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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Smith v National Health Service Litigation Authority [2000] EWHC 564 (QB) (14 November 2000)
Cite as: [2000] EWHC 564 (QB), [2001] Lloyd's LR Med 90, [2001] Lloyd's Rep Med 90

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BAILII Citation Number: [2000] EWHC 564 (QB)
Case No:96C 01073


Royal Courts of Justice
14 November 2000

B e f o r e :

Mr Justice Andrew Smith

Caroline Smith Claimant
National Health Service Litigation Authority Defendant


Gordon Catford - for the Claimant
(instructed by Peter Maughan & Co, Solicitors.)
Jamie Smith - for the Defendant
(instructed Messrs Eversheds, Solicitors.)



Crown Copyright ©

    The claimant in this case, Caroline Smith, was born on 8 February 1973. She was the third child of Mrs Penelope Smith. She was born at home at 1 Palmerston Walk, Gateshead.

    Mrs Smith had had her first baby, Julie, who was born in 1968, in hospital, but she had her second child, Paul, who was born in 1971, at home like Caroline.

    The claimant was born with a Congenitally Displaced Hip ("CDH") on the left side. In the simplest terms CDH means that the head of the femur is not stable in the acetabulum (the cup in the pelvis into which the ball of the femur head fits), and is either dislocated or liable to become dislocated. It has been defined as "a deformity in which the head of the femur is or may be displaced". Typically, CDH is progressive in that initial instability is liable to develop into a disabling condition.

    The claimant's condition was not diagnosed until 1974 and her complaint is that it should have been detected earlier, either upon an examination within a few days of her birth, or when she was about 6 weeks old. She claims that if that had happened the likelihood is that her hip would have been cured with little difficulty. In the event, she had had to undergo a great deal of surgery.

    The basis of Caroline Smith's claim that the CDH should have been detected is that in 1973 it was common practice to carry out on newborn babies tests called Ortolani-Barlow tests. This practice is reflected in advice prepared by the Standing Medical Advisory Committee for the Central Health Services Council and the relevant Minister. It was published by the government, initially in 1966 and in revised form in July 1969.

    The claimant alleges:

    1.. She was tested for CDH neither in the early neo-natal period nor at 6 weeks or thereabouts.

    2.. The defendant was under a duty to ensure that two such tests were carried out.

    3.. As a result of the tests not being carried out, she suffered damage.

    She brings proceedings against the National Health Service Litigation Authority, as being answerable for the liabilities for Gateshead Metropolitan Borough Council ("GMBC"). GMBC was in 1973 responsible for the conduct of the midwife who attended Caroline Smith's mother, the relevant Health Visitors, the Child Welfare Clinic(s), which Mrs Smith attended and the Clinical Medical Officers at the Child Welfare Clinics. GMBC was also responsible for its Medical Officer of Health, and Dr Henley, who was GMBC's Medical Officer of Health at the relevant time, told me that one of his jobs was to co-ordinate the hospital service, the general practitioners and the community nurses. However, GMBC was not responsible, and so the defendants are not responsible, for the conduct of general practitioners.

    I did not hear evidence or argument about quantum at the trial of this action. When the case came on before me, it was apparent that the issues concerning quantum were not properly ready for trial, and in any case this seemed to me a case in which it was appropriate to split the hearing of liability from that of quantum. I therefore directed that the trial before me be limited to questions of liability, including causation and limitation. The questions of causation arise on the assumption that the claimant had no Ortolani-Barlow examinations or that she had only one. In these circumstances, the following questions arise:

    (a) If the examinations had been carried out, how likely is it that the CDH would have been detected?

    (B) If the CDH had been detected, how likely is it that it would have been successfully treated?

    These questions were included in the matters for determination in the trial before me.

    The defendants, as well as disputing the claimant's contentions, rely upon a limitation defence. They claim that the limitation period expired 3 years after Caroline Smith had her 18th birthday, that is to say on 7 February 1994. These proceedings were commenced on 16 August 1996.

    In response to the limitation defence the claimant puts forward two contentions:

    1) By an amendment which I allowed in the course of the trial she relies upon section 11(4)(b) of the Limitation Act 1980 and alleges that her date of knowledge was no earlier than 16 August 1993 and so the limitation period had not expired when proceedings were brought.
    2) Secondly she applies for an order under section 33 of the Limitation Act 1980 that the limitation period should be disapplied in her case.

    Three witnesses gave evidence of fact before me. For the claimant there was evidence from Caroline Smith herself and from her mother. Both were conspicuously candid and straightforward in their evidence. The claimant's own evidence was relevant to questions concerning limitation, but unsurprisingly she gave no evidence relevant to the other issues which I am to decide. Equally unsurprisingly, Mrs Smith's memory of events which happened more than 25 years ago was far from complete.

    The defendants called evidence from Dr Henley, who has now retired but was, as I have mentioned, the Medical Officer of Health for GMBC in 1973. He too was clearly an honest witness and assisted the court as best he could. He did, however, have no personal knowledge of the claimant's care.

    The defendants also relied upon the statements of other witnesses whom the claimant did not wish to cross-examine and who therefore did not give oral evidence. They were:

    (1) Dorothy Shirley, a state registered nurse who at the relevant time was employed by GMBC as a domiciliary midwife.
    (2) Shirley Maraj, who was the midwife who attended upon Mrs Smith when Caroline Smith was born.
    (3) Dr F J Hart, a doctor who, I understand, worked at Child Welfare Clinics in Gateshead in 1973. There is no evidence that she ever saw the claimant, but she worked on occasions with Dr Mary Pawson who did do so. Dr Pawson herself died in 1986.

    I heard evidence from three expert witnesses.

    (1) Mr N.M.P Clarke, who was called by the claimant and is a consultant orthopaedic surgeon, with an interest in paediatrics.
    (2) Dr Dewi Evans, who was also called by the claimant, and is a paediatric consultant.
    (3) Dr N.R.C. Roberton, who was called by the defendants, and is a paediatric consultant.

    All three doctors were eminently qualified, and all gave useful evidence. They had reached a significant amount of agreement through discussions before the trial and the differences between them were often questions of emphasis rather than fundamental disagreement.

    I should perhaps mention that there were also placed before me reports by Mr Scott and Mr Mann, who are both consultant orthopaedic surgeons, but these reports were material to quantum and not to the matters that I am to decide at this trial.

    I have referred to the advice published in 1966 and 1969 about Ortolani-Barlow tests. The nature of the test was not controversial, and I take this description from the appendix to a report made by Dr Dewi Evans: the clinical examination of CDH "looks for 2 abnormalities, a dislocated hip/s, or a dislocatable hip/s. For the examination to be successful the baby must be relaxed and positioned on her back on a firm surface. The nappy must be removed. The legs should be in a half-abducted position. The doctor will normally hold one leg, gripping the top of the thigh between the fingers and thumb. He will then move the other hip, moving the hip outwards and looking to see if he can detect an abnormal movement of the hip. If there is dislocation, the dislocation is posterior. Therefore, forwards movement of the hip (which is associated with a lateral movement of the thigh generally) should lead to the hip joint relocating. This is the Ortolani procedure. It is customary at the same examination to look for evidence of dislocatability. The legs are held in exactly the same way, but instead of bringing the top of the thigh forward towards him, the examiner will attempt to move the hip back and away from him. If the hip is dislocatable, this movement will dislocate the hip backwards. This is the Barlow manoeuvre. The hip can then be brought forward once more, bringing it back into the socket. Once these two procedures have been performed on one side, they are repeated on the other."

    For the sake of completeness, I should also refer to the evidence of Dr Roberton about what he called "telescoping". He said that he would have expected most paediatricians and most orthopaedic surgeons to have included "telescoping" in 1973 in their tests of the hip after the neo-natal period. He described "telescoping" as follows: "If the femoral head is out of the acetabulum, it's towards the baby's head, and also with the baby lying on his back, you lean on his knee, and if the femoral head is dislocated, it will sort of sink down under the pressure whereas if it is stuck in the acetabulum, it will remain fixed".

    However this aspect of testing is peripheral to the matters which I am to consider. First, "telescoping" was not part of the neo-natal examination. Further, Dr Roberton did not suggest, and no one has suggested, that in 1973 there was any duty to include "telescoping" in the testing of babies' hips.

    The 1966 guidance stated: "The importance of testing every new born baby is emphasised." Describing the method whereby the test is carried out, it stated, "If there is a click the child should be re-examined 7-10 days after birth and if the abnormality is still present he should be referred for treatment without delay.

    "It is recommended that this test should be carried out by the doctor or midwife soon after every birth. Later the health visitor may be responsible".

    The 1969 guidelines ("the Guidelines") included the following under the heading Summary.

    4 EARLY DIAGNOSIS IS THEREFORE OF THE GREATEST IMPORTANCE, hence the crucial significance of screening in the early neo-natal period and treatment before the age of 3 months.
    5 In the first few days there is a strong tendency to spontaneous recovery and it is reasonable not to start treatment until the fifth day if recovery had not occurred by that time.
    6 All hips should be re-examined at a later date, within 3 months preferably at some time when it can be done routinely; care should be taken to avoid over-examination.
    7 Any hip in which instability has been demonstrated should be referred to an Orthopaedic Surgeon without delay, whether or not spontaneous recovery has occurred.
    8 Accurate records of tests should be made and should be available."

    Under the heading RECOMMENDATIONS, was the following:

    1 "Neo-natal screening-as in the 1966 memorandum, it is recommended that an examination for congenital dislocation of the hip should be carried out on every infant in the early neo-natal period, this initial examination being carried out by the doctor or midwife. [I was told in evidence by one of the claimant's expert witnesses, Mr Clarke, and this was not controversial, that the early neo-natal period refers to the first 24-48 hours of the child's life.] In instances where the examination has not been performed in the early neo-natal period the health visitor may become involved in performing the initial screening test.

    It is desirable that an effective screening programme should be developed in each area, with particular attention to clear definitions of responsibilities for the routine performance of the procedure, and to the recording that this has been done. This should help to ensure that all babies are tested and should obviate over testing."; and,

    "4 Re-examination-although diagnosis in the neo-natal period must be the prime objective, it is recognised that children with unstable hips may be missed at this time, consequently routine examination supplementary to the neo-natal examination and in the first 3 months is desirable; this examination could be linked with an early visit to the child health clinic.

    The effective recording of repeat testing is of importance to ensure that a child does not get overlooked especially if there is variation in practice between areas, and to guard against over-examination.

    As the child grows and becomes strong and more resistant to manoeuvre the Ortolani type of examination becomes of less value, but other factors such as limited abduction and tight abductors become of more significance."

    Mr Clarke told me that the Guidelines were "generally held to be an important document, to be adhered to in clinical practice". It was published in the British Medical Journal and elsewhere, and directed to all involved with screening. While the Guidelines are not to be interpreted as a statute, I accept that they are evidence of good medical practice at the time that the claimant was born.

    I received evidence about the arrangements that were in place for how these tests were to be carried out in the area of GMBC in 1973. As far as an early neo-natal examination for CDH is concerned, if the baby was born in hospital the examination would be carried out at the hospital by hospital doctors. Caroline Smith was, as I have stated, born at home and I had evidence about home births from Dorothy Shirley. She said that it was not the practice for midwives to carry out a test for CDH and it was generally the patient's general practitioner who did it. If the general practitioner was not present at the birth, it was normal practice for the midwife to telephone the general practitioner to inform the doctor of the birth and the doctor would usually then arrange a home visit. Shirley Maraj's evidence, which was not challenged, was that in accordance with her normal practice she "would have informed Mrs Smith's general practitioner about Caroline's birth as soon as possible after it occurred."

    As for a second test for CDH, the position in the area of the GMBC in 1973 was as follows: the practice was for mothers to bring their children to the local child centre for assessment at 6 weeks, 6 months and 1 year of age. On each occasion the doctor would carry out an examination of the baby and complete a record card. According to Dr Hart, the usual practice was for the doctor to complete the record card, ticking each item to confirm that a check had been made and writing in details of any abnormalities noted. The form of the card provided for entries to be made in respect of "First examination about 6 weeks", an examination at "about 6 months", an examination at "10-12 months" and further examinations thereafter. In each case one category of entries concerned "physical examination" and one of the listed matters for physical examination at the first examination at 6 weeks (but not at later examinations) was "Hips (CDH)".

    I shall next set out how the claimant's CDH came to be detected and how it was treated. Caroline Smith started to walk quite early and by 12 months she was, as her mother put it, "pretty well on her feet". Her parents noticed that she was walking with "a slight hitch", lifting one hip higher than the other. On 8 May 1974, the claimant, then aged about 15 months, was taken to a child welfare clinic by her mother and seen by a Clinical Medical Officer, Dr Pawson. Dr Pawson recorded in her notes, "Child walks with a limp. Letter to general practitioner", and wrote to the claimant's general practitioner, Dr Brannigan, the next day, stating, "I have seen this child for the first time today. I find that she walks with a definite limp. Do you think that this should be investigated?' Caroline was taken by her mother to see her general practitioner. (The history at this point is not entirely clear. Mrs Smith's memory is that when she went to the clinic, she was made to feel that she was regarded as fussing and that she took Caroline to the general practitioner independently. I find, on the basis of the documents, that the clinic did not take the problem seriously and that they advised her to take the claimant to the general practitioner, but nothing turns on this point.) On 15 May 1974, Dr Brannigan's partner, Dr JM Finnerty, referred the claimant to the paediatric department at Queen Elizabeth Hospital Gateshead because her parents noticed a limp. She was seen on 3 June 1974 by a Dr Jackson, a consultant paediatrician. His note made on examination of the claimant reads as follows, "Walks with a dip to left. No limitation of movement, and no instability". He ordered an x-ray report "to exclude left CDH". The x-ray apparently showed congenital dislocation of the left hip and the claimant was referred to Mr CD Hierons, an orthopaedic surgeon. She was admitted for treatment on 16 June 1974. The history taken upon admission reads (in part) as follows "Caroline was born at home (normal delivery). She was apparently checked at the clinic and Mrs Smith thinks her hips were checked. She has walked with a limp since she started walking at 10/12 [that is to say at 10 months]". The history also records she "walks with a slight dip to left. Skin creases are very slightly asymmetrical".

    On 1 July 1974 the claimant was admitted for traction on the left hip and on 4 July 1974 Mr Hierons performed an open reduction on the left hip joint. However the femoral head slipped out and after a further attempt to reduce the hip by closed manipulation on 11 July 1974, the claimant was listed for a de-rotational osteotomy. This was performed on 22 September 1974 by Mr Hierons, and a Coventry plate was attached. On 16 September 1975, Mr Hierons described the hip as still very poor and on 28 April 1976, the Coventry plate was removed. Thereafter the claimant attended the Queen Elizabeth Hospital from time to time for check ups, but when she was about ten years old she was discharged and told that she did not need to attend further.

    Because of her continuing pain, in 1984 at the age of 11 Caroline Smith was again referred by her general practitioner to see Mr Hierons, who advised that further surgery was to be avoided and again discharged her. She saw him again in 1988, because she had suffered what is described as "a strange clicking sensation in her hip", but Mr Hierons again advised against further treatment.

    When she was 19 the claimant went back to her general practitioner complaining of the pain in her left hip, and she was seen once more by Mr Hierons on 8 September 1992. This was the first time that she had seen Mr Hierons without her mother present. He again advised against further treatment, and the claimant was very upset about what she was told in that consultation. She saw Mr Hierons again in July 1993, but Mr Hierons repeated his advice against treatment. Her evidence was "Mr Hierons told me he didn't want to see me again until I was about 40, then he would give me a hip replacement. I left the hospital in tears..."

    Caroline Smith went back once again to her general practitioner and asked for a second opinion. The general practitioner referred her to Mr Antrobus at the Queen Elizabeth Hospital. He referred the claimant to Mr Roger Hornby at the Freeman Hospital, Newcastle upon Tyne. Mr Hornby arranged for her to undergo surgery, and on 30 October 1994 she had a Chiari Osteotomy which gave her some relief from pain.

    Earlier this year, because of continuing severe pain, the claimant had a total left hip joint replacement, at the Freeman Hospital, Newcastle. The femoral head, it appears, was used as a bone graft, and fixed to the acetabulum, and a normal total hip prosthesis was inserted, using cement in both components.

    There are a number of important matters upon which the parties are in agreement, and before considering the differences between them, I set out the common ground.

    1 The defendants admit that the claimant was born with CDH. They do not suggest that this was a case in which dysplasia developed only after the neo-natal period. The expert evidence of Dr Evans was that this rarely, if ever, occurs.
    2 According to accepted medical standards in 1973, a baby should have been examined for CDH in the early neo-natal period, that is to say within a few days of birth.
    3 The suggestion in the claimant's pleaded case that it was the responsibility of midwives to carry out the test was not pursued at trial. It was agreed that no criticism could be made of Mrs Maraj for not carrying out the test, and no criticism could be made of the practice of midwives for not testing for CDH.
    4 The corollary of this is that there was agreement that the neo-natal examination could properly be carried out by general practitioners. At one stage in his evidence, Dr Evans appeared to suggest that it was not good practice for general practitioners to carry out the CDH tests. However it became clear that he confined this observation to the second CDH test, and all the experts agreed that the neo-natal test might properly be left to general practitioners. Neither party contended otherwise.
    5 If a second examination is to be carried out, a "6 weeks examination is an effective time to check for any CDH missed in the new born period". I cite from the report of Dr Evans who observed that in a 1986 report, "Screening for the detection of Congenital Dislocation of the Hip", the Standing Medical Advisory Committee and the Standing Nursing and Midwifery Committee recommended that a further check be carried out at 6 weeks. This does not mean that an effective follow-up examination must necessarily be done at exactly 6 weeks, but for ease of reference I shall refer to such a further examination as a "6 week examination".
    6 There was agreement that if examinations were carried out but they failed to detect the CDH, this does not indicate negligence on the part of those carrying out the tests or on the part of anyone for whom the defendants are responsible. As will be apparent from this judgment, the Ortolani-Barlow procedure is far from reliable. The claimant's case was put only on the basis of a failure to carry out tests and not upon the basis that tests were carried out without skill and care.
    7 The reason for early examination is that delay reduces the chances of successful treatment. The evidence of Dr Evans was as follows: "The longer one delays the diagnosis of a dislocated hip(s) the worse the long-term outlook. If the dislocation is diagnosed at 6 weeks or less one can usually treat the child by manipulating the head of the femur into the joint and keeping it in place by a system of splints. This avoids any kind of operation, and the outlook is excellent. Once the hip is well and truly out, beyond four months or so, this option is less likely to be successful... If the dislocation is not diagnosed before the child becomes ambulant, the outlook is much worse. The surgical procedures that are required are far more complex. The risk of long-term complications is high, and hip replacement procedures may be required early in adult life."
    8 There are a number of matters that can make a baby have a high risk of CDH, such as a family history of CDH or a breach presentation at birth. The claimant did not fall into any high-risk category.

    It is convenient at this point to make my findings about the prospects of successful treatment of babies for CDH if it is detected. Mr Clarke in his evidence assessed the chances as being, overall, of the order of 70 per cent if detected before secondary signs develop in the eighth to twelfth week of life. He also explained (and I shall refer to this later) that to some extent the success of treatment depends upon how early in life the condition is detected: the earlier it is treated, the better the chances of success. Dr Roberton, asked about Mr Clark's evidence of a 70 per cent success rate, said that he would not "quibble" with it, acknowledging it to be a question for an orthopaedic specialist rather than a paediatrician. I accept Mr Clarke's evidence about this.

    Medical records were in evidence before; I must describe them, and also state what records are not available.

    First, there are in evidence the hospital notes from the Queen Elizabeth Hospital, Gateshead beginning with the claimant's visit with her mother in June 1974. I have already referred to entries in these records on 3 June 1974 by Dr Jackson and upon admission on 16 June 1974. Hospital x-rays for the years before 1992 have, however, not been found.

    Secondly, there are the claimant's general practitioner records from Dr Brannigan's practice dating from 1973. However, her mother was registered with another practice, Drs Smith and Malley. (Mrs Smith explained to me in her evidence that the background to this was that she and her husband were registered with different practices and the children were registered with her husband's doctors.) The importance of this is that the general practitioner who would be expected to attend when the claimant was born would not be from the practice with whom she was later registered, but a doctor from the practice of Drs Smith and Malley. Accordingly, the records from the Dr Brannigan's practice do not assist upon the question whether or not the claimant was examined for CDH in the early days after her birth. They do not refer to any such examination but they would not be expected to do so.

    Some records from the practice of Drs Smith and Malley were available to the parties. They were not put in evidence before me but I was told by counsel for both parties that the records that do survive and relate to the relevant period give the impression of being incomplete. Specifically I was told that they do not include any record of a home visit to Mrs Smith either on the occasion of the claimant's birth or when her brother Paul was born. On the other hand, Mrs Smith gave evidence that, while she could not herself remember whether her general practitioner attended when either baby was born, her husband recalled that the doctor came on at least one of these occasions. I consider that evidence of this kind is likely to be accurate, and I accept it. It follows though that there was at least one such visit which is not recorded in the surviving notes, and therefore the absence of a record of the visit is not good evidence that no visit took place.

    Thirdly, there are child health records including cards from the local health authorities of the kind to which I have referred. Two such cards have been opened for the claimant. One records the date of her first attendance as 12 March 1973, when she was four and a half weeks old. An entry on the card was made on that date and it was initialled "MP", which are the initials of Dr Pawson. It reads, "Satis. FU at 6 weeks" - meaning, "satisfactory, follow up visit at 6 weeks". (Possibly it reads "Satis. FV at 6 weeks" - meaning, "Satisfactory, further visit at 6 weeks". It is of no consequence which of these interpretations is correct.) There are no subsequent entries on the card, and the card is not completed to record the results of tests at six weeks, nor indeed at about six months, at ten to twelve months or thereafter.

    The second card records a date of first attendance on 8 May 1974. The only entry on that card (apart from routine background information about the family) is made by Dr Pawson in the terms which I have stated. Like the first, this card does not record any results of an examination at about 6 weeks, at about 6 months or at ten to twelve months, and contains nothing to indicate that examinations were carried out at any of those times.

    No certain explanation can be given as to why two cards came to be opened for Caroline Smith, which is not surprising considering how long ago these events took place. Dr Pawson cannot have had the first card available when she saw Caroline Smith in May 1974. This is confirmed by her letter to Dr Brannigan in which she states that she saw the baby "for the first time" on 8 May 1974. Dr Henley observed that the first record card has an entry "Teams" as the "Centre", whereas the second card has "G", which may or may not refer to the Greensfield Clinic. I was told that the Smiths lived between the two clinics. Dr Henley tentatively suggested that Mrs Smith might have used the two clinics on different occasions, but happened to be seen by Dr Pawson at each. But this was not explored in oral evidence with Mrs Smith, whose statement of evidence, which she verified, says that she took the claimant to the local baby clinic in the Teams district of Gateshead. Further, there is no evidence as to whether Dr Pawson did work at both clinics at the relevant times. Dr Henley's suggestion is speculation. The obvious alternative possibility is that the first card was misfiled or temporarily mislaid.

    Fourthly, there are the midwifery records relating to the claimant's birth. The only significance of these is that they confirm that the midwife knew that the general practitioners were Drs Smith and Malley.

    Finally the notes of the health visitors who attended upon Mrs Smith are no longer available.

    The issues between the parties upon which the question of liability depends are these:

    1 Was an examination for CDH carried out on the claimant in the early neo-natal period?
    2 If not, were GMBC in breach of duty to the claimant?
    3 Was an examination for CDH carried out when the claimant was about six weeks old?
    4 If not, were GMBC in breach of duty to the claimant?
    5 If the claimant was examined for CDH only once or not at all, did this cause her damage?
    6 Were these proceedings brought within the limitation period?
    7 If not, should I disapply the limitation period?

    On all these issues, the burden of proof is upon the claimant.

    1 Was an examination for CDH carried out on the claimant in the early neo-natal period?

    I find on the balance of probabilities that it was. The responsibility for carrying out this examination rested upon the general practitioner. I find on the basis of Shirley Maraj's evidence that she informed Mrs Smith's general practitioners of the birth. The test will therefore have been carried out unless the general practitioner nevertheless did not attend Mrs Smith or did attend but did not carry out the test.

    I think it most unlikely that the general practitioner did not attend at all. Dr Henley told me that "virtually every GP visited a mother during the early neo-natal period". There is no reason to suppose that this was not the practice of Mrs Smith's general practitioners, and I have already referred to Mrs Smith's evidence about her husband's recollection of the doctor attending either when Paul was born or when Caroline was born or on both occasions.

    Nor is there any reason to believe that when he attended the doctor did not carry out appropriate tests, including the Ortolani-Barlow test. Dr Henley's evidence was that while he could not say whether all general practitioners examined every baby, "in 1973, it should have been standard practice for a doctor attending a new-born baby (in this case the general practitioner) to do a full physical examination within a few days of birth. That examination should have included a test on both hips to check whether they "clicked" when bent and rotated into certain positions". In 1973, medical practice required the test to be carried out: that is part of the claimant's case, and the Guidelines themselves state, "It is clear that the general practitioner, supported by the midwife, would be solely concerned in the screening of infants soon after birth in domiciliary practice [that is to say, home birth] and in most GP maternity units".

    Dr Evans questioned whether general practitioners did carry out the test:

    "Q:...most children born at home would receive one?

    A: I am not sure actually. I seriously am not sure. They should. They should all have one, but I wonder in the 1970s whether most GPs did routine examinations..."

    His evidence, however, did not go so far as to state that general practitioners did not carry out examinations, and in any case he had no experience of practice in the GMBC area or in the Northeast of England.

    It seems to me more likely than not that the general practitioner observed the recommended practice, and did the test. The fact that the CDH was not detected does not in itself suggest otherwise in view of the inherently unreliable nature of the test. For the reasons which I have explained, the absence of any records of the tests being carried out, or indeed of any home visit, is not of any real significance.

    2 If an early neo-natal examination was not carried out, were GMBC in breach of duty to the claimant?

    It is clear from the 1969 Guidelines that it is perfectly proper practice for the local authority to rely upon a general practitioner to carry out the test. There is no reliable evidence to the contrary. (At one point in his evidence, Dr Evans said that it was not good practice for the health authorities to rely upon general practitioners to carry out the test, but I understood his evidence to be directed to a second test at 6 weeks or so and not to neo-natal testing. If he was referring to neo-natal testing, his views would be contrary to the Guidelines and to the thrust of the evidence of the other medical witnesses and I would reject it.)

    Questions were asked during the course of the trial about whether GMBC checked general practitioners had carried out visits and a neo-natal CDH test. Dr Henley accepted that GMBC did not do so. There did not emerge as a clear part of the claimant's case any allegation that GMBC were in breach of duty in this regard, but in any case I would reject any allegation of this sort. I do not consider that the local health authority had a duty to check on doctors about what tests they carried out, either hospital doctors or, in the case of home births, general practitioners. This is not suggested in the Guidelines as I read them, and there is no evidence that current practices required "monitoring" of that kind.

    If I am wrong in my finding that no neo-natal examination took place, this does not constitute, or evidence, a breach of duty on the part of the defendants.

    3 Was an examination for CDH carried out when the claimant was about 6 weeks old?

    At one time the defendants' case was that Dr Pawson carried out an examination for CDH when the claimant was brought to the child welfare clinic on 12 March 1973. This case could not be maintained when the record card recording the visit was examined. The undisputed evidence was that Dr Pawson was a competent, conscientious and thorough doctor who kept detailed notes. If she had carried out an examination for CDH the overwhelming likelihood is she would have recorded this on the card when she made notes about the visit. It is clear from her note that she expected a further visit at 6 weeks. Dr Henley's evidence was that doctors were "not encouraged" to examine outside "the schedule" contemplated by the record card, that is to say before 6 weeks, and the doctor "wouldn't normally" do so. Whatever the reason that the claimant was brought to the clinic on 12 March 1973 - and the evidence throws no light on this - I find that she was not brought for a CDH test, and no CDH test was carried out on this occasion.

    There is no suggestion that a 6 weeks CDH test was carried out anywhere other than at a Child Welfare Clinic. The four possibilities that I have to consider are these:

    a) That Mrs Smith was not advised to bring Caroline to the welfare clinic at 6 weeks, and so she was not brought or examined.
    b) That Mrs Smith was advised to bring Caroline to the clinic at 6 weeks, but she did not do so.
    c) That Mrs Smith brought Caroline to the welfare clinic at 6 weeks, but no examination for CDH was carried out.
    d) That Caroline was examined for CDH at about six weeks.

    I think it unlikely that Mrs Smith was not advised to bring Caroline to the Welfare Clinic at six weeks. It is clear from her note that Dr Pawson intended that the baby should be brought back to the clinic. It seems to me most improbable that she would have written her note as she did without mentioning the 6 week visit to Mrs Smith. Dr Henley, who knew Dr Pawson, said in evidence, "...I would have expected her [Dr Pawson], in whatever she said to Mrs Smith about whatever the problem was that Caroline had presented with, would have included, "I can't find anything today, she seems fine, but I would like to see her again when she is 6 weeks old to do a full check". I agree with this. Moreover Dr Henley's evidence was, and I accept, that if Mrs Smith was not told to come at 6 weeks by Dr Pawson, then the health visitor at the clinic would probably have said, as Mrs Smith left, that she should not forget to bring Caroline back at six weeks. However, quite apart from what was said at the time of the visit to the clinic, it is probable that Mrs Smith would in any event have been advised to bring the claimant for examination at 6 weeks. Again I refer to Dr Henley's evidence, which I accept:

    Q: "So someone would have to tell the parents, have the child checked at six weeks. How is that supposed to be done or was that supposed to be done?"

    A: "Well, all the health professionals who had care of Mrs Smith and the baby from the time of birth would have mentioned this. The midwives would. The health visitor, who had started to attend Caroline when she was about 10 days old, would have said, you know, "We want your baby to be examined regularly. You can have that done either by us at our clinics or by your GP. The first one should be done at about six weeks which is also the time when you should be thinking about having the vaccinations and immunisations for your child done.""

    Dr Henley went on to say that the advice might have been accompanied by a "baby book" given to mothers, but he was not sure whether such books had been introduced by 1973.

    I also reject the possibility that Mrs Smith was advised to bring Caroline to the clinic and failed to do so. Her evidence was that the claimant "had all her regular check-ups and I did not miss any of the routine checks that she was due to have"; and Mrs Smith said in her evidence-in-chief that she could not remember an occasion, either with Caroline or with her other children, when she was advised to take her baby to the clinic and did not do so. I accept that Mrs Smith seemed to me, as she gave her evidence, a person who would take great care over her children's welfare, and I do not believe that she would have neglected such advice. My impression was confirmed by what the claimant herself told me about how carefully her mother looked after her.

    Nor do I think it possible that Mrs Smith brought the claimant to the clinic but that no examination for CDH was carried out. The record cards set out the examinations to be carried out at six weeks, including the CDH test. Whether she was seen by Dr Pawson or some other doctor, it seems to me unrealistic to suppose that the claimant would not have had the CDH test carried out. The only circumstances in which a doctor might not have carried out an examination would be if the baby was too fractious or too difficult, but in those circumstances the doctor would have advised Mrs Smith to bring the baby for examination on another occasion.

    It therefore seems to me likely that the claimant was examined for CDH at about six weeks, and I so find. Although my finding does not depend on this, it is supported by the history recorded in the hospital notes on 16 June 1974. I accept Mrs Smith's evidence that she was distressed at that time. I also observe that, curiously, the doctor taking the history seems to have believed wrongly the claimant's brother, Paul, had a similar problem to hers. Nevertheless, the history directly attributes to Mrs Smith the belief that the hips were checked at the clinic and the sequence of the narrative of the history indicates that this refers to a check before the claimant started to walk. It seems to be probable that Mrs Smith's recollection of 1974 was of the hips being checked at about six weeks and that her recollection was correct.

    The claimant's contention that no six week check was carried out is essentially based on the fact that no record was made of it. This reasoning would indicate that no examination was made of the claimant on three occasions when it should have been: at six weeks, at six months, and at 10 to 12 months - that the system had entirely broken down in the case of the claimant. I do not find the absence of any record to be compelling evidence of this, and it would be inconsistent with Mrs Smith's evidence that the claimant had all her check-ups and no routine checks were missed. The fact that there are two records cards for Caroline Smith indicates that the record keeping in her case was amiss. This should, of course, not have happened and I have not overlooked the emphasis in the Guidelines about the importance of proper records. But it does not mean that the examinations did not take place.

    4 If no examination was carried out at six weeks, would there have been a breach of duty on the part of GMBC?

    As I have explained, the procedures adopted by the GMBC provided that babies should have an examination at about six weeks. If she had not been examined, the procedures would have broken down in her case. I have rejected the possibility that they broke down because her mother, having been asked to bring the claimant to the clinic, decided not to do so or forgot to do so. If I had concluded that Caroline Smith was not examined at about six weeks, I would have been driven to the view that this was because her mother had not been asked to bring her for examination.

    If this has occurred would there have been a breach of duty on the part of the GMBC? I would consider that very fact that the procedures failed would indicate prima facie a want of skill or care on the part of those administering them. This does not mean that there would be want of skill or care in every case, but I consider that it would put an evidential burden on the defendants to explain how the failing occurred without want of skill or care on the part of the GMBC, or some person for whom they are responsible. The defendants have not discharged that evidential burden.

    However, it would not follow that there was in law a breach of duty. If there was no duty upon health authorities to adopt procedures that babies should be re-tested for CDH, the fact that this claimant came to miss her second test through a careless break-down in the system does not mean that there was in law a breach of duty: see Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582 and Adams v Rhymney Valley DC (unreported, 20 July 2000). This leads to the question whether a health authority such as the GMBC could properly have decided in 1973 not to carry out a second CDH test.

    The defendants submit that the GMBC could properly have done so. They rely upon the evidence of Mr Clarke. He expressed the opinion in his report, "an examination should have been performed in the neo-natal period and subsequently within the first 3 months although the second examination is only "desirable"". He confirmed this in oral evidence: asked whether if there was only one examination carried out that would, in his view, have involved breach of duty, he replied, "No. I mean if there was a single neo-natal examination in 1973, I think that would have sufficed as far as the recommendations were concerned".

    Mr Clarke was an impressive witness, and the defendants properly observed that I should not assume that because something more could have been done, its omission was necessarily negligent. The fact that GMBC intended that a six weeks examination should be carried out does not show that it would have been negligent not to carry one out. Nevertheless, I reject Mr Clarke's view on this point.

    First, as I understood his evidence, Mr Clarke based his views upon the wording of the Guidelines. The interpretation of the Guidelines, although to some extent properly informed by medical expertise, is a matter for me. I observe that Mr Clark's attention was drawn to the wording of the recommendation about re-examination which I have set out above, and in particular the use of the word, "desirable". His evidence was not directed to the wording of the summary, "All hips should be re-examined at a later date", which appears to me more prescriptive.

    Secondly, and more importantly, Mr Clarke is an orthopaedic surgeon with an interest in paediatrics. He is certainly well qualified to give expert evidence upon the issues in this case, but his evidence must be weighed against that of the paediatricians, Dr Evans and Dr Roberton. They had discussed the issues in this case before the hearing. Dr Evans recorded his understanding of what was agreed between them in a letter dated 25 September 2000, and one of the points which he records is this: "We agreed that the community health council was under an obligation to ensure that Caroline received her routine 6 week check up - and that the check up should include the standard hip examination, as in the 1969 document." It is right to say that I was told that if emphasis were placed on the word "ensure" and the suggestion were made that the community health service had an absolute obligation to have every baby examined, this would not represent Dr Roberton's views, and neither, as I understand his evidence, does Dr Evans adopt so extreme a position. However, I understand their shared view as paediatricians is that in the early 1970s it was not only desirable that there should be re-testing for CDH at about 6 weeks, but it was incumbent upon health authorities to make arrangements for a second test.

    I also refer to the evidence of Dr Evans that, although not a reliable test that necessarily eradicates risk, the Ortolani-Barlow test is a cheap way of reducing the risk of dislocated hips in babies. Since it reduced risk and was cheap, he explained, it should have been done. This reasoning seems to me cogent, and I prefer it to Mr Clarke's view.

    Had I concluded that the claimant had not had a six weeks examination, I would have held that there was breach of duty on the part of GMBC.

    5 If the claimant was examined for CDH only once or not at all, did the fact that she was not examined twice cause her damage?

    If the findings which I have made about what examinations the claimant had are correct, then this question does not arise. I should, however, deal with it.

    This question of causation raises the following questions:

    a Does the question whether the claimant was caused damage call for a consideration of whether the claimant has shown on the balance of probabilities that she has suffered damage, or does it call for an assessment of the chance that she has suffered damage?
    b What is the "damage" which is to be assessed, either on the balance of probabilities or as a "chance"?
    c What was the condition of the claimant's CDH at the relevant time in so far as this is relevant to the likelihood that examination would have prevented the damage complained of?
    d In assessing the likelihood that examination would have prevented the damage complained of, what help is provided by the statistical information which is in evidence?
    e If the claimant did not have a neo-natal examination (but has no complaint about not having a six week examination), how likely is it that this omission caused her damage?
    f If the claimant did not have a six week examination (but has no complaint about not having a neo-natal examination), how likely is it that this omission caused her damage?
    g If the claimant had neither a neo-natal nor a six week examination, how likely is it that these omissions caused her damage?

    a Does the question whether the claimant was caused damage call for a consideration of whether the claimant has shown on the balance of probabilities that she has suffered damage, or does it call for an assessment of the chance that she has suffered damage?

    The defendants submit that the proper enquiry is whether the claimant has proved on the balance of probabilities that she has suffered damage. If she does, they contend, she would be entitled to be fully compensated for her damage, but if she fails to do so, her claim fails in its entirety.

    The claimant contends that the court should decide whether the claimant has lost the chance (or a substantial chance) of her suffering, disability and loss being avoided. If she establishes that she has lost that chance, then, she contends, she should be compensated not for the full expend of her pain, disability and financial loss, but for the loss of the chance that she would have avoided it.

    The distinction between assessment of damage on the basis of balance of probabilities and assessment on the basis of loss of a chance is stated clearly in the speech of Lord Reid in Davies v Taylor, [1974] A C 207, 213: "When the question is whether a certain thing is or is not true - whether a certain event did or did not happen - then the court must decide one way or the other. There is no question of chance or probability. Either it did happen or it did not happen. But the standard of civil proof is the balance of probabilities. If the evidence shows a balance in favour of it having happened, then it is proved that it did in fact happen." He continued: "You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All you can do is to evaluate the chance. Sometimes it is virtually 100 per cent: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent".

    The defendants relied upon the decision of the House of Lords in Hotson v East Berkshire AHA, [1987] AC 750. In that case, the claimant fell from a tree and suffered a fracture of the femoral epiphysis. The defendants were slow to treat him and he developed avascular necrosis of the epiphysis. Simon Brown J found that there was a 75 percent chance that there was so much damage to the blood vessels that avascular necrosis was bound to result. The question before the House of Lord was whether damages were to be awarded to reflect the 25 per cent chance that there might have been recovery, or the claim failed because on the balance of probabilities no damage resulted from the delay in treatment.

    The House of Lords held that the claim failed. The reason for the decision is clearly expressed by Lord Mackay who said (at p.785D), "The fundamental question of fact to be answered in this case related to the point in time before the negligent treatment began. It must, therefore, be a matter of past fact. It did not raise any question of what might have been the situation in a hypothetical state of facts"; and (at p.789H) "The judge's findings in fact mean that the sole cause of the plaintiff's avascular necrosis was the injury he sustained in the original fall, and that implies... that when he arrived at the hospital for the first time he had no chance of avoiding it. Accordingly, the subsequent negligence of the authority did not cause him the loss of such a chance".

    Similarly, Lord Ackner said (at p.792G), "The debate on loss of a chance cannot arise where there has been a positive finding that before the duty arose the damage complained of had already been sustained or had become inevitable (emphasis added)."

    Although there are passages in the speeches in the House of Lords which can be read as suggesting that loss of a chance has no part at all to play in determining questions of causation, those passages are to be read bearing in minds what question fell for determination in Hotson's case. The position after Hotson seems to me accurately stated by Gonthier J in Lawson v Lafferriere, (1991) 78 DLR (4th) 609 at p.658: "In the United Kingdom, the House of Lords has expressed reservations about loss of chance analysis, but has not, as yet, reached a settled conclusion on its possible application."

    The distinction between ascertaining actual facts on the balance of probability and consideration of "a hypothetical state of facts" is illustrated by Judge v Huntingdon H A, (1995) 6 Med. L R 223. The defendant failed to diagnose a cancerous lump in the claimant's breast, and when it was later diagnosed she had a reduced expectation of life. The judge found that there had been negligence. The claimant alleged that, had it been diagnosed promptly, earlier treatment would have meant that she had a better expectation of life. Accordingly, questions arose as to how far in fact the cancer had developed by the time that it should have been diagnosed, and what, in view of that, would have been the chances of her condition being amenable to treatment. The first question was one of actual fact and Mr R Titheridge QC (sitting as a Deputy High Court Judge) determined on the balance of probabilities what the state of the cancer was when it should have been treated. The second question involved an assessment of what would have happened in a hypothetical situation, and the Judge assessed the chance of effective treatment.

    The distinction was further considered by the Court of Appeal in Allied Maples v Simmons & Simmons, [1995] 1 WLR 1602. In this case, the defendant solicitors, who had advised the claimants about a purchase of some shop and business premises, allowed the sale to proceed without a warranty that there were no contingent liabilities and a liability under a lease later materialised. Hence there arose questions of causation: (1) had the solicitors given proper advice, would the claimants have sought protection from the vendors about the liability? and (2) would the sellers have given such protection?

    I refer to the judgment of Stuart-Smith LJ, with whom Hobhouse LJ agreed and whose views therefore represent those of the majority of the Court of Appeal. He distinguished the following:

    (1) The situation where the negligence consists of a positive act or misfeasance (rather than an omission or non-feasance) and the question of causation is a matter of historical fact. This is the situation to which Lord Reid referred in Davies v Taylor (cit sup), and the question of causation is to be determined on the balance of probabilities.
    (2) The situation where the negligence is an omission and the question of causation depends upon what the claimant would have done in the hypothetical situation. What the claimant would have done is determined on the balance of probabilities.
    (3) The situation where the claimant's loss depends upon the hypothetical action of a third party (either, as in Allied Maples itself, in addition to action by the claimant, or independently of it). Here the claimant can succeed provided he shows that he has a substantial chance, rather than a speculative one: the evaluation of the chance is a matter of quantification of damage.

    Commenting upon this analysis, McGregor on Damages (1997) 16th Edition at para. 381 observes that what is said by Stuart-Smith LJ as far as third parties actions are concerned has long been established law, but what is thought to be "more new, or perhaps more clearly revealed", is the requirement upon the claimant to establish on the balance of probabilities what his own actions would have been. "At first glance it may seem somewhat strange to have different tests applicable to the hypothetical acts of the plaintiff and hypothetical acts of third parties. But it can be seen to make sense. For a plaintiff can hardly claim for the loss of the chance that he himself may have acted in a particular way; he must show what he had done."

    The defendants submitted that the analysis in Allied Maples had no application in cases of clinical negligence, and that I should not apply its reasoning in this case. I do not accept that submission. I read the judgment of Stuart-Smith LJ as laying down principles of general application, and I can see no reason to adopt a different approach because this case concerns a different category of professional negligence.

    In this case, the situations which fall for consideration are (1) what would have happened if a neo-natal examination had taken place and (2) what would have happened if a six week examination had taken place. These questions arise if (contrary to my findings) these examinations did not in fact take place. The results would have depended in part upon the state of the claimant's hip when the examination took place. That is to be decided on the balance of probabilities. What however is the nature of the enquiry in so far as it concerns a "hypothetical state of facts"?

    I find that in the circumstances of this case (a home birth) any neo-natal examination would have been carried out by a general practitioner, that is to say by a third party. I consider the possibility that a neo-natal examination might have been carried out by a doctor for whom the defendant is responsible is so remote that it can be disregarded.

    On the other hand, any six weeks examination would have been carried out at the Child Welfare Clinic and would have been carried out by a doctor for whom the defendants are responsible. In Allied Maples, the court was not concerned with hypothetical actions of the defendants, but only with those of the claimant purchasers and the third party vendors. Hypothetical actions on the part of defendants raise different considerations. In contract cases the defendant is assumed to have acted in accordance with his contractual obligations but where the defendant has the option of performing a contract in various ways, damages for his breach of contract are assessed on the assumption of performance least beneficial to the claimant. As I understand it, the position in tort is similar. In considering how the defendant would have acted in the hypothetical situation, it is assumed that he would have acted in accordance with his obligations to the claimant, but it is also assumed that he will not have gone beyond his duty. (This is implicit in such cases as Adams v Rhymney DC (cit sup) to which I have referred.) So in this case, if the six week examination had not taken place and a view is to be formed as to what would have resulted from an examination, the Community Medical Officer will be taken to have carried out an examination with proper skill and care but not an especially thorough or more than normally competent examination. Although it is possible that there might have been an unusually thorough or able examination, this is not, as I understand the law, brought into account. That possibility is no more relevant to this enquiry than the possibility that the examination might have been incompetent.

    The law therefore determines what actions the defendant is regarded as having taken in the hypothetical situation. The question what would have ren to the enquiry as to what actions a third party would have taken in the hypothetical situation. Particularly because the law determines what actions the defendant is to be taken to have done, there does not arise the consideration identified by McGregor which explains why the 'balance of probabilities" approach is adopted when considering whether the claimant has discharged the burden on him of proving damages.

    Accordingly, it seems to me that if the six weeks examination had not been done, the proper approach to the question what damage resulted therefrom, would be to assume a properly competent, but not an unusually thorough or able, examination and then to assess the chance that this would have resulted in the claimant not suffering the damage which in the event she has suffered.

    b What is the "damage" which is to be assessed, either on the balance of probabilities or as a "chance"?

    In submissions to me, the parties invited me to consider the likelihood (either as a matter to be determined on the balance of probabilities or as an assessment of the chance) of detection of the CDH. This does not seem to me to be the question to be considered. Detection itself would not have prevented the damage. It would give rise to an opportunity for successful treatment. The proper approach seems to me to be to consider the likelihood of the damage being prevented, bringing into account this consideration. This difference of approach could have been important if the defendants were correct in their submission that the question of causation had to be decided on the basis of the balance of probabilities. In view of my findings of fact and view of the law, this difference is not in fact of consequence.

    c What was the condition of the claimants CDH in so far as this is relevant to the likelihood that examination would have prevented the damage complained of?

    In his report, Dr Roberton put forward the view that there were reasons to suppose that the condition of the claimant's left hip in the neo-natal period and her early weeks of life was such that it is unlikely that it would have been detected upon examination. The basis of his view that the claimants condition is likely to have "presented late" is (1) the records of the observations of Dr Jackson in 1974, who recorded that there was no limitation of movement, and the absence in the orthopaedic notes prior to surgery in June 1974 of any reference to clinical abnormality other than mildly asymmetrical skin creases and (2) the evidence that an x-ray of the claimant's right hip in 1992 showed mild dysplasia.

    On the other hand, Mr Clarke in the course of his evidence suggested that because of the severe development of the claimant's CDH, the likelihood of it being detected in a neo-natal or a six weeks test is enhanced, because, as I understood him, it could be inferred that the actual state of her hip at that time was such as to facilitate its detection.

    I therefore have to consider whether the CDH in the early weeks of the claimant's life was such that it was particularly unlikely or particularly likely that examination would have detected her condition. These are questions concerning the actual state of the claimant's hips and are to be decided on the balance of probabilities.

    I consider first the submission on behalf of the defendant, based upon Dr Roberton's evidence, that detection would have been unusually difficult.

    Dr Roberton accepted in cross-examination that the x-ray records were "not a major factor" in this question. I accept Dr Evans' evidence, "I cannot really see how a finding in 1992 can be used to say what has been going on 19 years earlier". Although Dr Evans recognised that a radiologist or orthopaedic surgeon would be better qualified to comment upon this point, his observation seemed to me to have obvious common sense.

    Dr Roberton's point really depended upon the 1974 records. He found the absence of limitation of movement and absence of instability surprising. He expressed himself as follows: "I would have expected them to find quite marked limitation of movement, perhaps even pain, and the fact that they are not there, I think, leads me more to the view that the earlier examinations would have been negative. I accept entirely that it does not make it certain, but it just pushes me in that direction."

    However, Dr Roberton did not say that he considered on the balance of probabilities the actual state of the claimant's hip in the early weeks of her life was such that it was more unlikely that her CDH would become apparent upon an Ortolani-Barlow test than is typically the case for babies with CDH.

    There are two possibilities about the condition of the claimant's hip at six weeks and in the neo-natal period. Either it was unstable but not dislocated (that is to say, it was, in the language sometimes used, "dislocatable") or the hip was already dislocated. The observations about absence of limitation of movement in the hip at 15/16 months concern a hip that was by then dislocated. They would be relevant to the condition of the hip at six weeks only if the hip was already dislocated by then. Dr Evans explained that if the hip was dislocatable but not dislocated, a full range of movement would be expected and the success of the Ortolani-Barlow procedure would depend upon detecting instability.

    Dr Roberton's evidence was that most hips were not permanently dislocated at six weeks, but were variably dislocatable, and "in and out of the acetabulum". If this is so, the later condition of the dislocated hip is not indicative of the condition of the hip at 6 weeks or earlier. This is in accordance with the evidence of Dr Evans, who, when asked, "would you use that clinical finding, in May 1974, early June 1974, to interpret what hay have been apparent in February 1973?" replied, "Certain not, a completely different set of clinical findings apply". Again, Dr Evans' evidence seemed to be to accord with common sense and I accept it.

    I turn to the suggestion in Mr Clarke's evidence that the later severe condition of the hip indicates that it would the more likely have been detected in February/March 1973. I do not accept this: the observations of Dr Evans, to which I have referred, seem to me equally telling in this context. Indeed I regard this suggestion as more improbable than Dr Robert's view in light of the observations made by Mr Jackson.

    I therefore find that on the balance of probabilities the condition of the claimant's hip at six weeks and earlier was neither such as adversely to affect the likelihood of the condition being detected upon examination nor such as to make detection more than normally likely.

    d In assessing the likelihood that examination would have prevented the damage complained of, what help is provided by the statistical information which is in evidence?

    In the course of the hearing, both parties referred to published statistics about the success of Ortolani-Barlow tests in detecting CDH. I have been shown articles in medical journals: I refer in particular to an article by Sara Godward and Carol Dezateux on behalf of the Medical Research Council Working Party on Congenital Dislocation of the Hip under the title "Surgery for Congenital Dislocation of the Hip in the UK as a Measure of Outcome of Screening", published in the Lancet, Vol. 351, p.1149 dated 18 April 1998 ("the Lancet article"). However, in their final submissions the claimant and the defendants acknowledged that the statistics were for the most part inconclusive of the matters which I have to decide, except as an aid to assessing the expert evidence which I have heard. The claimant submitted that in the end the statistics were neutral; the defendant, however, maintained that one telling point was made to be on the basis of the Lancet article.

    The defendant's submission was that the published evidence indicated that treatment for CDH in the United Kingdom was of the order of 0.78 per 1000 births. The number of children born with CDH had generally been understood to be between 1 and 2 per 1000 of the population. Dr Evans told me that the number of infants with CDH at birth varies but "I think most people accept if there was no screening at all, something like 1 per thousand to 2 per thousand of babies, closer to 1 per thousand of babies, would present with an abnormal hip at the age of 1 year." (This figure excluded babies who have an unstable hip that resolves itself in early weeks. Mr Clarke's evidence was that in the majority of cases hip instability will resolve itself spontaneously without treatment. Dr Evans gave similar evidence, putting the proportion of unstable hips that resolve themselves in the order of 90%.)

    On this basis if surgery is required in only 0.78 children per thousand, it might be thought to indicate that a significant number of children were being treated without surgery and they would typically have been detected through Ortolani-Barlow tests. However, the Lancet article reported studies that indicated an incidence of CDH of less than one per thousand births: various studies returned results of 0.66, 0.67 and 0.91 per thousand births. On the basis of this evidence, it is to be inferred from the fact that 0.78 per thousand children require surgery that the Ortolani-Barlow tests are not having much success in reducing the number of cases where surgery is required, and the inference is that they are not effectively detecting CDH. The Lancet article stated "the incidence of a first operative procedure for congenital dislocation of the hip in our study is similar to that of established dislocation in the UK before screening was introduced".

    I understand the difficulty in obtaining reliable figures in carrying out studies of this kind and bear in mind the warning of Dr Evans that there are regional and other variations in the incidence of CDH. However, it does seem to me that this study lends some support to Dr Roberton's view that the screening programme through Ortolani-Barlow tests is ineffective.

    Mr Clarke similarly acknowledged, "the test is a very poor one as we have found out over the last 25 years". He continued, "At the time it was considered that the test was very successful because Barlow was very enthusiastic about it. We now know that the incidents of undiagnosed cases is exactly the same as in fact before screening was introduced."

    e If the claimant did not have a neo-natal examination (but has no complaint about not having a six week examination), how likely is it that this omission caused her damage?

    I have already stated that in considering this question, I assume that the test would be carried out by a general practitioner. This is significant because Dr Evans pointed out that the likelihood of CDH being detected upon examination depends upon a number of factors including the experience of the doctor. Although generally of the expert witnesses it was Dr Evans who had the highest expectation of the Ortolani-Barlow procedure, when asked about the likelihood of a general practitioner detecting CDH on a neo-natal examination, he said, "I would not be surprised if he missed it." He explained that it depended upon the practice of the particular general practitioner but "At the spectrum of experience I think a lot of GPs would fall at the poor end rather than the good end". I had no evidence before me about the experience of the doctors of Drs Smith and Malley's practice, and do not assume that the doctor who would have attended Mrs Smith was either more or less experienced than most general practitioners.

    Mr Clarke gave evidence on behalf of the claimant about the likelihood of detection upon a neo-natal examination. He said: "I don't think you can say on a balance of probabilities that a neo-natal examination will, even in experienced hands, diagnose the condition". I accept this evidence and conclude that, if contrary to my finding no neo-natal examination was carried out, on the balance of probabilities the examination would not in any event have detected the CDH. It follows a fortiori that on the balance of probabilities the neo-natal examination would not have prevented the claimant's suffering and disability, taking into account the chances of successful treatment once CDH is detected.

    However, I do consider that there was some chance that the neo-natal examination would have led to successful treatment, and that that chance was substantial and not an insignificant or speculative one. Accordingly, if I am right in my view that the Court should assess the loss of the chance of detection and treatment of the CDH, I should assess it 25%. The expert evidence, understandably, does not lead me clearly to a specific percentage chance of successful detection and treatment, but I have relied particularly on the evidence of Mr Clarke, whose evidence on these questions I found particularly helpful.

    f If the claimant did not have a six week examination (but has no complaint about not having a neo-natal examination), how likely is it that this omission caused her damage?

    The chances of detection of the CDH at six weeks are poorer than in a neo-natal examination. Mr Clarke's evidence in his report was that "if the first test is negative an examination at 6 weeks rarely (perhaps less than 20 per cent) detects an abnormality". It was clear from his oral evidence that the picture is the same if CDH remained undetected at 6 weeks because no neo-natal examination was carried out. Mr Clarke said that the detection rate neo-natally "far exceeds" that at six weeks. "The test is done at six weeks as a secondary test, in current practice, as a back stop on the neo-natal test."

    Mr Clarke explained the reasons: first as far as detecting restriction of movement is concerned, this might not have developed even by three months: it is the less likely to have developed by six weeks. Secondly, signs of instability may have resolved. In a neo-natal test, it is more likely that instability will be observed.

    I accept Mr Clarke's evidence as a useful starting point to assess the chance of a six-week examination preventing the claimant's injury and damage. A six week examination would have been carried out by a clinical medical offer and I accept that, as Dr Evans told me, clinical medical officers would have a great deal of experience in examining hips in babies. However, for the reasons that I have explained, I do not consider that I am entitled to bring into account the consideration that the examination might have been unusually able. In any case this would not significantly have affected my overall assessment of the chance.

    I also bear in mind that, as Mr Clarke, explained, treatment at six weeks of CDH (as opposed to its detection) is less successful than if CDH is detected in the neo-natal period.

    I consider that, on the balance of probabilities, a six week test would certainly not have prevented the claimant's damage. I would assess the chance of it doing so at 15%.

    In reaching this conclusion I have not overlooked the evidence of Dr Evans in cross-examination that in his view it is more likely than not that an examination at six weeks would have "picked up that there was something wrong with the hip". I prefer the evidence of Mr Clarke who explained clearly the difficulty in detecting CDH at the six week stage, whose evidence is supported by Dr Roberton and whose evidence finds some support from the Lancet article.

    g If the claimant had neither a neo-natal nor a six week examination, how likely is it that these omissions caused her damage?

    My conclusions about the prospects of detection of the CDH upon neo-natal examination considered separately are clearly relevant to this question. My conclusion is that if the claimant had neither examination, (1) on the balance of probabilities it would have made no difference if she had had the tests and (2) the chances that the tests would have prevented her suffering is assessed at 35%.

    Mr Clarke's evidence in his report was "if neither test was performed either in the neo-natal period or at 4 weeks to 6 weeks then it is possible to state on the balance of probabilities that the diagnosis would have been made if the test had been performed." This evidence does not dissuade me from the conclusion which I have expressed above:

    a first, it is to be observed that Mr Clarke is expressing his opinion about the chances of detection, not about the chances of the claimant avoiding her suffering and disability.
    b Secondly, Mr Clarke acknowledged in his oral evidence that his opinion "would seemingly fly in the face of the data that we have for children who have had two tests and have subsequently presented with CDH."
    c Thirdly, in cross-examination Mr Clarke said that he took the view that on the balance of probabilities the claimant's CDH would have been detected because of the severity of her later condition.
    "Q: But of course, your conclusion remains, as I understand it, that it was more than 50% likely that Caroline's condition would have been detected?
    A: Well, I take that view because of the severity of the dislocation, the severity of the surgery that was performed, and the fact that I was asked that if you perform two examinations within six weeks, would you detect an abnormality, and I am of the view that you probably would."
    Q: Even in the face of these figures?
    A: Even in the face of these figures, given the data which I have explained to you, because this was a severe dislocation, we know from the previous treatment that has been required, and the ultimate outcome, and it is on that that I base it."

    I have already rejected the argument that the claimant's condition at 6 weeks was such as to make the prospect of detection unusually good or unusually poor.

    6.. Were these proceedings brought within the limitation period?

    These proceedings were brought on 16 August 1996. It is an action for damages for negligence and breach of duty and the damages claimed by the claimant consist of damages in respect to personal injuries to her. Accordingly the limitation period for bringing proceedings is that specified in Section 11 of the Limitation Act 1980. This provides, "The period applicable is 3 years from -

    a) the date on which the cause of action accrued; or
    b) date of knowledge (if later) of the person injured:"

    The cause of action accrued when the claimant was a baby, and so, because of the operation of section 28 of the 1980 Act, the limitation period expired 3 years after the claimant became 18 years old on 8 February 1991, that is to say in February 1994, unless her "date of knowledge" was after her 18th birthday and therefore the limitation period started to run from a later date. The claimant's case is that her date of knowledge was within 3 years of 16 August 1996, and the limitation period had not expired when proceedings were brought.

    The "date of knowledge" is defined in section 14 of the 1980 Act:

    "(1)...references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -
    (a) that the injury in question was significant; and
    (b) the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
    (c) the identity of the defendant; and
    (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
    and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant...
    (3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -
    (a) from facts observable or ascertainable by him; or
    (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
    but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

    The claimant's case is that she did not have knowledge that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty until 1994 at the earliest. The defendants dispute this.

    Mr Catford, who appeared for the claimant, accepted in argument before me that the burden of proof is upon the claimant to show that the date of knowledge falls within the period of three years before the proceedings were commenced. He did so in light of the judgment of Mance J in Crocker v BCC, (1995) 29 BMLR 159. Having distinguished the legal burden of proof, the evidential burden of proof and the burden which may lie on a party to plead a point before he may rely upon it, and having analysed the relevant authorities, Mance J concluded (at p.173): "The legal burden rests throughout on the plaintiff, whether the issue is when the cause of action accrued or when the plaintiff first had knowledge of the facts in the sense identified in s.14. The concept which the authorities have called "constructive knowledge" is by definition in s.14(3) one aspect of "knowledge". The first date of knowledge depends as much on knowledge which the plaintiff might reasonably have been expected to acquire from (a) facts observable or ascertainable by him or (b) ascertainable (subject to the proviso) by him with the help of medical or other appropriate expert advice as it does on actual knowledge. An issue arising under s.14(3) is, however, apt to involve an evidential burden on a defendant, evidence to raise the issue, although in some respects for example in relation to the words "so long as he has taken all reasonable steps to obtain (and, where appropriate act on) that advice" in the proviso where they become material, it may be easy to envisage both the legal and an evidential burden upon a plaintiff."

    I gratefully adopt this analysis. I observe that in Smith v Leicester Health Authority [1998] Lloyds Law Reports: Medical 77 at p.83, counsel who appeared for the defendant authority accepted that the burden or proving knowledge under section 11 was upon the defendants and that the Court of Appeal do not cast doubt upon that concession. However, as far as appears from the judgment, the point was not argued, and the case does not, it seems to me, undermine the analysis in Crocker. I therefore agree that the concession about burden of proof was rightly made by Mr Catford. In the event, my decision in this case does not turn upon any question as to where the burden of proof lies.

    I was urged by the defendants to consider the question of the date of the claimant's knowledge, and in particular her knowledge of the matter specified in Section 14(1)(b), bearing in mind what was said by the Court of Appeal in Dobbie v Medway Health Authority, [1994] 1 WLR 1234. In that case, in 1973 the claimant had undergone an operation for the removal of a lump in her breast, but because the surgeon considered the lump to be cancerous, he performed a mastectomy. It was later discovered that the growth was benign. The claimant suffered psychological illness as a result, but it was only in 1988 that she discovered that another person in a similar position to herself had successfully sued her surgeon. She brought proceedings in 1989. In the course of his judgment Sir Thomas Bingham MR (at page 1240G) said this: "Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortening of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault."

    Sir Thomas Bingham M R observed that if an element of fault were imported in to Section 14(1)(b) it would "stultify" the proviso to Section 14(1): see page 1240F.

    However, the claimant's complaint in this case is of an omission: those for whom the defendants were responsible, it is said, omitted to carry out the required test. It was said by Russell LJ in Smith v West Lancashire Health Authority, [1995] PIQR 514 at page 517, "One cannot know of an omission without knowing what it is that is omitted". In that case the claimant suffered injury as a result of the defendant's alleged failure to operate on a hand condition. It was held that the claimant could not be regarded as having knowledge that his injuries were attributable to the defendant's omission until he actually knew that the defendant had failed to do something.

    I have also borne in mind what was said in Forbes v Wandsworth Health Authority [1997] QB 402 at p411G by Stuart-Smith LJ: "In many medical negligence cases the plaintiff will not know that his injury is attributable to the omission of the defendant alleged to constitute negligence, in the sense that it is capable of being attributable to that omission, until he is also told that the defendant has been negligent. But that does not alter the fact that there is a distinction between causation and negligence; the first is relevant to section 14(1); the second is not. The fact that in such cases it may be necessary for the plaintiff also to know of the negligence before he can identify the omission alleged to have been negligent is nothing to the point. It does not mean that he falls foul of the closing words of Section 14(1)."

    The claimant's case is that it was in 1994 when she first realised that her injuries might be attributable to poor medical care when she was a baby. As I have stated, she became dissatisfied with the advice she received from Mr Hierons, and sought a second opinion from Mr Antrobus. After seeing her Mr Antrobus suggested that she saw Mr Hornby, and wrote a letter to Mr Hornby dated 13 May 1994. A copy of that letter was sent to the claimant's general practitioner, who showed her a copy. The second paragraph of the letter reads as follows: "She [the claimant] was a neglected CDH who was diagnosed at about 16 months of age and subsequently had an open reduction of the hip followed by a rotational osteotomy. She was followed up by Doug Hierons who does not feel that any surgery is indicated at the present time. She has been referred to me for a second opinion, as she feels her symptoms are severe enough to warrant further treatment."

    The claimant's evidence was that the words "neglected" caught her attention: as she put it in her evidence, that meant to her that she was "not looked after properly". She took a copy of that letter to the Citizens Advice Bureau: she said that she did so within weeks of seeing the letter in May "at most". The Citizens Advice Bureau telephoned solicitors on her behalf, and she went to see solicitors: there was not evidence of the exact date that she took this legal advice, but it was before she had her operation on October 1994. She obtained legal aid in November 1994.

    The claimant told me that until she saw the letter of 20 May 1994 she had received no medical advice that encouraged her to investigate her condition: "when the doctor is saying that there is nothing wrong, who am I to question it?" She said that she knew from the age of 11 that she had problems with her hip. She knew that she had CDH, and she thought of it as her hip and leg bones "not meeting". She also learned from child development classes which she had at school when she was 15 or 16 years old that when babies were born various tests are carried out for detecting hip problems. But her evidence was that she did not suspect that there had been any failure to carry out tests in her case. She said that the question of tests never entered her head; and that she did not realise that she had been treated badly as a baby.

    In the light of this evidence which I accept, I have concluded that the claimant did not know that her hip injury was attributable to any omission on the part of those involved in her medical treatment until, at the earliest, 1994.

    I have also concluded that the claimant could not reasonably have been expected to have knowledge of that kind from what she knew or from the medical advice that she was receiving before she saw Mr Antrobus. The evidence before me, and it was not contradicted, was that until then she was being encouraged to put up with her condition as best she could. The medical advice that she was receiving discouraged further enquiry. I find that the provisions of Section 14(3) of the Act do not apply in the claimant's case.

    7.. If these proceedings were not brought within the limitation period, should I disapply the limitation period?

    Section 33 of the Limitation Act 1980 provides that if it appears to the Court that it would be equitable to allow an action to proceed having regard to the degree to which-

    (a) the provisions of Section 11... of this Act prejudice the plaintiff...; and
    (b) any decision of the court of this subsection would prejudice the defendant...'
    the court may direct that those provisions shall not apply to the action, or shall not apply to any specific cause of action to which the action relates."

    Sub-section (3) provides that the court shall have regard to all the circumstances of the case and in particular to six specified matters. Accordingly it has been said that upon an application to disapply the limitation period under this section the "primary exercise" is one of "balancing the degree to which either party is prejudiced by the decision made under Section 33" (Nash v Eli Lilly, [1993] 1 WLR 782 at page 803E), that is to say, of balancing the degree to which the provisions of Section 11 prejudice the claimant if I do not disapply them against the degree to which any decision to disapply the section would prejudice the defendants. This consideration is to be broadly based, bearing in mind that the primary purpose of the limitation period is to protect the defendants against stale claims.

    If I had not decided that this claim was brought within the limitation period, then I would have exercised the power under Section 33 to disapply the provisions of Section 11. Since in view of my other conclusions in this case, this question does not arise as a live issue, I shall express my reasons only briefly.

    It seems to me that I must suppose for the purposes of this "primary exercise" (despite my findings on liability against the claimant), that I should be excluding a viable cause of action. That is the prejudice that I am to suppose she would suffer. Against that I am to consider whether the defendants would suffer prejudice as a result of these proceedings being brought in August 1996 rather that in the period of three years after the claimant's 18th birthday, that is to say, in early 1994.

    The defendants have indicated nothing at all which suggests that this delay caused them prejudice. It is true that records are not available which might have proved relevant to this case, but there is no reason to believe that they would have been available had these proceedings been brought before February 1994. Similarly, while Dr Pawson's evidence might have been of assistance, she died, as I have mentioned, in 1986.

    I have also considered the reasons that proceedings were not brought earlier. Until her operation in October 1994, the claimant was understandably concentrating upon her forthcoming surgery. The only specific submission made by the defendants about delay is that the claimant has not explained the period of delay between October 1994 and August 1996. It is true that, apart from the evidence that legal aid was not granted until November 1994, this period does remain largely unexplained by evidence, but in view of the nature of the case, I can readily infer that at least a part of that period was properly spent in obtaining expert medical advice. In any case, this consideration does not alter my opinion that it would be equitable to allow these proceedings to proceed.

    I summarise my conclusions on the seven that I have identified above.

    1 I find that the claimant was examined for CDH in the early neo-natal period.
    2 Even if she had not been examined then, GMBC would not have been in breach of duty.
    3 I find that the claimant was examined for CDH when she was about 6 weeks old.
    4 If she had not been examined then, GMBC would have been in breach of duty.
    5 If examinations were omitted, although on the balance of probabilities this caused no damage, nevertheless there would have been a substantial chance that damage was caused and the claimant would have been entitled to damages to compensate for the loss of the chance. If only the neo-natal examination was missed, the chance was one of 25%. If only the six weeks examination was missed, the chance was one of 15%. If both were missed, the chance was one of 35%.
    6 The claim is not barred by the limitation period.
    7 If the claim were statute-barred, I would have disapplied the limitation period.

    It follows from my conclusions that the claim fails. No one could fail to have sympathy for the claimant, and I respect the candour with which she and her mother gave evidence, but it does not seem to me that she has a sound claim in law.

    I wish to add that in this case I received great assistance from the expert witnesses and from the lawyers of both parties. The expert medical witnesses had managed before the hearing to reach agreement on important points and they presented their views on the remaining issues clearly. The documents before the court were well presented, and submissions of both counsel were helpful and to the point.

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