Parents of brain damaged child fail in medical negligence appeal despite ‘inadequate’ judgment

The couple argued that the Lord Ordinary’s judgment did not constitute a “reasoned opinion”, and that there had been the “excessive delay” in producing his opinion, which meant that there had not been a “fair trial” of the issues.

The Inner House of the Court of Session held that there had been a “serious delay” in the issue of the Lord Ordinary’s opinion, and that the opinion did not give “adequate reasons” for certain findings of fact, but it refused the reclaiming motion.

Lord Brodie, Lady Dorrian and Lord Drummond Young heard that the pursuers Jacqueline and Andrew MacLeod sued Highland Health Board in their capacity as legal representatives of their daughter Rowan, who was born by way of Caesarean section at Raigmore Hospital, Inverness, in June 1999.

The pursuers contended that Rowan, who now has quadriplegic cerebral palsy and is “completely dependent” on others for all activities of daily living, suffered “catastrophic perinatal injury” in the form of hypoxic brain damage by reason of a period of chronic partial asphyxia before delivery and then a period of acute profound asphyxia after delivery and during resuscitation, and that this was caused by “fault and negligence” on the part of hospital staff in their management of the delivery.

The action came before the Lord Ordinary, Lord Kinclaven, for proof, restricted to the issues of liability and causation of damage, and following 22 days of evidence and extensive oral and written submissions the judge made avizandum on 7 February 2013. But his opinion, in which he assoilzied the defenders, was not issued until almost a year later, on 23 January 2014.

On appeal, it was submitted that the Lord Ordinary’s opinion failed to give “adequate reasons” for his decision and that the absence of a “reasoned opinion” meant that there has not been a fair trial of the issues.

It was also argued that the time spent at avizandum was “excessive” and that a reasonable observer would come to the view that there was a real possibility that the Lord Ordinary’s recollection of the evidence had been diminished.

However, the appeal court refused the couple’s claim for a rehearing of the evidence before a different judge.

The judges accepted that there had been an “unreasonable delay” in the issue of the Lord Ordinary’s opinion, but they were “not persuaded” that this delay was material to determination of the reclaiming motion.

Delivering the opinion of the court, Lord Brodie said: “Experience indicates that the preparation of a judicial opinion will often take a matter of months, partly because it is expected to be detailed and partly because judges are not always allocated the workdays necessary for writing. That means that judges are preparing judgments in parallel with their other work. Traditionally Outer House judges have been expected to prepare opinions in the evening and at weekends. That may be changing, but the allowance of a ‘writing day’ remains something of a bonus.

“That the issue of a judgment may seem to parties to be a slow process is not necessarily solely the responsibility of the Lord Ordinary in question. That said, the parties here are entitled to say that this is not their concern; by whatever standard one determines unreasonableness, the issue of this opinion took too long and that is something for which the court as a whole must take responsibility and accordingly apologise.”

As to the criticisms of the form of the written judgment, the court observed that an opinion “should make clear the basis upon which facts have been found” and should “explain how the law has been applied in evaluating the evidence” and then applied to the facts.

“When viewed in the light of these considerations we conclude that the Lord Ordinary’s opinion in this case is deficient; it sets out how the Lord Ordinary has resolved the issues before him but it does not adequately explain why he resolved them in the way he has,” the appeal judges said.

Despite the pursuers’ complaint that the Lord Ordinary failed adequately to explain his findings of fact and that he has failed adequately to discuss the expert evidence, the court considered that “the defenders would almost inevitably have succeeded on a proper consideration of the evidence”.

Lord Brodie said: “We do not regard the Lord Ordinary’s findings on causation to be ‘superficial’ which is the word used together with ‘confusing’ in the first sentence of ground of appeal 1(f). Nor do we see it as necessarily an error for a first instance judge to omit to mention every item of evidence founded on and every argument advanced by a party.

“However, and this is to return to the central theme of this opinion, by choosing to express himself in what is a very terse and compressed style, the Lord Ordinary has laid himself open to the charge of failing properly to grapple with what he acknowledges to have been the extremely difficult issue of whether the pursuers had proved the necessary elements of their case in so far as relating to causation of injury.

“Our impression, based on his summaries of the parties’ respective positions and his reasoning referred to above, is that he did grapple with the issue. Nevertheless, for reasons that we have already discussed, it would have been better had the Lord Ordinary provided a fuller explanation of the process of analysis which he had gone through.”

He added: “Having accepted the pursuers’ argument that the Lord Ordinary’s explanation of why he made what he did of the evidence is inadequate, this court was prepared to enter into a reconsideration of that evidence but counsel for the pursuers did not invite us to do that and indeed expressly declined to present the reclaiming motion in such a way as would have made that possible. What counsel did invite us to do is not something which, in our opinion, is competent. We are therefore left with only one option which is to refuse the reclaiming motion.

“However, we do not wish to leave our consideration of the case on what may seem to be a purely technical note. We are even less willing to leave it implying some failure on the part of the pursuers’ counsel to present their case in the best possible way… Thus, while the reason why the pursuers case fails can be described as a procedural difficulty, in truth the difficulty appears to us to have been more substantive. Although we have not heard full argument on the correctness or otherwise of the Lord Ordinary’s opinion…we have considered the evidence…and concluded that the Bolitho principle must almost inevitably apply, with the result that the pursuer’s case must fail.”