Whitehouse v Jordan [1980] UKHL 12

House of Lords

Between

WhitehouseAppellant

JordanRespondent

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 5th day of December 1979 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: and it is further Ordered, That the Appellant's Costs in this House be taxed in accordance with the provisions of schedule 2 to the Legal Aid Act 1974.

Whitehouse (A.P.) (suing by his mother and next friend Eileen Whitehouse) (Appellant) v. Jordan and others (Respondents).

Die Jovis 19° Februarii 1981

After hearing Counsel for the Respondents and for the Law Society on a Question of Costs out of the Legal Aid Fund:

It is Ordered, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the First and Second Respondents' Costs in the Court of Appeal and in this House be paid out of the Legal Aid Fund pursuant to Section 13 of the Legal Aid Act 1974, the amount of such last mentioned Costs to be certified by the Clerk of the Parliaments.

HOUSE OF LORDS

WHITEHOUSE (A.P.) (SUING BY HIS MOTHER AND NEXT FRIEND EILEEN WHITEHOUSE) (APPELLANT)

JORDAN AND OTHERS (RESPONDENTS)

Lord Wilberforce Lord Edmund-Davies Lord Fraser of Tullybelton Lord Russell of Killowen Lord Bridge of Harwich

Lord Wilberforce

My Lords,

Stuart Whitehouse is a boy now aged ten: he was born on 7th January 1970, with severe brain damage. In these circumstances, tragic for him and for his mother, this action has been brought, by his mother as next friend, in which he claims that the damage to his brain was caused by the professional negligence of Mr. J. A. Jordan who was Senior Registrar at the hospital at Birmingham where the birth took place. There were originally also claims against Professor McLaren, the consultant in charge of the Maternity Unit to which Mr. Jordan belonged, and also against the hospital on its own account. But these have disappeared and the hospital, more exactly the West Midland Regional Health Authority, remains in the case only as vicariously responsible for any liability which may be established against Mr. Jordan.

A large number of claims have been made since the event most of which have now been eliminated or withdrawn. The negligence ultimately charged against Mr. Jordan is that in the course of carrying out a " trial of forceps " delivery ", he pulled too long and too strongly upon the child's head, thereby causing the brain damage. The trial Judge, after a trial of eleven days in which eminent medical experts were called on each side, and numerous issues were canvassed, reached the conclusion which he expressed in a most careful judgment, that the plaintiff has made good his case: he awarded £100,000 damages. His decision was reversed by a majority of the Court of Appeal (Lord Denning M.R. and Lawton L.J., Donaldson L.J. dissenting) which refused leave to appeal to this House. Leave was, however, granted by an Appeal Committee. The essential and very difficult question therefore has to be faced whether, on a pure question of fact, the Court of Appeal was justified in reversing the decision of the trial judge.

My Lords,

I need not elaborate upon the principles of law which have to be applied. First, it is necessary, in order to establish liability of, and to obtain an award of compensation against, a doctor or a hospital that there has been negligence in law. There is in this field no liability without proof of fault. Secondly, there are strict limitations upon this power of an appeal court to reverse the decision of the judge on an issue of fact. These have been well and clearly stated notably by Lord Sumner in The Hontestroom [1927] A.C. 37, and by the Court of Appeal in The Glannibanta (1876) 1P.D. 283, 287. The Court of Appeal had them fully in mind. The main reason why, in the absence of an error of law, the judgment of the trial judge calls for the utmost respect, is that he has seen and heard the witnesses, often, as in this case, including the rival parties (the mother and Mr. Jordan). The strength of this consideration will vary from case to case according as conclusions have to be reached as to credibility, or based on demeanour. In the present case they exist but are not compelling. A view had to be and was expressed as to the credibility of the mother: she was, generally, found to be incapable, in the understandable circumstances, of giving reliably precise evidence, but there remains a question whether, though what she said was unacceptable, something of evidentiary value can be extracted from it. On this I consider that the Court of Appeal was entitled to form an opinion.

As to the evidence of Mr. Jordan, no question of credibility arose: there was no doubt that he was telling the truth as he saw it. The judge did not

express disbelief of his account: what he did was to appraise it in relation to such other evidence as was available: this he was entitled to do, but the Court of Appeal, while bound to attach great weight to the judge's views, was able to evaluate it for itself.

Thirdly, there was the evidence of Professor McLaren. I think that his demeanour in the witness box must have had an influence upon the judge's views, and this calls for complete respect. But as I shall hope to show, the ultimate conclusion to be drawn depends much more upon the setting in which his evidence was given, and the relation which it must be thought to have to the events which occurred.

Lastly, there were the expert witnesses. The judge was entitled to be impressed by the way in which each of them gave evidence, but he gave no indication how this factor balanced out. In the end, as to the standard of skill to be expected of Mr. Jordan, there was little difference of opinion: such as there was related to what they respectively thought Mr. Jordan had actually done. This brings us back to the primary issue, as to what really happened in the critical twenty-five minutes.

The appeal brought out, very clearly to my mind, that the issue does not depend upon the endless refinements—for example on the meaning of " impaction " —of the experts, but upon one issue: what, if any, evidence of negligence was provided by(a) the evidence of the mother;

(b) the report and evidence of Professor McLaren;

Mr. Jordan was at the time a Senior Registrar, of near consultant status, esteemed by his professional colleagues. There is no question but that he brought the utmost care to bear upon Mrs. Whitehouse's labour and delivery. If he was negligent at all, this consisted in a departure, in an anxious situation, from a standard accepted by the profession at the time. Put very briefly, it was said to lie in continuing traction with the forceps after an obstruction had been encountered so that the baby's head became " impacted ": I shall not explain this word at this stage. It is obvious that the error, if error there was, lay centrally in the area of the exercise of expert judgment and experienced operation. Mr. Jordan was a member of the obstetrical unit at the hospital headed by Professor McLaren, which had a high reputation: Professor McLaren himself was a distinguished obstetrician, unfortunately ill at the time of the birth.

Mrs. Whitehouse was accepted as thirty years of age: this was her first baby. She was small, only 4ft. 10 1 /2 in. in height. She was a difficult, nervous and at times aggressive patient. She was unable, or refused, to agree to vaginal examination during her pregnancy, or to have taken a lateral X-ray, though urged to do so by Professor McLaren. These processes would have helped to discover the exact shape of the pelvis. It is fair to say that when Mr. Jordan came on the scene, he was not greatly handicapped by this, because Mrs. Whitehouse was at that time under epidural anaesthetic, and he was able to examine her vaginally. However, he had not the advantage of accurate measurements of the pelvis or of the ischial spines.

I need say little about the pre-natal history of the case. It is fully told in the judgments of the trial judge and the Master of the Rolls. The mother was seen by a number of doctors in the course of her pregnancy including Professor McLaren and Mr. Jordan. I do not think that any criticism can be made of what they did. She was identified clearly as likely to be a difficult case: on 31st December 1969 Professor McLaren recorded that he thought the outlet was tight and that a trial of labour would be needed. This means that labour would be permitted to start and to proceed under close supervision in order to see whether the head could, with safety, proceed down the birth canal.

Mrs. Whitehouse was admitted to the hospital at 0200 hours on 6th January 1970 her membranes having ruptured shortly before. The vertex was recorded as engaged at 0230, and this was confirmed by Mr. Kelly, of consultant status, at 1000 hrs. He noted " fair sized baby ".

So at this point we have a small woman, anxious and distressed, awaiting a baby, for her on the large side, with the head in a favourable position and engaged in the pelvis; noted as being probably a case for " trial of labour ". At 1130 she was given an epidural anaesthetic which would prevent her from feeling pain and probably from sensation below the waist.

At 1830 she was seen by Dr. Skinner. He examined her vaginally and abdominally. He reported " vertex engaged, foetal heart satisfactory . . . pelvis seems adequate ".

Now comes the period critical for this case. At 2330 Mr. Jordan, who was not on duty, came to talk to Dr. Skinner. On his radio communicator the latter was told that Mrs. Whitehouse was fully dilated. Dr. Skinner thought that this was a case for a more senior man than he, and Mr. Jordan agreed to go: he saw her at 2330 and examined her abdominally and vaginally. He read the notes on the case, which, as the above summary shows, informed him precisely of what he had to deal with: a difficult case calling for great care.

He made a detailed note which I need not copy in full. It gave all the necessary medical details. Against " pelvis " he wrote " small gynaecoid " (i.e., of appropriate female shape) and then " Normal delivery out of the " question ".

He decided to embark on a trial of forceps and did so at 2345. The full expression for this is "trial of forceps delivery" which, as the evidence showed beyond doubt, means that the operator tries to see whether with the use of forceps a delivery per vaginam is possible. This involves two things, first tentative and delicate handling at least at the start; second the necessity of continuously reviewing progress with the obligation to stop traction if it appears that delivery per vaginam cannot be proceeded with without risk. Then delivery will take place by Caesarean section.

Two things must be said at this stage. First—though for the plaintiff it was at one time otherwise contended—the decision to try for vaginal delivery rather than go at once to a Caesarean section was unquestionably the right and correct procedure, in order to avoid if possible the risk to the mother inevitably involved in section. Secondly, for the plaintiff an attempt was made to draw a line between trial of forceps, on the one hand, and delivery by forceps on the other, and to make a case that Mr. Jordan was, unjustifiably, proceeding to the latter. This, to my mind, completely failed. There is no such clear-cut distinction. A trial of forceps (delivery) is what it says: it is an attempt at delivery accompanied by the two special conditions I have mentioned. There can be no doubt that this is what Mr. Jordan was attempting. I take what happened from his notes. Under " summary of reasons for operation " he wrote:

" Trial of forceps under epidural anaesthetic. Lower segment " Caesarean section under G. A."

Then:

"(1) Forceps begun at 23.45, 6.1.70.

" Head rotated to O-A (with Kiellands. No problem." (Kiellands is a kind of forceps used by some operators to rotate the head. This procedure was correct.)

" A very tight fit. No episiotomy." (Cutting of the perineum.)

" After pulling with 5 or 6 contractions it was obvious that vaginal " delivery would be too traumatic—so Caesarean section."

He then recorded the Caesarean which everyone agrees was impeccably performed in two minutes. He noted " no apparent (vaginal) trauma ". To complete the history, the baby, extracted apparently unharmed, was handed over to the paediatricians, found apnoeic, and made to breathe after thirty-five minutes, by which time irretrievable brain damage had occurred.

Here, with one possible exception, is a record of a birth carried out with all correct procedures, with, as unhappily occurs in the best managed

hospitals and the best medical care, tragic results. The possible exception lies in the reference in Mr. Jordan's own report to " pulling with five or six contractions ". Did Mr. Jordan pass the limits of professional competence either in continuing traction too long, or in pulling too hard? That is the whole issue. As direct evidence from persons present there was the evidence of Mr. Jordan, Mrs. Whitehouse and Dr. Skinner. There was no ward sister present and the two attending midwives could not be traced. As indirect evidence there was a report from Professor McLaren made to the Hospital Administrator some time between 22nd January and 10th March 1970, based upon his reading of the notes, a conference with Mr. Jordan, and his own experience. On top of this there was expert evidence on each side as to what Mr. Jordan ought to have done, and as to the correctness of what he did. What is clear is that, in a trial of forceps, the operator should not attempt to pull past an obstruction, or at least not past a bony obstruction. Did Mr. Jordan do this?

My Lords,

at this point it is vital to recall that we are not here entitled to retry the case. We have indeed read almost the whole of the transcripted evidence. But it is not for us to say how we would have decided the case at trial. What we can properly do is to examine the judge's findings and to reach a conclusion, difficult though this may be, whether they can reasonably be supported on the evidence—recognising his advantages and, as fairly as we can, his difficulties—and whether the Court of Appeal was justified in reversing them.

One point must be put out of the way: was whatever occurred at the birth causative of the brain damage—in itself a very difficult question? The baby was apparently undamaged at birth: brain damage does occur for no ascertainable reason, and in normal births. Many alternatives were considered. The judge was able to find and did so that the probability was that the damage occurred between 2345 and 0010 on the 6th/7th January, i.e. during the period in which the forceps were used. Whether I, or any other judge, would have reached the same conclusion is not here or there: the finding had evidence to support it and cannot be disturbed. It does not of itself, of course, prove that the damage arose from lack of skill: that is a point which must be independently decided.

There were three critical pieces of evidence.

First, there was the evidence of the mother—in the abstract the best person to know exactly what happened. In the concrete, the situation was otherwise. She had been in labour for nearly twenty-four hours: recorded as distressed: there had been vomiting: she was—for understandable reasons connected with her family—intensely anxious and tense: she was in a condition of lack of confidence in the medical procedure. She was under epidural anaesthetic, so inhibited from feeling unless very imprecisely what was going on. In these conditions she testified as follows: [when the forceps were applied] " It felt like a deadened electric shock that lifted my hips off " the table up off the bed ". This is also what she told the eminent professors who on this basis prepared their report for the plaintiff. But the judge—inevitably—did not accept this. No witness regarded it as possible—any traction must have been downwards. Dr. Skinner, who was standing by her side the whole time, said that nothing like this occurred—he would have seen it and remembered it " for its fantasticness ". With all allowance for professional loyalty this evidence is too strong to be totally discounted. But, though rejecting this account, the judge did make some use of it: he said " it could be that she was pulled towards the bottom of " the delivery bed depending upon the amount of force used ". But this does not prove that excessive force was used, and that is what is required. Again, in the crucial conclusory part of his judgment he says:

" Though Mrs. Whitehouse's description of what occurred to her " when the forceps were applied may not be exact in its clinical detail, " I believe her, in so far as her description can be taken to be " understood, as a pulling of her toward the bottom of the delivery " bed in a manner and with such force as to be inconsistent with a trial " of forceps properly carried out."

But I must agree with the majority of the Court of Appeal that I cannot accept this as a defensible finding. A process by which, after rejecting the account given by a witness—and it was more than inexact " in clinical " detail " —that account is reconstructed so as to be evidence not of a general character, but of a precise and critical degree of traction supposed to differ from what would have been quite proper, seems to me with all respect to be illegitimate. If excessive traction is otherwise proved, her evidence might be consistent with that, but it cannot be used itself as evidence of that excess. I think that the Court of Appeal was quite right to discard this finding. In this they were unanimous.

The next piece of evidence consists of Mr. Jordan's own testimony. He was examined and cross-examined at length. In his judgment the judge made comparatively little reference to this evidence, relying much more heavily on the second-hand evidence of Professor McLaren. For myself, I would regard Mr. Jordan's first-hand account of the matter as of cardinal importance. Parts of it, indeed, may be regarded as the most solid evidence against him. I have anxiously considered it with the reservations proper in a case when a man is defending himself against a serious claim. The tenor of it, read as a whole, was that this was a very tight fit; that with the first few pulls—made (correctly) with the contractions—some progress was made. With the fifth pull he realised that he was not making progress: he tried once more to see if he could ease the head past what might be minimal obstruction. Failing this, he thought that delivery per vaginam, though possible, would be too traumatic and that a Caesarean section was needed. With a view to this he eased the head slightly upwards with the forceps.

The attack on this was really two-fold. First, it was to say that Mr. Jordan pulled too hard. There was no direct evidence of this except that of the mother which I have already discussed. Dr. Skinner—though I quite accept that not too much weight can be placed on his description— said that he had never ever ( sic ) seen Mr. Jordan violently pull forceps in his life.

Then, and this was the critical point, it was said that Mr. Jordan tried to pull past a bony obstruction—which would be contrary to the best medical practice—and got the head " wedged " or " stuck " or " impacted ". In his judgment

the judge quoted this passage:

"Q. Perhaps I should end by asking you this: " did you try to " pull past any bony part?—A. My trial by forceps was to overcome " what may be minimal obstruction so one did, as it were, pass the " level of the ischial spines.

" Q. The question was not well phrased. Did you try to pull " despite them?—A. No."

His comment on it is that " perhaps some clue was given by [it] ".

But if the first answer is somewhat obscure, the second is a plain denial that he tried to pull despite (i.e. over any resistance of) the ischial spines.

I would compare with this his final answer given in reply to the learned judge:

" Mr. Justice Bush: Mr. Jordan, on that aspect of it that you have " been talking about, what was it that made you believe that to continue " the traction might be harmful to the baby?—A. Because one is " aware from the very nature of the forceps delivery that there is some " resistance, and the aim of a trial of forceps is to ease the baby past " whatever resistance there may be, whether it is the pelvic floor or the " side walls of the pelvis, and you pull slowly and tentatively and then " you form an impression that to continue with that rate of progress " may take too long, or too much traction, and I think that is all."

Other passages exist to the same effect. And what I think Mr. Jordan is trying to explain is that, in a trial of forceps, the operator, who has to work on feel, and instinct, and experience, is by the nature of things always

working against resistance, just because of the narrowness and irregular shape of the birth canal. This he has to do, with of course care, and a margin of safety. What he must not do, and what Mr. Jordan denies that he did, was to pull past a bony obstruction: then he must stop.

This leads on to the issue of whether the head was " stuck " or " wedged ". So far as Mr. Jordan is concerned he firmly denied that it ever was. It would not, without risk, go any further, but that was all. At the end he was able without difficulty to push it back up a little in preparation for the Caesarean. I think that it is possible to carry this point further. Sir John Dewhurst, Professor at Queen Charlotte's Hospital and at Chelsea Hospital for Women, and the author of an important book Integrated Obstetrics, gave evidence after Mr. Jordan and after hearing the latter's evidence—an advantage not possessed by the plaintiff's witnesses. He found nothing wrong in the procedure which Mr. Jordan had followed, including the resort to five or six pulls.

I reach the conclusion, then, that here too the Court of Appeal, particularly Lawton L.J., were justified in taking—contrary to the view of the judge—Mr. Jordan's evidence as evidence that he did not get the head wedged or stuck.

So finally there is Professor McLaren's report and evidence, on which the judge placed much reliance. I have explained that his report was prepared on the basis of the hospital notes and of conference with Mr. Jordan. It is therefore evidence against Mr. Jordan, to the extent, and only to the extent, that it may be taken to incorporate Mr. Jordan's account at the time to his superior. It must be borne in mind that it was written in order to answer a long letter of complaints by Mr. Whitehouse as to the conduct of the birth, one of his complaints relating to the pulls exerted by Mr. Jordan. The tenor of the report was to maintain that Mrs. Whitehouse had received correct and skilled treatment and that no blame attached to anyone for the sad result which followed. Though this was the purpose of the report it was said that nevertheless it " let the cat out of the bag " in two respects revelatory of a failure of skill by Mr. Jordan.

In a critical passage he wrote:

" A trial of forceps was carried out under epidural anaesthesia the " head rotating with ease with Kiellands forceps. Descent, however, " did not follow traction and in the interest of the child the head was " disimpacted prior to speedy delivery by Caesarean section. However, " there was need to switch from epidural to general anaesthetic for " section ".

The first point is easily disposed of. " Descent did not follow traction " is clearly a statement referring to the whole of the process and is merely saying that the traction did not extract the baby. It cannot be read as saying, as for the plaintiff it was sought to say, that no movement whatever took place. It leads to no conclusion.

The second point is more difficult. It relates to the word " disimpacted ". This involves, it is said, that the head was " impacted " —and " impacted " means " wedged or stuck ". This proves therefore that Mr. Jordan pulled too hard. It should be noted that a copy of this report was sent to Mr. Jordan who did not comment on the word: he must therefore, it is said, be taken to have agreed with it.

Many hours of evidence were devoted to this word. Professor McLaren himself tried to explain it away—he should not have used it—he did not mean to convey that the head required to be " unstuck " or that it was stuck. He pointed out, justly, that the report referred to " a tentative " attempt at forceps " . . . " the accepted obstetrical technique of tentative " trial of forceps " . . . " satisfactory trial of labour ". All of this was inconsistent with getting the head " wedged ". But what did he mean by the word—used three times?

There was no unanimity among the experts as to the meaning of the word " impacted ". The dictionary meaning is:

" Denoting a foetus that, because of its large size or narrowing of " the pelvic canal, has become wedged and incapable of spontaneous " advance or recession ". [Steadman's Medical Dictionary ] .

No reference here, be it noted, to the result of force. Sir John Stallworthy did not disagree with this.

Sir John Peel:

" I think that an impacted head is one that does not move either up " or down without further force or exertion being applied. Either with " forceps in pulling it down or the fingers pulling it up ".

Sir John Dewhurst:

" It is not a term I use in my medical practice, no. I think it is " capable of being used in various ways. I suppose perhaps one reason " why I never use it is impaction in the sense solidly wedged has almost " disappeared from medical practice in this country ".

Dame Josephine Barnes:

" I mean the head is in a position where it cannot go any further on ".

So there is no unanimity, or even balance of opinion, that impaction is something which occurs from or is evidence of excessive or unprofessional pulling. It is a condition, which may arise from many causes.

The learned judge's conclusion was " I find it difficult to accept Professor " McLaren's explanation of his use of the word ' impacted '"—and this was a critical finding against Mr. Jordan. But with respect I think that the mass of medical evidence had led him to focus on an inessential question. The argument was not about the meaning of a word, but about what Mr. Jordan did. Mr. Jordan gave a complete and detailed account of what he did. He proceeded to the point when the baby would go no further. He denied that it was " stuck ". He said that he easily pushed it up. All of this was consistent with sound medical practice, and with a possible use of the terminology. If Professor McLaren had thought, after discussing the case with Mr. Jordan, that something had gone wrong, and that the head had become wedged through excessive force, it is incredible that, in the context of a wholly disculpatory report, he would have used a word meaning " wedged by force " without some explanation. It is quite simple to suppose that the word was used to refer to the routine action in preparation for Caesarean section.

In my opinion, the Court of Appeal was justified in concluding that this, together with the evidence of Mrs. Whitehouse which formed the main pillars of the judgment, was not nearly of sufficient strength to lead to a finding of professional negligence.

My Lords,

I could, but will not comment on other aspects of the evidence. I am, for myself, not happy about the manner in which the judge used the evidence about the foetal heart beat: I understand that others of your Lordships may enlarge upon this point. At the end of it all, upon the single issue whether during the critical half hour Mr. Jordan departed from his own high standard of professional competence, I find the judgments of the Master of the Rolls and of Lawton L.J. convincing, and appreciative as I am—as were the members of the Court of Appeal—of the judge's care and clarity, I must agree that this is a case where an appeal court can and should interfere.

One final word. I have to say that I feel some concern as to the manner in which part of the expert evidence called for the plaintiff came to be organised This matter was discussed in the Court of Appeal and commented on by the Master of the Rolls. While some degree of consulta- tion between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen

to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.

I would dismiss the appeal.

Lord Edmund-Davies

My Lords,

I have wrestled long and hard over this appeal. The evidence at the trial occupied eleven days, and the judgment delivered ten days later by Bush, J., is a model of clarity and care. But the fact that this award of £100,000 to the grossly disabled infant plaintiff was reversed by a majority at the conclusion of a four-days hearing in the Court of Appeal and that the appeal to this House occupied five days should serve to demonstrate that difficult issues are involved.

I gratefully adopt the narrative of salient facts prepared by my noble and learned friend, Lord Wilberforce, and I shall add little to it. There arose an acute conflict on many points and between both lay and expert witnesses. It has long been settled law that, when the decision of a trial judge is based substantially on his assessment of the quality and credibility of witnesses, an appellate court " must, in order to reverse, not merely " entertain doubts whether the decision below is right, but be convinced " that it is wrong " ( The Julia (1860) 14 Moo PC 210 , per Lord Kingsdown at 235). And that is so irrespective of whether or not the trial judge made any observation with regard to credibility ( Clarke v Edinburgh & District Tramways Co. 1919 SC (HL) 35 , per Lord Shaw at 36).

Certain important matters are not in doubt. The first (as the learned judge himself stressed) is that the delivery of a brain-damaged baby does not necessarily connote negligence by anyone, for such a misfortune can inexplicably occur in circumstances where there are no grounds for suspecting any lack of proper skill. Again, although the obdurate attitude of Mrs. Whitehouse during her pregnancy had created a lack of information regarding the dimensions of her birth canal, before Mr. Jordan started even an exploratory pull on the foetus he contemporaneously noted that he was confronted by " a very tight fit ", a situation which Dame Josephine Barnes described as " certainly a high risk case " and one which Sir John Dewhurst said would have occasioned him " considerable concern ". On the other hand, it was unchallenged that Mr. Jordan was right to use forceps, for, although vaginal delivery by contraction alone was out of the question, it was inadvisable to proceed directly to Caesarean section.

The principal questions calling for decision are: ( a ) In what manner did Mr. Jordan use the forceps, and ( b ) was that manner consistent with the degree of skill which a member of his profession is required by law to exercise? Surprising though it is at this late stage in the development of the law of negligence, counsel for Mr. Jordan persisted in submitting that his client should be completely exculpated were the answer to question ( b ) , " Well, at worst he was guilty of an error of clinical judgment ". My Lords, it is high time that the unacceptability of such an answer be finally exposed. To say that a surgeon committed an error of clinical judgment is wholly ambiguous, for, while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising " clinical judgment " may be so glaringly below proper standards as to make a finding of negligence inevitable. Indeed, I should have regarded this as a truism were it not that, despite the exposure of the " false antithesis " by Donaldson LJ. in his dissenting judgment, learned counsel for the respondents adhered to it before your Lordships.

But doctors and surgeons fall into no special legal category, and, to avoid any future disputation of a similar kind, I would have it accepted that the true doctrine was enunciated—and by no means for the first time —by McNair J. in Bolam v. Friern Hospital Management Committee [1957]

1 W.L.R., 582, at 586 in the following words, which were applied by the Privy Council in Chin Keow v. Government of Malaysia [1967] 1 W.L.R. 813:

" Where you get a situation which involves the use of some special " skill or competence, then the test as to whether there has been " negligence or not is not the test of the man on the top of a Clapham " omnibus, becauses he has not got this special skill. The test is the " standard of the ordinary skilled man exercising and professing to " have that special skill ".

If a surgeon fails to measure up to that standard in any respect (" clinical " judgment" or otherwise), he has been negligent and should be so adjudged.

Mr. Jordan said that, in the situation confronting him, he embarked on a trial of forceps, its object being to establish whether there was any disproportion or obstruction in the birth canal sufficient to put at risk a vaginal delivery. Trial of forceps needs to be carried out gently and tentatively, " progress being observed when reasonable traction is exerted ", as Sir John Dewhurst, a defence witness, put it. If progress is achieved, the process of pulling with contractions, opening the forceps when a contraction ceases, then applying them again with the next contraction continues until (in Mr. Jordan's words) " such time as the baby was " delivered or (as in this case) it became apparent that further attempt at " delivery may be unwise ". He accepted that during the trial of forceps the surgeon is not embarking on a delivery, but merely exploring the possibility of vaginal delivery being achieved, and that, " Before under- " taking mid-forceps delivery, the physician's clinical judgment must permit " him to conclude unequivocally that he can in fact deliver the baby " safely per vaginam, and that this method of delivery placed less risk to " the mother and baby than Caesarean section ".

How far had Mr. Jordan proceeded before he abandoned the notion of a vaginal delivery and decided upon a Caesarean section? He said he had pulled with five or six contractions, and formed the view that the head was making satisfactory progress after the first four pulls. There came a fifth pull with possibly no " movement ". When asked, " What conceivable " factor can there be which would stop you on the fifth? ", his significant reply was " The spines ", i.e. the ischia. A little later he said, " If I got " difficulty on the fifth, then I would confirm it on the sixth ". Asked how in such circumstances he could justify pulling yet once more, Mr. Jordan answered:

" What one wants to know is, is there at this particular moment— " and this is the crucial part as far as the trial of forceps is concerned " —or would this little extra pressure or traction deliver this head " past that bony obstruction or not? In these circumstances, realising " that this was the point at which the decision had to be made finally, " as to continue or go back, it is justified to see whether or not a " little more—a little extra traction with other contractions—would " be enough to overcome the resistance one is feeling ".

That answer has to be considered in the light of the directive in a work prepared by Sir John Dewhurst that:

" No obstruction below the head.

" This is an absolute rule. The head should never be pulled past an " area of obstruction. Caesarean section is indicated ".

Mr. Jordan insisted that his trial of forceps terminated at the stage when the factor of the safety of the baby arose, although he entertained no doubt that vaginal delivery could have been achieved. As to this, and the case generally, the conclusion of the learned

judge was expressed in this way:

" I am doubtful whether Mr. Jordan was in fact undertaking a " trial of forceps, as opposed to an attempt at vaginal delivery which " failed, and in the course of which the baby was wedged, stuck, or " jammed, and which on anyone's view of the matter would be

" unjustified. However, in any event, if it were a trial of forceps " then he pulled too hard and too long, so that the foetus became " wedged or stuck. In getting it wedged or stuck, or unwedged or " unstuck, Mr. Jordan caused asphyxia which in its turn caused the " cerebral palsy. In this respect Mr. Jordan fell below the very high " standard of professional competence that the law requires of him."

In the light of the conflicting evidence, is that a conclusion to which the experienced trial judge was entitled to arrive? With the single exception of Dame Josephine Barnes, the medical witnesses on both sides agree that, as the judge put it, "... if in fact the trial of forceps proceeded to the " lengths where the foetal head was wedged or stuck and had to be " unwedged or unstuck with the use of force, then unprofessional force " would have been used, both in getting it wedged and in having to " unwedge it ". His observations on this cardinal issue began with the evidence given by the mother, and he dealt with it in this way:

" According to Mrs. Whitehouse, when the forceps were applied, " ' I felt like a deadened electric shock that lifted my hips off the " ' table', and she described her buttocks and hips being lifted off the " table. This cannot be an accurate description, since the pull is " downwards, but it could be that she was pulled towards the bottom " of the delivery bed, depending upon the amount of force used. She " was a little woman and it would be a question of degree whether " this indicated in itself the use of excessive force."

When Sir John Stallworthy, a plaintiff's witness, was cross-examined to establish that the mother would not be lifted off the bed, he said:

" What " very frequently happens, and I would have thought—I don't know—what " probably happened from her description was with the forceps she was " pulled down to the end of the bed. She is a small woman and it was a " big baby, and it would have been perfectly reasonable with an ordinary, " successful forceps delivery for this to have happened "

. But two comments on that evidence are called for: (1) We are not here concerned with an accomplished forceps delivery, but with what was described as a trial of forceps which was abandoned at a stage when it was still open to Mr. Jordan to change his mind and proceed to a Caesarean section. (2) Dr. Skinner, who was standing nearby in the operating theatre when the baby was delivered, said that Mr. Jordan never went further than trial of forceps. He added that there was no violent pulling, and spoke of the " fantasticness " of the allegation of Mrs. Whitehouse being lifted off the bed. That does not in terms negative a downward pull, but it controverts the use of force beyond that customary in a trial of forceps.

Regarding this important matter the learned

judge said:

" Though Mrs. Whitehouse's description of what occurred to her " when the forceps were applied may not be exact in its clinical detail, " I believe her, insofar as her description can be taken to be understood, " as a pulling of her toward the bottom of the delivery bed in a " manner and with such force as to be inconsistent with a trial of " forceps properly carried out ".

My Lords,

I have some difficulty in following how anything in Mrs. Whitehouse's testimony could be " understood " in the sense adopted by the learned judge. She was the only witness who in direct terms spoke adversely of the degree of force exerted by Mr. Jordan, and he had found her unreliable in several respects. Once more the learned judge rejected her evidence, this time in relation to what happened when the forceps were applied. In its place he " believed " an account which, while to a degree in conformity with what Sir John Stallworthy said could happen in forceps delivery, was one which she herself did not advance. It was accordingly not such a finding as an appellate court, lacking the judge's advantage of seeing and hearing the witnesses, is normally obliged to leave undisturbed. It was in truth a finding without an evidential basis.

I turn to consider another matter which undoubtedly operated powerfully on the judge's mind, and which, indeed, he described as " perhaps the

" strongest piece of evidence that something untoward was done . . ." It has perplexed me perhaps more than any other part of this worrying case, and I entertain no strong conviction even now that I have reached the right conclusion about it. I have in mind the report prepared by Professor McLaren, head of the Unit and himself a defendant to these proceedings until they were discontinued against him in March 1976. He drafted the report after discussions with Mr. Jordan which began a few days after the baby was delivered. Each knew that Mrs. Whitehouse was very upset and angry, and on January 22nd 1970 there arrived a letter from her husband making grave complaints against the Unit staff. The hospital administrator therefore called for a report, and this led to discussions on points which both the Professor and Mr. Jordan realised were of " the " utmost importance ". It was in the light of these discussions and the hospital notes that Professor McLaren prepared his undated report, and, in due course, showed it to Mr. Jordan before submitting it to the hospital administrator on March 10th. Judging from the time factor, accordingly, it does not appear to have been hastily prepared. It can, I think, be fairly described as in some respects an odd document for a person with the professional experience and sophistication of Professor McLaren to have prepared, and for Mr. Jordan, in his turn, to have passed without amendment. Certainly one can well understand the learned judge being very troubled by it. But, having said that, what is beyond doubt is that the report set out to be wholly exculpatory of Mr. Jordan and of the entire hospital staff. Thus, it refers to " this well-conducted trial of labour " of forceps ", to Mrs. Whitehouses's " first-class obstetric care ", and it concluded, " We accept no criticism or implication that in terms of being " humane, or in technical skills, we neglected Mrs. Whitehouse ". Yet the learned judge found it possible to conclude that the report was actually confirmatory of the charge of negligence made against Mr. Jordan, and this mainly on the strength of the inclusion therein of the following observations:

" A trial of forceps was carried out under epidural anaesthesia "... Descent, however, did not follow traction, and in the interest of " the child the head was disimpacted prior to speedy delivery by " Caesarean Section ".

In relation to the foetus having sustained a cerebral haemorrhage, " It could be that a congenital weakness of a blood vessel existed, so " that the fixing of the head in the pelvis and its disimpaction for " Caesarean Section led to a leaking of blood in the skull ".

" Possibly at Caesarean Section the disimpaction of the head was " critical and cerebral haemorrhage followed." (My emphasis added in each case.)

For my part, I cannot attach significance to the observation that, " Descent "... did not follow traction ", as it is the plaintiff's own case that descent to a point there certainly was. But at the trial, in the Court of Appeal, and again in this House many hours were spent considering the much more important matter of the threefold use of the word " disimpaction ". Is " impaction " its converse and what situation or action does each word connote? Mr. Jordan himself, in common with several of the expert witnesses, accepted as accurate the Steadman Medical Dictionary meaning of " impacted " as—

" Denoting a foetus that, because of its large size or narrowing of " the pelvic canal, has become wedged and incapable of spontaneous " advance or recession."

Professor McLaren, too, accepted that it had the generally accepted meaning of " stuck ", but he averred that his repeated use of " disimpaction " had no relation to unsticking or unwedging, or fixation or any state of immovability. He apologised for his misuse of language and explained that in his vocabulary " disimpaction " involves no more than a gentle pushing of the head upwards with one finger before proceeding to a Caesarean section.

My Lords,

the point is important in the light of the expert evidence supportive of the view that, if the head of the foetus had become so stuck as to cause asphyxia, excessive force had been used. I remain mystified why, in the drafting of what was known to be an extremely important report, its author should have used in the sense claimed by him a variant of the word " impaction " which in medical science has such a different meaning, and why Mr. Jordan (who was familiar with that accepted meaning) should have allowed " disimpaction " to go forward without comment.

I could well understand the McLaren report taking the form it did were the version of events then intended to be advanced that Mr. Jordan had gone past the trial of forceps stage and had decided upon vaginal delivery; that he had proceeded with proper skill to implement that decision up to the stage when he could with safety go no further and therefore turned to Caesarean section; and that the misfortune which occurred did not arise from any negligence on his part. But the defence presented to the judge was that Mr. Jordan never went beyond a trial of forceps. It is true that, if all goes well, there may be no clear line of demarcation between trial of forceps and actual delivery by forceps, the one merging into the other. But that is not to say that there does not arise, however fleetingly, a stage when the operator has to consider whether he can safely go further. At one time, however, Mr. Jordan referred in evidence to his " attempt at " forceps delivery, followed by Caesarean section ", and in his pleaded defence it was expressly admitted that he " attempted but abandoned a " forceps delivery and then proceeded to deliver the plaintiff by Caesarean " section ", an admission which his learned counsel told this House was due to an oversight and should not have been made. It could well be that it was on the basis of such material that the learned trial judge expressed himself as " doubtful whether Mr. Jordan was in fact undertaking " a trial of forceps, as opposed to an attempt at vaginal delivery which " failed . . ." .

But the point is a fine one, and it should not of itself lead to the condemnation of the defendant. In his dissenting judgment, Donaldson LJ. concluded that the evidence of Mrs. Whitehouse being " pulled down " towards the bottom of the bed, in the sense that her body was moved " could not be right, and he added:

" But, having said that, I still have to decide whether the judge's " conclusion was wrong, and I am not satisfied that it was. Reading " the judgment as a whole, it seems to me that Mrs. Whitehouse's " evidence was treated as no more than consistent with, or, at most, " confirmatory of Professor McLaren's report, and that even if Mr. " Justice Bush had put her evidence on one side, he would still have " reached the same conclusion ".

If that is right, as with respect it seems to be, the outcome of these proceedings was regarded by the learned judge as finally turning on the use of one word. I daresay that at times even greater issues have turned on less. But that word cannot properly be considered out of context, and I again stress that the whole drift of the lengthy McLaren report was that the Whitehouse baby had been delivered in accordance with the highest professional standards. Such being the setting, to hold that the threefold use of " disimpaction " should be regarded as establishing that the complete opposite was the truth is, in my judgment, to impose on it an excessive and insupportable burden.

Such, at least, is my conclusion about this distressing case. It has evidently caused me greater difficulty than it has any of my noble and learned brethren. But I have at last found myself impelled and compelled to hold that, despite the great care and ability manifested by the learned judge, there was lacking the evidence needed to uphold his basic finding that Mr. Jordan " pulled too hard and too long, so that the foetus became " stuck ". I therefore concur in holding that the appeal should be dismissed.

Lord Fraser of Tullybelton

My Lords,

This is an action of damages for professional negligence against a senior registrar at Birmingham Maternity Hospital. After a long trial, the learned judge held negligence established against the registrar, but the Court of Appeal by majority (Lord Denning M.R. and Lawton L.J., with Donaldson L.J. dissenting) reversed his decision. They did so not because they considered that the learned trial judge had mis-stated the relevant law. Clearly he did not; he said, rightly in my opinion, that negligence for the purposes of this case meant " a failure ... to exercise the standard " of skill expected from the ordinary competent specialist having regard " to the experience and expertise that specialist holds himself out as " possessing." He added the proviso that the skill and expertise to be considered were those applying in 1969 to 1970. Although that statement was not criticised in the Court of Appeal, Lord Denning M.R. did criticise a later sentence in the judgment because, in his view, it suggested that the law made no allowance for errors of judgment by a professional man. Referring to medical men, Lord Denning said:

" If they are to be found liable [sc. for negligence] whenever they " do not effect a cure—or whenever anything untoward happens—it " would do a great disservice to the profession itself."

That is undoubtedly correct, but he went on to say this:

" We must say, and say firmly, that, in a professional man an " error of judgment is not negligent."

Having regard to the context, I think that the learned Master of the Rolls must have meant to say that an error of judgment " is not necessarily " negligent ". But in my respectful opinion, the statement as it stands is not an accurate statement of the law. Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.

The main reason why the Court of Appeal reversed the judge's decision was that they differed from him on the facts. The question therefore is whether the Court of Appeal was entitled to reverse the judge's decision on a pure question of fact. The view of the judge who saw and heard the witnesses as to the weight to be given to their evidence is always entitled to great respect. We were reminded particularly of dicta to that effect in The Hontestroom (1927) A.C. 37 and Powell v. Streatham Manor Nursing Home [1935] A.C. 243, and there is other high authority to the same effect. But in this case, unlike cases such as Powell and The Hontestroom, no direct issue of credibility arises. It is not suggested that any witness, or body of witnesses, was giving dishonest evidence. The only witness whose reliability is seriously in question is Mrs. Whitehouse, the mother of the plaintiff, and I shall refer to the critical part of her evidence in a moment. Apart from her evidence, the important facts are almost entirely inferences from the primary facts, and in determining what inferences should properly be drawn, an appellate court is just as well placed as the trial judge. Accordingly this is a case where the judge's decision on fact is more open to be reassessed by an appellate court than it often is.

The learned judge expressed his conclusion as to the primary facts which had been established with admirable clarity and conciseness, as follows:

" On the balance of probabilities I have come to the conclusion, " firstly that the damage to the brain of Stuart [the infant plaintiff] was " not the result of inherent maldevelopment, and secondly that asphyxia

" or anoxia caused the brain damage, and thirdly that the asphyxia " itself was caused by some event between 23.45 and 00.25 hours,—that " is between the commencement of the trial of forceps and the " delivery of the child by Caesarean section."

That passage in the judgment is immediately followed by a repetition of the caution, to be found elsewhere in the judgment, that such damage may be caused by the violent event of birth itself and " may occur without " professional fault on the part of those having the care and management " of the patient ". So the learned judge was evidently on his guard against treating this as a case of res ipsa loquitur.

He then turned to consider what evidence there was on the vital question of whether " unprofessional force ", by which he evidently meant excessive force, had been applied by Mr. Jordan when using forceps. He relied firstly on the evidence of Mrs. Whitehouse herself, and secondly on what he regarded as " perhaps the strongest piece of evidence that something " untoward was done "—namely the report by Professor McLaren who was the Head of the Department in which Mr. Jordan worked, and who himself was a distinguished obstetrician. Professor McLaren was ill at the time and was not present at the birth. Thirdly, the learned judge relied on the evidence of Mr. Jordan, the first defendant. I must consider these pieces of evidence.

The evidence of Mrs. Whitehouse was that when Mr. Jordan pulled on the forceps she had " felt something like a deadened electric shock that " lifted my hips off the table ". All the medical evidence was that Mrs. Whitehouse was not, and could not have been, lifted up off the table by the pulling on the forceps because the traction would have been in a downward direction. The judge therefore rejected Mrs. Whitehouse's account of what had occurred as being mistaken. He had already rejected her evidence on several points relating to her treatment in the earlier stages of pregnancy. So far as this matter is concerned, it is not surprising that she was mistaken considering her condition at the time to which she was referring. She had been without sleep, according to her own account, for 40 hours by this time. She had not had any food because she had been vomiting, and as she put it herself " I was at the end of the line really ". Above all the lower part of her body was under epidural anaesthetic which meant that it was largely without sensation. But the judge, having rejected Mrs. Whitehouse's account, went on to accept an interpretation of it suggested by Sir John Stallworthy one of the medical experts who gave evidence on behalf of the plaintiff. He said that he interpreted Mrs. Whitehouse's evidence as meaning that she had been pulled down off the bed and then lifted back on to it by the medical staff. That interpretation was never put to Mr. Jordan or to the other medical witness who had been present at the time (Dr. Skinner) although Dr. Skinner was asked about Mrs. Whitehouse's original account of being lifted up off the bed and denied that any such thing had occurred. It would be natural for Dr. Skinner to feel professional and personal loyalty towards Mr. Jordan, who was his superior and also his friend, and who had taken charge of the delivery because Dr. Skinner felt that it was beyond his competence. I would therefore have been prepared to discount his evidence to some extent if it had stood alone, but the learned judge does not indicate any doubt about its reliability, and so far as it goes it is entirely consistent with the evidence of the medical experts as to the impossibility of Mrs. Whitehouse's account. The learned judge's conclusion about Mrs. Whitehouse's evidence on this matter was expressed thus:

" Though Mrs. Whitehouse's description of what occurred to her " when the forceps were applied may not be exact in its clinical detail, " I believe her, in so far as her description can be taken to be " understood, as a pulling of her toward the bottom of the delivery " bed in a manner and with such force as to be inconsistent with a trial " of forceps properly carried out."

In my opinion that conclusion contains two serious flaws, either of which would be enough to make it unacceptable. Firstly I do not consider that it is permissible to accept Mrs. Whitehouse's evidence " in so far as " her description can be taken to mean something different from what she said, and something which was not tested by a cross examination of the witnesses, including the defendant and Dr. Skinner, who could have confirmed or denied it. I agree with Lawton L.J. who said this:

" In Lord Sumner's words in the The Hontestroom the trial judge in " this case ' palpably misused his advantage ' in having seen and heard " the mother. These advantages could not be used, as the trial judge " used them, to turn an account of what had happened which physically " could not have taken place, into one which could."

Secondly, even if the interpretation of Mrs. Whitehouse's evidence were correct, it would not by itself indicate that the degree of force used was excessive and inconsistent with a trial of forceps delivery properly carried out.

I come now to Professor McLaren's report. This was written in answer to a request from the hospital administrator for information. It was based partly on the clinical notes and partly on oral discussion with Mr. Jordan, and it was shown to Mr. Jordan before being sent (by Mr. Jordan) to the administrator. It can, therefore, be regarded as having been accepted by Mr. Jordan and as having possible evidential value against him. There was one word in the report upon which the learned judge particularly relied for drawing an inference unfavourable to Mr. Jordan. That was the word " disimpacted ". It was used, as the judge pointed out, no less than three times in the report. Probably the most significant use was in the following sentence which is quoted in the judgment:

" Descent, however, did not follow traction and in the interest of " the child the head was disimpacted prior to speedy delivery by " Caesarean section."

The importance attached to the word by the judge arose in this way. He said " For something to be disimpacted it must first have been impacted " and he relied upon a definition of the word " impacted " in relation to a foetus given in Steadman's Medical Dictionary as follows:

" Denoting a foetus that, because of its large size or narrowing of " the pelvic canal, has become wedged and incapable of spontaneous " advance or recession."

That definition was accepted by several of the medical experts, though not by all of them, and the learned judge considered that, if the head was impacted, that indicated that it had become tightly stuck or wedged between parts of the bony structure of the pelvis and that it had been pulled by forceps too long or too hard. I do not think that the latter part of his conclusion was justified. Professor McLaren in his evidence apologised for using the word. He said that it was not a good word but it was one that he was accustomed to use, though he did not intend it to suggest that there had been such wedging that one needed a lot of force to push the head up again before embarking upon the Caesarean section. It seems that Professor McLaren's apologetic evidence made an unfavour- able impression upon the judge and his finding on the matter was expressed thus:

" It is with regret that I find it difficult to accept Professor McLaren's " explanation of his use of the word ' impacted ' ".

I have tried to make proper allowance for the importance to be attached to the judge's view on this matter but I have reached the opinion that the Court of Appeal was entitled to differ from it for these reasons. Firstly, the conclusion of the Professor's report was to the effect that Mrs. Whitehouse had received excellent care while in the hospital, and in

particular he said that there was no evidence that she had anything but " first class obstetric care ". That conclusion would have been impossible if the obstetrician concerned, Mr. Jordan, had employed forceps with excessive force, and it is therefore very unlikely that the Professor used the word " disimpacted " in a sense intended to imply that such force had been used. It is also unlikely that Mr. Jordan would have passed the report, containing that word, without objection if he had understood the word in that sense. Secondly, the medical evidence as a whole showed that the word is used with various shades of meaning, and that it does not necessarily mean that the foetus is so firmly wedged or stuck as to require much force to dislodge it. The medical evidence showed also that the exact degree of force which could properly be used was a matter for expert judgment by a skilled obstetrician and might vary considerably according to circumstances. Thirdly, (and in my opinion of considerable importance) when the two expert witnesses who gave evidence for the plaintiff were preparing their joint report (or rather approving the joint report which was, rather surprisingly, " settled " for them by counsel), they did not emphasise Professor McLaren's reference to " disimpaction "; if it was really so fatal to the defendant's case as the learned judge seems to have thought, one would have expected them to fasten on it at once. It seems to me, therefore, that he attached too much importance to it.

Apart from the use of that one word, the learned judge evidently regarded Professor McLaren's report as a whole as indicating that the defendant had pulled too hard and too long. That may have been partly because he treated the expression " descent did not follow traction " as meaning that the foetus did not descend at all as a result of traction. That meaning was urged upon us in argument, but I do not accept it because if no descent took place, i.e. if the foetus did not move downwards at all as a result of traction, the impaction (whatever may be the exact meaning of the word) could not have been caused by the traction. I read the expression as meaning, what Mr. Jordan said it meant, that descent did not continue to the extent of delivery. So read, the statement is correct but throws no light on the question we are considering. I think much of the importance attached by the learned judge to the report was due to the statement it contained that " after a reasonable attempt at delivery by forceps a " Caesarean section was carried out." (My emphasis.) The significance of the words emphasised is that a distinction was drawn by the medical witnesses between a trial of forceps delivery (generally abbreviated to a trial of forceps) and an attempted forceps delivery. The former should be very tentative and gentle. The latter, in which stronger traction is permissible, should never be embarked upon unless the physician's clinical judgment permits him to conclude unequivocally that he can deliver the patient safely per vaginam. Mr. Jordan in his evidence was insistent that he never got beyond the trial stage and that the fact of his having used five or six pulls did not indicate the contrary. He did not profess to remember every detail of what he had done, and his evidence was based on the clinical notes and on his usual practice, but he was quite clear about what he must have done. He said that, taking six pulls as the total, he must have made some progress until the fifth pull. The fifth pull made no progress and the sixth pull would have confirmed that no further progress was possible consistent with safety. The learned judge did not in terms reject that evidence nor did he express any reservation about Mr. Jordan's evidence as a whole. What he said, in the decisive paragraph of his opinion, was this:

" In all these circumstances I am doubtful whether Mr. Jordan " was in fact undertaking a trial of forceps as opposed to an attempt " at vaginal delivery which failed, and in the course of which the " baby was wedged, stuck or jammed, and which on anyone's view " of the matter would be unjustified. However, in any event if it were " a trial of forceps then he pulled too hard and too long so that the foetus " became wedged or stuck. In getting it wedged or stuck, or unwedged " or unstuck, Mr. Jordan caused asphyxia which in its turn caused

" the cerebral palsy. In this respect Mr. Jordan fell below the very " high standard of professional competence that the law requires of " him."

It seems to me with respect that the learned judge was seeking to draw too sharp a line between a trial of forceps delivery and an attempted forceps delivery. The former, if it makes progress, will merge into the latter, and may be carried on to a complete delivery. Whether Mr. Jordan ever moved from the trial stage to the attempted delivery stage is really a question of words; the important issue is whether there was evidence that, in the learned judge's words, " he pulled too hard and too long so that the " foetus became wedged or stuck." He himself denied that it ever became wedged or stuck, and I have already explained why I do not think that Professor McLaren's use of the word " impacted " means stuck. The evidence which seems to me to come nearest to convicting him of negligence in this respect is his own. He explained, what after all is obvious, that the purpose of pulling with forceps is to overcome resistance to the descent of the foetus down the natal canal and that after the fifth pull he would have had to make a decision whether to continue, and whether a " little extra " pressure or traction [would] deliver this head past that bony obstruction or not ". It was argued that that passage in Mr. Jordan's evidence, and some other passages to the like effect, showed that he was willing to pull too hard. But the trial judge does not seem to have thought so, and nor do I. The mere fact that he pulled five or six times is no indication of how hard he pulled. After he had finished the trial of forceps he pushed the foetal head upwards to facilitate removal of the foetus by Caesarean section, but that again does not indicate that it had become wedged; it is a normal preliminary to Caesarean section, as Dame Josephine Barnes explained. In these circumstances there was in my opinion no sufficient evidence to justify a finding that he had been negligent.

I would therefore dismiss the appeal.

I respectfully agree with the observations of my noble and learned friend Lord Wilberforce in the final paragraph of his speech about his concern as to the manner in which part of the expert evidence for the plaintiff was organised.

Lord Russell of Killowen

My Lords,

I wish at the outset to emphasise one matter. Some passages in the Court of Appeal might suggest that if a doctor makes an error of judgment he cannot be found guilty of negligence. This must be wrong. An error of judgment is not per se incompatible with negligence, as Donaldson L.J. pointed out. I would accept the phrase " a mere error of judgment " if the impact of the word " mere " is to indicate that not all errors of judgment show a lapse from the standard of skill and care required to be exercised to avoid a charge of negligence.

The details of this case and the reasons for dismissing this appeal have been so fully canvassed by my noble and learned friends that there is but little that I can add, without tedious repetition, in saying that I agree to that dismissal.

As has been pointed out, and as Sir John Stallworthy accepted, there was no indication from the foetal heartbeats that during the trial of forceps delivery the foetus was in any way distressed. They were normal.

The learned judge, in a passage quoted by your Lordships, which came immediately before his conclusion of negligence by Mr. Jordan, in that he pulled too long and too hard, inferred from evidence given by the mother that she was physically pulled down the bed. This I think was quite

without justification on the basis of her evidence which did not point to that at all. It was not permissible to erect a theory of what she might have said but did not say, and base a conclusion of negligence at least in part upon that theory. It may be that the judge borrowed the theory from medical evidence given on behalf of the Plaintiff: but the medical experts were no more entitled than the judge to read the mother's rejected evidence as intended to mean something totally different. As has been pointed out it was never suggested to Mr. Jordan that his activities pulled the mother towards him. As to the report written by Professor McLaren (and shown to Mr. Jordan) two points were sought to be made. The first was its statement that descent did not follow traction: I see nothing in this: it means not that no progress at all resulted from the trial of forceps delivery but that there was no delivery by forceps. The second was the reference to disimpaction. Much evidence was given as to the meaning of disimpaction and impaction, and what was involved in " stuck" and " wedged ". All these words are words of degree. " Impacted " may simply mean that the foetus is unable to move either way spontaneously, and some assistance is required. The mere fact that some assistance was required to " disimpact " cannot show negligence: if it did, the joint medical report would not merely have mentioned disimpaction but would surely have said that it proved negligence.

My Lords,

I also would dismiss this appeal.

Lord Bridge of Harwich

My Lords,

At twenty-five minutes past midnight on 7th January 1970 the appellant was born at the Birmingham Maternity Hospital. The mother had been in labour since the early hours of the 6th. The possibility of a difficult birth had been anticipated by the medical authorities at the hospital responsible for her case. By 11.30 p.m. on the 6th, the mother was fully dilated. From that point onwards the first respondent, now a consultant obstetrician, then a senior registrar in Professor McLaren's unit at the hospital, was in charge of the operation of delivering the child. He concluded from his examination of the mother that a normal delivery was out of the question. At 11.45 p.m. he proceeded to undertake a " trial of forceps ". In the light of this trial he decided that delivery per vaginam would be too traumatic for the mother and the child. Accordingly he proceeded to effect delivery by Caesarean section. The child was found to have sustained severe brain damage.

Bush J., the trial judge, made a finding, which is not challenged, that the brain damage to the appellant was caused by anoxia occurring at some time between the beginning of the trial of forceps and the delivery of the child. This might seem to the layman to suggest some improper use of the forceps, but any such suggestion is emphatically refuted by the evidence. It is common ground that a child may, in the course of an apparently normal, birth, suffer anoxia for which no specific cause can be assigned and certainly that the mere fact of anoxia occurring when it did in the course of the appellant's birth affords no evidence whatsoever of fault on the part of the first respondent.

The judge's finding of negligence against the first respondent (on which the vicarious liability of the second respondent in turn depends) is based on a finding that in using the forceps " he pulled too hard and too long so that the foetus became wedged or stuck " and that " in getting it wedged or stuck, or unwedged or unstuck " the first respondent caused the anoxia which occasioned the brain damage. In the light of the direction the judge had given himself early in his judgment in defining the criterion to be applied to decide whether the first respondent was negligent (a direction which I do

not criticise) this finding must be understood as implying that the first respondent applied traction to the foetus with the forceps which both in strength and duration exceeded what any competent obstetrician of the status of senior registrar would have regarded as the permissible limits in carrying out the procedure of a trial of forceps. The judge's decision in favour of the appellants having been reversed by a majority in the Court of Appeal, the sole question, as it seems to me, which your Lordships' House has to decide is whether the judge's finding that the first respondent applied excessive traction to the foetus in the sense indicated above can be supported on the evidence.

My Lords,

I recognise that this is a question of pure fact and that in the realm of fact, as the authorities repeatedly emphasise, the advantages which the judge derives from seeing and hearing the witnesses must always be respected by an appellate court. At the same time the importance of the part played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision. It has been strongly urged, on behalf of the appellant, that in this case the judge's assessment of the reliability of the witnesses, particularly of the first respondent himself and of his superior at the Birmingham Maternity Hospital, Professor McLaren, was of such critical importance to his decision as to render it unassailable and this view prevailed with Donaldson L.J., who dissented in the Court of Appeal, even though he in terms rejected one of the judge's subordinate findings on which his ultimate conclusion depended. At first blush I was much attracted to this view of the case but a close scrutiny of the judge's analysis of the evidence and of the particular features of the evidence on which he relied in support of his finding of negligence persuades me that that finding was not justified. I will consider in turn the four main aspects of the evidence on which the judge based his conclusion.

1. The Mother's Evidence. The mother gave evidence emphatically that when the forceps were applied she was lifted up from the bed. Every- one accepted that this was impossible. Any pulling on the forceps is downward. The appellant's expert witnesses canvassed the possibility that the mother might have been pulled off the end of the bed and lifted back on to it. This was denied by Dr. Skinner, a witness who was present at the birth, and the suggestion was never even put to the first respondent in cross-examination. The mother's evidence at every other point where it was in controversy had been rejected by the judge. At the time of the trial of forceps she had been in labour for many hours and was under an epidural anaesthetic. Yet

the judge said of her:

" Though Mrs. Whitehouse's description of what occurred to her " when the forceps were applied may not be exact in its clinical " detail, I believe her, in so far as her description can be taken to be " understood as a pulling of her toward the bottom of the delivery " bed in a manner and with such force as to be inconsistent with a trial " of forceps properly carried out."

Counsel for the appellant has not sought to support this part of the judge's judgment and it was rejected by all three members of the Court of Appeal. I agree with them. The mother's evidence could not be understood in the sense suggested and was manifestly incapable of affording any reliable indication of the degree of force applied with the forceps by the first respondent.

2. Professor McLaren's Report. Following complaints by the appellant's parents to the Hospital Administrator, Professor McLaren, as head of the unit responsible, prepared a report on the circumstances of the appellant's birth. This was based in part on the hospital records, in part on discussion with the first respondent. In its express terms the report was wholly

favourable to the first respondent. In his summary Professor McLaren said:

" Finally an expert obstetrician in my team undertook the accepted " obsterical technique of tentative trial of forceps. After a reasonable " attempt at delivery by forceps a Caesarean section was carried out. " The baby, alas, was seriously affected by this well conducted trial of " labour and forceps."

In expressing his opinion he added:

" My own view is that both Mr. and Mrs. Whitehouse are naturally " very distressed although there is no evidence that she had anything " but first class obstetric care. We can appreciate the letter from " Mr. Whitehouse of 22.1.70 but we accept no criticism or implication " that in terms of being humane, or in technical skills, we neglected " Mrs. Whitehouse."

Despite these passages the judge described the report as " perhaps the " strongest piece of evidence that something untoward was done ". He based this view on the use more than once in the report of the word " disimpaction " to describe the action of the first respondent, having decided to abandon the trial of forceps and proceed to Caesarean section, in pushing the head of the foetus upwards with the forceps to facilitate delivery by Caesarean section.

It was common ground that a trial of forceps is a tentative procedure to discover whether the baby's head can pass safely through the mother's pelvis. The obstetrician must proceed gently and not attempt actual delivery unless and until he is satisfied that there is no such bony disproportion between head and pelvis as to present a risk of injury to the baby. Of course, if no significant obstruction is encountered, the trial of forceps will merge into an actual forceps delivery.

Against this background a great deal of evidence was given by the expert witnesses on both sides as to the significance, in relation to the conduct of a trial of forceps, of the fact of the foetus becoming " stuck " or " wedged " in the course of it. A definition of " impacted " from Steadman's Medical Dictionary as " denoting a foetus that because of its large size or " narrowing of the pelvic canal has become wedged and incapable of " spontaneous advance or recession " was canvassed with the witnesses.

Now it will be apparent that in any context the words " stuck" or " wedged " are imprecise. An object may be lightly or tightly stuck or wedged. The degree of force required to free it may be great or small. I can find nothing in the expert evidence to suggest that in an obstetric context the words as applied to a foetus described as " stuck " or " wedged " in the pelvic canal do not suffer from the same imprecision. If " impacted " is synonymous with " wedged " the same consideration must apply.

The judge, however, has drawn the inference from Professor McLaren's use of the word " disimpaction " that the foetus had become so firmly wedged as to indicate that a degree of force must have been used by the first respondent in producing that result which was clearly excessive in a trial of forceps. He rejected Professor McLaren's explanation that he meant no more by " disimpaction " than what could be achieved by gently pushing the head of the foetus up out of the pelvic cavity with one finger.

If Professor McLaren used the word " disimpaction " intending it to bear the meaning the judge attributed to it, the implications are twofold. First, Professor McLaren must have appreciated from what the first respondent told him that the trial of forceps had been misconducted and had ended in disaster; it would follow from this that the exculpatory passages in the report were a dishonest attempt to whitewash a subordinate. But secondly, it also reveals Professor McLaren as not only a knave but a fool who attempts a whitewash in one part of his report but gives the game away in another part.

I find it impossible to suppose that the judge appreciated these far-reaching implications of the significance he was attaching to a single word in the Professor's report or that, if he had done so, he would have been prepared to stigmatise the witness in such a manner.

3. The Foetal Heart Rate. The respondents relied at the trial, in support of their case that the trial of forceps was not the cause of the appellant's anoxia, on readings of the foetal heart rate during the trial of forceps being within normal limits. At 11.35 p.m. the rate was 140. At 11.45 p.m., when the trial of forceps began, it was 130. It was the same five minutes later. At 12.10 a.m. when the trial of forceps concluded it was 120. After the delivery of the baby at 12.25 a.m. the rate had fallen to 100 or below. After referring to this evidence

the judge commented:

" Though all these readings save the one at 100 or below are within " normal limits, there is here a steady drop indicating to my mind " that something was wrong ".

I take this comment to indicate that the judge not only rejected the evidence that the readings during the trial of forceps were inconsistent with anoxia being caused at that stage but also regarded the fall from 140 before the trial began to 120 when it concluded as affording some support for the contrary view. That view, however, was not expressed by any of the expert witnesses and indeed is contrary to all the expert evidence on the subject.

4. The Number of Pulls. The first respondent had recorded in his operation notes:

" After pulling with five or six contractions it was obvious " that vaginal delivery would be too traumatic "

. He accepted in evidence that he had probably exerted six pulls coincident with the mother's uterine contractions. The effect of his evidence was that, so far as he could remember or reconstruct the occasion, the first pull was extremely tentative and produced no movement. Thereafter, the next three pulls achieved some progress, the last two none. Having encountered difficulty on the fifth pull, he pulled once more to see whether a little extra traction would overcome the resistance he was feeling, but it did not. Sir John Peel, an expert witness called for the appellant, had based his criticism of the first respondent in part on the recorded note of five or six pulls but had said that it was " difficult to be dogmatic " about this.

The judge refers to this issue in the following passage:

" Sir John Peel, while conceding that the number of pulls may " depend on the progress being made, has said that he cannot under- " stand why it should have needed five or six pulls to test whether " delivery per vaginam was possible. Mr. Jordan's answer to this is, " as I have related above, that until say the fifth pull he was making " progress. If, as I have found, the head was engaged it would not " have all that far to go before the widest part of the head was at the " ischial spines, and I share Sir John Peel's doubt."

The judge added a reference to two cryptic answers given in re-examination by the first respondent, but I refrain from quoting these because I confess that I do not follow what significance the judge attached to them.

This is perhaps the most difficult part of the case, but I am satisfied that the criticism of the first respondent for exerting six pulls, qualified as it was, could not by itself sustain a finding of negligence against him.

As regards the evidence of the first respondent, the judge records that, according to him, there was nothing unusual that occurred from the commencement of the trial of forceps to the delivery of the child. I appreciate, of course, that the judge's finding involves, by necessary implication, a rejection of this evidence. It is trite to observe, however, that rejection of a defendant's denial provides no material to establish the positive case sought to be made against him. On the other hand, if the

judge had construed anything in the first respondent's evidence as amounting to an admission of fault on his own part (which the cryptic answers referred to above certainly did not provide), he would surely have made this abundantly clear and put it in the forefront of his reasons for making a finding of negligence against him.

In the result I can find no sufficient foundation for this finding and would accordingly dismiss the appeal.

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