr John and assessed him as having a GCS score of 15/15) makes Dr Khawja’s evidence potentially highly material.

gcs 13/15 even on narcan infusion

[26]Returning once more to the chronology and for the present not dealing with the evidence given by Mr Stuart concerning his going to see Dr John soon after coming into the MRI at about 9.30 am, the next thing which is recorded as having happened is that at 11.35 am the CT brain scan ordered by Dr Khawja was cancelled. This can be seen from another computer record, this time described as “CRIS – Reception mode, GM, CRIS. NHS Confidential: Personal Data about a patient”, which states that the scan was “no longer required cancelled by a+e”. It is not clear who in A&E communicated this change of position: it might have been Dr Khawja, although it might have been somebody else. It probably does not matter. What does matter, however, in my judgment, as I shall come on to explain later, is that the cancellation was being made not at about 10.00 am but over an hour and a half later, and almost two hours after Mr Stuart stated he saw Dr John and decided that a CT brain scan was no longer required.[27]Be that as it may, the cancellation was followed relatively shortly afterwards by Dr John being transferred from A&E to CLDU. This was at about 12 noon. Nurse Harkins explained how she received what she described as a brief handover by telephone from somebody in A&E who told her, as she put it in the Incident Report which she made concerning the transfer, a report which she prepared because she was concerned that Dr John ought not to have been admitted to CLDU, that:
“a pt would be coming up to me for neuro obs & review later, however this pt was initially found collapsed at the bottom of the stairs, hypotensive (60 systolic) gcs 8, had been given 2.8mg narcan and narcan infusion”
. Nurse Harkins went on in the report to record the following exchange between her and the person in A&E to whom she was speaking:
“informed resus staff that this was an inappropriate admission to cldu as gcs only 12/13 and had not been scanned, was told that mr stewart did not want a scan, informed resus staff again that I wasn’t happy to take this pt. informed Dr B of inappropriate admission who said he would go down to the department to review pt however within 5 minutes the pt appeared on war with the porter.”
[28]The reference to “Dr B” in this report is a reference to Professor Body. He explained in evidence, and I find, that, having been made aware of Dr John’s intended admission to CLDU, he telephoned the ‘resus’ room and spoke to a nurse, to be told that Mr Stuart had seen Dr John and he was improving and that Mr Stuart had cleared Dr John for transfer to CLDU. Mr Allen QC suggested that Professor Body did not have this conversation, pointing out that in a witness statement which he prepared in early January 2008 in the context of the ‘Incident Report’ which Nurse Harkins submitted, Professor Body made no mention of the conversation. I do not regard this omission as significant, however. I agree with Mr Allen QC nonetheless that it is striking that Professor Body did not say in evidence or in his earlier witness statement that he was told in this conversation or in any other conversation that Mr Stuart had assessed Dr John as having a GCS of 15/15. Be that as it may, Professor Body explained in his evidence that he felt that he should go and assess Dr John himself, whilst he was still in A&E, but before he could do this Dr John had arrived in CLDU on a trolley. Professor Body, accordingly, assessed Dr John in CLDU, after he had been transferred from the trolley on to a bed. Professor Body’s note of that initial assessment is in the following terms (timed at 12.30 pm although Professor Body confirmed that this may not be an overly accurate time):
“Arrived in CLDU from A+E Apparently found collapsed at bottom of stairs in building where he lives. GCS was 9. BP was 63/46. GCS gradually  to 12-13 Given naloxone infusion – taken down PMH: ? O/E: Has ID in wallet: Dr Sido John (NMGH) Smells a little of alcohol GCS E3 V5 M6 13/15. PEARL 3mm Has had neurosurgery. Cranial vault deformity and old scars. Tender (L) parietal Moves all 4 limbs Expressive dysphasia Thinks he is in Las Vegas Thinks he works in St Tropez Calls a watch a ‘cradditch’ Wants a new ‘loose ward’ – apparently wants a bed sheet  Urgent CT Phoned Hope – no record of him”
. This note was followed by an untimed entry which nonetheless was clearly made before the CT brain scan was carried out, which stated:
“Unable to contact NOK Note T 37.7 & WCC bit  Add CRP A/W scan.” (It is useful to translate some terms: “PMH” means ‘Past Medical History’, and “A/W scan” means ‘Await scan’). GCS gradually  to 12-13 Given naloxone infusion – taken down PMH: ? O/E: Has ID in wallet: Dr Sido John (NMGH) Smells a little of alcohol GCS E3 V5 M6 13/15. PEARL 3mm Tender (L) parietal Moves all 4 limbs Expressive dysphasia Thinks he is in Las Vegas Thinks he works in St Tropez Calls a watch a ‘cradditch’ Wants a new ‘loose ward’ – apparently wants a bed sheet  Urgent CT Note T 37.7 & WCC bit  Add CRP A/W scan.”

Note T 37.7 & WCC bit 

[29]Amongst other things, therefore, Professor Body noted that Dr John had a GCS of 13/15 (although, in fact, the individual elements add up to 14 rather than 13) and, importantly, that Dr John was suffering from expressive dysphasia, in other words difficulty in finding the correct words to use when speaking, as demonstrated by his references to a watch as a “cradditch” (a Harry Potter term) and to his wanting a new “loose ward” by which he meant a bed sheet. Professor Body explained in his witness statement that Dr John did not appear in himself to be confused, understanding the questions which he was asked, but that he could not express himself accurately. Professor Body was clear that, in the circumstances, an urgent CT brain scan was required. Professor Body’s assessment of Dr John is supported also by what Nurse Harkins went on to say in the Incident Report: “On arrival to the ward pt was very confused (saying inappropriate words) and agitated not orientated to time/date/place/name/d.o.b. gcs 12, pupils remained pin point despite having 2.8mg and infusion of narcan and had been in department 7hrs, asked Dr B to review pt as not happy to have pt on cldu, hard collar applied as fallen down a flight of stairs and hadn’t had c-spine cleared, pockets checked for some identification as pt was still unknown on cas card, wallet found with name on, merged name on system, nok contacted with no answer. Reviewed by Dr B and decision made to scan pt, myself and Dr b transferred pt to scan with transfer bag from resus - …”.[30]Having made his assessment, Professor Body contacted the on-call radiology registrar to request an urgent CT brain scan, and this request was entered on to the ‘Clinical Workstation’ system at 12.32 pm. That scan was performed just over half an hour later at about 1.12 pm and a few minutes later, at about 1.15 pm, the Radiology Specialist Registrar recorded the following in Dr John’s notes:
“CT Brain … There is acute subdural haematoma (maximum axial dimension 14mm) around convexity of left fronto-parietal lobe. Few low density area seen within suggestive the presence of fresh blood. Also associated haemorrhagic contusion at left frontal lobe and associated traumatic subarachnoid blood. Soft tissue (subgaleal haematoma ++ on left). No midline shift or hydrocephalus yet. Also fracture at left parietal bone. Urgent neurosurgical opinion is recommended. CT cervical spine (C 1 – T 3) Again motion artefact. Allowing for this, satisfactory alignment. No acute bony injury (fracture & …) No precerebral soft tissue swelling”
. In short, the CT brain scan showed that Dr John had an acute sub-dural haematoma, necessitating his immediate re-admission to ‘resus’ and leading Professor Body to telephone the Hope to request that the neurosurgeons at that hospital accept Dr John as a patient. This was at some point before 1.40 pm, which is the time stated in Professor Body’s notes where he referred to having noted the CT brain scan results and to having made a telephone call to a Neurosurgery Registrar at the Hope who told him that he would review the scan and get back to him. I conclude, therefore, that Professor Body must have made the telephone call soon after learning about the scan results. Professor Body explained that the neurosurgeon at the Hope was able to review the scans on a computer. CT cervical spine (C 1 – T 3)

Again motion artefact. Allowing for this, satisfactory alignment. No acute bony injury (fracture & …)

[31]Although it is not entirely clear when the Hope neurosurgery department reverted, it is likely that contact was made with Professor Body. Although not mentioned in his witness statement prepared for the purposes of these proceedings, this is what Professor Body stated in the witness statement which he made in early January 2008 in the context of the ‘Incident Report’ made by Nurse Harkins. Professor Body stated in cross-examination that he was not sure whether the neurosurgeon called him or Dr Sharman, but he accepted that it would probably have been him. That must have been the case since it was Dr Sharman’s evidence that he did not arrive in A&E until later, having been called when he was working in ICU by an unidentified Specialist Registrar in A&E asking him to review Dr John. It seems likely that the call back from the Hope was made in relatively short order, probably within about twenty minutes or so and therefore by about 2.00 pm. That the matter was being treated as urgent is certainly clear. To that end, Professor Body having handed over Dr John’s care to the A&E Specialist Registrar who then made contact with Dr Sharman and having also, so both he and Dr Sharman recalled, himself spoken to Dr Sharman on the telephone, as stated in his January 2008 witness statement, Professor Body returned to CLDU. Professor Body accepted that he was probably mistaken in his witness statement made in the context of these proceedings when he stated that he remained with Dr John until Dr Sharman arrived, but nothing turns on this since Mr Allen QC sensibly recognised that so long after the event it was understandable that Professor Body might be mistaken in relation to a detail such as this.[32]As I have previously noted, Dr Sharman was at the time a Senior Registrar in ICU. It was Dr Sharman who, on arrival in A&E from ICU at about 3.00 pm, asked A&E nursing staff to organise a ‘blue light’ ambulance to transfer Dr John to the Hope. That request was actioned at 3.17 pm. Dr Sharman then set about ensuring that he had the necessary equipment to enable that transfer to be achieved, having brought with him from ICU certain drugs which would be needed were intubation to be required. Dr Sharman then started to assess Dr John. It was during this assessment that Dr John had a focal seizure which was followed by a loss of consciousness and the onset of a grand mal tonic clonic seizure. Dr Sharman’s response to this was to call for assistance from A&E staff so that Dr John could be stabilised, including through intubation and ventilation. As to the timing of the seizure, Mr Allen QC submitted, and I agree, that it is likely to have been at some point after 3.17 pm, when the ambulance was requested (there is a transcript which identifies the caller at the MRI as being a woman called Julie), more likely after 3.20 pm which is the time that Dr Sharman initially wrote on the “Critical Care Transfer Form” which he started compiling when he first arrived in A&E, and more likely still at some point after 3.30 pm when Dr Sharman accepted that Dr John would probably have been ready to be transferred. Dr Sharman suggested in cross-examination that it would likely have been at some point between 3.30 pm and 3.50 pm, but I consider it more likely to have been before 3.50 pm given that there are ambulance service records indicating that at 3.49 pm the message had been conveyed that Dr John “IS VENTILATED”.[33]Whatever the exact time of Dr John’s seizure, it was Dr Sharman’s evidence, which I accept, that he spent approximately 30 to 60 minutes intubating, ventilating and stabilising Dr John. Dr Sharman explained in some detail what this process involved. He explained, in particular, that it included intubation with confirmation of endotracheal tube placement with a chest X-ray, initiation of ventilatory support and serial analysis of arterial blood gases to maintain normocapnoea. He added that he would have placed an arterial line to ensure the ability to monitor arterial blood pressure invasively, and that he would also have ensured adequate intravenous access. He would also have placed a urinary catheter. Having done this, within a few minutes, Dr Sharman explained, he would have ensured that both the neurosurgical team at the Hope and the ambulance service were made aware of the change in Dr John’s condition. Although he was not sure whether he personally made the telephone call to the ambulance service, my conclusion being that this is somewhat unlikely, Dr Sharman was confident that he was the person who called the Hope and that would make sense.[34]As for the ambulance which had been requested at 3.17 pm, the ambulance records show that this arrived at 4.10 pm, and so just under an hour after a ‘blue light’ transfer was called for. However, the records indicate that, after seemingly waiting for fifteen minutes or so, presumably in case Dr John was able to be transferred after all, the ambulance was sent away at about 4.26 pm, the entry starting that the ambulance crew “WENT FOR PATIENT AND HE HAD FITTED, NOT READY FOR TRANSPORT”. It was not for another hour, to be more precise 1 hour and 7 minutes, that a second ambulance was requested by the MRI. This was done at 5.33 pm and it is the one hour or so delay to which I have referred which gives rise to the second allegation of negligence which Mr Allen QC made on Dr John’s behalf. This is a matter which I shall come on to address, but the essential point is that none of the Defendant’s witnesses, specifically Dr Sharman and Nurse Jones, was able to offer an explanation as to why that call was not made earlier. It appears that the person who made the call to the ambulance service at 5.33 pm was Nurse Jones, although there is no transcript of this call and so there cannot be certainty about this. Nothing, however, turns on who made the call since what matters is not who made it but the time at which it was made.[35]It is clear that, the second request for an ambulance having been made, there was then a delay in the ambulance arriving. In the event, it did not arrive at the MRI until 6.39 pm, over an hour after the request had been made and despite the fact that a different ambulance (call sign E522 as opposed to C311, the ambulance which actually transported Dr John to the Hope) had arrived at 6.30 pm yet had not apparently made its arrival known. It is apparent that this was after Nurse Jones had chased on at least two occasions. Nurse Jones explained in his witness statement that he was, indeed, “frustrated and apprehensive at the situation and the length of time taken for the Ambulance to arrive”, and this is borne out by the transcripts of calls made by Nurse Jones to the ambulance service at 5.51 pm and 6.13 pm. In the first of these calls, Nurse Jones is recorded as having referred to Dr John’s case being “a mad urgent one” and to him saying that “Theatre are waiting for him at Hope”. In the later call at 6.13 pm, Nurse Jones told the operator that “It’s a total priority we need to get this man to theatre it’s a matter of life or death really”. Furthermore, Mr Stuart explained during examination-in-chief that, having returned to A&E in the afternoon and been in ‘resus’ when Dr John was there after his return from CLDU, he, too, was frustrated at the delay in the transfer to the Hope caused by the unavailability of an ambulance, so much so that he made contact with a colleague of his, a Professor Mackway-Jones, who was Director of the North West Ambulance Service, calling him on his mobile telephone, in order to expedite the transfer. This conversation is recorded on the “Critical Care Transfer Form”, which Dr Sharman prepared, in a section headed “Transfer team comments” in the context of a reference to up to an hour’s delay in the ambulance arriving at the MRI. Again, I shall come back to this later, when dealing with breach of duty, but it is to be noted that the concern about delay after the second ambulance was ordered is somewhat at odds with the fact that there was a delay on the part of the Defendant’s staff in making the request for that second ambulance. It may, indeed, be that it was because there had been this delay that there was the anxiety which Nurse Jones described concerning the ambulance service’s subsequent delay.[36]Be that as it may, the second ambulance having arrived at 6.39 pm, albeit belatedly and through no fault of the Defendant after the request at 5.33 pm had been made, that ambulance (call sign C311) left the MRI with Dr John, Dr Sharman and Nurse Jones on board at 6.48 pm, arriving at the Hope just over ten minutes later at 6.59 pm. There, Dr John was taken straight to theatre where he was operated on by Professor King and his Registrar, Mr Julian Evans, the operation commencing at about 7.30 pm. The operation was, as I have previously mentioned, a left fronto-parietal craniotomy for acute sub-dural haematoma. It was a procedure which Professor King explained when he gave evidence would normally not be carried out by somebody in his position but by a more junior doctor such as Mr Evans alone. However, Professor King having been contacted by Dr Coope and informed that Dr John, a doctor, was being admitted, he considered that he ought to be involved in the operation as a matter of professional courtesy. Although a matter to which I shall return when addressing the question of whether it has been established that Dr John was suffering from damaging raised inter-cranial pressure when he arrived at the Hope and was operated on by Professor King and Mr Evans, it is to be noted that the “Operation Notes” prepared by Mr Evans include the following:
“… Linear incision (due to existing wounds) … Mixture of acute + altered blood under high pressure. Copious irrigation. Brisk venous haemorrhage +++  controlled – diathermy + washout irrigation +++ Brain initially very swollen, pulsatile at end. [ ] ICP monitor inserted 1cm tunnelled + secured. … ICP 6 at closure”
. Linear incision (due to existing wounds) Brisk venous haemorrhage +++

 controlled – diathermy + washout irrigation +++

[37]Dr John was then admitted to the intensive care unit at the Hope, only in early January 2008, and most unfortunately, to develop a post-operative intra-cranial infection which it is common ground probably produced raised intra-cranial pressure. As Professor Marks rightly observed, Dr John had a “stormy” recovery, the infection persisting for at least a month and the raised intra-cranial pressure for a shorter period. More specifically, on 25 December 2007 Dr John had a focal seizure affecting his right upper limb. Despite the commencement of sodium valporate (an anti-convulsant drug), he had two further fits and his sedation was increased, his intra-cranial pressure fluctuating and rising to as high as 28mmol. A CT brain scan showed a new left parafalcine haematoma as well as extra-axial blood under the bone flap and left high parietal contusions. It was felt following discussion with the on-call consultant neurosurgeon that his case should be managed conservatively for the present time and if further seizures were to occur, Phenytoin (another anti-convulsant drug) should be added. In order to facilitate bronchial toilet and weaning from the ventilator a percutaneous tracheostomy was performed on 31 December 2007, and two days later, on 2 January 2008, another CT brain scan was performed. This showed some peripheral enhancement in the sub-cutaneous tissues and under the bone flap, raising the possibility that this was an empyema. Another scan was carried out on 8 January 2008, at which stage there was clear evidence that the sub-dural collection was likely to be infected and that the brain was swollen. Dr John, therefore, underwent further surgery on 9 January 2008, when his previous craniotomy wound was re-opened. Pus having been found in the sub-galeal compartment, this was drained. The bone flap appeared to be infected and was removed and the dura was covered with granulation tissue. A large amount of loculated pus was found in the sub-dural space which was irrigated away with saline. This led to an improvement in Dr John’s condition and the removal of his tracheostomy on 13 January 2008. The next day, however, Dr John had a fall and arrangements were made for him to have a further CT brain scan two days later, on 16 January 2008. This scan revealed free gas in the left temporal region and an area of low attenuation in the left temporo-parietal region with no significant mass effect. The view was that the radiological appearances were those of a posterior sub-dural collection associated with a parenchymal abscess. Later the same day, a brain-lab guided aspiration of the left parietal collection and drainage of the left occipital sub-dural collection was performed. Ophthalmological assessment also occurred that day and a vitreol haemorrhage was noted in the left eye and the possibility of Terson’s syndrome was suggested. It was subsequently decided that Dr John should undergo neurological rehabilitation. Before he did this, a further CT brain scan was carried out on 18 January 2008. Three days after this, on 21 January 2008, Dr John was assessed neurologically. His GCS was between 13/15 and 14/15. He complained of blurred vision and appeared to have a right homonymous hemianopia. By 24 January 2008, his condition had improved. However, a further CT brain scan performed that day showed the persistence of the sub-dural collections. The next day, he was reviewed by Professor King, who felt that his expressive dysphasia was getting better but who was surprised to note that this had occurred despite the left cerebral hemisphere still being swollen. Arrangements were made for a further CT brain scan to be performed on 4 February 2008. This showed an area of encephalomalcia underlying the left sided craniotomy flap. A small collection of this was seen adjacent to the burr hole measuring a maximum of 6mm in thickness and it was felt that the radiological appearances had improved significantly since the preceding scan. A further CT brain scan was performed on 20 February 2008. This showed further improved appearances, and a decision was, therefore, made to continue antibiotic therapy for a further period so that he received a total of six weeks’ therapy. A further scan was then performed on 7 March 2008, showing no significant change. The following week Dr John was allowed home for weekend leave and by 7 April 2008 he was discharged.[38]It is not in dispute that, as matters now stand and leaving aside questions of medical causation to which I shall return, Dr John suffers from permanent cognitive and neuropsychological impairment. This was the agreed evidence of Dr Ford and Dr Mallen, the expert neuropsychologists, as demonstrated by the experts’ joint statement which helpfully summarises the position as follows:
“3.1 We agree that the Claimant has marked word finding problems. Dr Mallen noted that the Claimant said that he does not now have word finding problems, although this was quite evidence in Dr Mallen’s assessment. Dr Mallen considers this to be due to a lack of insight. Dr Ford considers that the Claimant’s insight fluctuates, is not consistently intact and adequate. 3.2 We agree that psychometric intelligence testing produced a Full Scale IQ of 107, which is in the average range, but this would not be consistent with the Claimant’s history, as his education to degree level would have supposed a higher IQ. Dr Mallen considers the Claimant’s verbal abilities were lower than his nonverbal abilities. 3.3 Dr Mallen accepts that the Claimant has slow speed of information processing … The Claimant’s processing speed is severely compromised as shown by test results and the abnormal duration of his assessment. … Dr Ford agrees that the Claimant has slow speed information processing … 3.4 Dr Mallen considers the Claimant’s auditory-verbal short-term memory as measured on the digit’s forward task of the Digit Span test was recorded at low average, suggesting some difficulty with initial encoding of verbal information. On story recall he obtained a normal score but his performance was marked by some confabulation, a problem that can be associated with frontal lobe involvement. Working memory problems were also identified in the digits reversed condition of the Digit Span test as well as on the Trail Making Tasks where there was a further score below the 1st centile on Trails 5. Working memory is a core component of executive function. Dr Ford agrees that the Claimant is presenting with significant memory deficits in verbal, non-verbal areas as well as with short term/working memory. 3.5 Dr Mallen found the Claimant has [sic] presenting with severe problems within working memory and information processing speed which underpin the Claimant’s executive dysfunction. The Claimant’s working memory deficit is most severe as demonstrated by his need to make 16 requests for repetition of the mental arithmetic questions. Dr Ford agrees with Dr Mallen and adds that deficits in attention are also impacting on poor executive skills.”
Dr Ford considers that the Claimant’s insight fluctuates, is not consistently intact and adequate. Dr Ford agrees that the Claimant has slow speed information processing … Dr Ford agrees that the Claimant is presenting with significant memory deficits in verbal, non-verbal areas as well as with short term/working memory. Dr Ford agrees with Dr Mallen and adds that deficits in attention are also impacting on poor executive skills.”[39]Both experts were agreed also that Dr John’s cognitive and neuropsychological problems prevent him from working as a doctor, and that his cognitive and neuropsychological problems represent a significant barrier to paid employment. There is no realistic prospect that Dr John will return to general practice or a career in medicine. As the joint experts’ statement states:
“11.2 The Claimant lacks planning/organising skills and flexible problem solving ability, as well as the ability to monitor his own behaviour. These executive function deficits would preclude him from the ability to work independently without assistance and supervision. The Claimant lacks insight and awareness into the extent of his disabilities and consequently he has unrealistic expectations for the future. Dr Ford agrees with Dr Mallen with regards to the above paragraph. Dr Ford adds however that the Claimant does need some meaning and structure in in his life and should be able to hold down some form of alternative low level employment i.e. in a medical setting in an administrative/clerical capacity and on a part time basis.”
Dr Ford agrees with Dr Mallen with regards to the above paragraph. Dr Ford adds however that the Claimant does need some meaning and structure in in his life and should be able to hold down some form of alternative low level employment i.e. in a medical setting in an administrative/clerical capacity and on a part time basis.”[40]In addition, it is common ground (again leaving to one side for present purposes particular causation issues) that Dr John has suffered what Dr Ford and Dr Scheepers describe as an Adjustment Disorder and what Dr Achinivu calls a mild depressive disorder. Dr John has additionally suffered ophthalmic injury, but Mr Allen QC made it clear that it is no longer alleged (as it had been) that this was caused or materially contributed to by any negligence on the part of the Defendant as opposed to the damage to Dr John’s brain brought about by the traumatic injury sustained in the fall or as a result of the post-operative infection to which I have referred. In these circumstances, I need say no more about this aspect and turn now, instead, to the topic of breach of duty. Breach of duty The law

Breach of duty

[41]There was no issue between Mr Allen QC and Mr Kennedy as to the applicable legal principles. The position is as it was described in the directions given to the jury by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at page 586:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. Mr Fox-Andrews out it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent. Mr Fox-Andrews also was quite right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis which is laid by the defence is on this aspect of negligence, that the real question … is whether the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion. … I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
[42]Lord Scarman put things pithily in Sidaway v Governors Of Bethlem Royal Hospital [1985] AC 871 when, at page 881F, he explained that “a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice”. In Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, he stated at page 639:
“… I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he be a specialist) is necessary.”
[43]It is helpful also to have in mind Lord Browne-Wilkinson’s observations in Bolitho v City & Hackney Health Authority [1998] AC 232 at pages 241G-242A:
“... in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a ‘responsible body of medical men’. Later, at p. 588, he referred to ‘a standard of practice recognised as proper by a competent reasonable body of opinion’. Again, in the passage which I have cited from Maynard's case [1984] 1 W.L.R. 634, 639, Lord Scarman refers to a ‘respectable’ body of professional opinion. The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”
[44]Having referred to certain authorities, Lord Browne-Wilkinson went on at page 243A-D to summarise the position in the following way:
“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.”

The negligence alleged

[45]With these principles in mind, I now come on to consider the allegations of negligence which are made against the Defendant in this case: first, the allegation that there was a negligent delay in the performance of the CT brain scan which Dr Musa had stipulated should be undertaken; and secondly, the allegation that there was negligence in not requesting an ambulance sooner after Dr John had been stabilised having had his seizure at some point between about 3.20 pm and 3.45 pm. It will be recalled that Dr John’s case is that, but for the Defendant’s negligence in either or both of these respects, he would have avoided some or all of the dangerously raised inter-cranial pressure which materially contributed to the brain damage that he had sustained from the initial head injury sustained in his fall and which he was to sustain as a consequence of the post-operative infection experienced in January 2008.[46]Mr Kennedy submitted that there is no proper basis on which to conclude that there was negligence in relation to the carrying out of the CT brain scan. His position, and that of the Defendant, was that the trajectory of Dr John’s condition from the time of his arrival at the MRI shortly before 7.00 am on 23 December 2007 was one of improvement, so much so that when Mr Stuart saw Dr John soon after arriving at the MRI, at some point before 10.00 am, Dr John’s GCS was 15/15. Accordingly, Mr Kennedy suggested, there was no longer any need for a CT brain scan to be undertaken. Mr Kennedy submitted that the only potentially culpable period of delay that day was later on when, for no apparent reason, an ambulance was not requested for in the order of an hour after Dr John was ready to be transferred to the Hope after having a seizure earlier in the afternoon. Mr Kennedy rightly pointed out that the delay which then occurred in relation to the arrival of the ambulance was not the responsibility of the Defendant.

Alleged delay in carrying out the CT brain scan

[47]Dealing with the first allegation of negligence, Mr Allen QC and Mr Kennedy were agreed that, as Mr Kennedy put it in his Written Closing Submissions, much turns on my conclusion as to whether soon after arriving at the MRI in the morning of 23 December 2007 Mr Stuart had the conversation with Dr John which he says he did and whether his recollection of that conversation is correct. If I were to accept Mr Stuart’s evidence, including importantly what he had to say about the timing of his going to see Dr John, then, in my judgment, the allegation of negligence would be difficult to make out. Mr Allen QC submitted that, even if Mr Stuart’s evidence were accepted in its entirety (including as to timing), then still there was negligence because an urgent CT brain scan ought to have been ordered by 9.00 am, which would have meant, based on the fact that the CT brain scan subsequently ordered by Professor Body was performed within about 40 minutes, that it would have been performed by about 9.45 am. Mr Allen QC submitted that, in view of this, even if Mr Stuart did see Dr John soon after arriving at the MRI (say, at 9.45 am or so), there was, in any event, negligence because by that stage Dr John should already have been scanned. Mr Allen QC highlighted in this context how Mr Heyworth, the Defendant’s emergency medicine expert, accepted that an urgent CT brain scan should have been ordered in Dr John’s case by 9.00 am given that his condition had been stabilised by that stage. Although Mr Kennedy, in his Written Closing Submissions, suggested by reference to a passage in Dr Fletcher’s first report that he accepted that it would not be unreasonable to have waited until 10.00 am, on analysis, what Dr Fletcher was saying in the relevant paragraph (paragraph 4.1.15) is consistent with what he stated earlier in the paragraph and with what, as Mr Heyworth accepted in cross-examination, Dr Fletcher and Mr Heyworth had agreed, which was that, unless Dr John had a GCS of 15/15 at 9.00 am, then a CT brain scan should at that stage have been ordered. (In fact, Dr Fletcher and Mr Heyworth both considered that it would have been reasonable in Dr John’s case to have ordered a CT brain scan as early as 8.00 am in view of the fact that Dr John’s vital signs had stabilised sufficiently by that time). In short, Mr Allen QC’s submission was that Mr Stuart’s review did not remedy the Defendant’s earlier breach of duty. This is not, however, a submission which I can accept. I consider that if Mr Stuart did go and see Dr John when he stated in evidence that he did, which was soon after arriving at the MRI at 9.30 am, and if he did reasonably conclude that Dr John had a GCS of 15/15, then, the case in negligence must fail. This is because, on this scenario, even if a CT brain scan had been ordered at 9.00 am, it would have been legitimate to cancel it before it was carried out. The fact that, in the event, there was no cancellation until 11.35 am seems to me to be immaterial for these purposes. Furthermore, since Dr John was, on Mr Stuart’s account, on ‘resus’ rather than in the radiology department when he saw him, it must be the case that Dr John had by that stage yet to be scanned, and I would be reluctant to conclude that there was negligence on the part of the Defendant based on the fact that the CT brain scan had not been performed in the relevant timescale, namely within 45 to 60 minutes of the order having been made at 9.00 am.[48]In my judgment, therefore, this aspect of the case depends on whether Mr Stuart’s evidence concerning his going to see Dr John can be accepted. If he did go and see Dr John and if he did so when he stated in evidence that he did, at some point after 9.45 am but before 10.00 am, then, the allegation of negligence cannot succeed. If he did not go and see Dr John or, if he did, he did not assess him as he says he did or, if he did, he acted negligently or, if he went to see Dr John later in the morning rather than soon after coming into the MRI, then, the allegation of negligence will succeed because Dr Fletcher and Mr Heyworth were agreed that it was only if Dr John had a GCS of 15/15 that it would have been appropriate not to order a CT brain scan at 9.00 am (the point made above) or to cancel or, as Mr Heyworth put it both in his first report and again in cross-examination, “defer” an order which had already been placed. As to this latter point, I should mention that Mr Allen QC observed in his Written Closing Submissions that, when giving evidence, Mr Heyworth sought to stress the fact that Mr Stuart went to see Dr John. That is the case. Mr Heyworth did sometimes appear to find it difficult to put Mr Stuart’s account out of his mind and this did lead to a certain reluctance to engage with certain of Mr Allen QC’s questions. However, I reject the suggestion made by Mr Allen QC that Mr Heyworth showed an over-willingness to accept Mr Stuart’s evidence when this is properly a matter for me as the judge.[49]I turn, therefore, to consider the evidence which Mr Stuart gave concerning his meeting with Dr John. I have previously outlined this but, to repeat, Mr Stuart’s evidence was that he went to see Dr John soon after coming into the MRI at about 9.30 am, and so probably at about 9.45 am and anyway not later than 10.00 am, and that when he spoke Dr John recognised his voice and sat up, beginning to talk to him. He stated that he spent about 10-15 minutes with Dr John, examining his cranial nerves and reviewing the available A&E card and observations. He stated that he recalled the scene very clearly, specifically that the two of them spoke about their time working at North Manchester General Hospital. Throughout, Mr Stuart insisted, Dr John was lucid and compliant; he was also alert and orientated, with his eyes open. His assessment was that Dr John’s GCS was 15/15. On this basis, Mr Stuart gave instructions that Dr John no longer needed a CT brain scan and instead required to be kept under observation in CLDU.[50]Ultimately there was no issue between Mr Allen QC and Mr Kennedy that Mr Stuart probably did go and see Dr John. Unsurprisingly, in the circumstances, Dr John himself had no recollection of seeing Mr Stuart. However, Mr Allen QC acknowledged that Mr Stuart probably did review Dr John, given not only that this was what Mr Stuart stated he did but also because Nurse Harkins’ ‘Incident Report’ records that she was told by somebody in ‘resus’ that Mr Stuart “did not want a scan”. Therefore, even if Professor Body was not also told that Mr Stuart had assessed Dr John as having a GCS of 15/15 when he spoke to somebody in ‘resus’, there is nonetheless evidence which corroborates Mr Stuart’s version of events. There were, however, real disputes between Mr Allen QC and Mr Kennedy as to, first, when Mr Stuart saw Dr John and, secondly, what happened when he did so. Mr Kennedy invited me to reach the view that Mr Stuart’s account should be accepted in all respects. He submitted, in particular, that Mr Stuart had no reason to make things up. He submitted also that Mr Stuart had every reason to recall the conversation given that he knew Dr John and given the coincidence that Dr John should have come into A&E, Mr Stuart’s department.[51]Mr Allen QC submitted, on the other hand, that none of the surrounding documentation is consistent with Mr Stuart having found Dr John’s GCS to be 15/15, whether before 10.00 am or at any other time. He highlighted the fact that when Nurse Harkins received the telephone call from a nurse in ‘resus’ to tell her that Dr John was going to be coming to CLDU she was told that Dr John had a GCS of 12-13/15 and no mention was made of the GCS having dropped from 15/15 earlier in the morning. I agree with Mr Allen QC also that, if Dr John’s GCS had deteriorated in this way, then it is difficult to conceive that the ‘resus’ nurse would have regarded it as appropriate to be arranging a transfer to CLDU as opposed to arranging an immediate CT brain scan. I consider that there is also force in Mr Allen QC’s additional point that, since Dr Fletcher and Mr Heyworth were agreed in their joint statement that “a lucid interval in a young brain injured patient with an acute subdural haematoma, such as the claimant, would be most unusual” and that the “apparent” improvement from 12/15 to 15/15 “is in their experience, inconsistent with an acute subdural haematoma”, it is inherently improbable that Mr Stuart could have assessed Dr John as having a GCS of 15/15. I take account also of the fact that Mr Stuart described, when being cross-examined, seeing an abrasion or sign of trauma on Dr John’s head despite making no mention of this in his witness statement. I agree with Mr Allen QC that it is somewhat unlikely that Mr Stuart should recall this for the first time in the witness box and not when he made his witness statement. It is quite obvious that this was a matter which Mr Stuart would have mentioned in his witness statement had he actually seen the abrasion or sign of trauma.[52]In the event, however, I need not reach a final view as to what happened when Mr Stuart saw Dr John. This is because it is only if Mr Stuart saw Dr John when he claimed that he saw him, namely before 10.00 am and probably at about 9.45 am, that Mr Stuart’s assessment matters. If Mr Stuart saw Dr John later than 9.45 am or 10.00 am, then Dr Fletcher and Mr Heyworth were agreed that Dr John should already have undergone a CT brain scan by the time that Mr Stuart saw Dr John at some point thereafter. Mr Kennedy’s central submission in relation to this was that I should accept that Mr Stuart’s recollection that he went to see Dr John soon after arriving at the MRI, and so at some point between 9.30 am and 10.00 am, was accurate since there is no reason why it should be otherwise. Mr Kennedy submitted, furthermore, that Mr Stuart cannot have assessed Dr John as having a GCS of 15/15 as late as Mr Allen QC suggested was the case, namely in the lead-up to the cancellation of the CT brain scan at 11.35 am, since only about half an hour later Nurse Harkins was being told that Dr John had a GCS of 12-13/15. Mr Kennedy suggested that this demonstrates that Mr Stuart must have assessed Dr John earlier in the morning, at the time that he stated he did. I have concluded, notwithstanding these submissions, that Mr Stuart’s assessment of Dr John probably took place later than the 9.30 am to 10.00 am window to which Mr Stuart referred, and that it is more likely to have taken place nearer to 11.35 am when the CT brain scan was cancelled. By this stage, on any view, the CT brain scan ought to have been performed and the fact that it was not was clearly the result of negligence. I can state my reasons for reaching this conclusion relatively shortly.[53]First, Mr Stuart’s evidence as to when he went to see Dr John was evidence given concerning something which happened over 8 years ago. Whilst I acknowledge Mr Kennedy’s submission that Mr Stuart has good reason to recall seeing Dr John given that he was somebody who knew Dr John from the past, it does not follow that Mr Stuart should be treated as remembering when exactly he carried out his assessment of Dr John. Mr Stuart’s evidence concerning the timing of the assessment entailed reconstruction rather than independent recollection. It was that he would have gone to see Dr John “reasonably early”, as he put it in his witness statement, during his review of patients after his arrival at about 9.30 am. In circumstances where there is no record of Mr Stuart’s assessment, specifically as to when it happened, it is inevitable that Mr Stuart might be mistaken in his recollection and I consider that he was. Mr Stuart’s evidence also depends on his arriving at the MRI at about 9.30 am rather than later, yet again Mr Stuart was, unsurprisingly in the circumstances given the length of time which has passed, not able to say categorically that this was the time when he arrived on 23 December 2007 specifically. The most that he could say was that he would generally arrive at about this time: as he put it in his witness statement, he “tended to come into the hospital about 9.30”. However, this was just a couple of days before Christmas and it would not, therefore, be wholly surprising if Mr Stuart started a little later than usual. If so, this would mean that he would have gone to see Dr John later than the time he suggested.[54]Secondly, Mr Stuart explained that his usual practice entailed him spending about three hours on A&E after coming in at about 9.30 am, and then another 3 hours (and often much more) when he returned later in the day. The morning session would end with going to CLDU, as he put it in his witness statement, “to complete the ward round”. Mr Stuart confirmed in cross-examination, however, that he did not see Dr John when he went to CLDU on 23 December 2007. This is despite the fact that, if Mr Stuart is right and he came into A&E at about 9.30 am, then, he would very likely have encountered Dr John since Dr John was in CLDU from shortly after noon until some time after 1.00 pm when, having undergone a CT brain scan, Professor Body arranged for him to be re-admitted to A&E. The fact that Mr Stuart did not see Dr John in CLDU serves to confirm that he cannot have started work on this particular Sunday as early as he normally did, so making it all the more likely that Dr John was not assessed by him in the timescale in which, working on the basis of his normal practice rather than actual recollection, Mr Stuart suggested in evidence he was assessed.[55]Thirdly and especially importantly, there is clear evidence that at 10.17 am Dr Khawja ordered a CT brain scan for Dr John. This is after the time when, according to Mr Stuart, he assessed Dr John as having a GCS of 15/15 and concluded that a CT brain scan was no longer required. I find it inconceivable that, if Mr Stuart had reached this conclusion, something which Mr Walton-Pollard stated in his evidence Mr Stuart told him when he came away from Dr John’s bed having performed his assessment, Dr Khawja would have done what he did. Mr Stuart did not review the Claimant prior to 10.17 am. If Mr Stuart really had seen Dr John before that time and if he had made notes of his assessment, as Mr Stuart was adamant he did (albeit the notes, if they ever existed, are now no longer available), it would have been obvious to Dr Khawja that he should not be ordering a CT brain scan. Mr Kennedy suggested in his submissions that the likely explanation was that A&E was busy and the message that a CT brain scan was, in Mr Stuart’s view, no longer required did not get through to Dr Khawja. I am not prepared, however, to make that assumption in circumstances where Dr Khawja was not called as a witness in these proceedings. Dr Khawja remains employed by the Defendant and, even if his recollection of relevant events was not particularly good, it should nonetheless have been possible for him to give evidence, if necessary of only a general kind, along the lines suggested by Mr Kennedy. I bear in mind also that neither Mr Stuart nor Mr Walton-Pollard put forward any explanation as to why Dr Khawja came to order the CT brain scan after Mr Stuart had given instructions that it was no longer required.[56]Fourthly, the assessment taking place later than suggested by Mr Stuart is more consistent with the fact that the CT brain scan was cancelled at 11.35 am. This was over two hours after Mr Stuart stated that he would have arrived in A&E and at least one hour and 35 minutes after, according to Mr Stuart, he had carried out the assessment. It is difficult to see why there should be such a level of delay. On the contrary, Mr Walton-Pollard’s evidence was that, although he could not remember contacting CLDU in Dr John’s case, it was “normal procedure” in a case where a patient was going to be transferred to CLDU that he would in short order check whether a bed was available in CLDU and that this would be followed by a nurse in ‘resus’ carrying out a handover on the telephone. Mr Walton-Pollard stated that very shortly after his conversation with Mr Stuart he would have contacted CLDU to ascertain if a bed was available. Again this strongly suggests that the assessment must have been nearer 11.35 am since Nurse Harkins confirmed, both in the ‘Incident Report’ and in cross-examination, that she received the handover telephone call from one of the ‘resus’ nurses at about noon. I agree with Mr Allen QC that this firmly points towards the discussion between Mr Stuart and Mr Walton-Pollard, and so Mr Stuart’s assessment in relation to Dr John, taking place much closer to noon, in all probability shortly before 11.35 am when the CT brain scan was cancelled by somebody whose identity is not known but who might very well have been Dr Khawja, than to 9.45 am or 10.00 am. Indeed, it is to be noted that, when he was cross-examined, Mr Walton-Pollard acknowledged that he did not actually recall the time when he saw Mr Stuart go in to see Dr John and then coming out and telling him that a CT brain scan was not required. In his witness statement, Mr Walton-Pollard had stated that Mr Stuart “came on duty that morning somewhere around 9.30 am”, but based on his answer given in cross-examination he clearly could not, in fact, recall the relevant timing.[57]Lastly, had Mr Stuart assessed Dr John between 9.30 am and 10.00 am as having a GCS of 15/15, this would mean that when arrangements were being made to transfer Dr John to CLDU notwithstanding that his GCS had dropped from 15/15 to 12-13/15. Such a drop, as Mr Stuart readily acknowledged during the course of cross-examination, would have required that a CT brain scan was undertaken immediately. It would also, obviously, have meant that Dr John was not going to be sent to CLDU. In view of this, it is most unlikely that Mr Stuart could have seen Dr John in the timescale which he identified. It is far more likely that the transfer was being effected in the context of Mr Stuart having only very recently made an assessment that Dr John had a GCS of 15/15 and having concluded, accordingly, that no CT brain scan was required.[58]I appreciate that this leaves the oddity identified by Mr Kennedy, namely that only half an hour or so later Dr John was being described during the course of the transfer telephone call as having a GCS of 12-13/15 and then, after arrival in CLDU, he was assessed as having a GCS which was not the 15/15 assessed by Mr Stuart. One explanation for this is that Mr Stuart was wrong to have arrived at the 15/15 assessment which he did, something which would be consistent with an assessment which, Mr Allen QC suggested, was deficient in a number of other respects. These included the failure to identify an abrasion/sign of trauma on Dr John’s head to which I have previously referred and which, when the point was put to Mr Stuart by Mr Allen QC, caused Mr Stuart to suggest that this was something that he did see. I prefer, however, not to express a view as to the adequacy of Mr Stuart’s assessment, in particular not to decide whether Mr Stuart was negligent in assessing Dr John as having a GCS of 15/15. It seems to me that it is sufficient that I indicate that, having considered matters in the round, they lead me to conclude, for the reasons which I have set out above, that the assessment carried out by Mr Stuart took place somewhat later than he suggested, probably at about 11.30 am. It follows from this that I conclude that a CT brain scan should have been performed on Dr John earlier than was the case, specifically by not later than about 10.00 am, and that this was the result of negligence on the part of the Defendant. In short, Dr John’s primary allegation of negligence has been made out.

Allegation of delay in transfer to the Hope

[59]As to Dr John’s case that there was a negligent delay in arranging a transfer to the Hope, I am clear that this case, too, must succeed. It will be recalled that the relevant period of delay, after Dr John had been stabilised following his seizure earlier in the afternoon, was in the order of about an hour, Mr Allen QC and Mr Kennedy agreeing that Dr John would have been ready for transfer by about 4.35 pm when, as Mr Kennedy pointed out, Mr Stuart prescribed Dr John with Atracuriam, so indicating that intubation, ventilation and stabilisation had been achieved and Dr John was ready to be transferred. The delay, therefore, was about an hour since the second ambulance was not requested until 5.33 pm. The fact that the ambulance did not then arrive until 6.39 pm is clearly not something for which the Defendant can be blamed. That was a delay which is the responsibility of the ambulance service, not the Defendant, and Mr Allen QC did not suggest otherwise. It is instructive, however, that there was increasing anxiety on the part of Nurse Jones, who made two telephone calls to the ambulance service in order to chase, and on the part of Mr Stuart, who made contact with Professor Mackway-Jones to try to expedite the transfer. It may well be the case that part of this anxiety arose from the fact that it was recognised that there had been an appreciable delay in ordering the ambulance. Whether that is right or not, I am satisfied that the ambulance ought to have been called earlier, soon after 4.30 pm, and that the failure to do this was the result of negligence on the Defendant’s part. Indeed, as I have observed, whilst not conceding liability, Mr Kennedy essentially recognised that this was the case since he did not seek to put forward any excuse or reason for the delay which occurred after Dr John was ready to be transferred to the Hope after having his earlier seizure.

Did Dr John suffer damaging raised intra-cranial pressure on 23 December 2007?

[60]I shall come on relatively shortly to deal with certain aspects of causation, after first addressing an important threshold question. This is whether Dr John had raised intra-cranial pressure during the course of 23 December 2007, specifically at any point after about 10.00 am up until he was operated upon by Professor King and Mr Evans, and if so, whether this was raised intra-cranial pressure which was damaging. Mr Allen QC submitted that this was the case, whereas Mr Kennedy submitted that it was not. Both Mr Allen QC and Mr Kennedy relied for these purposes on the evidence given by their clients’ respective experts, Professor Marks in the case of Dr John and Mr Jenkins in the case of the Defendant. Mr Allen QC also placed significant reliance on the evidence which was given by Professor King on the basis that, unlike Professor Marks and Mr Jenkins, Professor King actually saw the condition of Dr John’s brain on 23 December 2007 during the course of surgery. Ultimately, as I shall endeavour to explain, the difference between the experts was that, whereas Mr Jenkins focused on the CT brain scans which were carried out on 23 December 2007 and in the period when, and after, he was suffering from a post-operative infection and undoubtedly suffering from damaging raised intra-cranial pressure, contrasting the lack of indications in the former with the latter, Professor Marks pointed to other indications which, he suggested, pointed to there having been damaging raised inter-cranial pressure on 23 December 2007, explaining that it was necessary to “treat the man not the scan”.[61]As far as the scans are concerned, in truth it is difficult to see how the CT brain scan undertaken at 1.12 pm on 23 December 2007 demonstrates raised intra-cranial pressure. Certainly the scan resembles nothing like the scans performed on 8 January 2008, 16 January 2008, 18 January 2008, 24 January 2008 and 4 February 2008, which show clear signs of raised intra-cranial pressure. So, in relation to the scan on 8 January 2008, Professor Marks observed that this shows evidence of brain shift from left to right and a degree of effacement of the basal cisterns, as well as the appearances are of a wound infection with associated sub-dural empyema (pus), whereas Mr Jenkins noted large probably infected extra cerebral collections in the left frontal, parietal and occipital, some midline shift with generalised left hemisphere swelling and raised ICP, and appearances suggesting widespread infection. As to the 16 January 2008 scan, Professor Marks noted evidence of extensive cerebral oedema and enhancement of sub-dural space which suggested the presence of infection, whereas Mr Jenkins noted extensive signal change throughout the left side of the brain, extra or sub-dural collections in the left frontal and occipital lobes and a partly enhancing oval mass, extensive oedema and midline shift, and appearances of widespread infection. The scan two days later, on 18 January 2008, demonstrates, according to Professor Marks, marked brain swelling and shift of the midline structures, appearances of brain swelling in response to intra-cranial suppuration both in the parenchyma and the sub-dural space, and, according to Mr Jenkins, amongst other things, ventricular compression and midline shift. In short, Professor Marks and Mr Jenkins were agreed that there was at least a month of damaging infection and weeks, rather than days, of damaging raised intra-cranial pressure.[62]In contrast, Mr Jenkins’s evidence was that the CT brain scan carried out at 1.12 pm on 23 December 2007 reveals no signs of raised intra-cranial pressure, and Professor Marks could only identify what he described as “subtle” signs of early raised intra-cranial pressure. These signs were, indeed, only very “subtle”. They consists of a very slight bowing of the falx cerebri on one of the slides and effacement of the sulcal pattern on another slide. However, I agree with Mr Kennedy that, if there was bowing, which is hard to detect, it was only very slight and there was little evidence of the sort of midline shift which can be seen in the scans relating to the period of post-operative infection. Mr Kennedy was right when he submitted that the absence of midline shift in the middle of this slide is a far more significant finding and contradicts the suggestion of subtle bowing of the falx. This is because midline shift, namely evidence that the midline between the left and right hemispheres has shifted, is rather more obvious evidence that there has been a rise in pressure. As to the effacement of the sulcal pattern on the other slide to which Professor Marks referred, this could be explained by the mixture of sub-arachnoid blood to the cerebro spinal fluid which Professor Marks had identified and mentioned in the experts’ joint statement. It is not, therefore, necessarily indicative of damaging raised intra-cranial pressure. Nor, Professor Marks confirmed in cross-examination, is there any evidence in any of the slides that there was effacement of the left ventricle or that there was dilatation of the right ventricle; if anything, the left ventricle is enlarged probably as a result of loss of brain substance arising from the brain injury which Dr John sustained in his youth. Furthermore, despite saying in examination-in-chief that the most important factor is effacement of the basal cisterns and suggesting that there was evidence of effacement, Professor Marks ultimately confirmed in cross-examination that there was no effacement of the basal cisterns which is what he and Mr Jenkins had effectively confirmed in their joint statement where they had agreed that there was no significant effacement.[63]In the circumstances, I was less than persuaded by Professor Marks’s suggestion, not anyway a suggestion made in his first report, that the scans reveal raised intra-cranial pressure, or, as he described it, “subtle” signs of such pressure. In fairness to Professor Marks, however, I did not understand him to have been suggesting that the scans were the reason, and certainly not a very significant reason, why he considered that Dr John did suffer from raised intra-cranial pressure on 23 December 2007. His view was not really based on the scans which he looked at, but on Dr John’s presentation generally, particularly at about midday when Professor Body found that Dr John was suffering from expressive dysphasia, a matter to which I shall return. As he put it, when being pressed by Mr Kennedy concerning the various slides relating to the scan carried out at 1.12 pm on 23 December 2007, specifically whether or not a particular slide showed raised intra-cranial pressure, his position was that a scan cannot be looked at in isolation but has to be considered as one part of the evidence alongside the clinical signs, symptoms and other observations. Mr Allen QC submitted that Professor Marks was right about this, pointing to the fact that the scans on 8, 16 and 18 January 2008, which Mr Kennedy characterised as “high pressure” scans, indeed scans which showed pressure at a dangerous and damaging level, were unaccompanied by features which Mr Jenkins accepted in cross-examination a conscious patient would typically be expected to suffer if there was damaging raised intra-cranial pressure, namely headaches, vomiting, deteriorating GCS and loss of consciousness. Although it is right to acknowledge that these were not documents which were shown to Mr Jenkins by Mr Allen QC, nonetheless it would seem to be the case, judging from the nursing observations relating to Dr John in the period from 16 to 20 January 2008, that there were no reported headaches, and nor was there vomiting, deterioration in GCS or unconsciousness. The relevant nursing records show that Dr John’s GCS remained constant at 13-14/15, and that Dr John’s pain level was 0 at all times save for four occasions when it was recorded as 1 and one occasion when it was recorded as 2. In relation to nausea, the records show 0 on 18, 19 and 20 January 2008 and, on 16 and 17 January 2008, when the records give no nausea score, there are indications that Dr John cannot have been suffering from nausea because there is reference, for example, to Dr John “Eating and drinking good amounts with encouragement”.[64]Mr Allen QC submitted that this demonstrates the danger of considering CT scan images in what he termed “an evidential vacuum”. He submitted that Mr Jenkins’s approach did this, entailing undue weight and importance being attached to the scans. Mr Allen QC submitted that I should, therefore, be wary concerning the views expressed by Mr Jenkins. Mr Allen QC was, however, critical of Mr Jenkins in other ways, too. He submitted that Mr Jenkins had only recently considered the post-operative CT scans as they had not been accessible to him previously, despite giving the impression in his first report that he had looked at them for the purpose of that report. This was regrettable but I am not convinced that, as Mr Allen QC suggested, it means that I should regard Mr Jenkins as lacking independence. Nor do I reach such a conclusion based on the fact that Mr Jenkins sought to question the evidence given by Professor King that, when he operated on Dr John on 23 December 2007, his brain had the appearance of being under raised intra-cranial pressure. I acknowledge that Mr Jenkins pointed out that Professor King had not expressly agreed with the suggestion that the intra-cranial pressure was significantly raised. I agree with Mr Allen QC when he submitted that this “smacked more of an advocate’s submission than an expression of expert opinion”. I do not consider, however, that, considered in isolation, this means that I should discount the views expressed by Mr Jenkins, who (like Professor Marks) is clearly a distinguished neurosurgeon.[65]A more substantial, indeed substantive, point made by Mr Allen QC is, however, the fact that, when giving his oral evidence, Mr Jenkins attributed considerable weight to the fact that the operation notes prepared by Mr Evans, who operated on Dr John with Professor King, refer to Dr John’s intra-cranial pressure returning to normal at the conclusion of the operation (specifically they stated “ICP 6 at closure”), as well to the fact that Professor King explained in his oral evidence that he and Mr Evans were able to close the cranial flap. It was Mr Jenkins’s suggestion when giving his evidence that these are both matters which point to the absence of damaging raised intra-cranial pressure. It is perhaps understandable that Mr Jenkins did not refer to the second of the matters in his reports or in the joint statement which he prepared with Professor Marks, given that Professor King was only belatedly called as a witness. That said, the operation notes made no mention of the flap being left open and this would presumably have indicated that it had been closed, particularly since there is no record of the flap subsequently being closed. As to the former point, however, given the significance attributed to it when giving his oral evidence, it is somewhat surprising that Mr Jenkins made absolutely no mention of Mr Evans’s operation notes stating that Dr John’s intra-cranial pressure was “ICP 6 at closure” since the notes were available to Mr Jenkins when he prepared his reports. Mr Jenkins suggested that he did not refer to the matter because there was, as he put it, an “abundance” of other evidence demonstrating that the intra-cranial pressure was not significantly raised. I am not, however, convinced by this explanation since it seems to me that, if in his opinion the closure of the flap is suggestive of an absence of raised intra-cranial pressure, then it is certainly something which should have been identified as a factor in Mr Jenkins’s thinking, the more so in view of the importance attributed to the point when Mr Jenkins came to give his evidence. In the circumstances, I am inclined to agree with Mr Allen QC’s submission that this raises some doubt as to the approach adopted by Mr Jenkins to the task of giving expert evidence. I am not prepared, however, to conclude that Mr Jenkins’s evidence should be discounted as Mr Allen QC went on to suggest. Ultimately, as Mr Allen QC himself pointed out, Mr Jenkins fairly accepted that the operation notes do, indeed, suggest that there was raised intra-cranial pressure. Furthermore, Mr Jenkins also acknowledged that, although he considered that the CT brain scan at 1.12 pm on 23 December 2007 did not show raised intra-cranial pressure at that stage, this is evidence which has little bearing on what the level of intra-cranial pressure was following Dr John’s seizure a couple of hours or so later. As to the ability to close Dr John’s cranial flap, in any event, I accept Professor Marks’s evidence, given during the course of re-examination in answer to a question from me, that whether it is possible to close the flap or not “tells you nothing about the level of the ICP which the procedure was to relieve”.[66]There is one aspect concerning Mr Jenkins’s evidence which, however, did at one stage cause me some degree of concern. This concerns the following answers in the experts’ joint statement: (1) Question 10.3:
“10.3 Is it possible to separate out the relative contribution of the raised intracranial pressure and/or deterioration in his general condition over that period [the period attributable to the delay in ordering a CT brain scan] in contrast to the primary brain injury and/or the post-operative infection? If so, what is it? We did not feel that it was possible to separate out the relative contribution of these factors, were the Court to find that they both contributed.” (2) Question 10.8: “Would it be possible to state what the Claimant’s likely neurological outcome would have been but for that period of compression [due to the delay in ordering a CT brain scan]? If so, what would the outcome have been? This is similar to 10.3, and we both felt it was impossible to be specific.”
This is similar to 10.3, and we both felt it was impossible to be specific.” (3) Question 11.3:
“Is it possible to separate out the relative contribution of the raised intracranial pressure and/or deterioration in his general condition over that period [the delay in calling for the second ambulance] in contrast to the primary brain injury and/or the post-operative infection? If so, what is it? Again this is not possible.”
If so, what is it? Again this is not possible.” When Mr Allen QC asked Mr Jenkins about the answer given in respect of Question 10.3, Mr Jenkins stated that he did “not believe they did both contribute”, his reference to “both” being a reference to the initial brain injury and the post-operative infection, on the one hand, and to raised intra-cranial pressure caused by the delay in arranging the CT brain scan, on the other hand. Mr Allen QC then showed Mr Jenkins the answer given in respect of Question 10.8. Mr Jenkins responded by suggesting that he had not understood what was being asked in Question 10.8, specifically that he thought the question was whether raised intra-cranial pressure had materially contributed to Dr John’s outcome. This, however, was quite obviously the question which was being posed in Question 10.7. It was not, therefore, easy to understand why Mr Jenkins should have sought to suggest that he had not understood what he and Professor Marks were being asked. I was concerned, in the circumstances, that Mr Jenkins was seeking to backtrack on what had been agreed with Professor Marks and on a matter of some significance, Mr Allen QC’s Written Opening Submissions having, indeed, prominently referred to Questions 10.3 and 10.8. Ultimately, however, Mr Jenkins accepted that, were I to decide that there was a period of damaging raised intra-cranial pressure prior to surgery on 23 December 2007, this would have made an unquantifiable, yet more than de minimis, and so a material, contribution to Dr John’s current predicament. I am reluctant, in the circumstances, to accept Mr Allen QC’s submission that Mr Jenkins was seeking to change his opinion and, in so doing, showing a lack of independence inappropriate in an expert witness.[67]It is right to acknowledge that it was also Mr Kennedy’s submission that Professor Marks failed properly to take account of Mr Evans’s operation notes in the report which Professor Marks prepared. Mr Kennedy suggested, in particular, that he engaged in no analysis of the findings which were there noted. Indeed, Mr Kennedy submitted, with some degree of force as I see it, that Professor Marks’s first report, specifically, was lacking in any real analysis, consisting essentially of just one paragraph in which his view that there was raised intra-cranial pressure was somewhat broadly stated. Mr Kennedy particularly criticised Professor Marks for his reliance on the fact that Mr Evans’s note refers to Dr John’s brain being “initially v. swollen” and “pulsatile at end”. Pulsatility is a matter to which I shall return. Mr Kennedy submitted, however, that if, as Professor Marks explained when he came to give evidence, notably in re-examination, this entry “tells us that the ICP was raised” and that Dr John’s brain had been “unhappy” with raised intra-cranial pressure, this is a matter which ought to have been addressed in his reports. I agree with Mr Kennedy about this. As with Mr Jenkins, the operation notes ought to have been dealt with by Professor Marks in his reports and not left until he came to give his oral evidence. Although, as Mr Kennedy pointed out, Professor King acknowledged in cross-examination that the reference to Dr John’s brain being “pulsatile at end” led him to infer that it was not pulsatile at the beginning of the operation which he and Mr Evans performed, it seems to me that this is a legitimate inference, and that as such it is an inference which Professor Marks ought himself to have been able to draw from looking at the operation notes and so without Professor King giving the evidence which he did. In short, therefore, I consider that criticisms can properly be made in relation to the consideration of Mr Evans’s notes by both experts.[68]It is against this background that I must now reach a conclusion as to whether there was or was not damaging raised intra-cranial pressure in Dr John’s brain on 23 December 2007 prior to the operation performed by Professor King and Mr Evans, which it is common ground would have relieved any such pressure had it existed. As I shall explain, based primarily on the evidence which was given by Professor King and on the operation notes prepared by Mr Evans, neurosurgeons who (unlike Professor Marks and Mr Jenkins) actually saw Dr John’s brain on 23 December 2007, my conclusion is that, in all probability, there was damaging raised intra-cranial pressure that day. I have already referred to extracts from Mr Evans’s notes. Besides the extracts to which I have referred, it is worth noting that, amongst other things, they contained the following further observation:
“Mixture of acute + altered blood under high pressure”
. Otherwise, it is instructive to have regard to Professor King’s description of what he saw when he operated on Dr John. This is set out in paragraphs 5 and 6 of his witness statement, as follows:
“5. The craniotomy procedure involved opening a flap of bone in the skull and then opening the dura to get to the subdural haematoma. When I opened the dura, a mixture of acute (new) and altered (longer standing) blood was released under high pressure. There was a lot of brisk venous bleeding which I had to control using diathermy and haemostatic gauze. The venous bleeding may have been caused when the head was opened but I think more likely that it was from the original injury. Were this the case, the raised intracranial pressure caused by the acute subdural haematoma and brain swelling may stop the bleeding – a phenomenon known as tamponade. When the head was opened, the brain was untamponaded and the vein began to bleed again. I would emphasise that so many years after the event I have no direct memory of the operation and therefore no direct memory of the cause of the bleeding. 6. When I opened the Claimant’s head, his brain was very swollen. As noted by Mr Evans, the brain was pulsatile at the end of the procedure. It was not pulsatile at the beginning of the procedure when I exposed the brain. This change from non-pulsatile to pulsatile is common when operating to treat raised intracranial pressure, such as for an acute subdural haematoma. The non-pulsatile brain is evidence of a brain under high pressure, and the return to pulsatility is evidence of reduction in pressure. Raised intracranial pressure is the main cause of secondary harm after head injury, in general terms by preventing the perfusion of oxygenated blood to the brain. As a result, when the brain is under high pressure that blood supply is restricted resulting in the brain being non-pulsatile. Opening the Claimant’s skull and the dura released the pressure on the brain. As noted by Mr Evans, by the end of the operation the Claimant’s brain was pulsatile which reflected restoration of the blood supply.”
[69]When giving oral evidence, specifically in re-examination although it had been implicit in his evidence up to that stage, Professor King confirmed that the purpose of the operation which he and Mr Evans carried out at about 7.30 pm on 23 December 2007 was to “reduce ICP by removing the haematoma”. He then went on to make the point that, had Dr John’s brain not shown signs of raised intra-cranial pressure when it was being operated on, Mr Evans’s notes would have described his brain as being “slack” or there would have been some other reference to the brain not being under pressure. In the circumstances, there being no such references in Mr Evans’s notes, they amounted to “an absolute statement … that the brain is under pressure”. He added that there is “no doubt about that”. In my view, this is important evidence. Professor King was clearly in no doubt that Dr John’s brain was subject to raised intra-cranial pressure when he came to carry out the procedure which he and Mr Evans performed. Mr Kennedy submitted that nonetheless this was not evidence of significantly raised intra-cranial pressure, and so raised intra-cranial pressure which can be characterised as damaging. Mr Kennedy submitted that it is instructive to note that Professor King was invited, in the re-examination exchanges to which I have referred, to agree that Mr Evans’s notes were inconsistent with there being no significantly raised intra-cranial pressure, since, Mr Kennedy suggested, he was reluctant to agree with the adjective “significant”. I cannot accept that Mr Kennedy is right about this, however, since not only did I not detect the reluctance suggested by Mr Kennedy, but it seems to me that what Professor King had to say about Mr Evans’s notes being “an absolute statement … that the brain is under pressure” is quite unequivocal: it is clear to me that, in Professor King’s view, there was raised intra-cranial pressure and not merely that such pressure was slight or insignificant.[70]As I have indicated, I find this evidence, and Professor King’s evidence generally, compelling. It is evidence which I prefer to the evidence given by either of the experts, although I really mean by this the evidence given by Mr Jenkins which was so reliant on looking at the CT brain scan timed at 1.12 pm on 23 December 2007. Indeed, even Mr Jenkins, and this is evidence (contrary to Mr Allen QC’s submissions) that Mr Jenkins was independent, accepted that, on the basis of Professor King’s findings and the evidence which he gave, it was reasonable to conclude that Dr John’s intra-cranial pressure had been raised. This is significant because, even on the Defendant’s case, Dr John’s intra-cranial pressure would not have increased following his seizure, both Mr Jenkins and Dr Sharman agreeing this in cross-examination. As Mr Jenkins agreed, sedation, intubation and ventilation following the seizure would address the raised intra-cranial pressure due to the seizure, but it would not reduce any raised intra-cranial pressure which might already have existed due to the sub-dural haematoma or any of the other factors identified in the joint statement, these includingthe sub-dural haematoma, the contusions and the brain swelling around the contusions. It follows that, as Mr Allen QC submitted, if Dr John had raised intra-cranial pressure at a damaging level by the time of surgery, that had been the position from the point of the seizure at the latest onwards – in other words, for a period of approximately 4 hours.[71]I have concluded, however, based essentially on the opinion expressed by Professor Marks, that there was raised intra-cranial pressure, indeed damaging raised intra-cranial pressure, before Dr John had his seizure, specifically by the time that Dr John was noted by Professor Body soon after midday that Dr John was suffering from expressive dysphasia. I consider that this was the result of raised intra-cranial pressure. Mr Kennedy submitted, however, that the more likely explanation for Dr John’s expressive dysphasia was the fact that there were, as the 1.12 pm scan showed, contusions on Dr John’s brain, specifically focal bruising to the part of the brain which is responsible for expressive speech (namely the Broca’s area, which is in the region of the Sylvian fissure). Mr Kennedy highlighted in this context that Professor Marks accepted in cross-examination that generally contusions are more likely to be a cause of expressive dysphasia than raised intra-cranial pressure. However, Professor Marks made the point, which I accept, that if the contusions were the cause of the expressive dysphasia in Dr John’s case, then Mr Stuart would have noted the expressive dysphasia when he examined him, whether that be at some point before 10.00 am (as Mr Stuart stated) or at some point after 11.00 am (when I consider it more likely that Mr Stuart went to see Dr John). In the circumstances, I reject Mr Kennedy’s submission that the contusions which were apparent in the scan at 1.12 pm were the cause for Dr John’s expressive dysphasia. I consider that, in Dr John’s case, the likely explanation for the expressive dysphasia which Professor Body detected when he saw him in CLDU at some point between noon and 12.30 pm was raised intra-cranial pressure rather than the contusions which were apparent from the scan. The fact that the 1.12 pm scan shows, at best, only “subtle” signs of raised intra-cranial pressure is explained by the fact that, as pointed out in an article written by Patricia C. Davis in the AJNR in September 2007 entitled ‘ACR Appropriateness Criteria’:
“CT is relatively insensitive for detecting increased intracranial pressure or cerebral edema and early demonstration of hypoxic ischemic encephalopathy (HIE) that may accompany head injury.”

I acknowledge that the article goes on to state:

“Early and repeated CT scanning may be required for deterioration, especially in the first 72 hours after head injury, to detect delayed haematoma, hypoxic-ischemic lesions or cerebral edema.”
It is nonetheless clear that scanning will not necessarily reveal raised intra-cranial pressure. It follows that, if it shows raised intra-cranial pressure at all, the fact that the most that the 1.12 pm scan shows are “subtle” signs of such pressure cannot be conclusive of the position. I acknowledge that the article goes on to state:[72]In short, I conclude, on a balance of probabilities, that Dr John was suffering from damaging raised intra-cranial pressure from at least 12.15 pm or thereabouts on 23 December 2007. This means that there was damaging raised intra-cranial pressure for a period in excess of 7 hours by the time that Dr John came to be operated upon at about 7.30 pm. Even if that is wrong, I am clear that, in any event, Dr John was suffering from damaging raised intra-cranial pressure from about the time that he had his seizure. Causation Factual

Causation

[73]In the circumstances, I must obviously now consider what would have happened, on the balance of probabilities, had there not been the negligence on the part of the Defendant which I have found there to have been. I remind myself, for these purposes, that the negligence alleged, and which I have determined there was, is, first, that there was a negligent delay in the performance of the CT brain scan, and secondly, that there was negligence in delaying the request for an ambulance between about 4.30 pm and 5.33 pm. As to the former, although in his Written Closing Submissions Mr Allen QC suggested that it was appropriate to approach the matter on the basis that Dr John could have been sent for a CT brain scan from 8.00 am onwards, I propose instead, consistent with what I have decided concerning breach of duty, to consider what would have happened had a CT brain scan been requested at about 9.00 am and so, given that the evidence was that it would take about 40 minutes or so for scanning then to take place, if Dr John had undergone a CT brain scan at some point between about 9.45 am and 10.00 am.[74]Clearly, had this happened, Dr John’s injuries would have been known somewhat earlier than, in the event, they were – something like three hours earlier given that the CT brain scan carried out after Professor Body had requested it took place soon after 1.00 pm. In that event, there can be no real doubt that what happened after the results were known at about 1.12 pm would have happened in a similar timescale but, obviously, earlier in the day. Specifically, just as Professor Body spoke to the Neurosurgical Registrar at the Hope at about 1.40 pm, so somebody (not Professor Body since he was in CLDU but, although it matters not, probably Mr Stuart or Dr Khawja) would have contacted the neurosurgical team at the Hope in order to request that Dr John’s scan results be looked at. Similarly, based on what actually happened later in the day, the results having been looked at and advice having been received, a decision to transfer, and indeed to do so by means of a ‘blue light’, Professor King having explained that this would be the norm, would have been made. This would have been within an hour of the CT brain scan being performed since, again, this is what happened later, the decision to transfer having being communicated by the Neurosurgical Registrar at the Hope to Professor Body by 2.10 pm. It follows that, if Dr John had been scanned at 9.45 am, the decision to transfer would have been made by 10.45 am, and that if the CT brain scan had been performed at 10.00 am, the decision would have been made by 11.00 am. Mr Allen QC suggested that it would then have taken approximately half an hour from the decision being made to transfer Dr John to his arrival at the Hope. He based this on certain evidence given by Dr Sharman to the effect that he would generally expect it to take 10-15 minutes to prepare the patient for transfer and 15 minutes to transfer the patient to the Hope, as well as on the fact, once the second ambulance had arrived, Dr John was, in fact, transferred from the MRI to the Hope in little more than ten minutes. Depending on when the CT brain scan took place, Dr John would, therefore, have been at the Hope by not later than 11.30 am and possibly as early as 11.15 am. Dr John would then have undergone an assessment by a member of the Hope’s neurosurgical team, something which Professor King explained would have taken place within about 15 minutes of his arrival.[75]As I understood it, Mr Kennedy did not take issue with these matters nor, specifically, with the suggested timings. I confirm that, in my view, Mr Allen QC was right to submit that things would have happened in the way described. Mr Kennedy did, however, dispute that, having been assessed at the Hope at a time when Dr John had not had a seizure, the decision would have been taken to operate. He did so, despite not having challenged Professor King’s evidence, contained in paragraph 11 of his witness statement, as follows:
“I have been asked to consider a number of different scenarios and set out what I/my team would have done in each: (i) An earlier CT scan broadly similar to the CT scan performed at about 13:12 and a reduced GCS (12-14) – I would have proceeded to surgery. I would have expected to operate within two hours of the decision to operate. (ii) An earlier CT scan broadly similar to the CT scan performed at about 13:12 and a normal GCS (15) – I would have proceeded to surgery. I would have expected to operate within two hours of the decision to operate. (iii) An earlier CT scan with a smaller subdural haematoma and a reduced GCS (12-14) – This is the same as (i) above. (iv) An earlier CT scan with a smaller subdural haematoma and a normal GCS (15) – In these circumstances, if the haematoma was significantly smaller, I would probably have opted for conservative management with careful observation and monitoring. Had the Claimant’s GCS fallen and/or had his intracranial pressure increased I would have had a very low threshold to take him to surgery and would have done so. I would have expected to operate within two hours of the decision to operate.”
[76]Although, therefore, reliant on what Professor King had to say, Mr Allen QC submitted that surgery would have commenced at or about 1.45 pm at the latest, it was Mr Kennedy’s position that Dr John would not have been operated upon in such a timescale. Mr Kennedy relied in this context upon a computer record which Professor King explained when he came to give his evidence he had managed to unearth. This record is dated 23 December 2007 and has the time of 2.20 pm at the top, indicating the time when Professor Body spoke to the Neurosurgical Registrar at the Hope, Dr Coope. It contains, amongst other things, the following entry, which was based on Dr Coope’s review of the CT brain scan results he had been able to access on the computer through a programme called ImageLink:
“1.5 cm max left acute sub-dural with left frontal contusion, minimal mass effect.”
Professor King confirmed that he would have been contacted by Dr Coope to be informed about Dr John. He explained that he would generally receive a telephone call “and it would be either to let me know that they were taking him to theatre or do you think we should take him to theatre?”. The record then goes on in the next line to state:
“Transfer for review + neuro obs”
. Based on this entry, it was Mr Kennedy’s submission that what would have happened when Dr John arrived at the Hope was that he would have been reviewed and kept under observation, not that he would have been operated upon. Mr Kennedy underlined this submission with reference to the fact that the record goes on to state at the end:
“15:20 Seizure prior to transfer, no response to lorazepam, intubated + ventilated. Plan – emergency transfer for decompression.”
Mr Kennedy submitted that this demonstrates that it was only because Dr John had had a seizure by the time that he arrived at the Hope that it was decided that he would be operated upon. In other words, but for the seizure, Dr John would not have undergone an operation and so would, in any event, have suffered the seizure which he did at about 3.30 pm since by that time no decision would have been made to operate. Plan – emergency transfer for decompression.”[77]Mr Kennedy also pointed to the fact that, during cross-examination, Professor King had acknowledged that, Dr John having had a seizure, “things were going south in a big way” and agreed that the seizure, as Mr Kennedy put it, “prompted the decision to operate”. This, Mr Kennedy submitted, is supported also by the fact that the computer record produced by Professor King contains a section of text which, Professor King explained, contained his own reflections and prepared the next day. This states:
“This man was found at the bottom of some stairs at 6.30 in the morning. His GCS was 13-14 in that he was slightly drowsy and confused and/or dysphasic. In mid afternoon he had a fit and was intubated and ventilated and therefore I decided to take out the left subdural. He had had a subdural empyema as a child and the haematoma lay below the site of the empyema. The haematoma was evacuated and he was put on ICU with normal ICP’s.”
Mr Kennedy suggested that, in the circumstances, I should conclude that, had Dr John been transferred to the Hope earlier, he would have been kept under neurological observation rather than operated upon, the decision to operate which was, in fact, made by Professor King being a decision which was made only because by the time that he had arrived at the Hope he had suffered a seizure.[78]Mr Kennedy went on to point out that what he suggested would have happened is, furthermore, supported by Professor Marks and Mr Jenkins, whose joint statement contained the following agreement:
“If he had been transferred, with a good conscious level it is likely that he would have undergone a period of monitoring, probably with insertion of an intracranial pressure monitor, together with observation. Had his condition deteriorated or his intracranial pressure been demonstrated to be high or to have risen, he would have been taken to theatre.”
The difficulty with this, however, is that Professor Marks and Mr Jenkins refer to the patient arriving “with a good conscious level”, yet by the time that Dr John had gone to CLDU he had a GCS which was not “good”. Even if Mr Stuart was justified in assessing him as having a GCS of 15/15 at about 11.30 am, which I am willing to assume for present purposes, then a deterioration would have been noticed by Dr Coope or his colleagues either during the initial assessment or soon after Dr John had been put under observation. Accordingly, consistent with what was stated by Professor King in paragraph 11 of his witness statement, Professor Marks and Mr Jenkins would accept, as indeed indicated by the second sentence of the passage quoted, that surgery would be required. More generally, however, I see no reason not to accept Professor King’s evidence as set out in paragraph 11 and so to conclude that Professor King or his team would have decided to operate either when initially assessing Dr John or after noting a deterioration when placing him under observation. The fact that the computer record indicates that the decision to operate came after, and was influenced by, the fact that Dr John had had a seizure does not mean that a decision to operate would not, in any event, have been made after Dr John had arrived at the Hope, and in short order. The reference to Dr John being transferred for review and observation is not a reference which justifies a conclusion that a decision had been made prior to Dr John’s arrival not to operate. As Professor King explained, any decision to operate would only be made after the patient has arrived at the Hope and been assessed by the neurosurgical team.[79]It follows that I accept Mr Allen QC’s submissions on this point. It further follows, therefore, that I consider that Dr John would have been operated upon before he had his seizure, and that Dr John would not have suffered the effects of damaging raised intra-cranial pressure from about 1.45 pm or 2.00 pm, depending on when he had been scanned at the MRI. On this basis, Dr John would have avoided a period of raised intra-cranial pressure for between 5¾ and 6 hours, assuming 15 minutes for initial decompression (as agreed between Professor Marks and Mr Jenkins) during the surgery which took place at 7.30 pm.[80]This, therefore, deals with the first scenario based on there having been negligence in not arranging for, and performing, a CT brain scan sufficiently promptly. In view of my decision as to this matter, it is not strictly necessary to go on and consider what would have happened, had there been no negligence in relation to the arrangement and performance of the CT brain scan, and the only negligence was in relation to the delay in calling for an ambulance to take Dr John to the Hope between about 4.30/4.35 pm and 5.33 pm. If such negligence were, however, to be viewed discretely, then, the position is straightforward. This is because it is quite clear that, had Dr John been transferred to the Hope an hour earlier than was the case, he would have been operated upon an hour earlier than he was. In other words, the operation would have taken place at 6.30 pm rather than 7.30 pm and he would have avoided a period of raised intra-cranial pressure for an hour.

Medical causation

[81]Turning now to the issue of medical causation, namely consideration of the cause of Dr John’s injury in the present case and, specifically, determination as to whether that injury is attributable in a legal sense to the Defendant’s breach or breaches of duty. In addressing this issue, I must, first, deal with a significant dispute between Mr Allen QC and Mr Kennedy concerning the appropriate legal principles.

The law

[82]It has been Dr John’s case from the outset of these proceedings that this is a case in which the classic ‘but for’ test of causation cannot operate since the expert medical analysis does not permit a ‘but for’ assessment to be made. Consistent with this, Mr Allen QC’s argument in his Written Opening Submissions was that Dr John is entitled to compensation for the totality of his injuries without reduction in reliance on the Court of Appeal’s decision in Bailey v The Ministry of Defence[2008] EWCA Civ 883, [2009] 1 WLR 1052. As Mr Allen QC pointed out, that was a case in which the claimant was admitted to hospital suffering from a gall stone which required surgical removal. There was a delay in diagnosis but that was not itself a significant matter. On 11 January 2001 she underwent an endoscopic procedure known as an ‘ERCP’. Her treatment in the aftermath of the ERCP was negligent. As a result, she had to undergo further major procedures over the following days which should not have been necessary and which led to her being in a weakened state. In addition, she developed pancreatitis, which was an unfortunate, but non-negligent, complication of the ERCP. For 12 days she was in intensive care until she was transferred to the renal unit on 26 January. There, she vomited in her sleep and aspirated the vomit, causing her to suffer a cardiac arrest and hypoxic brain damage. Foskett J found at [54] ([2007] EWHC 2913 (QB)), on the strength of the medical evidence, that “the claimant’s generally weakened and debilitated condition on 26 January caused her not to be able to respond naturally and effectively to the emergence of vomit from her gut with the consequence that she inhaled it”. He said this at [60] specifically as regards causation:
“I do not think it can be doubted that there were two components to the weakness of the claimant as at 26 January, both very closely interlinked and having their foundation in the ERCP carried out on 11 January. One component was the weakness engendered by the pancreatitis, the other was the weakness engendered by the consequence of the negligence on 11-12 January which led to a very stormy passage for the claimant ending (purely from a surgical point of view) on 19 January when the packing of the liver was removed. Even leaving out of account the independent effect of the pancreatitis, it defies all common sense to say that she had recovered from the effects of all that by 26 January. I am satisfied, on the balance of probabilities, that she had not and that she was weakened as a result. I cannot say whether the contribution made by this component was more or less than that made by the pancreatitis and it follows that I cannot say whether the contribution made by the pancreatitis was greater or smaller than the contribution of the other component. All I can say is that the natural inference is that each contributed materially to the overall weakness and it was the overall weakness that caused the aspiration.”
[83]Dismissing the defendant’s appeal, Waller LJ explained his thinking at [46]:
“In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson’s case exemplifies such a situation. If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.”
This was after a review by Waller LJ of a number of House of Lords authorities, in particular Bonnington Castings Ltd v Wardlaw [1956] AC 613, McGhee v National Coal Board [1973] 1 WLR 1, Wilsher v Essex Area Health Authority [1988] AC 1074 and the earlier House of Lords decision in Hotson v East Berkshire Area Health Authority [1987] AC 750.[84]Specifically, it was the Bonnington case which led Waller LJ to refer to causation being established “where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible”. The Bonnington case is the case in which a steel dresser was exposed in his employment to silica dust emanating from the pneumatic hammer at which he worked and also from swing grinders, and in which it was decided that, although the defendant employer was not liable for the dust emanating from the hammer because no dust extraction plant was known or practicable, it was liable for the dust which emanated from the swing grinders. Lord Reid addressed the appropriate approach to causation in such a case at page 620 as follows:
“It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of a statutory duty. The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.”
Although Lord Reid’s focus in this passage was on whether the position is different where the case advanced is a case in breach of statutory duty, it is evident that, in his view, the ‘material contribution’ approach is of general application, as demonstrated by his reference to it being “obvious in principle” that a claimant should have to demonstrate that the relevant “fault caused or materially contributed to his injury”. The point is underlined by this later passage in which Lord Reid stated as follows at page 621:
“The medical evidence was that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years. That means, I think, that the disease is caused by the whole of the noxious material inhaled and, if that material comes from two sources, it cannot be wholly attributed to material from one source or the other. I am in agreement with much of the Lord President's opinion in this case, but I cannot agree that the question is: which was the most probable source of the respondent's disease, the dust from the pneumatic hammers or the dust from the swing grinders? It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.”
[85]Mr Allen QC relied also on a very recent Privy Council case, decided the week before the start of the trial in the present case, in which the Bailey case was considered, namelyWilliams v The Bermuda Hospitals Board [2016] UKPC 4. In that case the claimant attended at hospital with abdominal pain; he was suffering from acute appendicitis. An immediate CT scan was required but it was delayed as a result of the defendant’s negligence and this, in turn, resulted in a delay in the operation which the claimant required. The judge decided that, following the claimant’s arrival at hospital, his appendix had ruptured leading to widespread pus and infection throughout his pelvic region, and, importantly, that that process had commenced before surgery would have been performed in the ‘but for’ scenario. It follows that the claimant would have suffered from a ruptured appendix in any event, and also that there would have been an established infection with an accumulation of pus over the non-negligent period prior to surgery regardless of any negligence. The judge nonetheless went on to find that, as a result of the defendant’s negligence and the consequent delay in surgery, there was a period over which further pus accumulated in the claimant’s pelvic region: a delay in the order of 2 hours and twenty minutes to 4 hours and fifteen minutes. The accumulation of pus in the claimant’s pelvic region led to myocardial ischaemia. During surgery his blood pressure became precariously low. He suffered some form of myocardial ischaemic event and lung complications, requiring life support in the intensive care unit. The judge found, in summary, that sepsis from the ruptured appendix caused injury to his heart and lungs. The judge went on to hold that, whilst it was possible that the complications that the claimant developed during and after surgery might have been avoided had an immediate CT scan been obtained and interpreted promptly, he was not satisfied that they probably would have been avoided. The Bermudan Court of Appeal overturned the judge’s finding on causation, deciding (as Lord Toulson summarised it in the Privy Council at [19]) as follows:
“He [Ward JA] held that the trial judge was in error ‘by raising the bar unattainably high’ in his finding that Mr Williams had failed to prove his case. The proper test of causation he said, was not ‘whether the negligent delay and inadequate system caused the injury to [Mr Williams] but rather whether the breaches of duty by [the hospital board] contributed materially to the injury’. That the breaches contributed materially to the injury was in his view beyond argument. He stated that the ‘but for’ test is sometimes relaxed to enable a claimant to overcome the causation hurdle when it might otherwise seem unjust to require the claimant to prove the impossible, and he referred to Bailey v. Ministry of Defence [2009] 1 WLR 1052 (CA) as a case in which the ‘but for’ rule was modified.”
[86]On appeal, Lord Toulson addressed the appellant’s argument that the ‘material contribution’ approach only applies in cases of concurrent or simultaneous causes, and not also to sequential or cumulative causes. He did this at [39] and [40]:
“39. The sequence of events may be highly relevant in considering as a matter of fact whether a later event has made a material contribution to the outcome (as Hotson illustrates), or conversely whether an earlier event has been so overtaken by later events as not to have made a material contribution to the outcome. But those are evidential considerations. As a matter of principle, successive events are capable of each making a material contribution to the subsequent outcome. 40. A claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which is attributable to a wrongful act or omission of the defendant: Wilsher v. Essex Area Health Authority … . In such a case the claimant will not have shown as a matter of probability that the factor attributable to the defendant caused the injury, or was one of two or more factors which operated cumulatively to cause it. In Wilsher the injury was a condition known as retrolental fibroplasia or RLF, to which premature babies are vulnerable. The condition may be caused by various factors, one of which is an over supply of oxygen. The claimant was born prematurely and, as a result of clinical negligence he was given too much oxygen. He developed RLF, but it was held by the House of Lords that it was not enough to show that the defendant’s negligence added to the list of risk factors to which he was exposed. The fact that the administration of excess oxygen was negligent did not warrant an inference that it was a more likely cause of the RLF than the various other known possible causes. The House of Lords distinguished the case from Bonnington in which the injury was caused by a single known process (the inhalation of dust).”
[87]Lord Toulson then addressed the criticism made by the appellant of the Bailey case, saying as follows:
“47. In the view of the Board, on those findings of primary fact Foskett J was right to hold the hospital responsible in law for the consequences of aspiration. As to the parallel weakness of the claimant due to her pancreatitis, the case may be seen as an example of the well known principle that a tortfeasor takes his victim as he finds her. The board does not share the view of the Court of Appeal that the case involved a departure from the ‘but for’ test. The judge concluded that the totality of the claimant’s weakened condition caused the harm. If so, ‘but for’ causation was established. The fact that her vulnerability was heightened by her pancreatitis no more assisted the hospital’s case than if she had an egg shell skull.”
[88]It was Mr Allen QC’s submission in his Written Opening Submissions, and it remained his position in closing, that, applying this approach, in Dr John’s case, the injury sustained by him being brain damage leading to cognitive and neuropsychological impairments, he is entitled to succeed in his claim against the Defendant if he is able to show that the Defendant’s negligence resulted in a period of delay over which he suffered from damaging raised intra-cranial pressure which materially contributed to his brain damage. If, Mr Allen QC submitted, it is established that Dr John had raised intra-cranial pressure which was damaging, then he will make out his case that it made a ‘material contribution’ to his brain damage and, following the Bailey and Williams approach, causation will be proven.[89]Mr Kennedy’s position in his Written Opening Submissions was that this was not right as a matter of legal analysis. He submitted that, even if Dr John were to establish that the Defendant’s negligence caused him brain damage and that that damage caused or materially contributed to Dr John’s neuropsychological deficits, legal causation would nonetheless still not be established since the correct approach to apply is the Wilsher ‘but for’ test of causation. By this, Mr Kennedy meant that ‘material contribution’ is insufficient to establish causation, whether ‘material contribution’ represents a departure from the ‘but for’ test (as Waller LJ considered in the Bailey case) or application of the ‘but for’ test (as Foskett J in the Bailey case and Lord Toulson in the Williams case considered). It is this distinction, as drawn by Mr Kennedy, to which I refer in what follows when referring, on the one hand, to the ‘but for’ test and the ‘material contribution’ test, even though, consistent with the approach adopted by Foskett J in the Bailey case and Lord Toulson in the Williams case, strictly speaking the latter may very well entail application of the former.[90]Mr Kennedy placed particular reliance on the fact that, in the Wilsher case, Lord Bridge stated, at pages 1090F-1091D, that he was unable to find fault in the dissenting judgment of Sir Nicolas Browne-Wilkinson V-C (as he then was) in the Court of Appeal in that case when he said this (at page 779):
“To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer's dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer's skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz., brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust. In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff's RLF may have been caused by some completely different agent or agents, e.g. hypercarbia, intraventricular haemorrhage, apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case. The position, to my mind, is wholly different from that in the McGhee case where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”
[91]Mr Kennedy went on to highlight the fact that in the Bailey case the single candidatethat caused the claimant to aspirate was her weakness (like the brick dust in the McGhee case) and negligent and non-negligent factors contributed to this. Similarly, in the Williamscase, Mr Kennedy suggested, Lord Toulson recognised the distinction between cases such as Wilsher where, as it was put at [40], the “claimant’s injury is likely to have been caused by one or more of a number of disparate factors” and a case where there was “a single known agent, sepsis from the ruptured appendix” (see [41]). Mr Kennedy submitted that in the present case, if there was raised intra-cranial pressure attributable to the Defendant’s negligence, then that (the negligence) was merely one of a number of disparate factors, the others being the initial head injury and post-operative sub-dural infection, which may have caused Dr John’s brain damage. In those circumstances, it was Mr Kennedy’s submission that the ‘but for’ test was the correct test of causation to apply. On that basis, Mr Kennedy submitted that it is not sufficient for it to be established by Dr John merely that the raised inter-cranial pressure made a ‘material contribution’ to the brain damage suffered by him. Accordingly, he submitted, it is not open to Dr John to rely on the Bailey approach and thereby recover in respect of the totality of the damage he has suffered. In his Written Closing Submissions, it appeared that Mr Kennedy was maintaining the stance that it is only if Dr John can satisfy the ‘but for’ test of causation that he would be in a position to succeed in this case. In particular, Mr Kennedy maintained, at some length, that the ‘material contribution’ approach “exemplified”, as Mr Kennedy put it, by the Bonnington, Bailey and Williamscases is inapplicable in a case such as the present because these were all cases in which a ‘single agency’ was involved and so were not multiple factor cases like Dr John’s case. In this respect, Mr Kennedy relied on the passage at page 621 of Lord Reid’s judgment in the Bonnington case as set out above, as well as on the fact that the Bailey case also involved a ‘single agency’, namely what was described by Foskett J as “the overall weakness” of the claimant in that case which caused the aspiration in respect of which the claim was brought.[92]Mr Kennedy, however, adopted a different stance during the course of his oral submissions, his modified position being that he accepted that ‘material contribution’ would be sufficient in Dr John’s case, but nonetheless maintained his argument that Dr John ought not to be permitted to recover in respect of the entirety of his injuries on the basis of the Bailey approach. Rather, Mr Kennedy submitted, since this is not a ‘single agency’ case but a case in which, as he put it, there were “three different agents each operating by a different mechanism to cause damage”, so the Bailey approach is inapplicable. Mr Kennedy highlighted, in particular, in this context that, in the Williamscaseat [35], Lord Toulson rejected the appellant’s attempt to distinguish the Bonnington case on the ground that there was a requirement that the contributory causes act simultaneously. On the facts of theBonnington, Bailey and Williamscases, he submitted, the non-negligent and negligent factors operated cumulatively and either concurrently or successively and, if successively, in close succession. In none of these cases, Mr Kennedy pointed out, was a further unrelated and non-negligent factor introduced days or weeks after a negligent factor, namely in Dr John’s case the post-operative infection. In these circumstances, Mr Kennedy submitted, apparently notwithstanding his ultimate acceptance (during his oral closing submissions, although not in his Written Closing Submissions) that the ‘material contribution’ approach is appropriate in Dr John’s case, that it would run counter to principle were Dr John able to recover in respect of the entirety of his injuries. It was Mr Kennedy’s submission, in these circumstances, that if I were to conclude that raised intra-cranial pressure materially contributed to Dr John’s injury, then I should go on to apportion damages between the tortious and non-tortious causes. He argued that a finding that the Defendant’s negligence materially contributed to Dr John’s injury does not automatically entitle Dr John to compensation for the totality of his injuries without reduction. Indeed, he submitted, on the facts of this case, such an outcome would be to permit what he described as “a significant injustice” as it would require the Defendant to compensate Dr John for injuries which, again as Mr Kennedy put it, “manifestly it could not have caused as they either preceded any negligence or post-dated any negligence by at least a week”.[93]In support of this contention, Mr Kennedy relied on Holtby v Brigham & Cowan Ltd [2000] ICR 1086. In that case, the claimant was exposed to asbestos dust for many years of his working life as a marine fitter from 1942 to 1981, approximately half of which he spent with the defendants and the remainder of which he spent with various other employers. The extent of his exposure to asbestos dust was similar throughout the period. In 1996 he was diagnosed as suffering asbestosis and he claimed damages against the defendants for negligence. The judge found that the defendants had been negligent and had materially contributed to the claimant’s disability, but he reduced the general damages which he awarded in respect of the claimant’s disability by 25% on the basis that the effects of exposure were cumulative and that the defendants were liable only for that proportion of the damage which they had caused, albeit that they had not pleaded that others had also contributed to the claimant’s disability. Mr Kennedy highlighted how, therefore, this was a case in which Stuart-Smith LJ concluded that, even in a ‘material contribution’ to injury case, the defendants were only liable to the extent of their contribution to the damage sustained by the claimant. Mr Kennedy relied specifically on what was stated by Stuart-Smith LJ at [20], referring to the Bonnington, McGhee and Wilsher cases: “… In my judgment, as the passages cited from the three House of Lords decisions show, the onus of proving causation is on the claimant; it does not shift to the defendant. He will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will succeed in full as in Bonnington Castings Ltd. v. Wardlaw … and McGhee v National Coal Board … . I agree with Judge Altman that strictly speaking the defendant does not need to plead that others were responsible in part. But at the same time I certainly think it is desirable and preferable that this should be done. Certainly the matter must be raised and dealt with in evidence, otherwise the defendant is at risk that he will be held liable for everything. In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day, and on consideration of all the evidence, the claimant has proved that the defendant is responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense, as Lord Salmon said in the passage cited. …”.[94]Mr Kennedy submitted that this is the approach which should be adopted in the case of Dr John, his core submission being that whether the exercise of apportionment entails identifying the loss and damage for which the Defendant is responsible or taking account of non-tortious preceding and intervening events in the assessment of damages is immaterial since the objective is the same: to ensure, so far as is possible, that the Defendant compensates Dr John to the extent of its contribution to his loss and damage, and not further. On this basis, it was Mr Kennedy’s submission that any raised intra-cranial pressure was the least significant causative factor when compared with the initial brain injury and the post-operative infection. Intuitively, Mr Kennedy suggested, it is unlikely that raised inter-cranial pressure would produce discrete and separate damage. Applying common sense, therefore, Mr Kennedy invited me to apportion and thereby substantially reduce any damages awarded to Dr John.[95]I shall come on shortly to deal with this submission. First, however, and even though ultimately Mr Kennedy did not press his submission that the ‘material contribution’/Bonnington approach is inappropriate in a case like the present, a case which is not a ‘single agency’ case, I should explain that that is not a proposition which I would regard as correct as a matter of law. First, as I have previously mentioned, nowhere in the Bonnington case itself is there a suggestion that the ‘material contribution’ approach is confined to ‘single agency’ cases. On the contrary, I repeat that Lord Reid appeared to view the ‘material contribution’ approach as being of general application, as demonstrated by his reference to it being “obvious in principle” that a claimant should have to demonstrate that the relevant “fault caused or materially contributed to his injury”. Secondly, as Mr Allen QC pointed out, there was no suggestion in the Wilsher case that if the claimant in that case had been able to prove that there had been negligent administration of excess oxygen, as opposed to the other factors which were at play and which were not the result of negligence (apnoeia, hypercarbia, intraventricular haemorrhage and patent ductus arteriosus), which had caused or materially contributed to his condition, a matter on which there was conflicting medical evidence and in relation to which the trial judge made no relevant findings, the claimant would have been unable to recover to the full extent claimed. Rather than make such findings, the trial judge had concluded that where one of a number of possible causes of the claimant’s injury was negligence on the part of the defendant, it was legitimate to reverse the burden of proof and to find causation established where the defendant failed to prove that the negligence had not caused or materially contributed to the claimant’s injury. The trial judge did this in reliance on the McGhee case, and the Court of Appeal (by a majority, with Sir Nicolas Browne-Wilkinson V-C dissenting) agreed with such an approach. As made clear from the passage in Lord’s Bridge’s judgment at pages 1090F-1091D, as set out above, the House of Lords, however, did not agree with the trial judge and the Court of Appeal. On the contrary, it is clear from the following passage earlier in Lord Bridge’s judgment, at pages 1081H-1082B (my emphasis added), that, in what was not a ‘single agency’ case, if the claimant had demonstrated that the negligence of the defendant made a ‘material contribution’, this would have been sufficient to establish causation:
“…what, if any, part artificial administration of oxygen causing an unduly high level of PO2 in Martin’s arterial blood played in the causation of Martin’s RLF was radically in dispute between the experts. There was certainly evidence led in support of the plaintiff's case that high levels of PO2 in general and, more particularly, the level of PO2 maintained when the misplaced catheter was giving misleadingly low readings of the level in the arterial blood were probably at least a contributory cause of Martin's RLF. If the judge had directed himself that it was for the plaintiff to discharge the onus of proving causation on a balance of probabilities and had indicated his acceptance of this evidence in preference to the contrary evidence led for the authority, a finding in favour of the plaintiff would have been unassailable. …”
. If there were any doubt about this, the position seems to me to be made clearer still by the passage which follows Lord Bridge’s approval of the approach adopted by Sir Nicolas Browne-Wilkinson V-C. This is at page 1091E-F and reads as follows (again with my emphasis added):
“Since, on this view, the appeal must, in any event, be allowed, it is not strictly necessary to decide whether it was open to the Court of Appeal to resolve one of the conflicts between the experts which the judge left unresolved and to find that the oxygen administered to Martin in consequence of the misleading PO2 levels derived from the misplaced catheter was capable of having caused or materially contributed to his RLF. I very well understand the anxiety of the majority to avoid the necessity for ordering a retrial if that was at all possible. But having accepted, as your Lordships and counsel have had to accept, that the primary conflict of opinion between the experts as to whether excessive oxygen in the first two days of life probably did cause or materially contribute to Martin’s RLF cannot be resolved by reading the transcript, I doubt, with all respect, if the Court of Appeal were entitled to try to resolve the secondary conflict as to whether it could have done so. Where expert witnesses are radically at issue about complex technical questions within their own field and are examined and cross-examined at length about their conflicting theories, I believe that the judge’s advantage in seeing them and hearing them is scarcely less important than when he has to resolve some conflict of primary fact between lay witnesses in purely mundane matters. So here, in the absence of relevant findings of fact by the judge, there was really no alternative to a retrial. At all events, the judge who retries the issue of causation should approach it with an entirely open mind uninfluenced by any view of the facts bearing upon causation expressed in the Court of Appeal.”
[96]That ‘material contribution’ is an appropriate test in a case like the present is further confirmed by an even more recent decision than the Williams case, a decision of the Court of Appeal on the very day that Mr Allen QC and Mr Kennedy were addressing their closing submissions to me and a decision about which I learned by means of a Lawtel update the next day: Heneghan v Manchester Dry Docks Ltd & Others [2016] EWCA Civ 86, a case about asbestos-caused lung cancer. During the course of various periods of employment with different employers (some of whom were defendants and some of whom were not defendants), the claimant’s father, Mr James Heneghan, was tortiously exposed to asbestos which subsequently resulted in lung cancer. The claimant relied on expert medical evidence which he suggested demonstrated that the asbestos exposure for which the defendants were liable had materially contributed to the development of his cancer. He, accordingly, argued that he could recover in respect of the entirety of his father’s injury on the basis of the approach adopted in the Bonningtoncase. The defendants’ position was that the expert evidence did not demonstrate material contribution to the development of Mr Heneghan’s cancer, albeit that they accepted that it did demonstrate material contribution to the risk of Mr Heneghan developing cancer. Their argument, in short, was that the case was not a Bonnington case but a case like Fairchildv Glenhaven Funeral Services Ltd [2003] 1 AC 32, with the consequence that Mr Heneghan was able to recover only in respect of a proportion of the compensation which he sought. Jay J rejected the claimant’s argument, deciding that the medical evidence demonstrated no more than the fact that the asbestos exposure for which the defendants were responsible materially contributed merely to the risk of his father developing lung cancer, so entitling the claim to succeed by reason of the special and essentially policy-driven approach adopted in industrial disease cases such as the Fairchild case but not to the full extent claimed based on the claimant’s reliance on the Bonnington case and the argument that there had been a ‘material contribution’ to Mr Heneghan’s injury (the cancer). The Court of Appeal agreed with Jay J about this. In explaining his reasoning, Lord Dyson MR helpfully summarised at [23] the different ways in which causation can be established:
“There are three ways of establishing causation in disease cases. The first is by showing that but for the defendant's negligence, the claimant would not have suffered the disease. Secondly, where the disease is caused by the cumulative effect of an agency part of which is attributable to breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty made a ‘material contribution’ to the disease: Bonnington Castings Ltd v Wardlaw …. The disease in that case was pneumoconiosis which is a divisible disease (i.e. one whose severity increases with increased exposure to the agency). Thirdly, where causation cannot be proved in either of these ways, for example because the disease is indivisible, causation may be established if it is proved that the defendant materially increased the risk of the victim contracting the disease: the Fairchild exception. Mesothelioma is an indivisible disease.”
Later on, at [45], Lord Dyson MR made the point that “there is a fundamental difference between making a material contribution to an injury and materially increasing the risk of an injury”. As he pointed out, if “the two were the same, Fairchild would not have been seen to be the ground-breaking decision that it was”.[97]Dr John’s case is not an industrial disease case. As such, it is not a case about contribution to risk, but is a case which is concerned with material contribution to injury or damage. As such, and unlike a case which has as its focus risk rather than injury or damage where for causation to be made out there needs to be a single agent, the ‘material contribution’ approach applies to both single agency and multiple factor cases. This is the point which was made by Lord Bingham in the Fairchild case at [22] when considering the Wilsher case. Lord Bingham explained that:
“It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage.”
Accordingly, I am in no doubt that Mr Kennedy was ultimately right to accept that the ‘material contribution’ approach is appropriate in a case such as the present. There is no reason in principle why that should not be the case. Nor is there any authority which mandates such a conclusion. In short, the ‘material contribution’ approach applies, in my view, just as much to multiple factor cases as it does to ‘single agency’ cases.[98]This brings me, then, to Mr Kennedy’s submission that in a case such as the present the Court should engage in an apportionment exercise of the sort carried out in the Holtby case. I cannot accept that this can be right. First, I am in some doubt how this argument can work in circumstances where, as Mr Kennedy accepted during closing submissions, if the ‘material contribution’ test has been satisfied, then causation is made out. It seems to me that, if that is the position, then if the evidence is such that it is not possible to attribute particular damage to a specific cause, the claimant must be entitled to recover in respect of the entirety of his or her loss.[99]Secondly and in any event, I am quite clear that apportionment is not appropriate where it is not merely difficult but is impossible to allot particular loss to a particular cause. The Holtby case itself makes this clear since that was a case in which it was not impossible but merely difficult to work out what damage had been caused by particular factors. This is apparent from the passage in Stuart-Smith LJ’s judgment on which Mr Kennedy himself relies, namely [20], in which reference is made to the “question of quantification” being possibly “difficult”, as opposed to impossible. Stuart-Smith LJ cited with approval the following observations made by Mustill J (as he then was) in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] ICR 236 at pages 274-275:
“…whatever the position might be if the court were to find itself unable to make any care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such.” findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or for the plaintiffs in full, or on some wholly arbitrary basis such as an award of 50 per cent., I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. …”
. This is not talking about impossibility of attributing cause but about difficulty and impossibility of making a precise apportionment. The two things are not the same.[100]The point is further reinforced by Clarke LJ (as he then was) saying the following at [37] (with my emphasis added), albeit by way of postscript and whilst dissenting:
“… although I have expressed a different view from that expressed by Stuart-Smith L.J., I entirely agree with him that in reality these cases should not be determined by onus of proof. That seems to me to be so whatever the correct view of where the burden of proof lies. That is because, as Mustill J. put it in Thompson v. Smiths Shiprepairers (North Shields) Ltd [1984] ICR 236274 g, ‘The fact that precise quantification is impossible should not alter the position. …’”
. In contrast, the Bailey and Williams cases are cases where it was impossible, not merely difficult, to attribute particular causes to particular loss. The present case likewise entails impossibility rather than simply difficulty. As such, it is not an appropriate case for an apportionment exercise of the sort advocated by Mr Kennedy.[101]I note also that in the Heneghan case there was no suggestion that damages should have been apportioned had the claimant established material contribution to his father’s cancer. As Mr Allen QC pointed out in a note dealing with the Heneghan case, my having invited Mr Allen QC and Mr Kennedy to comment on the case, Lord Dyson MR made the following observation at [36] concerning the evidence given by Dr Rudd (the claimant’s medical expert, and also the claimant’s expert in the Fairchild case): “… The battle lines in that case were similar to those in the present case. As the judge recorded at para 8.13 of her judgment, Dr Rudd (for the claimants) said (as in the present case) that in any individual case where a victim develops lung cancer after exposure to two sources of asbestos, both exposures will on the balance of probabilities have contributed materially to the carcinogenic process which resulted in the development of the cancer. Every exposure to a carcinogen will play a part in the carcinogenic process going on in an individual's body. Dr Rudd accepted that, in any individual case, it was not possible to say what had "caused" the ultimate step that had resulted in the formation of the malignant cell leading to the cancer. At para 8.21, the judge recorded that Dr Rudd had said that, if he had been asked the same questions now as he had been asked during the Fairchild case, he would have said that it was probable that the asbestos fibres from each source had contributed to the carcinogenic process. This would mean that there was no need for the Fairchild exception at all: in a claim arising from mesothelioma, the claimant should succeed 100% on the basis of the material contribution to damage principle. I agree with Mr Allen QC that this demonstrates that in ‘material contribution’ to damage cases (as opposed to ‘material contribution’ to risk cases) the claimant is able to recover in relation to the entirety of his or her injury without apportionment in the manner suggested by Mr Kennedy.

The expert evidence

[102]Accordingly, I now come on to consider whether it has been established in the present case that the damaging raised intra-cranial pressure experienced by Dr John on 23 December 2007, whether from the time that he was found by Professor Body to be displaying expressive dysphasia or from the time that Dr John had his seizure, made a ‘material contribution’ to Dr John’s injury. The issue here is, in circumstances where there is no question that the initial brain injury and the post-operative infection caused some brain damage which would have resulted in some degree of cognitive and neuropsychological impairment, whether the damaging raised intra-cranial pressure attributable to the Defendant’s negligence made a ‘material contribution’ to this impairment. As I shall briefly explain, my conclusion is that this has, indeed, been established.[103]Indeed, ultimately and despite Mr Jenkins and Dr Mallen possibly suggesting otherwise when giving their evidence, the experts (Professor Marks, Mr Jenkins, Dr Ford and Dr Mallen) were all agreed that this is the position. As to Professor Marks and Mr Jenkins, I have previously referred to their answers to Questions 10.3 and 10.8 of their joint statement. Question 7 is also significant in the present context:
“Do you agree that the following are capable of causing or contributing to the Claimant’s brain injury: 7.1 The initial trauma. 7.2 An extended period of raised intracranial pressure. 7.3 The post-operative infection.”
Professor Marks’ and Mr Jenkins’s response was as follows:
“Taken literally, these factors are all capable of causing or contributing to brain injury. AJ [Mr Jenkins] does not believe that there was an extended period of raised intracranial pressure sufficient to cause brain injury; PM [Professor Marks] believes that there was.”
Furthermore, as I have previously explained, despite some exchanges in which he appeared to be casting doubt on the position, in the end Mr Jenkins accepted that, were I to decide that there was a period of damaging raised intra-cranial pressure prior to surgery on 23 December 2007, this would have made an unquantifiable yet more than a de minimis contribution to Dr John’s impairments, and that it is not possible to separate out the relative contribution of the three factors identified in Question 7. Professor Marks’ and Mr Jenkins’s response was as follows:[104]Dr Ford shared this view, making it plain that it is not possible to separate out the relative contribution of each pathology. It was also agreed by all four experts that the function of the brain is more sophisticated than what might be termed a ‘locational’ analysis of brain function which entails attributing particular functions to particular parts of the brain. As Mr Allen QC highlighted in his Written Closing Submissions, Dr Ford explained that slow processing speed (a global function) will adversely affect word finding (primarily a left hemisphere function), and working memory and processing speed (both global functions) underpin executive function (primarily a frontal lobe function). Dr Ford also disagreed with the proposition put to her in cross-examination that the effects of the post-operative infection would, as Mr Kennedy put it, “wipe out” the effects of the damaging raised intra-cranial pressure experienced by Dr John on 23 December 2007. She explained that the post-operative infection would simply, in neuropsychological terns, “add” to what had gone before, and that the post-operative infection would “not take away a problem which was already there”. Ultimately, Dr Mallen seemed not to quibble with this. Indeed, Mr Kennedy accurately pointed out in his Written Closing Submissions that there was a substantial measure of agreement between Dr Ford and Dr Mallen as to Dr John’s current neuropsychological deficits and their aetiology. Dr Mallen accepted that, were it to be decided that there was, say, 6 hours of damaging raised intra-cranial pressure (6 hours being merely an example given by Mr Allen QC), then “that made a material contribution”[105]In view of the common stance adopted by the experts, all four of them, I must obviously conclude that causation has been established in this case. It follows that my decision is that Dr John is entitled to recover without deduction.

Quantum

[106]A number of issues arise in relation to quantum. I deal with these, in turn, in what follows.

Pain, suffering and loss of amenity

[107]The first issue concerns the claim for pain, suffering and loss of amenity. Mr Allen QC submitted that the appropriate level of damages is £100,000. Mr Kennedy, on the other hand, contended for a lower figure, namely £60,000. In this context, both Mr Allen QC and Mr Kennedy referred to the relevant Judicial College Guidance, which states as follows:
“3(A)(c)(ii) Cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy (unless a provisional damages order provides for this risk). £69,000 to £114,100 3(A)(c)(iii) Cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any dependence on others is very limited. £32,725 to £69,000”
. Mr Allen QC submitted that the correct bracket in Dr John’s case is 3(A)(c)(ii), whereas Mr Kennedy favoured 3(A)(c)(iii). I agree with Mr Allen QC about this. I am satisfied that Dr John’s case is one which entails a moderate to modest intellectual deficit, not merely that concentration and memory have been affected. I consider also that this is a case in which it can legitimately be said that Dr John’s ability to work has greatly reduced. In these circumstances, whilst acknowledging that the level of damages ought not to be at the very top of the appropriate bracket in 3(A)(c)(ii), nonetheless it should be towards the upper end. I am clear, therefore, that the appropriate figure recovery is £100,000, to which interest will need to be added at what I understand to be an agreed rate, namely 7.47%. Accordingly, the total amount payable is £107,470.

Care and assistance

[108]There is a care and assistance claim amounting to £25,103.66. As I understand it, there was no dispute about this as a figure. Mr Kennedy’s submission was, rather, that there should be a discount which reflects the care and assistance which Dr John would have required, in any event, given the initial injury he sustained in the fall and given the post-operative infection which he went on to endure. Mr Kennedy invited me, in the circumstances, to award merely a percentage to reflect, as he put it, a broad assessment of the contribution to his brain injury made by the damaging raised intra-cranial pressure suffered by Dr John on 23 December 2007. In view of my conclusion concerning Mr Kennedy’s reliance on the Holtby case, I decline to make such a reduction. The parties are agreed that interest from 9 April 2009, the relevant start date, adds £977.34 to this aspect of the claim.

Loss of earnings

[109]Coming into the trial, Dr John’s claim in respect of past loss of earnings was put forward on the basis that earnings could be recovered in respect of an eight year period: specifically that Dr John is entitled to recover 4 years’ full loss of earnings, and then a further 4 years’ partial loss of earnings. Ultimately, however, acknowledging that there would, in any event, have been some delay in Dr John’s return to work owing to the injury sustained in Dr John’s fall, Mr Allen QC accepted that the claim should be reduced by six months to reflect this. This reflects an acknowledgment by Mr Allen QC that, whereas until 2012 it was legitimate for Dr John not to work to allow for his legitimate attempts to return to work as a GP, after 2012 it is appropriate to regard Dr John as having a residual earning capacity of £5,000, calculated on the basis of part-time work in an administrative capacity. I agree that this is appropriate, making the total claim one which covers a 7 ½ year period and not the 8 year period originally claimed.[110]Mr Kennedy’s submission was, however, that nothing is recoverable because Dr John has made no attempt to find employment, something which he confirmed in cross-examination when he explained that his focus throughout has been on returning to practice as a GP. I cannot accept that submission. It seems to me that it was not unreasonable for Dr John to do what he could to achieve this aim, and that he should not be penalised, in effect, for doing so. Mr Kennedy’s argument amounts essentially to a contention that Dr John has failed to mitigate, yet I do not consider that Dr John’s conduct has been unreasonable. It follows that I accept that Mr Allen QC is right and that Dr John is entitled to recover in respect of the 7½ years to which the claim for past loss of earnings relates.[111]The parties are agreed that Dr John’s residual actual earnings are no more than £5,000 per annum. Mr Allen QC submitted, and it was agreed, that the totality of Dr John’s injuries (to which the damaging raised intra-cranial pressure made a ‘material contribution’) prevent him from working at anything other than the most basic part-time level. The parties are not, however, agreed as to the appropriate ‘but for’ earning capacity. It is clear, based not least on Dr Ford’s evidence, that, in all probability, it is unlikely that Dr John would have returned to work as a GP given the demands of that role. However, it is not easy to say precisely what his earning capacity would have been, other than that it would have been greater than it is now. Mr Allen QC submitted that, although in the ‘but for’ scenario Dr John would have suffered some minor cognitive deficits which would have prevented him from working as a GP, Dr John would have been capable of working full-time and in a role drawing on his degree level qualification and medical experience. He suggested that, with only minor cognitive impairment, Dr John would have been capable of full-time work, adding that, even in his injured state, Dr John has not lost his desire or ambition to work. The obstacle to work, Mr Allen QC explained, is not lack of motivation or initiation; it is his profound cognitive and neuropsychological deficits. Mr Allen QC submitted that net annual earnings for such a role in the order of £25,000 a year would be appropriate, therefore, for Dr John’s ‘but for’ earning capacity. He added that £25,000 is a level of figure which recognises that Dr John might have earned more, and so is nothing like a ‘high point’ but instead represents a sensible balance.[112]Mr Kennedy did not agree. He highlighted how Dr Ford acknowledged when she gave evidence in relation to Dr John’s ‘but for’ employment potential that it is unlikely that, even excluding the effects of damaging raised intra-cranial pressure, Dr John would have been able to work as a biological scientist. Dr Ford agreed, essentially, that the combined effects of the initial brain injury and the post-operative effect had “clobbered” Dr John from an employment perspective, albeit that in re-examination Dr Ford agreed that it was not possible to make a balance of probabilities prediction. Mr Kennedy reminded me, in particular, that when it was suggested to her that Dr John might have been able to obtain work as a biological scientist (an example which had been given in the updated schedule of loss), she indicated that she thought that unlikely. The most that Dr Ford could really say was that, in the ‘but for’ scenario, Dr John might have been at a level above that of an administration clerk (the type of employment which it is accepted that Dr John could now perform) but how far above she was unable to say. Mr Kennedy suggested also that, in making the assessment about Dr John’s ‘but for’ earning capacity, I should take into account the restrictions which are unrelated to any damaging raised intra-cranial pressure, pointing in particular to Dr John’s inability to drive and his restricted ability to read and use a computer, factors which Mr Kennedy suggested by themselves call into question whether Dr John would have been able to work, for example, as a medical researcher as is also suggested in the ‘but for’ scenario described in the updated schedule of loss.[113]Mr Allen QC responded by submitting that, if there is to be any reduction from the £25,000 ‘but for’ earning capacity figure which he put forward, it should only be modest. He suggested, in particular, that it would be wholly unrealistic to reduce the ‘but for’ level of earning by too great an amount, pointing out that in his Written Closing Submissions, possibly purely for illustrative purposes, Mr Kennedy had given a figure of just £7,500 by way of ‘but for’ earnings, so resulting in a very modest loss of £2,500 a year. Mr Allen QC submitted that Dr John would have been bound to have earned more than this level of income, highlighting also that, whilst Dr Ford agreed that Dr John would have been unable to return to work as a GP, it does not follow that his earning ability would have been as limited as suggested by Mr Kennedy. I consider that there is some force in these observations. Doing my best, in the circumstances, and inevitably adopting something of a broad brush approach, it seems to me that, on a balance of probabilities, Dr John would have struggled to earn at a level of £25,000 per annum. Equally, however, I cannot accept that the ‘but for’ level of earnings would have been as low as the £7,500 put forward by Mr Kennedy by way of illustration. Adopting a necessarily broad brush approach and doing the best that I can, I conclude that a more appropriate figure would be £20,000 net. It follows that the damages payable are: for the first 3½ years £70,000 (calculated at £20,000 per annum); and for the next 4 years, £60,000 (namely £20,000 less £5,000 each year). This totals £130,000, to which needs to be added interest at the rate of 4.21% per annum (as agreed between the parties) running from 1 June 2008 and so totalling £5,473 to date.[114]As to future loss of earnings, the issues which arise concern:(i) what Dr John’s ‘but for’ (which is to say his uninjured) annual earnings would have been;(ii) the appropriate discount for risks other than mortality in the ‘but for’ scenario; and(iii) Dr John’s retirement age. The parties are again agreed that Dr John’s residual actual earnings are no more than £5,000 per annum. As to (i), the appropriate figure is, again, in my judgment, £20,000 per annum. As to (ii) (the appropriate multiplier), the position was very helpfully set out in a note which Mr Kennedy prepared, at my request, after oral closing submissions. As explained in that note, the multiplier is not the number of years over which the loss is sustained as this would overcompensate a claimant by permitting immediate recovery of sums which otherwise he would have received in the future. This is why the multiplier is calculated by reference to a prevailing discount rate (currently set at 2.5%) to take account of the early receipt and presumed investment of the capital sum. It is also why account is taken of mortality risks. However, when considering loss of earnings, account needs additionally to be taken of other risks in order to cater for the possibility that there may be periods when a claimant may have ceased to earn, typically through unemployment or illness. Relevant to these risks are factors such as educational attainment, disability status and employment status, which the 7th edition of the Ogden Tables distil into contingency discounts. Specifically, for men the discounts are contained in Tables A and B, with paragraphs 38 and 39 explain how the discounts are to be applied, as follows:
“38. In order to calculate the value of the earnings the claimant would have received, if the injury had not been suffered, the claimant’s employment status and the disability status need to be determined as at the date of the accident (or the onset of the medical condition) giving rise to the claim, so that the correct table can be applied. For the calculation of future loss of earnings (based on actual pre-accident earnings and also future employment prospects), Tables A and C should be used for claimants who were not disabled at the time of the accident, and Tables B and D should be used for those with a pre-existing disability. In all of these tables the three left hand columns are for those who were employed at the time of the accident and the three right hand columns are for those who were not. 39. In order to calculate the value of the actual earnings that a claimant is likely to receive in the future (i.e. after settlement or trial), the employment status and the disability status need to be determined as at the date of settlement or trial. For claimants with a work-affecting disability at that point in time, Tables B and D should be used. The three left hand columns will apply in respect of claimants actually in employment at date of settlement or trial and the three right hand columns will apply in respect of those who remain non-employed at that point in time.”
[115]Mr Allen QC and Mr Kennedy were agreed that the relevant earnings multiplier to retirement at age 70 derived from Table 11 is 18.08, and that the multiplier to retirement at age 67 (the Defendant’s case) is 16.61. They were also agreed: that, as Dr John has a degree level qualification (in fact, rather more than that), the relevant column in Table A or B is column ‘D’; that because at the time of trial Dr John was aged 44½ the appropriate row is ‘40-44’; and that in the ‘but for’ or ‘residual’ scenario, Dr John is to be regarded as ‘disabled’, and so the appropriate table is Table B. As Mr Kennedy rightly observed, and as confirmed by Mr Allen QC in the note which he prepared in response to Mr Kennedy’s note, the issue between the parties is whether Dr John is to be treated as employed or unemployed in the ‘but for’ scenario. In monetary terms, again as helpfully explained by Mr Kennedy, the relevant multipliers and contingency factors on these alternative bases is as follows: Retirement age Earnings multiplier Contingency discount employed Result employed Contingency discount unemployed Result unemployed 67 16.61 0.57 9.47 0.33 5.48 70 18.08 0.57 10.31 0.33 5.97[116]The parties are agreed that the appropriate discount factor for Dr John’s actual injured scenario is 0.33. The dispute is as to the ‘but for’ discount factor. In this regard, it is recognised that in some cases Tables A & B may produce a discount which is either too small or too great, so as to mean that some addition to, or reduction of, the contingency factor is permissible in certain cases. This is because Tables A and B provide average discount factors based on a large study cohort. The tables, therefore, simply represent a starting point which enable the Court to make a specific assessment for a specific claimant. As Mr Kennedy explained, a recent example is Billett v Ministry of Defence [2015] EWCA Civ 773, where the claimant only just satisfied the Table B criteria, the trial judge taking a multiplier based on a mid-point between the Tables A and B contingency factors and the Court of Appeal adopting a broad brush approach by awarding a lump sum for loss of earnings rather than a figure calculated on a multiplier/multiplicand basis. Mr Allen QC also cautioned against ‘double discounting’ whereby Dr John’s ‘but for’ earning capacity is reduced both at the level of earnings stage and when arriving at an appropriate discount factor. Mr Allen QC emphasised in these respects how Dr John has a high work ethic, coming from a family of high achievers and himself achieving much despite his illness as a teenager, and prior to 23 December 2007 working consistently without any or any significant periods of unemployment.[117]In these circumstances, it was Mr Allen QC’s submission that the appropriate discount factor is 0.57, the figure stated in Table B for a 44 year old employed degree level qualified disabled male. As he pointed out, this translates to a statistical chance of long-term continuous employment of 57%, which Mr Allen QC explained reflects the probability that Dr John would have spent approximately 57% of the remainder of his career in employment. I agree with Mr Allen QC that this is both reasonable and realistic. I reject Mr Kennedy’s submission that a more appropriate discount factor would be 0.33. As Mr Allen QC pointed out, this is the same discount as the parties are agreed is appropriate in the injured scenario, so suggesting that the Defendant’s position is that the totality of Dr John’s injuries have not adversely affected his employment prospects. That is a proposition which cannot be right. I agree with Mr Allen QC that in all probability Dr John would have been employed by now in the ‘but for’ scenario.[118]As to (iii) (retirement age), I propose taking a middle position between the position adopted by Mr Allen QC (retirement at 70) and Mr Kennedy’s position (67). The halfway point between the two multipliers (18.08 and 16.61) is 17.35.[119]Drawing the threads together, the future loss of earnings claim falls, therefore, to be calculated as follows:(1) Stage 1 – ‘But for’ projected earnings Multiplier x Discount for risks other than mortality x ‘but for’ annual earnings = Projected earnings 17.35 x 0.57 x £20,000 = £197,790(2) Stage 2 – Residual earnings Multiplier x Discount for risks other than mortality x Predicted actual annual earnings = Residual earnings 17.35 x 0.33 x £5,000 = £28,627.50(3) Stage 3 – Dr John’s net loss ‘But for’ earnings – Residual earnings = Net loss £197,790 - £28,627.50= £169,162.50

Other matters

[120]I can deal with other items of loss more shortly in circumstances where I have decided that there should not be the apportionment which Mr Kennedy suggested:(1) As to the claim in respect of past travel costs amounting to £1,636.36, the Defendant’s position had been that a more reasonable and so appropriate award would be £1,000. In the circumstances, taking something of a broad brush approach and as suggested by Mr Allen QC and not, in the end, objected to by Mr Kennedy, I propose to adopt a middle position and so to require the Defendant to pay damages in the sum of £1,300, to which a modest amount of interest should be added (£72.15).(2) As to the future treatment claim, this amounts to £14,800 and covers future neuropsychology treatment. It is based on the evidence given by Dr Ford as to what is going to be required. The Defendant’s position, based on Dr Mallen’s evidence, had been that a more appropriate award would be £4,500. I agree with Mr Allen QC when he submitted that, since Dr Mallen has never treated a patient as a neuropsychologist and so has no experience as to what is required, the right course is to award Dr John the damages which he claims, namely £14,800. Mr Kennedy ultimately did not object to an award in this amount.(3) Lastly, as to the future travel costs claim, Mr Allen QC acknowledged that the claim can no longer embrace costs associated with Dr John’s routine activities given that it is no longer suggested that Dr John’s ability to drive as a result of his ophthalmic deficits is attributed to the Defendant’s negligence. In the circumstances, I regard the modified amount claimed, £500, covering Dr John’s travel costs associated with his attendance at medical appointments, as the appropriate level of damages. Mr Kennedy did not argue against damages being awarded in this reduced amount.

Conclusion

[121]In conclusion, there will be judgment for Dr John against the Defendant in the total sum of £454,858.65 (inclusive of interest).[122]I would, lastly, like to record my gratitude to both Mr Allen QC and Mr Kennedy for their invaluable assistance in what has been a less than straightforward matter.

Cited in 2 later judgments