Kay's Tutor v Ayrshire and Arran Health Board [1987] UKHL 17

UKHL

Kay's Tutor v Ayrshire and Arran Health Board

[1987] UKHL 17 · 1987-05-14

At advising, on 18th December 1985 their Lordships allowed the reclaiming motion, recalled the Lord Ordinary's interlocutor of 1st March 1985 and substituted in name of damages the sum of £3,000 plus interest of £4,275 by way of solatium for the admitted effects of the overdose.

LORD PRESIDENT (Lord Emslie).—In November 1975 the pursuer's son Andrew, who was then just under two-and-a-half years old, became the victim of the fell disease pneumococcal meningitis, and, although the disease was rapidly and successfully eliminated by emergency treatment in hospital, to which he was admitted at 11 a.m. on 28th November, Andrew has been profoundly deaf, bilaterally. Profound bilateral deafness is well-established as one of the known sequelae of pneumococcal meningitis. It so happened, however, that the emergency treatment selected for Andrew, once pneumococcal meningitis had been definitely diagnosed on 29th November, was that he should have an intrathecal injection of 10,000 units of penicillin G (solupen). The consultant paediatrician in charge of the case, Dr McClure, instructed a senior house officer, Dr Adam-Strump, to carry out this injection but at 12.20 p.m. on 29th November Dr Adam-Strump, instead of injecting 10,000 units, injected 300,000 units. During the afternoon of 29th November Andrew suffered a tonic seizure (rigidity), muscular twitching, and for a period he had difficulty in breathing accompanied by cyanosis. Various drugs were administered to counter the effect of this

overdose of penicillin, and, to deal with pneumococcal meningitis, choramphenicol was substituted for penicillin. Within a very few days Andrew's overall condition improved markedly and the meningitis cleared up. In this action the pursuer averred that Andrew suffers from a variety of disabilities, including his profound bilateral deafness, and maintained that they are attributable to the penicillin overdose. The defenders, who admitted liability to make reparation for any loss, injury and damage sustained by Andrew as the result of the overdose, denied that any of these disabilities, including Andrew's deafness, was caused to any extent by the overdose. Their position was, in particular, that Andrew's deafness was caused by the pneumococcal meningitis alone, and that the only consequences of the overdose were the seizures (tonic and twitching) and the breathing difficulties which followed the overdose, all of which were cleared up completely within a matter of hours. In these circumstances, when a proof eventually started on 9th October 1984 the critical issue was whether the overdose caused or contributed to the various disabilities from which Andrew now suffers, including, in particular, his deafness.

This action has had a very unfortunate history. It was brought shortly before the expiry of the triennium. The pursuer's case was handled successively, until about the middle of 1983, by several firms of solicitors and by various competent counsel instructed by these solicitors. The first diet of proof allowed was fixed to take place on 25th November 1980. It and another three later diets fixed were discharged. The pursuer eventually lost the benefit of legal aid and, from about the middle of 1983 onwards, conducted the litigation himself. The probable explanation for the events which happened is that, until the appearance in September 1984 of a Mr Williams, a consultant neurosurgeon from Birmingham, who examined Andrew on 21st September 1984, no medical opinion had been found to provide support for the pursuer's averments that the overdose caused or materially contributed to Andrew's various disabilities and in particular the deafness. Be that as it may the pursuer conducted the proof himself, leading Mr Williams as his expert witness, and, as a result, the task of the Lord Ordinary became an unusually difficult one.

The proof occupied many days. The outcome was that the Lord Ordinary, for the reasons given in a long opinion, felt able to conclude in the pursuer's favour that although it was pneumococcal meningitis which damaged Andrew's auditory nerve, the overdose and its immediate consequences either "tipped the balance", thus enabling the meningitis to destroy the auditory nerve, or that, as a result of the overdose, the chances of deafness being caused by the meningitis were increased. That was, on any view, a bold and remarkable conclusion for a number of reasons. It was based upon a theory of the probable behaviour of an overdose of penicillin in the presence of a virulent bacterial meningeal infection which was not put to any one of the impressive expert witnesses who gave evidence at the proof and which was not even the subject of debate at the hearing on evidence. That theory, further, was not the one advanced by Mr Williams. His opinion was that penicillin would accumulate in the cerebello-pontine angle and was capable of inflicting its own toxic damage directly upon the auditory nerve. According to Mr Williams, the damage inflicted upon this nerve was part of widespread damage to the nervous system caused wholly or at least partly by direct toxic action on the part of the overdose. Mr Williams was alone in asserting, for that reason, that penicillin, in overdose or otherwise, could cause deafness, and it is

not unreasonable to say at this stage that if the Lord Ordinary is correct in his conclusion, this is the first time in the history of medicine in which it has been thought that penicillin (which has been widely used in the treatment of pneumococcal meningitis since the 1940s) has played or could play any part whatever in the emergence of sensorineural deafness in a patient suffering from acute pneumococcal meningitis.

Before I turn to the process of reasoning by which the Lord Ordinary reached his conclusion it will be convenient to say that the Lord Ordinary rejected the pursuer's case at the proof, which was supported by the testimony of Mr Williams(i) that as a direct result of the overdose Andrew sustained brain damage to which his speech loss was attributable,

(ii) that Andrew's rapid growth and feminisation which Mr Williams attributed to disturbance of the hypothalamic region, was caused by meningitis and contributed to by the overdose,

(iii) that Andrew suffered from radiculitis,

(iv) that Andrew's intellectual development had been impaired, and

(v) that certain behavioural troubles described by Andrew's parents were attributable to damage to his nervous system. I have already mentioned Mr Williams' opinion about the cause of Andrew's deafness, and I have only to add that Mr Williams gave his evidence upon the wholly mistaken assertion that deafness is common as a toxic effect of antibiotic overdose including an overdose of "another" penicillin derivative called ampicillin. It is undoubtedly the case that the aminoglycocide antibiotics, which do not include penicillin or any penicillin derivative, are known by a quirk of nature to accumulate and to remain for considerable periods in the internal ear, and thus to have a direct toxic effect on the workings of the auditory system. In the case of penicillin, however, studies have revealed a very different picture. It does not, apparently, collect and remain for any significant time in the internal ear, or cerebello-pontine angle, and it has never been known to have caused internal ear damage or, indeed, to have contributed to deafness.

In spite, however, of this unpromising evidential basis for the pursuer's case the Lord Ordinary was nevertheless able to decide the action in his favour and it is of importance, at the outset of this reclaiming motion for the defenders, to appreciate in outline how the Lord Ordinary reached the conclusion which he did.

He began, quite correctly, by giving, at some length, a description and assessment of the course of Andrew's illness in November and December 1975. For the purpose of this opinion I am content to refer to what the Lord Ordinary has to say about this chapter of the case and at this stage I merely wish to emphasise that Andrew suffered from an attack of croup on 12th November 1975 for which penbriten (a proprietary form of ampicillin) was prescribed. On 21st November 1975 his general practitioner prescribed actifed syrup to counter an upper respiratory infection. On 26th November his condition had worsened. He was pale, listless and shivery and had a high temperature. The doctor plainly suspected meningitis and later that day noted that Andrew had been vomiting and complaining of headaches. Ampicillin (a form of penicillin) was prescribed to be taken orally. On 27th November Andrew's temperature was still very high and he was still vomiting. The symptoms so far noted are all consistent with the onset of meningitis. By the morning of 28th November, there being no improvement, the general practitioner who had noted that Andrew's neck seemed rather stiff and that he was in obvious pain, arranged for his admission to Seafield Hospital as an emergency case. On admission at 11 a.m. Andrew was described as being

very thin, ill, irritable and not moving at all. He kept his head over to the left side. His throat was inflamed and his neck was stiff. A sample of cerebrospinal fluid (CSF) was at once obtained by lumbar puncture. It was cloudy under pressure. Meningitis was diagnosed. Sulphadiazine was prescribed and intravenous injections of benzyl penicillin were begun. Until the CSF sample had been analysed, however, the particular kind of meningitis from which Andrew was suffering was not known with certainty. Between about 10 and 11 a.m. on 29th November Dr McClure examined Andrew and observed that he was not conscious but responding to tactile stimuli. Dr McClure then learned by telephone from the laboratory that the sample of CSF taken on 28th November had grown two colonies of pneumococci. That Andrew's meningitis was pneumococcal—potentially the most dangerous kind—was then confirmed, and the intrathecal injection of penicillin was instructed in order to get the drug to the scene of the pus forming bacterial inflammation of the cerebral meninges as quickly as possible. The function of penicillin is to kill the bacteria. It is not what might be described as an anti-toxin.

Having set out the history of Andrew's illness and treatment the Lord Ordinary found himself unable to hold that Andrew was probably deaf before the penicillin overdose had been administered although that had been the opinion expressed fairly confidently by Dr McClure, by Dr McAllister, an eminent consultant microbiologist, and by Dr W. C. Brown, a distinguished consultant otolaryn-gologist. Deafness caused by pneumococcal meningitis was, they said, with support in medical literature, of early onset in course of the disease. It will be observed, however, that the Lord Ordinary did not find that Andrew was not deaf before the administration of the overdose. He then proceeded to hold that Mr Williams' opinion that Andrew's disabilities had been caused wholly or partly by toxic injury by the penicillin to the brain and nervous system, was not acceptable. The Lord Ordinary, however, felt able to say that Mr Williams was justified in concluding that, but for the penicillin overdose, Andrew's chances of avoiding deafness would have been reasonably good. On the face of it this is a somewhat astonishing finding in light of the whole evidence, for a number of reasons. It will be recalled that Mr Williams' opinion had been rejected upon every important aspect of the causation problems contested at the proof and, in particular, that Mr Williams stood alone in supporting a causal link between the overdose and Andrew's deafness upon the proposition that the mechanism had been direct toxic damage to the central nervous system and the auditory nerve by the penicillin which he thought had collected and remained in the cerebello-pontine angle. That was, at the end of the day, the only case for the pursuer the defenders had to meet, yet as will be seen, that was not the mechanism upon which the Lord Ordinary's conclusion was based. In any event the Lord Ordinary's journey towards his conclusion began upon his factual premise extracted from the small fraction of Mr Williams' evidence to survive the scrutiny of the proof, and upon the assumption, it seems, that Andrew was not already deaf as the result of meningitis before the administration of the overdose.

As I understand the Lord Ordinary's opinion the next step was to decide that Andrew's deafness was caused by the pneumococcal meningitis by what he called the "direct infection mechanism" and not by what he described as the "intracranial pressure mechanism". The "direct infection mechanism" has been described thus: in the acute phase of the disease diffuse meningeal inflammation

occurs. Purulent material concentrates within the basal cisternae, as well as around the cerebellum, brain stem, and internal auditory meatus. This purulent material involves the arachnoid in the region of the internal auditory canal, where it may produce an inflammation of the auditory nerve. How then, if at all, could it be affirmed that the penicillin overdose affected the operation of that mechanism? That was the question which the Lord Ordinary asked himself. The answer which he gave is to be discovered in the following passages in his opinion:

"At the material time Andrew's central nervous system had been invaded by pneumococcal bacteria which in turn produced toxins. These toxins were virulent. They were countered by the body's defensive mechanisms. If the bacteria were left to produce toxins without restriction, then there was a risk that the toxins would overwhelm the body's defensive mechanisms, with fatal result. The basic purpose of chemotherapy is to inject an antibiotic into the system in order to kill bacteria without at the same time causing any, or at least any material, damage to the healthy structures of the body. If the antibiotic is injected in sufficient strength before the toxins gain the upper hand over the body's defensive mechanisms, it can tip the balance in favour of the latter by killing bacteria, and thereby preventing the multiplication of toxins. But the antibiotic does not, and is not designed to, kill toxins. No matter how effective the antibiotic may be, it remains the task of the body's defensive mechanisms to resist and to overcome the toxins. One essential component of the body's defensive mechanisms is the availability of adequate supplies of healthy oxygenated blood at and in the vicinity of the areas subjected to toxic attack.

"

Had the penicillin injected intrathecally into Andrew on 29th November complied with Dr McClure's instruction, it is reasonable to suppose that 10,000 units would have had some measure of success in killing pneumococcal bacteria. So far as it went, that action would have been wholly beneficial. With the death of toxin-producing bacteria the body's defensive mechanisms would have been better able to concentrate without distraction on resisting the toxic attack, and their prospects of success in that task would have been enhanced. If that is right, then, in turn, Andrew's prospects of recovering without becoming deaf would have improved. The injection of penicillin in gross overdose, on the other hand, had two main results, one of them good and the other bad. As already noted, on account of its overwhelming bactericidal effect, the overdose may have been a prime cause of Andrew's unusually swift recovery from the meningitis. But the overdose created a new danger for Andrew. The seizures that were noted on the afternoon of 29th November were associated by Dr Stephenson with the firing of neurones in the cerebral cortex. The firing of neurones created an additional demand on the supply of oxygenated blood which was required at the site of the nerve cells affected. It therefore appears that the firing of neurones caused by these seizures weakened and distracted the response of Andrew's defensive mechanisms to the toxins. The body's responses to the toxins were therefore weaker than they would have been had there been no overdose. The weaker the responses of the body to the toxins, then the greater were the chances that the toxins would attack and destroy the auditory nerve. … In my opinion there are two main features of Andrew's reaction to the penicillin overdose, one of them general, and the other more specific, that tip the balance in his favour. The general feature is that, as the evidence about cyanosis, breathlessness and the prolonged lapse into coma indicates, there was an overall decline in his condition

which suggests a resultant weakening of his powers of resistance to the disease. The more specific feature is that relating to the seizures which occurred on the afternoon of 29th November. If my assessment of the evidence relating to these seizures is correct, then it follows that the overdose and its consequences are not divorced from the action of the pneumococcal toxins which destroyed Andrew's hearing. In particular, allowing for gaps in current medical knowledge, it seems likely that the firing of neurones in the cerebral cortex distracted and weakened the resistance of the defensive mechanisms to the toxic attack. From that it follows either that the overdose and its consequences tipped the balance so as to give the advantage to the toxins, or, in any event that as a result of the overdose the chances of deafness supervening were increased. I do not think that the evidence admits of greater precision than that." I make no apology for repeating what I have already said about the Lord Ordinary's conclusion in the pursuer's favour. His account of the part played by the overdose in the onset of Andrew's deafness caused by pneumococcal meningitis was not that on which the pursuer's case was presented at the proof through Mr Williams. It was not put to any of the highly qualified expert witnesses for their comments. It was not even mentioned by the Lord Ordinary as a subject for discussion at the hearing on evidence.

The first question which arose in the reclaiming motion was whether it was essential for the pursuer to establish that Andrew was not already deaf before the overdose of penicillin was administered. Counsel for the pursuer accepted at once that it was, because deafness is one of the well recognised sequelae of pneumococcal meningitis and because, if deafness is caused by meningitis, it is likely to be of early onset in the acute phase of the disease. As I have already said the Lord Ordinary merely held that he was not satisfied that Andrew was deaf before the overdose was administered. He did not hold upon the evidence that Andrew was not deaf before 12.20 p.m. on 29th November, and it appeared that the absence of such a finding was going to be the first of several formidable obstacles confronting the pursuer in attempting to support the Lord Ordinary's judgment. In the event, however, senior counsel for the defenders invited us to assume for the purposes of the reclaiming motion that Andrew was not already profoundly deaf before the administration of the overdose and it accordingly becomes unnecessary for us to say more on this issue.

In light of what I have already said about the Lord Ordinary's account of the part which he thought the overdose of penicillin had played in the onset of Andrew's deafness which was caused by pneumococcal meningitis it was not at all surprising to find that counsel for the defenders chose to make their first attack upon the Lord Ordinary's judgment upon this part of his opinion. I have already quoted those passages in his opinion which explain why the Lord Ordinary held that the overdose was causally linked, as a contributory factor, with Andrew's deafness, and it is clear enough that his ground of judgment rested essentially upon the thesis that the firing of neurones which caused the seizures on 29th November 1975 created an additional demand on the supply of oxygenated blood which was required at the site of the nerve cells affected and, accordingly, that the firing of neurones in the cerebral cortex "weakened and distracted" the resistance of Andrew's defence mechanisms to the toxic action of the pneumococcal meningitis. For the defenders the submission was simple and brief. The thesis, as a package and in detail, was a creation of the Lord Ordinary

himself. No attention was paid at the proof to the defence mechanisms of the body which might operate in opposition to the toxic attack of pneumococcal meningitis, or to the question whether the overdose of penicillin would be likely to have any adverse effect upon them. The reason was that it was no part of the pursuer's case in evidence that the overdose of penicillin was likely to have any such consequences. The Lord Ordinary's thesis, as a package and in detail, was not put in terms to any of the highly qualified medical witnesses for their consideration and there is, in short, in the evidence, no medical or scientific opinion to support it. In particular there was no evidence whatever that one of the essential components of the body's defence mechanisms against toxic attack of pneumococcal meningitis upon the auditory nerve is an adequate supply of oxygenated blood at its site. There was no evidence that the supply of such blood at that site was probably inadequate. There was no evidence that Andrew's problem of lack of oxygen in the afternoon of 29th November was of any major degree. It was not sufficient to cause any necrosis of cells and oxygen was supplied to Andrew to meet his needs. No ventilation was required and there was no evidence that any anoxic event affected the auditory nerve. Not only was there no evidence to support the Lord Ordinary's thesis but such evidence as was led at the proof was, by implication, against it. Dr Stephenson was perhaps the most highly qualified of the various experts to know what an overdose of penicillin would be likely to do in the presence of acute pneumococcal meningitis, and the burden of his evidence, and that of the other expert witnesses in several specialised fields was, after wide research of medical literature, that no one has ever suggested that penicillin in overdose or otherwise has directly or indirectly led to deafness. Even Mr Williams said nothing to suggest that the overdose of penicillin weakened or distracted any relevant defence mechanisms. Upon the whole matter there is simply no sound basis in the evidence for the Lord Ordinary's ground of judgment in favour of the pursuer and the thesis on which it depended was not even mentioned at the hearing on evidence.

Counsel for the pursuer recognised, as they were bound to recognise, the enormous difficulty confronting them in attempting to support the Lord Ordinary's major conclusion in their favour. They agreed at once that it was not put to any medical witness as a package or in detail, and that as a possible conclusion it was not canvassed at all in the evidence or at the hearing on evidence. There was, they accepted, perfectly correctly, no medical or scientific basis in the evidence to support it. In these circumstances junior counsel for the pursuer was driven to suggest that there was some evidence in the case which could have formed a basis for the development of the Lord Ordinary's thesis which alone allowed him to find in the pursuer's favour. The Lord Ordinary, he said, was obviously worried because he thought that Andrew's meningitis had been improving before the overdose, and by the evidence that an overdose of penicillin is known to be capable of attacking the central nervous system. Was it possible, he said, because there have been relatively few known cases of patients who had survived an overdose of penicillin, that the overdose had had some influence in the onset of the deafness which had undoubtedly been caused by the pneumococcal meningitis? He noted in particular the immediate consequences of the overdose which have been described, including the coma which persisted until the evening of 30th November, the tonic seizure, and in the flexion spasms. There was evidence that penicillin does not discriminate as to the particular parts of the

brain which it will affect and the Lord Ordinary would, said counsel, probably be unhappy about the evidence that if there is an overdose of penicillin the patient either dies or makes a complete recovery. For these reasons the Lord Ordinary was justified in pursuing the idea that the overdose might have had some adverse effect on Andrew which contributed to the onset of deafness. The germs of the thesis which he eventually adopted were to be found in Andrew's oxygen problem on 29th November, and evidence that the pneumococcal bacteria produce toxins which attack the central nervous system, and that there are no specific anti-toxins by which the body's response can be stimulated. He was, in these circumstances, justified in thinking that the body itself reacts to the toxins. In an answer to a question which was not directed to the possible effects of an overdose of penicillin, Dr McAllister mentioned that the polymorphs in white cells in the CSF combat the infection, and from certain answers by Dr Stephenson dealing with the intracranial pressure mechanism, which did not operate in Andrew's case, in which he said that when intracranial pressure is very high, the blood vessels are dilated to carry additional blood to the brain, the Lord Ordinary probably inferred that to enable the body's defence mechanisms which combat toxic pneumococcal attack upon the auditory nerve a sufficient supply of oxygenated blood is required. Upon this evidential material he then went on to develop his major conclusion holding that it was likely that the firing of neurones so weakened and distracted the defence mechanisms that the toxic attack of pneumococcal meningitis upon the auditory nerve was enabled to overcome them.

I do not pretend to have done more than to sketch in outline the ingenious endeavours of counsel for the pursuer to find something to say in support of the Lord Ordinary, because I am entirely satisfied that while they were undoubtedly valiant they do not really meet the essential point in the criticisms levelled at the Lord Ordinary's major conclusion. In my opinion that conclusion cannot possibly stand. There is no medical or scientific opinion in the case to provide a basis in evidence for it. The Lord Ordinary's thesis was clearly developed long after the proof. It formed no part of the pursuer's case in evidence. It was put to no witness either as a package or in detail and it was not even canvassed at the hearing on evidence. The defenders and their witnesses were quite unaware that the Lord Ordinary was going to give attention to the possibility that the overdose might have so weakened and distracted Andrew's defensive mechanisms as to enable the toxic attack of pneumococcal meningitis to overcome them and injure his auditory nerve. They had in short no opportunity to meet such a case. The Lord Ordinary in this case, alas, has gone far outwith his judicial role. It is one thing for a judge to lend his assistance to a party litigant to present his case in evidence. That is entirely proper. It is quite another thing and wholly improper for a judge to neglect the principle of doing justice between the parties and of fairness to both parties by going further and giving a decision in favour of one party upon a ground of his own devising which has not been the subject of consideration and exploration at the proof, and of which the opposing party has had no notice whatever. The result, and the inevitable result, of what the Lord Ordinary has done in this case is that the judgment which he has given in the pursuer's favour is quite indefensible and must be recalled. I have only to add that although the Lord Ordinary's major conclusion may seem plausible to a layman there is every reason to doubt whether it would have received any support from the medical and scientific experts if they had been allowed to express an opinion about it. The

simple truth in this tragic case is that on the evidence (and we have examined carefully the whole evidence led at the proof which the parties agreed might be relevant) the only possible conclusion was that Andrew's deafness was attributable to pneumococcal meningitis alone.

What I have said so far is sufficient for the disposal of this reclaiming motion on the merits and it is not strictly necessary for me to express any concluded opinion upon the other part of the Lord Ordinary's opinion which was subjected to formidable criticisms by the defenders. In deference, however, to the arguments to which we listened I propose to say briefly how I would have been inclined to dispose of this separate issue. The factual platform from which the Lord Ordinary sprang to his illegitimate major conclusion is to be found in the following sentence in his opinion:

"Applying these guidelines to the available history of Andrew's illness I consider that, on balance, Mr Williams is justified in concluding that but for the penicillin overdose, Andrew's chances of avoiding deafness would have been reasonably good."

The "guidelines" to which the Lord Ordinary refers are to be found in his consideration of certain indicators which he mentions and discusses in the ten preceding pages of his opinion to which I refer for their terms. For the defenders it was contended that in face of the whole other expert evidence in the case the Lord Ordinary was not entitled to rely on Mr Williams' opinion that before the overdose was administered Andrew's prospects of making a complete asymptomatic recovery were good. Mr Williams was not, as the Lord Ordinary thought, a neurologist. He was a neurosurgeon who could not claim to have anything like the expertise, qualifications and experience in the field which was central to this action, possessed by the other expert witnesses including, in particular, the uniquely qualified Dr Stephenson. The Lord Ordinary found, too, that the evidence of Mr Williams upon every important issue of causation in the case was not acceptable. Mr Williams' conclusion, in any event, was expressed upon assumptions, which were proved to be unfounded, and several of the "guidelines" which the Lord Ordinary applied to the available history of Andrew's illness do not survive critical examination. Although counsel for the pursuers, in a careful argument, sought to support the Lord Ordinary's conclusion as it is expressed in the passage which I am now examining, and his reasons for considering that Mr Williams' conclusion about Andrew's prospects of complete recovery was justified, I would have been inclined, had it been necessary for the disposal of the reclaiming motion to do so, to hold that the submission for the defenders should receive effect.

In the first place I find it difficult to accept that the Lord Ordinary was entitled to proceed upon the opinion of Mr Williams in face of the evidence of the most highly qualified of all the experts in the case that there is no group of patients suffering from pneumococcal meningitis of whom you can say in advance that you can expect asymptomatic recovery. In the second place Mr Williams in expressing his opinion relied, inter alia , upon a laboratory report upon a CSF sample (which he wrongly assumed to have been the sample taken on Andrew's admission) which showed a white cell count of 526 and a relatively high glucose count of 66 which was above normal. The fact of the matter is that the figures upon which Mr Williams relied related to a sample taken on 29th November just before the overdose and after intravenous injections had had some effect upon Andrew's disease. Mr Williams also proceeded on the assumption that Andrew

had remained conscious until the overdose was administered, and ignored the evidence of the consultant paediatrician in charge of the case that Andrew was unconscious on 29th November but responding to tactile stimuli. In these circumstances it can hardly be said that Mr Williams' opinion about Andrew's prospects was soundly based. Apart from that the factors or "guidelines" which induced the Lord Ordinary to proceed upon Mr Williams' opinion are open to serious criticism in a number of respects. I do not propose to mention them all and will be content to notice a few only. It seems to me that it was not at all relevant for the Lord Ordinary to notice that Andrew's CSF sugar and protein levels were better than the levels found in meningitis victims who die from the disease. He erred, too, in thinking it significant that Andrew had received ampicillin before he was admitted to hospital. The evidence of Dr Stephenson was that ampicillin taken orally was of no use at all in dealing with pneumococcal meningitis and that the disease can develop severely while a patient is taking it in this way. The Lord Ordinary also fell into error in his consideration of the significance of Andrew's CSF glucose level as an indicator of his prospects of recovery. As he explained in his opinion the laboratory report on the CSF sample taken on Andrew's admission to hospital was, unfortunately, missing. The Lord Ordinary, however, thought it reasonable to infer that before it returned to normal on 29th November, it had been between 30 and 40—not far below normal—on his admission on the 28th, and certainly not below 20. I should explain that there is a statistical correlation between deafness following pneumococcal meningitis and a CSF glucose level below 20. The Lord Ordinary's "reasonable" inference on the important matter of the glucose level on Andrew's admission was, in part, supported by reference to a chart fig. 2 in a report no. 44 of process showing the median values during 85 courses of pneumococcal meningitis in children—for day 1 to 3 the figure shown is 50, and at admission the corresponding figure is 33. To make any use of these median values was, it seems to me, quite illegitimate. Dr Stephenson advised strongly against it. His evidence was that the glucose level in CSF is normally extremely low on admission and that it tends to go up abruptly as soon as any effective antibiotic gets into the CSF. In this case the intravenous injections of penicillin had clearly had some effect in combating the disease as the drop in the white cell count from 1,000 to 526 appears to show. The statistical correlation between deafness caused by the disease and a glucose level on admission of under 20 is not absolute and even Mr Williams recognised that glucose level is not a sure indicator of prognosis in all cases. As Dr Stephenson put it if the glucose level is low it is one of the factors, but it does not mean that if it is not low there are unlikely to be any adverse effects. The statistical correlation found by various studies simply means that, if a patient becomes deaf and it is found that his glucose level is low on admission to hospital, the chances are that the two are connected. You would be concerned if glucose level was found to be very low but you would not be unconcerned if it was higher. There is this further point. It was accepted by counsel for the pursuer upon the evidence that at some stage in Andrew's case his glucose level must have been very low indeed. The evidence also demonstrated that the administration of penicillin tends to restore the glucose level to normal very rapidly. In Andrew's case the evidence is that, although his precise glucose level on admission is not known, because the laboratory report is missing, it had returned to normality [by] the 29th, no doubt as a result of the intravenous injections of penicillin. This strongly suggests that

the time when it was significantly low must have been before the intrathecal injection took place. The Lord Ordinary further found some assistance in the circumstance that Andrew's white cell count on admission was below 2,000. This was not, it seems to me, legitimate or scientific. The figure of 2,000 was one which was adopted for the purposes of their study by the authors of the paper no. 158 of process. The study, however, revealed that there was no statistical correlation between hearing sequelae and such a figure on admission, and, as Dr Stephenson explained, the figure of 2,000 had simply been plucked out of the air as the subject for investigation. The last of the Lord Ordinary's "guidelines" which I propose to mention is his finding based on Mr Williams' opinion that Andrew did not have "an advanced degree of disease". In my opinion he was not entitled to accept that opinion. It was based upon a number of assumptions which were ill-founded in fact. The first was the assumption that Andrew had remained conscious until the overdose, ignoring altogether the evidence of Dr McClure. The second was that the laboratory report on which Mr Williams relied was a report on a sample of CSF taken from Andrew on admission. It was not. It was a report on a sample taken shortly before the administration of the intrathecal injection on 29th November. Apart from these considerations the whole weight of the medical evidence led at the proof, from the doctors concerned to save Andrew's life and from the various experts, was that Andrew presented a classic picture of acute disease of a high degree of severity. For all these reasons I would have decided if it had been necessary for the disposal of the reclaiming motion on the merits to do so, that the Lord Ordinary was not entitled to proceed towards judgment on the basis that Mr Williams was justified in concluding that "but for the overdose" Andrew's chances of avoiding deafness would have been reasonably good.

In moving your Lordships to allow the reclaiming motion I am deeply conscious of the tragedy which has blighted Andrew's life and the life of the family. While I can fully understand and sympathise with the very natural "feeling" of Andrew's parents that Andrew's deafness must have been caused at least in part by the overdose of penicillin which was administered to him, the evidence at the proof leaves me in no doubt that a causal link between the overdose and Andrew's deafness was not established. For completeness I should say that at the hearing before us counsel for the pursuer did not seek to challenge those findings of the Lord Ordinary which were adverse to the pursuer, or to reopen the case which the pursuer sought to make in evidence based upon the opinion of Mr Williams, and which the Lord Ordinary rejected. They were, it seems to me, very wise not to make any attempts to do so.

There remains the question of damages. The Lord Ordinary's award which took into account Andrew's profound deafness and its consequences past, present, and future, must be recalled, but since the defenders have accepted for the purposes of this action that the overdose had some consequences we must proceed to determine the award which would be appropriate. The consequences which the defenders ask us to take into account are those which immediately followed the overdose and which cleared up without leaving any residual neurological defect within a few days. These were the deep unconsciousness, the various seizures, the respiratory difficulties and the hemiparesis, all of which the Lord Ordinary has described. For the defenders the submission was that an appropriate award excluding interest to the date of the proof might be of the order of £1,000. For

the pursuer, however, counsel argued that for these consequences the sum of £1,000 would be unreasonably low and that the appropriate measure would be in the sum of £3,000.

Counsel for the pursuer went on to contend further, however, that we should hold that Andrew's ataxia and personality changes were also attributable to the overdose and that, for these sequelae a further £3,000 should be added. I am not prepared to do so. The Lord Ordinary did not find that Andrew's ataxia was attributable to the overdose. Upon the evidence of Dr McClure and Dr Stephenson the ataxia was a consequence of the pneumococcal meningitis to which the overdose made no contribution. Ataxia as Mr Williams observed was a well-recognised possible sequel of that disease. In light of the terms of a joint minute relating to the evidence of Dr A. K. Brown who, by agreement, was called to give evidence limited to Andrew's condition when he examined him shortly before the proof, the pursuers are not entitled to rely on any incidental observations which he made which might be thought to touch upon causation. As to the matter of personality change—and I take this to mean Andrew's behavioural difficulties—the Lord Ordinary's opinion was that these difficulties were not proved to be attributable to any specific damage to the nervous system and he was, in my opinion, well-entitled to reach that conclusion.

In these circumstances the only question is as to the appropriate measure of damages for the consequences which the defenders have conceded to be attributable to the overdose. In approaching this matter I am prepared to have regard to Dr Stephenson's evidence that for several months after the overdose there were signs in Andrew of unsustained clonua at the left ankle. He thought that this might suggest "a minimal residuum" of the left-sided hemiparesis which was one of the relatively early sequelae of the overdose. In a functional sense, however, according to Dr Stephenson, there had been a very rapid resolution of the hemiparesis which cleared up within hours. Although I have not found the assessment of damages easy in this case I have come to be of opinion that counsel for the pursuer were probably correct in contending that an award of £1,000 would be unreasonably low and that the appropriate measure should be of the order of £3,000. I am prepared to accept that this figure should be adopted. Since it is agreed by counsel for the defenders that under the act of sederunt which now regulates interest on awards of damages, interest could be allowed on this sum at 15 per cent from a date about six months after 29th November 1975 down to the date of the Lord Ordinary's interlocutor, I see no reason why in the circumstances of this case interest should be calculated upon a smaller percentage. On this basis, as matter of arithmetic, the interest to be added to the sum of £3,000 comes to the sum of £4,275. Upon the whole matter, accordingly, the result of the reclaiming motion will be that the Lord Ordinary's interlocutor will be varied by deleting the sums declared to be payable to the pursuer, and by substituting therefor the sum of £7,275.

LORD GRIEVE .—Your Lordship in the chair has set out the history of this unhappy case in some detail and accordingly there is no need for me to do so. However, in order to give content to what I have to say it will be necessary for me to make reference to what I regard as the most significant features surrounding the onset and development of the pneumococcal meningitis in Andrew which resulted in his becoming profoundly deaf in both ears. Before I

embark upon my opinion I want to say that I am in full agreement with your Lordship's proposal that this reclaiming motion should be allowed, and also with your Lordship's reasons for allowing it. However, the issues which were so clearly and anxiously debated before us were worthy of more than a mere concurrence. The primary, indeed in one view the only, case, made on record for the pursuer was to the effect that the overdose of penicillin, administered intrathecally, necessitated changing the treatment of the meningitis to a less effective one. That case was not established, and the case which was presented by the pursuer at the proof was one which depended on two sentences at the end of art. 6 of the condescendence. These were:

"If the child had not received said overdose, but had received the correct dosage, his chances of recovery without any lasting deficit such as deafness would have been materially greater. The overdose in addition, and in any event, materially enhanced the risk of brain and neural damage including damage to the eighth nerve which controls hearing."

In substance that case was that the overdose of penicillin had caused, or at least materially contributed to, Andrew's deafness. At the proof the question for the Lord Ordinary was accordingly whether, on the evidence, and I emphasise that last phrase, the pursuer had established such a case. The Lord Ordinary held that he had, but, very unfortunately for the pursuer, did so on a ground which was neither supported in evidence, nor canvassed in debate. That critical fact was accepted as being correct by counsel for the pursuer and respondent, and it is to their credit that, despite such an obvious difficulty, they were able to present a thoughtful defence of the Lord Ordinary's opinion.

In view of what I have just said, it is not surprising that the debate before us concentrated on the terms of the Lord Ordinary's opinion, and, in particular, those parts of it which formed the basis for his ultimate conclusion. Inevitably large tracts of the evidence had to be looked at in order to understand the Lord Ordinary's course of reasoning. The necessity for this was mainly due to the fact that, in order to reach the conclusion which he did, the Lord Ordinary had to accept at least parts of the evidence of Mr Williams, the consultant neurosurgeon from Birmingham who, as your Lordship has pointed out, was led by the pursuer as his expert witness. The emergence of Mr Williams, at the last minute as it were, as a person who felt able to support the pursuer's case must have come as a great relief to the pursuer. I say this because, until he appeared, it had not proved possible, despite widespread endeavour, to find a specialist of stature, or indeed any medical person, who felt able to do so. In the event, as I shall endeavour to point out, Mr Williams proved to be a broken reed so far as the pursuer's case was concerned, and such evidence of his as was accepted by the Lord Ordinary, can be shown to have been based on erroneous assumptions. All the other expert evidence was to the effect that the overdose had played no part in Andrew's deafness. This evidence came, inter alios ,from Drs McClure and Stephenson, both of whom were specialists in paediatrics. In a case involving a boy of two and a half such evidence was of the greatest importance, but the Lord Ordinary chose to reject it on the main issue and, in so far as he felt he required to do so, opted to rely on the evidence of Mr Williams.

Before I go on to consider the opinion of the Lord Ordinary it is appropriate to set out in broad outline the events leading up to the administration of the overdose, as they appear from the evidence.

Andrew's first departure from normality appears to have occurred on 12th

November 1975 when he had an attack of croup. The general practitioner visited him twice and prescribed penbriten which is a form of ampicillin. On 21st November Andrew got an upper respiratory infection and actifed syrup was prescribed. There was clear evidence that infection in the chest can be one of the early signs of the onset of meningitis, and, with the benefit of hindsight, it is reasonable now to assume that the progress towards meningitis started in Andrew on or about 21st November. Andrew's condition did not improve, and, on 26th November, he was "listless, pale and shivering", and had a temperature of 102.8°. He was vomiting and had a headache. Meningitis was suspected, and ampicillin was ordered to be administered orally. On the following day Andrew was still vomiting and his temperature was still high. There was no improvement by the 28th and he was admitted to Seafield Hospital on the morning of 28th November with suspected meningitis. On admission it was noted that Andrew was very thin, ill and irritable. His head was inclined to the left, his throat was inflamed and his neck was stiff. These are classic symptoms of meningitis, but what form of meningitis it was could not be determined until an examination of his cerebrospinal fluid (hereinafter referred to as CSF) had been made. A lumbar puncture was accordingly performed. At this stage the evidence, such as it is, would suggest that Andrew was conscious, although no note was made in the medical records to that effect. On the next day however, 29th November, Dr McClure, the consultant paediatrician in charge of Andrew's case, noted that Andrew was "not conscious but responding to tactile stimuli." As no such entry had been made on the 28th it is reasonable to infer that Andrew was conscious, or at any rate was not unconscious when admitted on the 28th. The significance of that conclusion is that it points to a deterioration in Andrew's condition between the time of admission and the time of Dr McClure's examination shortly before the overdose was administered on 29th November.

None of these facts to which I have referred were in dispute, and all of them were before Mr Williams when he examined Andrew on 21st September 1984, and described him, as at the time of his admission to Seafield Hospital as "a well-nourished robust child", who "did not have an advanced degree of disease." Mr Williams gave reasons for the degree of Andrew's disease, which I will have to examine in more detail later on in this opinion but, for my part, bearing in mind the development of Andrew's illness as I have set it out, Mr Williams' description of Andrew as "a robust child", as at 28th November 1975, casts an initial doubt upon the reliability of his opinion.

The overdose was injected at about 12.30 p.m. on 29th November. About ten minutes later Andrew became pale, and at 1.00 p.m. he had a tonic seizure, which involved Andrew going wholly rigid. He was given oxygen and valium, and various other forms of therapy in an earnest endeavour to save his life. It is a recognised risk that a large dose of penicillin injected intrathecally can result in convulsions, severe coma and death. In course of the day Andrew suffered a degree of paralysis, and some seizures, but the latter had ceased by 30th November. By that time some improvement in Andrew's condition was noted. The improvement mercifully continued, and, by 4th December it was noted that "he is speaking and shows no neurological deficit apart from some spinal stiffness." The evidence does not disclose with any accuracy the date when it was realised that Andrew was deaf, but the fact that he was deaf was borne in on his father when he took Andrew to a theatre group at the hospital on 23rd December.

In his evidence he said that Andrew was fond of music but it was clear to him on that occasion that Andrew could not hear any of it. The pursuer said:

"I knew then that that was it, that he was deaf."

On record and in evidence through the mouth of Mr Williams the pursuer maintained that Andrew had suffered brain and neural damage as a result of which he was deaf in both ears. The brain damage was averred by the pursuer to have made Andrew aphasic, ataxic, and virtually dumb. The pursuer also averred that Andrew's personality had totally changed. Counsel for the defenders and reclaimers did not challenge the award of damages made by the Lord Ordinary, if their reclaiming motion was to fail, but, if it was to succeed, they contended that damages would fall to be dramatically reduced. Counsel for the respondent accepted that if the reclaiming motion was successful damages would be related to the immediate effects of the overdose which were clearly related to it, and submitted that the subsequent ataxia and changed personality were also attributable to the overdose and accordingly that that effect should be included in the award.

As I have already indicated the critical issue for the Lord Ordinary's consideration was whether there was evidence which would entitle him to hold, on the balance of probabilities, that the overdose, an act admitted to have been negligent, had caused or materially contributed to Andrew's deafness. There is no doubt at all that the weight of the evidence was to the effect that there was no causal connection between the overdose and the deafness, and it is important to remember that that evidence came from two consultants whose particular expertise was in the field of paediatrics and one consultant in what is now called microbiology. The lone voice of Mr Williams, a consultant neurosurgeon with no paediatric experience, proclaimed that the overdose and the deafness were causally connected, and, despite a rejection of most aspects of Mr Williams' opinion, the Lord Ordinary listened to that lone voice and used part of what it had to say to construct 3 theory which entitled him to decide the issue in the pursuer's favour. I now proceed to examine how he did it.

In order to conclude that Andrew's deafness had been caused, or materially contributed to, by the overdose it was necessary to reach a view as to the state of Andrew's hearing before the overdose was administered. The Lord Ordinary considered this question in his opinion. He started by saying:

"It was submitted on behalf of the defenders that Andrew was probably deaf before the overdose was administered."

He then considered the evidence bearing on the point and reached the conclusion that:

"It is not proved that Andrew was deaf before the overdose was administered."

In my opinion this was not the correct approach; the correct approach was for the pursuer to establish, if he could, that Andrew was not deaf before the overdose was administered, and if he could not do so, that was the end of the case. It is difficult to see how, if the evidence did not prove that Andrew was deaf before the overdose, it was sufficient to establish that he was not deaf. However, counsel for the defenders specifically, and doubtless for good reasons, declined to take this point, and the debate was conducted on the basis that it had not been proved that Andrew was deaf before the overdose had been administered. [After considering the evidence relating to the damage caused by the overdose of penicillin and pointing out that it was somewhat strange that while the Lord Ordinary's assessment of all the medical witnesses was that they were doing their best to assist the court to understand a complicated medical picture,

the only one whose evidence he almost wholly rejected was Mr Williams, his Lordship continued.]

The necessity for weighing up the evidence afresh, however, does not arise because of the way the Lord Ordinary chose to reach a conclusion as to how it came about that Andrew is now profoundly deaf. Your Lordship in the chair has quoted the relevant part of the Lord Ordinary's opinion at length, and I content myself with referring to it for its terms. As can be seen the Lord Ordinary's theory of causation is based on a consideration of the behaviour of the body's defence mechanisms when toxins are introduced into the central nervous system. He outlines a way in which a battle takes place between the toxins and the body's defence mechanisms, with an antibiotic in the background trying to overcome the bacteria which produced the toxins. He explains how it is the task of the defence mechanisms to resist and overcome the toxins, and how, in order to do so, there must be adequate supplies of healthy oxygenated blood at, and in the vicinity of, the areas under toxic attack. All the foregoing is, so far as I am aware, accurate, but there was no evidence about it, and in particular there was no evidence as to how, following the overdose, Andrew's defence mechanisms had, as a matter of probability, reacted. The Lord Ordinary's description of what probably occurred is pure speculation, and found no part in the evidence. That is perhaps not surprising because it formed no part of the pursuer's case as presented on record, in the evidence, or at the hearing following thereon. It is therefore unnecessary to comment on it or criticise its accuracy.

I had the greatest sympathy for counsel for the pursuer in their courageous attempt to support the basis of the Lord Ordinary's opinion. That they did so in recognition of the difficulties which confronted them, not because of the evidence, but because of the Lord Ordinary's disregard of it, reflected great credit on their professional integrity. I can well appreciate why the critical passage in the Lord Ordinary's opinion caused the pursuer's counsel great anxiety, but if it is any comfort to them, I think, in all the circumstances, they were well entitled to take the stand which they did.

I have nothing to add to what your Lordship in the chair has said on the question of damages, but before concluding my opinion I would like to say this. I too am conscious of the tragedy which has befallen Andrew's family, which must have been so much part of their lives for such a long time. The careful scrutiny of the evidence at the hearing however convinced me that the overdose was not responsible for Andrew's deafness, and I hope that, on reflection, the pursuer and his wife have been able to reach the same conclusion.

LORD KlNCRAIG .—In this action the pursuer sought to prove that because of the overdose of penicillin given to his son, Andrew, on 29th November 1975, the proper treatment for meningitis, namely, the regular and repeated administration of penicillin, was not given to Andrew, and as a result he was more liable to suffer damage, such as deafness, as a result of the meningitis. This contention was rejected by the Lord Ordinary, and his decision on that matter has not been challenged. The pursuer also sought to prove that in addition, and in any event, the overdose materially enhanced the risk of brain and neural damage, including damage to the eighth nerve which controls hearing. This case was supported, and elaborated in evidence, by Mr Bernard Williams, a consultant neurosurgeon who, in a report, stated that penicillin injected into the lumbar spaces could be expected

to collect in the cerebello-pontine angle, and exert destructive effects on nerves at the site, which included the eighth nerve. The Lord Ordinary has found that this opinion, although not unacceptable, is insufficient to entitle the pursuer to succeed and has inferentially rejected that opinion. The respondent did not suggest that he was wrong to do so.

Having come to the view that Andrew's chances of making an asymptomatic recovery from meningitis were reasonably good (and I shall deal with the question as to whether he was justified in doing so later in this opinion), the Lord Ordinary then reviewed the opinion evidence relating to the mechanism which probably caused Andrew's deafness, and he held that Dr Stephenson was probably correct in his opinion that direct pneumococcal infection was the predominant mechanism which caused Andrew's deafness. This finding was also not challenged. The Lord Ordinary then went on to consider whether on the evidence the overdose of penicillin could have influenced the operation of that mechanism. He notes in his judgment the evidence of Dr W. Brown who explained the purpose of injecting large quantities of penicillin. The Lord Ordinary's judgment then proceeds as follows: [his Lordship quoted the passage set forth by the Lord President (Lord Emslie) supra at pp. 150–151 and continued].

The Lord Ordinary then goes on to summarise his previous view that because of the overdose Andrew had a good chance of recovery without deafness, but that on recovery he was found to be profoundly deaf. That result, says the Lord Ordinary, admits of a simple explanation that notwithstanding the favourable indications present on 29th November, that is to say the day of the overdose, the toxins produced by the meningitis gained sufficient advantage over Andrew's defensive mechanism to destroy his hearing. The Lord Ordinary then however goes on to consider the effect of the overdose, and Andrew's reaction to it, and concludes that they tip the balance in his favour, that is to say in favour of the conclusion that as a consequence of the overdose the resistance of the defensive mechanisms to the toxic attack was so weakened as to give the advantage to the toxins, or, in any event, that as a result of the overdose the chances of deafness supervening were increased.

This possible causal connection between the overdose and Andrew's deafness is not supported by the evidence in the case. None of the medical witnesses gave it as a probable or even possible cause for the deafness, and it was not suggested to any of the medical witnesses that there was probably, or even possibly, a causal connection between the deafness and the overdose. No opportunity was thus given to the defenders to refute, by evidence, the connection, if any, between the overdose and the deafness if they were able to do so. Further, we were informed that it formed no part of the pursuer's submission to the Lord Ordinary that such causal connection had been proved, and thus no opportunity was given to the defenders to demonstrate from the evidence that the connection was not valid. In that situation in my opinion, the Lord Ordinary had no justification for his conclusion and his judgment on that matter cannot stand.

Junior counsel for the respondent argued that, although not in terms supported by medical opinion, the Lord Ordinary's conclusion was justified on a consideration of some of the evidence in the case. He then referred us to a number of answers to questions given by the medical witnesses, from which he asked us to infer that there was a sound basis in medicine for the Lord Ordinary's view. Senior counsel for the respondent adopted that submission. These answers were given

to questions in contexts totally different from the weakening of the body's defensive mechanisms, and required for their understanding in this context, a knowledge of the workings of the human body and the effect of drugs upon it, which I do not possess and which cannot be said to be within judicial knowledge. To decide an issue of causation between the parties in an area of medicine where matters are very complex, and much is not yet understood, on a theory not supported by medical testimony, is neither appropriate nor just. For these reasons I agree with your Lordship that the reclaiming motion must succeed.

In further support of the reclaiming motion it was argued that even if the Lord Ordinary was entitled to hold proved that the overdose had the result of weakening the resistance to the pneumococcal infection, the Lord Ordinary was not justified in concluding, as an essential prerequisite of that mechanism, that Andrew's chances of making an asymptomatic recovery from the meningitis were reasonably good. The Lord Ordinary's basis for so holding was the opinion of Mr Williams, and certain conclusions which he draws from the literature on the subject. The reclaimers made a vigorous and sustained attack on the validity of the opinion of Mr Williams. Because of the view I have formed on the soundness of the Lord Ordinary's judgment I do not find it necessary to deal with this submission, although I formed the opinion that there was much force in it. It was also argued by the reclaimers that the defenders could not be liable for the consequences of deafness in Andrew because that was not a reasonably foreseeable consequence of the overdose. Reference was made in this connection to a number of authorities dealing with the question of foreseeability and remoteness of damage. I do not find it necessary to deal with this submission.

As regards the assessment of damages on the basis that the pursuer has failed to prove that Andrew's deafness was caused by the overdose I agree with your Lordship that Andrew's ataxia and changes in personality have not been proved to be the result of the overdose. I also agree with your Lordship's assessment of the amount of damages and have nothing to add in that connection.

For these reasons, I agree with your Lordships that the Lord Ordinary's interlocutor should be recalled and the case disposed of as suggested by your Lordship in the chair.

The pursuer appealed to the House of Lords. The appeal was heard in that House by Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern and Lord Ackner on 23rd, 24th and 25th March 1987.

The arguments of counsel are adequately set forth in the speeches of their Lordships.

At delivering judgment, on 14th May 1987,—

LORD KEITH OF KINKEL .—My Lords, on 28th November 1975 the appellant's son Andrew Stuart Kay, then aged two years and five months, was admitted to Seafield Children's Hospital, Ayr, which was under the management of the respondent board. His admission had been sought by his general practitioner because she suspected that he was suffering from meningitis, following an infection of the upper respiratory system. Meningitis is a disease which causes inflammation of one or more of the three membranes which envelop the central nervous system consisting of the brain and spinal chord. The three membranes are the dura mater, the arachnoid and the pia mater. Between the arachnoid and

the underlying pia mater is the subarachnoid space, which is filled with cerebro-spinal fluid (CSF). The general practitioner had treated the respiratory infection with ampicillin administered orally, but due to vomiting its therapeutic effect may have been to some extent frustrated. On admission to hospital Andrew was found to be seriously ill. He was treated with benzyl penicillin and sulphadiazine administered intravenously. A specimen of CSF was taken and sent for analysis. On the following day, 29th November, the laboratory reported that the two cultures of pneumococci had been cultivated from the specimen. This led to a confirmed diagnosis of pneumococcal meningitis, a most virulent form of the disease. The consultant paediatrician in charge of the case, Dr McClure, instructed that 10,000 units of penicillin be injected intrathecally, that is to say by way of lumbar puncture into the subarachnoid space containing the CSF. The reason for this procedure was to bring about that the penicillin might most readily reach the infected meninges and attack the bacteria which were causing the disease. The injection was carried out shortly after noon on that day by Dr Adam-Strump, a senior house officer. By mistake he injected about 300,000 units of penicillin instead of 10,000 units. This rapidly produced toxic effects. The child went into convulsions and later developed a degree of hemiparesis, that is to say paralysis on one side of his body. Dr Adam-Strump realised his mistake immediately, and remedial measures were urgently instituted. These were successful in saving the child's life and by 1st December the immediate ill-effects of the overdose appeared to have been surmounted. A rapid recovery from the meningitis also followed. He was discharged from hospital on 24th December. His parents before then had begun to suspect that he was suffering from deafness. This proved to be indeed the case. He was suffering and still suffers from profound bilateral deafness.

The appellant, as Andrew's tutor and administrator-at-law, raised the present action against the respondent board on 20th November 1978, claiming damages on his behalf on the ground of vicarious liability for the negligence of Dr Adam-Strump. The board admitted liability, but contended that the consequences of Dr Adam-Strump's negligence were limited to the convulsions and hemiparesis from which Andrew suffered immediately following the overdose of penicillin. They denied that the overdose had resulted in any residual disability and, in particular, that it had caused Andrew's deafness. They lodged a tender on that basis.

The action was tried before Lord Davidson starting on 9th October 1984. The appellant conducted his own case. He relied principally on the evidence of Mr Bernard Williams, a consultant neurosurgeon, who had examined Andrew on 21st September 1984 and studied the available records of Seafield Hospital relating to him. His evidence was that not only the deafness but also other residual abnormalities were due at least in part to the overdose. These other abnormalities included clumsiness, learning difficulties, excitability, lack of social restraint and failure of normal sexual maturation. The board led the evidence of a number of specialists in various branches of medicine to the effect that neither the deafness nor any other of the abnormalities mentioned by Mr Williams were due to the overdose. They ascribed the deafness wholly to the meningitis, a disease of which it is a common sequela .

The Lord Ordinary decided that the deafness had been contributed to by the overdose. He did not accept that the overdose had had any other direct residual ill-effects. He awarded damages of £102,000. The board reclaimed, and their

motion for review, the present appellant at that stage being represented by counsel, was heard by the First Division (the Lord President (Lord Emslie), Lord Grieve and Lord Kincraig) who, on 18th December 1985 allowed it, holding that Andrew's deafness had not been proved to have been related causally to the overdose. They reduced the damages to £7,275. It appears that this sum did not beat the board's tender, since the appellant was awarded expenses only up to the date of it, no expenses being found due to or by either party after that date.

The principal reason why the First Division decided as they did was that they found the Lord Ordinary, in holding proved a causal connection between the overdose and the deafness, to have proceeded on a theory of causation propounded by himself, which had not been spoken to by any of the medical witnesses and had not been suggested to any of them so that they might express an opinion on its validity. Mr Williams had put forward the thesis that the penicillin had directly attacked the eighth cranial nerve, controlling the auditory function, by accumulating in an area known as the cerebello-pontine angle, through which that nerve passes. He asserted that penicillin derivatives such as ampicillin were known to cause deafness in this way. Other evidence, however, indicated that while other antibiotics, in particular streptomycin, were known to cause deafness in this manner, penicillin derivatives were not. The Lord Ordinary did not feel that he could accept Mr Williams' evidence in this regard. The Lord Ordinary's theory was that the convulsions from which Andrew suffered following the overdose involved the firing of neurones in the cerebral cortex; that this resulted in an enhanced demand by the neurones for oxygen; that the defence mechanisms of the body against the toxins produced by the pneumococcal bacteria required for their efficiency an ample supply of oxygen in the blood; that because of the demands of the firing neurones the oxygen available to the defence mechanisms was reduced; and thus that the toxins were less effectively combatted, which enabled them to damage the auditory nerve and produce the deafness.

In the argument before your Lordships' House counsel for the appellant rightly accepted that this theory of the Lord Ordinary could not be supported as a ground for a decision in his favour. It had no tenable foundation in the evidence led and had not even been canvassed at the hearing on evidence. He did, however, rely on what the Lord Ordinary described as a general feature of Andrew's reaction to the overdose of penicillin, as contrasted with the special feature associated with the firing of neurones about which the Lord Ordinary devised his theory. That general feature, as the Lord Ordinary put it, was "that, as the evidence about cynanosis, breathlessness and the prolonged lapse into coma indicates, there was an overall decline in [Andrew's] condition which suggests a resultant weakening of his powers of resistance to the disease." This supposed general feature, however, does not differ in essential character from the Lord Ordinary's special feature. The latter is no more than a development in detail of the general feature, and both suffer from the defect that neither of them was grounded to any extent in the medical evidence. None of the witnesses suggested, nor was it suggested to any of them, that the cyanosis, breathlessness and lapse into coma had the effect of weakening the child's powers of resistance to the toxins generated by the pneumococci. The Lord Ordinary's approach proceeded on the view that, but for the overdose of penicillin, Andrew's prospects of recovering from the meningitis without suffering deafness were reasonably good.

One of the steps which he took in forming this view was to hold that it had not been proved that Andrew was deaf before the overdose was administered. As the judges of the First Division pointed out, the evidence likewise did not enable a finding to be made that he was not deaf before the overdose. There was, in truth, no evidence either way. The factor is of some significance because medical knowledge indicates that deafness, if it materialises as a sequela of meningitis, is likely to do so at an early stage of the disease. On the 28th and 29th November the disease in this case appears to have been at its height. The evidence of Dr Adam-Strump and Dr McClure was that the child was extremely ill on these days, and the latter recorded that he was, to some extent, unconscious on the morning of 29th November. After 29th November the meningitis cleared up very rapidly. Though no firm inferences can be drawn, if the disease was already past its peak when the overdose was administered, and thus past the stage when deafness is most likely to occur, it is not easy to see, once the Lord Ordinary's untenable theory is rejected, how the overdose can be held to have increased the prospects of deafness. The Lord Ordinary derived support for his view from an expression of opinion by Mr Williams that the disease was not at an advanced stage on 28th November, and that the prospects of complete recovery were then good. To some extent this opinion was based upon a mistake of fact, namely that the CSF sugar level on that day was 66—well within the normal range of 40–120. A low CSF sugar level is an important indication of the severity of the disease and has also been shown in medical literature to have a correlation with residual deafness. The level of 66 was in fact recorded from a specimen of CSF taken on the 29th, just before the administration of the overdose. The record of the corresponding analysis of the specimen taken on the 28th was unfortunately missing, but in a letter dated 24th December 1975 from Dr McClure to the district medical officer he stated that on 30th November CSF sugar level had returned to normal. Dr McClure did not recall what the sugar level had been on the 28th, but it may be inferred that it was below the normal level.

Medical knowledge, as revealed in the course of the evidence, clearly demonstrates that the deafness is a common sequela of meningitis. Statistics indicate that it occurs in about a third of all cases of pneumococcal meningitis. They also indicate, it is true, that prospects of a full recovery free of sequelae are somewhat better in the case of children aged between six months and 2½ years than in that of children aged below or above that bracket. Andrew was aged two years and five months at the material time, but no important significance can reasonably be attached to that. The weight of the evidence in this case, as the judges of the First Division found, is that the deafness was caused by the meningitis, and that there was no causal connection between the deafness and the overdose of penicillin.

Counsel for the appellant placed some reliance on McGhee v. N.C.B. 1973 SC (HL) 37 . That was a case where the pursuer had been employed in an environment where he was exposed to brick dust, a known cause of dermatitis. The pursuer contracted dermatitis and claimed damages from his employers on the ground of their negligence in failing to provide adequate washing facilities, including showers, a precaution normally taken by prudent employers in like circumstances. The employers admitted negligence, but maintained that their failure had not been proved to have caused the pursuer's dermatitis. In the state of medical knowledge it was not possible for medical witnesses to explain the

process by which dermatitis developed, and the pursuer's expert could do no more than say that the failure to provide showers materially increased the risk that the pursuer would contract the disease. He could not say that if the pursuer had been able to wash off the dust immediately after ceasing work he would not have contracted it. It was held in your Lordships' House that a sufficient causal connection between the failure to provide showers and the contraction of dermatitis had been established. In my opinion the decision does not assist the present appellant. Had there been acceptable medical evidence here that an overdose of penicillin administered intrathecally was known to increase the risk that the meningitis, which the penicillin was intended to treat, would cause deafness, the decision would have been in point. It would be immaterial that medical science was unable to demonstrate the precise mechanism whereby the risk was increased. But as it is, there is in the instant case no such medical evidence. It is true that there are few recorded cases of overdoses of penicillin intrathecally administered for the purpose of treating actual or suspected meningitis. But the paucity of such cases, none of which supports the suggested causal connection, cannot in itself make good the lack of appropriate evidence.

My Lords,

for these reasons I would dismiss the appeal.

LORD BRANDON OF OAKBROOK .—My Lords, I have had the advantage of reading in draft the speeches prepared by the rest of your Lordships. I agree with them and would dismiss the appeal accordingly.

LORD GRIFFITHS .—My Lords, at the age of two-and-a-half Andrew Stuart Kay suffered an attack of meningitis. Andrew is now 15 and suffers from a number of disabilities, all of which his parents understandably believe are attributable to the fact that during the treatment of his meningitis a massive overdose of penicillin was negligently injected into his spinal column, the immediate effect of which almost killed him. For the purposes of this appeal, however, the only question with which your Lordships are concerned is whether it is proved that the deafness from which Andrew now suffers was caused by the overdose.

The immediate lay reaction may well be that such an overdose is likely to impair recovery and cause deafness. But even this immediate lay reaction must surely be modified in the knowledge that deafness is a very common sequela of meningitis and although penicillin has been the most widely used of all antibiotics since the second world war, there is no recorded case of it ever causing deafness.

I am entirely satisfied by the reasoning of the judgments in the Inner House, particularly that of the Lord President (Lord Emslie), and by the speeches of Lord Keith of Kinkel and Lord Mackay of Clashfern, both of which I have had the advantage of reading, that Andrew's deafness was caused by meningitis and not by the overdose. I only venture to add a few comments of my own out of respect for the arguments of counsel and also in recognition of the burden of responsibility carried by Andrew's father in presenting his case to the Lord Ordinary without the benefit of counsel.

The outcome of a case such as this depends not upon a layman's reaction to the facts, but upon the evaluation of the medical evidence. Only one doctor put forward a theory that supported the view that penicillin had caused the deafness. He was a neurosurgeon called by the father who expounded his theory in great detail. He attributed not only the deafness but also other present neurological

deficits to the action of the penicillin overdose. The Lord Ordinary quite rightly held that he was unable to accept this theory which conflicted with all the other medical evidence in the case, was out of line with all the published medical literature, and, to some extent, was based on an imperfect understanding of Andrew's case history. I do not descend to detail because it is fully covered in the judgments and speeches to which I have referred. That should have been the end of the matter for the pursuer's medical evidence had simply failed to prove the necessary causal link between the overdose of penicillin and the deafness. I would stress, however, that this failure could not be attributed in any way to the manner in which the case was presented by the father; it followed from the balance of the medical evidence being overwhelmingly in favour of meningitis as the cause of deafness.

However, in the course of preparing a very careful judgment the Lord Ordinary evolved a new theory of the way in which penicillin might have caused the deafness and founding himself on this theory he found the causal link established. Even as a layman I have grave doubts about the plausibility of this theory, but that is beside the point for it is to be judged not by laymen but by doctors, and, of course, it was never canvassed with any of the medical witnesses. In these circumstances counsel for the appellant has properly conceded that he is unable to place any reliance upon this theory to establish the causal link necessary to uphold the Lord Ordinary's judgment. Counsel for the appellant has sought to establish the necessary causal link by relying firstly on the Lord Ordinary's finding that but for the overdose, Andrew had good prospects of making an asymptomatic recovery. Secondly, on a material increase of the risk of neurological damage as a result of an overdose of penicillin. And thirdly on the decision in McGhee v. N.C.B. 1973 SC (HL) 37 which he submits enables the law to draw the inference of the existence of the necessary causal link from the first two findings.

I am afraid I cannot accept any stage of this argument. In the first place, for the reasons explained in the speech of Lord Mackay of Clashfern and canvassed in the judgments in the Inner House, the evidence did not justify the Lord Ordinary's conclusion that Andrew had good prospects of making an asymptomatic recovery. This finding was based upon the evidence of the neuro-surgeon whose evidence as to causation had not been accepted, and whose assessment of Andrew's condition before the injection of the overdose was based upon a mistaken view of the efficacy of the drug he had been given at an early stage of the illness and a mistaken belief as to the date upon which the glucose present in the cerebro-spinal fluid was at an abnormal level.

Even if I had been able to accept this first step in the argument I would not have accepted the second step which predicates that all neurological damage is similar in kind. Mercifully, the recorded cases of an intrathecal overdose of penicillin are few but none record damage to the auditory nerves, and penicillin has never been known to damage the hearing. Because penicillin is known to cause neurological damage resulting in fits or hemiparesis it is not permissible to lump these together with every other possible type of neurological damage including deafness.

The principle in McGhee would only fall for consideration if it was first proved that it was an accepted medical fact that penicillin in some cases caused or aggravated deafness. The question would then arise whether when there are two competing causes of deafness, namely meningitis and penicillin, the law should

presume in favour of the plaintiff that the tortious case was responsible for the damage. However, because the necessary factual background cannot be established on the evidence in this case, this difficult question does not arise and I agree that this appeal must be dismissed.

LORD MACKAY OF CLASHFERN .—My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Keith of Kinkel. I agree with his conclusion that this appeal should be dismissed and that the appellant must be found liable as an assisted person for costs in this House. I gratefully accept the narrative which my noble and learned friend has given of the circumstances from which this appeal has arisen.

Out of respect for the careful argument advanced to your Lordships by counsel for Mr Kay and in view of the importance of the case I shall give my reasons for reaching the conclusion that the appeal should be dismissed in my own words.

When Andrew was admitted to Seafield Children's Hospital, he was undoubtedly suffering from pneumococcal meningitis, a very serious illness, which until the discovery of penicillin, usually proved fatal. Since penicillin has come to be used in its treatment the prospects of recovery have greatly improved but in the particular type of meningitis from which Andrew suffered there is a serious risk that permanent deafness may follow as a consequence of meningitis, even if all proper steps are taken in dealing with the illness. If Andrew's treatment had been completely normal and he had suffered permanent deafness in consequence of his illness no claim for damages against anyone would have been available to him in respect of his deafness.

The question and the only question argued in this appeal is whether the permanent bilateral deafness from which Andrew suffers was caused by his meningitis only, in which event the First Division's decision appealed from was correct, or was brought about at least to a material extent by the overdose of penicillin which was administered to him on 29th November, the day after his admission to hospital, in which event the Lord Ordinary's decision was right.

It is obvious that the answer to this crucial question must depend upon medical evidence. It is not a matter upon which a judge would be able to reach a conclusion without such evidence. The Lord Ordinary heard a considerable body of skilled testimony and he formed the clear impression that all the medical witnesses that he heard were doing their best to assist the court to understand a complicated medical picture.

On the evidence adduced to him, the Lord Ordinary was not satisfied that, leaving the present case out of account, penicillin had ever been proved to have caused or contributed to deafness. This conclusion was entirely in accordance with the evidence and has not been challenged. Because of this, the Lord Ordinary concluded that it was necessary in order that the appellant should succeed that he should explore the somewhat obscure mechanisms of bacterial meningitis and of penicillin overdose when injected intrathecally. Mr Williams, a consultant neurological surgeon, gave it as his opinion that the penicillin had collected in the cerebello-pontine angle and had exerted destructive effects on the nerves at that site and thus caused Andrew's deafness. The Lord Ordinary did not feel able to hold that the pursuer had sufficiently demonstrated the correctness of this opinion to entitle him to succeed. Dr Stevenson, a consultant in paediatric neurology, who gave evidence for the defenders, gave it as his opinion that direct infection of the

nerves of the inner ear by toxins produced by the bacteria of the pneumococcal meningitis combined with an interruption of the blood supply to that area was the likely mechanism causing the deafness. The Lord Ordinary reached the conclusion that Dr Stevenson was probably correct in his opinion that direct infection associated with the meningitis was the predominant mechanism. He went on to consider whether the penicillin overdose played any part in assisting this mechanism to bring about deafness.

In approaching this problem, the Lord Ordinary explained in accordance with the evidence, that the bacteria associated with the meningitis produced toxins which are apt to damage the sufferer's body and, in particular, the auditory nerve. The purpose of introducing antibiotic to combat the disease is to kill the bacteria. If sufficient bacteria are killed the resulting production of toxins will be diminished thus giving the body's defensive mechanisms a better chance of overcoming the total assault of the toxins. It is the defensive mechanisms of the body that must be relied upon to destroy the toxins. The antibiotic does not, itself, attack these. The Lord Ordinary concluded that since the result of the overdose of penicillin described in the evidence was to increase the firing of neurones in the cerebral cortex and the firing of neurones created an additional demand on the supply of oxygenated blood which was required at the site of the nerve cells attacked by the toxins produced by the bacteria, the result was that the responses of Andrew's defensive mechanisms to the toxins were weakened and distracted with the consequence that the toxins were able to do more damage to the auditory nerve than otherwise they would have been able to do. Put more generally, the effect of the overdose was, on this theory, to weaken the defences of the body and, in particular, of the auditory nerve to attack from the toxins and thus render damage to that nerve resulting in permanent deafness more likely than it would have been apart from the overdose of penicillin. This theory appears to have occurred to the Lord Ordinary in the light of his careful perusal after the proof was considered of all the evidence and the medical literature with which he was furnished at the proof. It was not, however, supported by that evidence nor had it been put to any of the witnesses nor was it discussed in the hearing on evidence at the end of the proof. Although in the First Division counsel for the appellant had sought to persuade the division that this theory was supported by the evidence, in your Lordships' House counsel for the appellant accepted that the First Division were right in concluding that this theory was not supported by the medical evidence and in consequence that he could not submit that the appellant had proved that the overdose of penicillin had made a material contribution to Andrew's deafness on this basis. He was, therefore, constrained to approach the matter differently. He pointed out that the Lord Ordinary had held that prior to the overdose Andrew's prospects of recovering without becoming deaf were good. He went on to submit that the evidence showed that an overdose of penicillin increases the likelihood of neurological damage in the person affected by pneumococcal meningitis, that permanent deafness was a particular kind of neurological damage, that the mechanisms bringing deafness about were not sufficiently clear to enable a confident explanation of them to be furnished and that by a development of the decision of your Lordships' House in McGhee v. N.C.B. 1973 SC (HL) 37 proof that the overdose of penicillin materially increased the risk of neurological damage was sufficient to establish that the overdose had made a material contribution to the neurological damage which, in

fact, resulted, namely deafness, are thus to entitle the appellant to succeed. This formulation was devised in order to elide the difficulty that the basis upon which the Lord Ordinary had concluded that the overdose of penicillin materially increased the risk of deafness involved reliance on the theory which he himself had advanced that the body's defensive mechanisms had been rendered less effective by the overdose than otherwise they would have been to offer resistance to the toxins attacking the auditory nerve.

In this formulation, counsel derived assistance for the proposition that an overdose of penicillin materially increased the risk of neurological damage from the study of the results in the recorded cases of intrathecal overdoses of penicillin. There were 12 such cases reported. In eight the result was death, in two the result was complete recovery after the initial experience of neurological damage and in the remaining two cases the patient suffered neurological damage which was permanent although not deafness.

I consider that the Lord Ordinary was entitled as a possible approach to the question he had to decide in this case to consider the evidence relating to Andrew's prospects of recovery without deafness as these could be judged immediately before the overdose. He reached the conclusion that these prospects were good in the light of Mr Williams' evidence. Mr Williams did not have the advantage of seeing Andrew at the time of his illness and his opinion was based upon what had been reported to him and his study of the records. The record of the glucose level in Andrew's cerebral spinal fluid on the day of his admission to hospital had been lost. The first record of that level available to Mr Williams was that relating to the day after Andrew's admission to hospital and based upon a sample taken very shortly before the overdose of penicillin was administered to him. By that time, the glucose level in Andrew's cerebral spinal fluid was normal. From the account given in a letter written by Dr McClure, the consultant paediatrician responsible for Andrew's care in hospital on 4th December 1975 that by 29th November the cerebral spinal fluid sugar had returned to normal, it is apparent that it had been abnormal in the only other sample previously taken, that on 28th November. The Lord Ordinary had concluded in the absence of a firm figure that the level on 28th November was probably between 30 and 40. One of the reasons given by the Lord Ordinary for reaching this conclusion is that in a chart dealing with a survey in Montreal showing median values of glucose concentration in cerebral spinal fluid during 85 courses of pneumococcal meningitis in children for day 1 to day 3 the median value appeared to be in the region of 50 and the corresponding median on admission was about 33. While recognising that any attempt to project the values set out in that chart so as to make general conclusions would be unscientific and misleading the Lord Ordinary concluded that the chart was of some assistance in negativing the suggestion that when Andrew was admitted to hospital his glucose level was at or below 20 since his level on 29th November was 66. I do not understand this part of the Lord Ordinary's reasoning and I doubt whether the Lord Ordinary was entitled to conclude that Andrew's sugar level in his cerebral spinal fluid on admission to hospital was such as to enhance his chances of recovering without deafness, although it had been shown that there was a significant correlation between sensorineural deafness and initial cerebral spinal fluid glucose concentration of less than 20 milligrammes per decilitre. I consider further that the weight of the evidence about Andrew's condition on admission to hospital and on the following

day suggested a severe case of pneumococcal meningitis and that it would be extremely difficult to reach a firm opinion on the basis of Andrew's condition on admission to hospital and his condition between that time and his receiving the overdose upon whether or not, apart from the overdose, his chances of recovery without deafness were particularly good. Even if the Lord Ordinary was entitled to reach the view that these chances were good, this conclusion would not, of itself, justify the further conclusion that the overdose of penicillin materially contributed to Andrew's deafness.

The next step is to consider whether there is evidence that the overdose materially increased the risk of deafness. In my opinion, it is not right to ask whether it materially increased the risk of neurological damage when the evidence available distinguishes between different kinds of neurological damage. As I have said, the evidence upon which this part of counsel's submission depends is the record of the cases of overdose to which I have referred. In none of those who survived an overdose, and the number of cases is very small, was the particular type of neurological damage which results in deafness found to have occurred. I cannot accept that it is correct to say that because evidence shows that an overdose of penicillin increases the risk of particular types of neurological damage found in these cases that an overdose of penicillin materially increases the risk of a different type of neurological damage, namely that which causes deafness when no such deafness has been shown to have resulted from such overdose. Apart from Mr Williams' evidence that, in his opinion, deafness was caused in Andrew by direct effect of penicillin on the auditory nerve, which opinion the Lord Ordinary felt unable to accept as establishing the appellant's case in the light of the other evidence, there was no evidence accepted by the Lord Ordinary that penicillin in overdose or otherwise had caused or contributed to deafness. It is not necessary to consider in this case whether, if the appellant had a sufficient factual basis for the argument which he advanced based upon the decision of this House in McGhee's case his submission was correct since, in my opinion, the essential factual foundation for the submission is missing.

The result is that in the light of the whole evidence the appellant has not established that the overdose of penicillin had any causal connection with the deafness which Andrew now suffers. That deafness must, on the weight of the evidence, be held to have resulted solely from his pneumococcal meningitis and his claim for damages in respect thereof accordingly fails.

LORD ACKNER .—My Lords, if sympathy alone could be a valid basis for awarding to the appellant's son, Andrew Stuart Kay, damages to compensate him for his many and serious disabilities, then this claim would have given rise to no argument. Everybody who has or will read about his case cannot but be moved by the tragedy which has befallen him and his family. There has never been any dispute that the respondents are liable for the consequences which immediately followed the overdose of penicillin, but which cleared up without leaving any residual neurological defects within a matter of a few days. These were the deep unconsciousness, the various seizures, the respiratory difficulties and the hemiparesis. In respect of these matters it is accepted that the figure of £3,000, being the sum assessed by the First Division of the Court of Session, together with the appropriate interest, is proper compensation. The sole question which has required the determination by the court is—what, on the balance of probabilities,

caused or materially contributed to the boy's deafness? This deafness is, in Andrew's case, of particular seriousness because it has led to speech loss and behaviour difficulties.

The answer to the question is expressed shortly and accurately in the conclusion of the Lord President (Lord Emslie) in these terms [at pp. 153–154 supra ]:

"The simple truth in this tragic case is that on the evidence (and we have examined carefully the whole evidence led at proof which the parties agreed might be relevant) the only possible conclusion was that Andrew's deafness was attributable to pneumococcal meningitis alone."

Many references to and quotation from the evidence and articles, to which your Lordships' attention has been drawn could be made to justify the Lord President's statement. I choose but one. Dr McAllister, Consultant Bacteriologist in the Royal Hospital for Sick Children, Queen Mother's Hospital, Glasgow, had made a special study in laboratory and clinical assessment of antibiotics, organising many symposia on antibiotics all over the world and, in particular, Europe and the United States. His contributions to the literature on this subject numbered nearly 100, including 20 dealing with penicillins. He confirmed that pneumococcal meningitis was the classical disease for producing deafness. He was asked whether he had ever come across any information which would suggest that an overdose of intrathecal penicillin causes or could cause deafness. He said he had searched the literature, he had computer scans done by three different processes, he had watched for years and in his experience there was no single recorded case of deafness from such an overdose.

He was asked in terms by the Lord Ordinary whether, as a bacteriologist, he was saying there was any reason why an overdose of penicillin injected intrathecally could not cause deafness. His reply was:

"As a medical scientist I need evidence for things, without evidence and without rational balance of evidence medicine is a dead duck and in this case there is no evidence that an overdose of intrathecal benzylpenicillin ever has caused deafness."

In answer to a further question from the learned

judge he said:

"All things are possible and in medicine we never say never, but from the point of view of scientific medicine to my mind there is no evidence to incriminate an overdose of intrathecal benzylpenicillin as a cause of deafness in this or in other cases and on the other side of the waterfall there is a massive amount of evidence to incriminate pneumococcal meningitis as one of the best known causes."

The only evidence to the effect that penicillin was the cause of the boy's deafness came from Mr Williams, a neurosurgeon. His theory that penicillin injected intrathecally would itself have a destructive effect on the auditory nerve was rejected by the Lord Ordinary. The Lord Ordinary, however, developed his own theory, which was not put to any of the expert medical witnesses who gave evidence for the respondents nor was it canvassed at all at the hearing. The First Division of the Court of Session held that the appellant was not entitled to succeed on the basis of this theory and this decision has not been challenged before your Lordships.

For the reasons given by my noble and learned friends Lord Keith of Kinkel and Lord Mackay of Clashfern, whose speeches in draft I have had the advantage of reading, I agree that the Lord Ordinary was not entitled to accept Mr Williams' opinion that Andrew, on admission to hospital, "fell into that group of patients for whom complete, asymptomatic recovery could reasonably have been expected."

I also agree that the "general feature" which the Lord Ordinary referred to towards the conclusion of his judgment was so interconnected with the "specific feature" (upon which the appellant was unable to rely, since it was of the essence of the Lord Ordinary's rejected theory) as to be inseparable. Moreover, the suggestion that the cyanosis, breathlessness, etc., suggested a resultant weaking of Andrew's powers of resistance to the disease and therefore to the occurrence of deafness was never put to any of the medical witnesses, not even Mr Williams, who had advanced quite a different theory and which the Lord Ordinary had very properly rejected. I respectfully agree with Lord Kincraig that:

"To decide an issue of causation between the parties in an area of medicine where matters are very complex, and much is not yet understood, on a theory not supported by medical testimony, is neither appropriate nor just"

[p. 163 supra ].

I also agree that the appellant can derive no assistance from your Lordships' decision in McGhee v. N.C.B. 1973 SC (HL) 37 . In McGhee's case, the absence of washing facilities was known to be a factor which increased the risk of dermatitis arising from the circumstances in which the pursuer worked. In this case, as previously stated, there is no evidence to incriminate the overdose of intrathecal penicillin. Moreover, if, contrary to the view which I have expressed, the decision in McGhee's case can be used to transfer to the respondents the onus of establishing that the excessive injection of penicillin did not cause the deafness, then in my judgment they have discharged that onus .

While expressing my appreciation of the great skill and thoroughness with which counsel presented the appellant's case, I too would dismiss the appeal.