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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Quinn (minor) -v- Mid Western Health Board & anor [2005] IESC 19 (08 April 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/19.html
Cite as: [2005] 2 ILRM 180, [2005] IESC 19, [2005] 4 IR 1

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Judgment Title: Quinn (minor) -v- Mid Western Health Board & anor

Neutral Citation: [2005] IESC 19

Supreme Court Record Number: 432/03

High Court Record Number: 2000 11331 P

Date of Delivery: 08/04/2005

Court: Supreme Court


Composition of Court: Denham J., Geoghegan J., Kearns J.

Judgment by: Kearns J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Kearns J.
Appeal dismissed - affirm High Court Order
Denham J., Geoghegan J.

Outcome: Dismiss

36

Denham J.
Geoghegan J.
Kearns J

THE SUPREME COURT

[S.C. No. 432 of 2003]
BETWEEN:

ANNE MARIE QUINN (A MINOR)
SUING BY HER MOTHER AND NEXT FRIEND, KATHLEEN QUINN

PLAINTIFF/APPELLANT

AND

MID WESTERN HEALTH BOARD AND DONAL O’SULLIVAN

DEFENDANTS/RESPONDENTS




JUDGMENT of Mr. Justice Kearns, delivered the 8th day ofApril, 2005.


The facts of this case and the evidence at trial are set out fully and

comprehensively in the judgment of the learned trial judge (O’Sullivan, J) in the High

Court and do not require detailed elaboration in this judgment.

The plaintiff was born on the 4th May, 1990 in Limerick Maternity Hospital at a gestational age of 39 weeks and 1 day. She brings these proceedings through her mother and next friend, Kathleen Quinn, with whom she resides at Fortanne, O’Callahans Mills, County Clare. The first named respondent has or had responsibility for the Limerick Maternity Hospital at the material time. The second named respondent is a consultant obstetrician and gynaecologist who had responsibility for the obstetric management of the plaintiff’s gestation and subsequent delivery. When Anne Marie was born she had severe brain damage attributable to a condition subsequently diagnosed as periventricular leukomalacia (PVL). The basis of her case against the defendants in the High Court was that she ought to have been delivered not later than week 35 of her gestation, in which case it was contended the plaintiff would have avoided all, or substantially all, of the brain damage which occurred.

The defendants ultimately did not dispute that there had been negligence in the management of the pregnancy and that the plaintiff should have been delivered earlier than she was. However, the defendants contended that the plaintiff’s brain damage was sustained as a result of an acute episode which occurred between 28-30 weeks of the pregnancy and that the outcome would not have been any different had she been delivered at any earlier time than she was.

The hearing before O’Sullivan J. was spread over a period of 17 days between the 13th May and 16th July, 2003, following which judgment was delivered on the 14th October, 2003. It had been agreed between parties that the trial should deal only with the issues of breach of duty, causation and life expectancy – the issue of damages (if any) being postponed until these issues were decided. In delivering judgment, O’Sullivan J. dismissed the plaintiff’s claim and on the 31st October, 2003, awarded costs in favour of the defendants.

The plaintiff’s mother is an insulin-dependant diabetic who was diagnosed as such in 1988 and her pregnancy is thus agreed to have been a ‘high risk’ pregnancy. She consulted her general practitioner regularly during the pregnancy and also attended at the first named defendant’s diabetic clinic in Limerick Regional Hospital. She was weighed regularly and her blood sugar levels noted. Some high blood sugar readings were recorded on the 7th September, 1989, along with some hypoglycaemic episodes. A change in insulin regime was put in place in September, and an incident of vaginal bleeding was noted on the 25th October. There was also a recorded weight loss of 2 kilos between 3rd October and 2nd November.

On the 7th November, 1989 (at 14 weeks gestation), the plaintiff’s mother attended the second named defendant for the first time. She had been referred by her general practitioner and saw the second named defendant on four subsequent occasions thereafter, those dates being the 2nd January, 1990 (22 weeks gestation), the 27th February, 1990 (29 ˝ weeks gestation), the 10th April, 1990 (36 weeks gestation) and the 1st May, 1990 (39 weeks gestation).

On the 2nd March, 1999 (at 30 weeks gestation), her general practitioner noted a drop in weight and queried “IUGR” (Intra Uterine Growth Restriction). This possibility was not further explored. On the 27th April, 1990, the general practitioner noted that despite a gestation of 38 weeks and 1 day that the fundus equalled 34 weeks. This was the first time that a discrepancy was noted between gestation and fundal height.

The plaintiff’s mother made a further visit to the second named defendant on the 1st May, 1990 (at 39 weeks gestation), and he recorded a reduction in weight but did not note any discrepancy between the height of the fundus and gestation. No ultra-sound scans were at any time undertaken. On the 3rd May, 1990, the second named defendant suggested that the plaintiff’s mother be admitted to Limerick Maternity Hospital and she was admitted there on the 4th May, 1990, at a point when gestation was at 39 weeks and 1 day.

A foetal heart monitor (CTG) was attached the reading from which was flat, meaning there was no base line variability and no accelerations. Delivery by caesarean section was ordered and at delivery there was a finding of “grossly diminished liquor volume” (oligohydramnios), liquor being the fluid surrounding the foetus in the uterus. At birth, the plaintiff’s weight was 2.09 kilos with a head circumference of 30.5 cm. She was grossly and symmetrically growth retarded, her birth weight and head circumference being well below the third centile for the date of gestation.

She was a very ill child who had poor activity and a poor cry. At 1 minute the plaintiff’s Apgar score was 3 and was 6 at 5 minutes. She developed respiratory problems and had poor colour, with twitching and chronic activity. Within 12 hours of birth the plaintiff suffered epileptic-type seizures. It became evident that the plaintiff had suffered major brain damage and a diagnosis of PVL followed.

A CT scan of the plaintiff’s brain was performed on the 28th May, 1990, and a further CT scan was performed on the 7th June, 1990. Some 10 years later an MRI scan of the plaintiff’s brain was carried out on the 28th June, 2000.

While multiple grounds of appeal have been advanced on behalf of the plaintiff, her case can be fairly summarised in the following way. The plaintiff alleges that her difficulties evolved as part of a unitary pathological process, namely, placental insufficiency (most probably linked to maternal diabetes), which caused a chronic hypoxic ischaemia in utero. This led to a gradual deprivation of oxygen and vital nutrients from before the 28th week which continued up to birth at 39 weeks and 1 day. An important feature of the early stages of this process on the plaintiff’s case was the suggestion that a compensatory mechanism known as “brain sparing” would have operated. Under this process, the brain would have been preferentially favoured by shunting of the available blood and oxygen supply at the expense of other organs during the initial period of chronic placental insufficiency, but this process could not have continued beyond 35 weeks. Had there been proper scanning and other monitoring, the fact that there was IUGR. would have been detected at around 30 weeks and this in turn would, it was contended, have led to delivery between the 32nd and 35th week of gestation thereby avoiding the catastrophic and irreparable damage caused to the plaintiff’s brain thereafter and in the neo-natal period. The witnesses for the defendants, however, denied that the plaintiff’s PVL was caused by a lengthy process which was continuing up to the time of delivery and denied that it was the result of placental insufficiency. They contended that there was an acute, relatively brief insult at 28 weeks to 30 weeks which caused catastrophic brain damage, and that the growth retardation was either caused by the same insult or resulted from the brain damage which occurred at that time. The defendants ultimately accepted during the trial that there was a period of placental dysfunction during the 3 to 4 weeks prior to delivery, but denied that this was connected with the plaintiff’s brain damage. In making their case, the defendants relied in particular on the information subsequently yielded up by the MRI scan. The MRI scan was the subject of detailed investigation and evidence by Professor Olaf Flodmark, a distinguished consultant neuroradiologist from Stockholm who was retained on behalf of the defendants, whose evidence as to the timing of the injury at 28 to 30 weeks was to prove decisive in the decision ultimately arrived at by the trial judge.

Both Professor Flodmark and Dr. King, a consultant paediatric neurologist who was also called for the defendants, disputed that any significant injury occurred later on in the pregnancy, and more particularly in the last 4 weeks of gestation, or that significant injury was caused either on the day of delivery or in the neo-natal period. The plaintiff’s experts, who included two consultant obstetricians, namely, Dr. Peter Buchan and Mr. Roger Clements, consultant paediatric neurologist Professor Alan Hill, consultant neo-natal paediatrician Professor Peter Fleming and paediatrician Professor Alan Lucas were collectively of the view that there was an ongoing progressive process taking place as a result of placental insufficiency which, via the mechanism of hypoxic ischaemia, contributed to the plaintiff’s brain damage during the pregnancy and was combined with an acute hypoxic ischaemic event at the time of delivery with episodes of hypoglycaemia postnatally. The defendants admitted only during the closing submissions that they had been negligent in not delivering the plaintiff/appellant at an earlier time. In the course of the appeal before this Court, Mr. Murray McGrath, senior counsel for the defendants, accepted that this admission necessarily meant that the defendants had been negligent in the management of the pregnancy and had failed to carry out appropriate scanning or monitoring of the plaintiff’s gestation.

The critical issues therefore which the judgment of the learned trial judge addressed were:-
(a) The nature of the insult which caused the PVL
(b) The timing of that insult.

In resolving that conflict, it was clear that the trial judge had to deal with conflicting evidence from both sides with regard to a medical condition (i.e. PVL) which is multi-factorial, poorly understood and the subject-matter of widely diverging scientific and medical understanding, notably in term of its precipitating cause. Having taken considerable time for reflection, O’Sullivan J. held that the plaintiff had failed to establish, on the balance of probability, that she would have avoided her catastophic injuries had she been delivered by the 35th week of gestation and he accordingly dismissed the claim.

Arguments of the Parties on Appeal

Mr. McCullough, senior counsel for the plaintiff, contended that the trial judge in arriving at his decision had accepted the obstetric evidence led on behalf of the plaintiff, to which there was no countervailing evidence, which was to the effect that a unitary pathological process had taken place in the medical condition of the foetus, whereby placental insufficiency caused hypoxic ischaemia which went on progressively from 28 weeks to birth. Having so found and concluded, counsel argued that the trial judge logically should not have set that finding at naught by ultimately preferring, as he did, the radiological evidence adduced on behalf of the defendants to determine the nature and timing of the injury. Furthermore, counsel submitted, the weight of the evidence was such that preference ultimately had to be given to the obstetrical evidence for a number of reasons. Firstly, the child did not die in utero, as one would have expected if a major insult had taken place at 28 weeks. Secondly, the radiological evidence was accepted by the defendants’ experts to be consistent with the case made on behalf of the plaintiff, even though it may have been less likely.

Once that concession as to consistency had been made, Mr. McCullough argued, the radiological evidence was no longer a bar to a finding by the trial judge in favour of the plaintiff. Having found that there was placental insufficiency ab initio, the trial judge should have given more weight to the evidence of Professor Hill (who had had regard to the fact that there was placental insufficiency) than that given to the evidence of Professor Flodmark (who did not have particular regard to the evidence of placental insufficiency).

Mr. McCullough further argued that the defendants themselves had not accepted the case on placental insufficiency until the cross-examination of their last witness, Dr. King. Up to that point, the defendants had contended for a healthy placenta and had postulated the occurrence of a single acute episode taking place for no particular reason. This, Mr. McCullough argued, was inherently improbable and was a view which the court, acting reasonably, should not have arrived at.

Mr. McCullough further criticised the trial judge for attaching undue importance to the failure of the plaintiff’s advisers to call their own radiologist, Professor Anslow, but submitted to this Court that there was nothing in his report (which had been tendered to the court during the hearing) to justify any finding that the failure to call this witness was particularly significant.

Furthermore, while Professor Flodmark had relied heavily on the fact that the MRI scan showed no damage visible to the cortex or sub-cortical area of the brain ( a fact inconsistent with late onset damage), Mr. McCullough argued that the fact that the plaintiff had had epileptic seizures suggested otherwise, so that the MRI scan should not be necessarily regarded as capable of revealing all damage to the grey matter of the brain.

Mr. McCullough further submitted that the defendant’s case was inherently improbable, because it sought to account for the plaintiff’s medical history by contending that three separate and unrelated events had occurred being:-
(a) An initial insult at 28-30 weeks
(b) Placental insufficiently occurring some 3 or 4 weeks before birth, causing hypoxic ischaemia,

(c) A further hypoglaecemic episode occurring at time of birth.

Based on those contradictions and difficulties, Mr. McCullough suggested that the trial judge should have preferred the evidence of the plaintiff’s experts and invited this Court effectively to reverse the trial judge’s finding on causation and hold in favour of the plaintiff. Alternatively, Mr. McCullough submitted the case should be sent for retrial before another judge on the issue of causation. He urged the court not to remit the matter to the trial judge to resolve issues which, he suggested, the trial judge had failed to resolve in the course of his judgment.

Finally, he submitted that the failure on the part of the trial judge to resolve the difficult issues before him was not in accordance with the legal obligation to decide the case in favour of one party or the other and the trial was, for these various reasons, unsatisfactory and the outcome one which was not in accordance with the evidence and was a finding so unreasonable that this Court should intervene in the manner suggested.

On behalf of the respondents, Mr. McGrath contended that there was credible evidence before the trial judge such as to raise significant doubt about the correctness of the proposition advanced on behalf of the plaintiff as to causation in this case and, in particular, the timing of the injury. Furthermore, Mr. McGrath submitted that the trial judge had made a conscientious effort to resolve the issues in the case. Insofar as the trial judge may have failed to resolve those issues, Mr McGrath submitted that this Court, if disposed to intervene, should resolve the causation issue in favour of the defendants/appellants.

Notwithstanding the concession of negligence, Mr. McGrath argued that the onus of proof remained at all times on the plaintiff in respect of the issue of causation and there was no onus on the defendant to establish a particular version of causation. If the trial judge as a result of evidence adduced on behalf of the defendant was unable to decide the case on the balance of probabilities in the plaintiff’s favour he had then no option but to dismiss the claim. In any event, Mr. McGrath contended, it was clear from the judgment that the evidence called on behalf of the defendant went further and enabled the trial judge to effectively prefer the defendant’s case to that of the plaintiff.

Having regard to the expertise of Professor Flodmark, whose evidence was not contradicted by any neuroradiologist called on behalf of the plaintiff, the trial judge was entitled to attach great weight to that evidence and to act upon it. He had in addition further evidence available to him, notably evidence of the plaintiff’s reduced head size at birth. Evidence had been given at trial to suggest that growth of her head slowed markedly from about 28 weeks, meaning that brain damage had taken place at that time. Where brain damage occurs, the evidence had shown that the head ceases to grow, and it was noted in this case that at delivery the head size was appropriate to 31/32 weeks only.

The court in addition had the benefit of evidence which suggested that the condition of PVL typically occurs at 28 to 30 weeks and not after 35 weeks. There was further evidence that this condition tends not to be an ongoing or chronic process, but is more usually an acute episode. There was further evidence available from Professor Flodmark that this was a case of “Pure PVL” (where the condition exists without other complicating factors) thus rendering it very unlikely that there had been an ongoing injury beyond 35 weeks. Professor Flodmark did not accept that death of the foetus would have followed an acute injury at 28 – 30 weeks and further stated that he never saw imaging where PVL damage went on beyond 35 weeks.

Counsel argued that the evidence available from the MRI scan, described in evidence by Dr King as the “gold standard” from a diagnostic point of view, suggested clearly that the time of the plaintiff’s brain damage was at 28 weeks. Furthermore, the MRI scan of the cortical and sub-cortical areas of the brain did not show the kind of damage which would be apparent if a chronic ongoing process until birth had taken place.

In all these circumstances, Mr. McGrath argued, the trial judge had resolved an extremely difficult case in a careful and reasoned manner and had set out with great care the reasons why he favoured the evidence of the defendant’s witnesses over those called on behalf of the plaintiff. He submitted that there should be no interference with the findings and judgment arrived at by O’Sullivan J.

Legal Principles

It is important at the outset to identify some legal principles appropriate to the task of deciding the issue of causation in cases of this nature.

Firstly, it was conceded on behalf of the respondents, albeit only on the 17th day of the trial, that the defendants were negligent in not delivering Anne Marie early. In the course of submissions before this Court, Mr. McGrath has helpfully clarified that this concession may be taken as necessarily including an admission that the monitoring of this pregnancy was inadequate and that ultra-sound scans, which conceivably might have yielded information leading to an early delivery, were not in fact performed.

Nonetheless counsel on behalf of the respondents submitted that the onus of proof at all times remained on the plaintiff to establish that the admitted breach of duty actually caused the plaintiff’s injury. The respondent’s case quite simply was that all of the plaintiff’s brain damage was attributable to a severe insult to the brain which occurred, as a matter of probability, between 28 and 30 weeks of gestation and that no intervention by way of early delivery thereafter would have altered that situation. Counsel further contended that while the exact cause of the insult was not known, it resulted in the condition of periventricular leukomalacia (PVL) which Anne Marie was subsequently shown to have.

At the outset it may be said that this is not a case where any act of the respondents first triggered the particular medical condition from which the plaintiff suffers. The case is rather that they negligently failed to realise that there was a problem when indications that such was the case first became evident between 28-30 weeks and to thereafter intervene appropriately to ensure that Anne Marie was born at the earliest possible opportunity, and certainly not later than 35 weeks.

In the context of causation, however, I should immediately emphasise that it is not enough to show that the plaintiff’s condition got worse during the period from the start of the difficulties until delivery, it must further be shown that early intervention would have prevented the damage. There is no dispute in the present case that the only form of effective intervention lay in delivering the baby at the earliest possible opportunity.

Given that a difficulty for which the respondents were not responsible led to the start of the plaintiff’s difficulties, it is perhaps somewhat surprising that the case was presented to the trial judge on an “all-or-nothing” basis. No case was made along the lines that the delay in intervention meant that the plaintiff had “lost a chance” of a better outcome for which she was entitled to be compensated. Furthermore, any claim that the negligent delay “materially contributed” to the plaintiff’s condition, as distinct from bringing it about in its entirety, was expressly abandoned by the plaintiff’s advisers during the course of the trial.

On the face of it, therefore, the issue of causation fell to be dealt with on the basis that the claimant was required to discharge the burden of showing that the breach of duty of which she complains caused the damage and to do so by showing that but for the breach she would not have suffered the damage. This is known as the “but for” principle of causation which obtains in the generality of personal injury actions and is a principle long established in negligence actions at common law.

In the instant case, however, Mr. McCullough argued that the particular circumstances of this case called for a modified approach to proof of causation by reference to principle, authority, and policy. In particular he relied upon a recent decision of the House of Lords in Fairchild v. Glenhaven Funeral Services Ltd. and Others [2002] 3 All ER 305 to suggest that requirements of proof of causation could be relaxed in certain circumstances. He further relied on observations of Sopinka J. in Snell v Farrell, a decision of the Supreme Court in Canada [1990] 2 S.C.R. 311 to argue that causation could be ‘inferred’ in circumstances such as arose in the present case. These cases were, Mr. McCullough submitted, indicative of an evolving approach to issues of negligence and causation which may be said to have begun with the decision of the House of Lords in McGhee v. National Coal Board [1973] W.L.R. Vol.1(1). That case is undoubtedly a useful starting point in the consideration of this issue.

Mr. McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4 ˝ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The plaintiff contended that his dermatitis had been caused by his period of working in the brink kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. The trial court concluded the employers were at fault in failing to provide showers, but found against the plaintiff on the basis that the plaintiff had failed to show that the breach of duty caused or materially contributed to his injury. In allowing the appeal, the House of Lords adapted the orthodox test to meet the particular case, recognising that the plaintiff faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy. In the circumstances the House of Lords found that no distinction was to be drawn between materially increasing the risk of the plaintiff contracting the disease and making a material contribution to its occurrence.

Of the five speeches in the House of Lords, only Lord Wilberforce however advocated a reversal of the burden of proof, an issue touched upon in the course of the appeal before this Court also. Nonetheless, this decision was widely seen as ushering in a relaxation of the traditional “but for” requirement to establish causation. However, in Wilsher v. Essex Area Health Authority [1988] 2 W.L.R. 557, Lord Bridge interpreted McGhee as espousing no new principle. Instead, McGhee was explained as promoting “a robust and pragmatic” approach to the facts of a case to enable an inference of negligence to be drawn where medical or scientific expertise cannot arrive at a definitive conclusion. In giving his reasons, Lord Bridge stated at p.569:-

The underlying reasons for the decision in Wilsher emerge clearly from the dissenting judgment of Browne-Wilkinson V.-C. in the Court of Appeal [1987] Q.B. at p.779 which later found favour with Lord Bridge and in which the Vice-Chancellor stated:-Wilsher suggests that it is less open to a court to relax the onus of proof in relation to causation where the condition brought about by negligence is multi-factorial or is capable of being trigged for a variety of reasons or by a variety of agents. Conversely, where only one reason or agency can be identified, a court may more readily make good any evidential shortfall to draw an appropriate conclusion, notably when scientific and medical science is incapable of providing the requisite information. Such an approach may also be more appropriate to cases where the negligence or breach of duty precedes the injurious event, particularly where the injury falls in shortly afterwards and is thus clearly proximate to it. A difficulty may obviously arise in cases where the injurious event occurs first and there is then negligence, whether by way of misdiagnosis or delay in providing appropriate treatment. In the latter situation, the injury or some of it will in many cases have already occurred to a greater or lesser degree, so that the negligence may perhaps better be characterised as giving rise to the “loss of a chance” or “loss of an opportunity” of avoiding most, or at least a significant part, of the ensuing damage. It must be said there is a dearth of Irish authority on the topic of “loss of a chance” which perhaps explains why the plaintiff’s advisers steered clear of it at trial.

Be that as it may, Mr. McCullough noted that many Canadian cases decided after McGhee (but before Wilsher) tended to follow McGhee by adopting either the reversal of onus or the inference interpretation. Which interpretation was adopted made no practical difference because even when the latter approach was applied, the creation of the risk by the defendant’s breach of duty was deemed to have established a prima facie case, thus shifting the onus to the defendant. (Powell v. Guttman [1978], 89 D.L.R. (3d) 180 (Man. C.A.) and Letnick v. Toronto (Municipality of Metropolitan), [1988] 2 F.C. 399 (C.A.), applied the reversal of proof theory.)

A useful analysis of different approaches to causation may be found in Snell v. Farrell [1990] Can L11 70 (S.C.C.) where Sopinka J. stated as follows (at p.10):-

Sopinka J. went on to note that proposals in Britain to reverse the burden of proof in malpractice cases which gained momentum by virtue of the McGhee case were not adopted. In 1978, the Royal Commission on Civil Liability on Compensation for Personal Injury (Pearson Report, Vol.1) reported as follows at p.285:-Sopinka J. noted that the Wilsher decision in the House of Lords ensured that the common law did not undermine this recommendation. His view was that any dissatisfaction with the traditional approach to causation stemmed to a large extent from its too rigid application by the courts in many cases. He quoted with approval the observation made by Lord Salmon in Alphacell Ltd. v. Woodward [1972] 2 All E.R. 475 at p.490:-

“…it is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”

He ultimately concluded, and this is the passage upon which counsel relies, that where the relevant facts are peculiarly within the knowledge of one party (or, by inference in the present case, within their ability to procure knowledge of such facts) “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. This has been expressed in terms of shifting the burden of proof.”

Sopinka J. however disliked the idea of deciding that a transfer of the onus of proof was the approach to adopt and characterised as proper an approach which involves the weighing of evidence to draw an appropriate inference in circumstances where a defendant runs the risk of an adverse inference in the absence of evidence to the contrary. He continued (at p.12):-

Finally, Mr. McCullough relied upon the decision arrived at by the House of Lords in Fairchild v. Glenhaven Funeral Services [2002] 3 All ER 305.

In that case, an employee had been employed at different times and for differing periods by more than one employer. He developed a condition of mesothelioma as a result of the inhalation of asbestos dust at work. The question arose whether in the circumstances he was entitled to recover damages against either employer or both of them even though unable to prove on the balance of probabilities that his condition was the result of inhaling asbestos dust during his employment by one or other or both of his employers. The claims were dismissed in the Court of Appeal but were allowed by the House of Lords. The House decided that, in certain special circumstances, the court could depart from the usual “but for” test of causal connection and treat a lesser degree of causal connection as sufficient, namely that the defendant’s breach of duty had materially contributed to causing the claimant’s disease by materially increasing the risk of the disease being contracted. In the circumstances of that case the House thought it would be just, and in accordance with common sense, to treat the conduct of both employers, in exposing the employee to a risk which he should not have been exposed, as making a material contribution to the employee contracting a condition against which it was the duty of both employers to protect. Any injustice that might be involved in imposing liability on a duty-breaking employer in such circumstances was heavily outweighed by the injustice of denying redress to the victim. Policy considerations therefore weighed in favour of allowing the employee to recover against both employers, and that conclusion followed even if one of them was not before the court.

In this course of his judgment (at p.357) Lord Hutton stated:-

However, I would be firmly of the view that this decision turns on its own unique facts and it was expressly confined by the House of Lords to a particular set of circumstances where it would be patently unjust not to allow the appeal in circumstances where the plaintiff’s condition must have been caused through the negligence of employer A or employer B, or both, but on application of the conventional “but for” test of causation it could not be held that the plaintiff had successfully made out a case against either. Those considerations do not arise in the present case. It is worth noting that in Ireland this difficulty of joint tortfeasors and uncertain causation has been addressed by s.11(3) of the Civil Liability Act, 1961, which provides that :-

Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage”

Furthermore, the fact that the House of Lords took an exceptional course in Fairchild was expressly acknowledged to have been the case by Lord Hoffman in the course of his judgment in the recent case of Gregg (F.C.) v. Scott (House of Lords, unreported, 27 January, 2005) when he stated (at paras.84-85):-

It may be noted en passant that this decision of the House of Lords is also the most recent authority in support of the proposition that actionable claims for “loss of a chance” do not lie. A useful resumé of the relevant policy considerations suggesting why this is the preferred approach appear in the judgment of Baroness Hale of Richmond (at paras.212-226). Given that the decision of Peart J. in Philip v. Ryan was referred to in the judgment of Lord Hoffman, it is perhaps appropriate to comment that that judgment, containing as it does an excellent analysis of the facts on which that particular case turns, does not purport to address the underlying legal principles.

From the review of the cases undertaken herein, I am driven to conclude that Mr. McGrath’s submissions in relation to the onus of proof and causation generally are correct and that the “but for” approach to causation must be followed by this Court. Any approach which had the effect of reversing the onus of proof, or transferring the onus of proof to the defendant, would be one of such importance, even in the few exceptional cases where it might be appropriate, that it would require a full court - or perhaps even legislation - before a change of such magnitude to existing law could take place. Nor do special circumstances arise or exist in this case to bring it within the more relaxed requirements for establishing causation which were found to exist in McGhee v. National Coal Board and Fairchild v. Glenhaven Funeral Services.

This is not a case where there were multiple defendants or where a single agency was clearly established as the cause of the plaintiff’s condition. Indeed it was noted in the evidence at trial that PVL is a multi-factorial condition which is as yet not fully understood by scientific and medical experts. Indeed it appears in this case that a round-table discussion between experts from both sides took place in London some time before the trial, which proved of considerable assistance in sharpening the focus of the evidence given at the trial. Nor is this a case where there was any deliberate obfuscation by the defendants in meeting the case, or any concealment or destruction of documents or records which were of critical importance in determining the nature of the condition from which the plaintiff suffered and the point in time at which it occurred. Both sides to the case had to employ their best endeavours to try to ascertain what had happened in this complex and difficult case. Furthermore the defendants did call evidence from two experts, one of them, Professor Flodmark, being an expert of international stature on the topic of PVL and MRI imaging in relation thereto. That being so, the inferential consequences mentioned by Sopinka, J. in Snell v. Farrell which arise when a defendant fails to adduce evidence do not arise in this case.

Besides, as has already been noted, no argument was made in the course of the trial that the normal requirements of proof on the part of the plaintiff do not apply. That being so, it is quite clear that a new case to that effect can not now be made. In Ahmed v. The Medical Council and the Attorney General [2004] 1 ILRM 372 this Court, sitting as a court of five, unanimously upheld the principle, often referred to as “the rule” in Henderson v. Henderson [1843] 3 Hare 100, to the effect that parties to litigation must bring forward their whole case and each and every point which properly belongs to the subject of litigation in the course of trial and not seek to do so at a later time. Mr. Noonan, counsel for the respondents, usefully referred the court to a restatement of that principle to be found in an Australian decision, Gavalas v. Singh [2001] V.S.C.A. 23 (22 March 2001) where the court noted:-

In proceeding now to consider how the learned trial judge arrived at his decision, I think it is important to stress that this exercise will be conducted on the basis that, notwithstanding that the process of injury may have commenced between 28-30 weeks of gestation, the case is nonetheless one to be assessed having regard to the plaintiff’s contention that all, or nearly all, of the injury and damage which the plaintiff suffered occurred at a point in time later than the appropriate time for intervention, be that 35 weeks gestation, or even some earlier time.

Decision

The jurisdiction of the Supreme Court in an appeal of this nature is as outlined by McCarthy J. when delivering the judgment of this Court in Hay v. O’Grady [1992] 2 I.R. 210 where it was stated (at p.217):-

This may be characterised as a statement to the effect that primary facts are a matter for the trial court, which, once they are supported by evidence will not be interfered with on appeal and, secondly, the inferences to be drawn therefrom, sometimes referred to as secondary facts, are appropriately a matter which can be reviewed by this Court.

As to how a court of trial should approach the task of finding primary facts, Mr. McCullough pointed to the dicta of Finlay C.J. in Best v. Wellcome Foundation Ltd [1993] 3 I.R. 421 (at p.462):-

At an earlier point of his judgment in Best, Finlay C.J. had stressed that it is not possible either for a judge of trial or for an appellate court to take upon itself the role of a determining scientific authority resolving disputes between distinguished scientists in any particular line of technical expertise. In the ordinary course, however, a trial judge will, and must, use his best endeavours to resolve conflicts of fact by deciding those issues in accordance with the legal requirement that he do so on the balance of probabilities. Exceptional cases however can and do arise, and this is clearly one such case, where it may not be possible to do so.

Having regard to the complete stand-off between the respective medical experts on both sides of this case, both as to causation and the timing of Anne Marie’s injury, I do not believe it was necessary for the trial judge ultimately to decide in favour of one proposition or the other. It was open to him to decide the case by holding, as he did, that the plaintiff had not discharged the burden of proof to establish, on the balance of probabilities, that the plaintiff’s injury had occurred in a manner or at a time contended for by the plaintiff’s experts. In short, while the obstetric evidence adduced on behalf of the plaintiff provided one credible explanation of events, the radiological evidence adduced on behalf of the defendants’ provided another, being one based upon scientific and objective criteria, and which the trial judge also found to be credible and which ultimately left him in a position where he was driven to the conclusion that the onus of proof had thus not been discharged.

Support for the proposition that the court of trial is not under an obligation in all cases to positively find in favour of one version over another is to be found in Rhesa Shipping Co. S.A. v. Edmunds and another [1985] 2 All ER 712.

The following passage from the speech of Lord Brandon in that case (at p.718) is particularly helpful in addressing the duty imposed by law to the process of fact finding which a judge of first instance has to perform at the conclusion of a case where alternative scenarios as to causation exist:-

A trial judge must not, of course abdicate his duty to endeavour to resolve issues, but even the most conscientious effort may still leave a judge in the position in which O’Sullivan J. found himself at the end of this case. If credible evidence existed which left him in such a quandary he effectively had no option but to decide the case as he did. In my view there was such evidence.

Firstly, there was ample evidence to support the learned trial judge’s finding that Professor Flodmark was better qualified than Professor Hill, the plaintiff’s obstetrician, to perform the specific task of identifying and interpreting the information contained on the MRI scan and thus to decide if a major, acute brain injury occurred at 28-30 weeks. Indeed Professor Hill in the course of his evidence acknowledged that he did not have the level of experience possessed by a neuroradiologist when interpreting MRI scans and would defer to the opinion of a paediatric neuroradiologist who had experience in reading paediatric images. Professor Hill further accepted that Professor Flodmark was a paediatric neuroradiologist of the highest standing. Of course, he argued that he, unlike Professor Flodmark, could bring his clinical experience of treating patients to bear on issues relating to diagnosis, a factor which counsel suggested might be seen as compensating for any supposed disadvantage on Professor Hill’s part. However, Professor Flodmark’s evidence was to the effect that a neuroradiologist is more objective in reviewing the images to be seen on an MRI scan, a diagnostic tool which was referred to by Dr. King as the “gold standard” for diagnosis, than a clinician and that he was therefore in the best position to furnish an independent opinion not only on what the images show but also on the interpretation of those findings.

In dealing with Professor Flodmark’s opinion, the learned trial judge not only set out the reasons given by Professor Flodmark for his opinion that the insult occurred early in the appropriate time frame for PVL, but also expressed a clear preference for Professor Flodmark as the best of the expert witnesses in stating (at p.37):- “Professor Flodmark was clearly the most qualified of all the witnesses in the case to give evidence as to what precisely the radiology depicted.”

He also gave very clear reason for preferring Professor Flodmark’s evidence to that of Professor Hill. At p.44 he stated:-

Mr. McCullough has criticised this passage in the decision, particularly because of the importance given by O’Sullivan J. to the failure of the plaintiff to call Dr. Anslow, the plaintiff’s Neuroradiologist. These criticisms seem to me to have little merit. Strictly speaking, there may have been reasons other than his unhelpful report to explain why Dr. Anslow was not called, but the fact nonetheless remains that there was no countervailing evidence from a neuroradiologist to contradict Professor Flodmark’s opinion in any way, and it was thus open to the trial judge quite properly to attach particular weight to that expert’s views in those particular circumstances.

Support for that approach may be found in the following passage from the judgment of the House of Lords in R v. IRC, Ex parte T.C. Coombes & Co. (1991) 2 A.C. 283 at p.300:-

There are other criticisms made about Dr. King’s evidence, largely to the effect that she changed her position and postulated a highly unlikely scenario of three unrelated insults as having caused the plaintiff’s injury. However, those criticisms all drop away if one accepts, as I do, that Dr. King was handicapped by the fact that the results of the MRI scan were not known to her at the time of her first report and also because the hospital records did not indicate any placental abnormality. Indeed it was very much a case where the experts on both sides had to revise and adapt their opinions in the run-up to the trial and during the course of the hearing itself.

The fact remains at the end of the day that the information from the MRI scan and the fact that the plaintiff had reduced head growth at birth were critical elements in the evidence which in my view justified the learned trial judge in holding that an acute early insult had occurred in this case.

In this regard, Professor Flodmark told the trial court that the MRI scan revealed a marked reduction in the amount of white matter in Anne Marie’s brain. That which remains is abnormal and shows signs of gliosis (scarring). In this particular case, there is significant loss of white matter in both the anterior, mid and posterior portion of the brain. Two small white dots are also visible in the central part of the brain called the thalamus. These are changes associated with PVL and, in particular, with more severe forms of PVL. The corpus callosum, which provides the connection between the right and left cerebral hemisphere of the brain is usually four or five times as big as it is in the plaintiff’s case. This is another feature of PVL. However, there is no evidence of any damage in the sub cortical structures, nor is there evidence of any injury to the cortex, both of which look quite normal. These findings indicate that the present case is an example of “pure PVL”. Professor Flodmark also stated that there was no evidence of any damage in the basal ganglia of the type caused by profound hypoxic ischaemia in a full term baby. In Professor Flodmark’s opinion there were no complicating features and no evidence of any additional injury except to the white matter. If any brain damage had been caused by hypoglycaemia, he would have expected to find cortical damage. There was no evidence of such damage either due to hypoxic ischemic injury or hypoglycaemia.

Professor Flodmark further gave evidence that the causes and mechanisms behind brain lesions called PVL are not fully understood. It usually arises where there is a drop of the blood supply to the brain of the foetus.

Professor Flodmark further gave evidence that PVL does not occur before 24/25 weeks and is extremely rare after 34 weeks, if indeed it ever occurs after that time. Cases of pure PVL start to occur and appear around 28 weeks. He had never seen a case where he had been convinced that PVL developed after 34/35 weeks. Even where the injury had occurred at 28/30 weeks, babies had survived in utero despite sometimes having quite extensive damage to the brain.

Asked to address the question of the timing of Anne Marie’s injury, Professor Flodmark stated that the evidence of significant damage to the anterior portion of the brain supported his opinion that the damage in this case most likely occurred between 28 and 30 gestational weeks. He also stated that this finding was supported by the CT scans, and more particularly the first scan which showed the ventricles in the plaintiff’s brain to be “generous” in size. One could also see evidence on the CT scan of some sparseness in the amount of white matter in the periventricular region. In his opinion, it would have made no difference if there had been a delivery at 35 weeks, rather than 39 weeks.

The trial judge accepted, as he was entitled to do, the evidence of Professor Flodmark on these critical matters including, in particular, the evidence in relation to the question of the timing of the injury and the extent of that injury when it first occurred. Thus the learned trial judge had ample evidence to support the view he expressed at p. 46 of his judgment:-

This passage is, yet again, indicative of the thoroughness which the learned trial judge brought to his analysis of the evidence in this case. It was an approach he adopted in relation to each of the expert witnesses. He was perfectly entitled, in my view, to conclude, as he did, that the evidence led on behalf of the defendant was such as to bring about a situation where the plaintiff had not tilted the scales decisively in favour of the case on causation contended for by the plaintiff’s experts. The trial judge concluded:-This is a truly tragic case where this Court would wish, as did the trial judge, to acknowledge the profound pain and suffering which the plaintiff’s injuries have brought and will bring to the plaintiff herself and to her parents, and to acknowledge also the inspiring fortitude and love shown to Anne Marie by her parents on every single day since her birth.

However, for the reasons already indicated, I would dismiss this appeal.



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