Neutral Citation Number: [2007] EWCA Civ 290
Case No: B3/2006/1188
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Birmingham District Registry
His Honour Judge MacDuff QC (sitting as a High Court Judge)
4BM11168
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/04/2007
Before :

LORD JUSTICE WALLER
Vice-President of the Court of Appeal, Civil Division
 
LORD JUSTICE TUCKEY
and
LORD JUSTICE JACOB
Between :

	Monzur Miah	Appellant	
	- and -		
	Birmingham and the Black Country Strategic Health Authority	Respondent	

(Transcript of the Handed Down Judgment of
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Michael Redfern QC and Richard Norton (instructed by Thompsons, Solicitors) for the Appellant
Ben Browne QC (instructed by Bevan Brittan LLP) for the Respondent

Hearing date : 15th March 2007
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Judgment

Lord Justice Waller : 
1.	This is an appeal from the judgment of His Honour Judge McDuff QC, sitting as a judge of the High Court, handed down on 9th May 2006.  The appeal is brought by permission granted by myself, the trial judge having initially refused permission.
2.	The claim was brought by Monzur Miah (the appellant), now 26 years of age, against the defendant health authority.  The appellant suffers from severe athetoid cerebral palsy.  He is severely disabled, indeed wheelchair-bound.  There is no dispute that his condition was caused by the fact that during the final stages of labour at his birth the umbilical cord prolapsed.  In the result, the cord at some stage occluded, either through spasm or direct pressure from the head, cutting the oxygen supply to the baby’s brain.  The baby was delivered at 13.50 hrs on 11th January 1980, severely brain-damaged.  As to certain matters there is no dispute and I shall try to identify those first.  The mother came into the antenatal ward at the defendant’s Manor House Hospital, Walsall, at about 1 pm on 11th January.  She was vaginally examined by a midwife, Mrs Lloyd-Griffiths, during which examination the membranes broke at 13.20.  Mrs Lloyd-Griffiths completed the examination and then took the mother through to the delivery room, arriving at or about 13.30.  The partogram records various matters at 13.30; the blood pressure and pulse of the mother; pain-killing drugs being given to the mother; and contractions at 5 per 10 minutes.  It also records the condition of the cervix at the time of the earlier examination by the midwife (dilatation 7cm and position of descent).  Of most importance, at 13.35 the partogram records the fetal heart rate to be about 75 bpm.  The partogram records that “doctor notified” written into the space at just before 13.30.   It is common ground that, with the heartbeat being recorded at 75 bpm, there had been an onset of profound hypoxic ischaemia.  At this time also, it became common ground at the trial, a second vaginal examination was conducted by Sister Fallon.  Sister Fallon was not called to give evidence since she remembered nothing of the events of this birth, but Mrs Lloyd-Griffiths gave evidence that this examination took place with the mother on her side.  Mrs Lloyd-Griffiths suggested that it was during this examination that something now known to be the prolapsed cord was found.  Dr Nall wrote a contemporaneous note which stated as follows:
“Called to see at 1.40 pm.  Sister felt something unusual in vagina.  On arrival no fetal heart beat . . . cervix fully (dilated) except anterior crescent.  Posteriorly felt like a vaginal septum below the head . . . hooked down what seemed like a vaginal septum below the head but was a cord.  15cm of cord hanging out of vagina.  No pulse in cord. No fetal heart.”
3.	If the baby could have been delivered by 13.45 there would have been no brain damage but by 13.45 irreversible brain damage had occurred.  No criticism is made of the steps taken by Dr Nall or anyone else once the baby was recognised as having profound ischaemia.  It is accepted that it would have been impossible for anyone to have moved faster than the doctors and nurses did once the existence of a prolapsed cord was recognised. 
4.	The key issue in the case was whether, as a fact, the cord had prolapsed at the time that the membranes broke at 13.20.  The following are, as I understand it, the possibilities.  First, it was suggested by Mr Johnson, an expert called on behalf of the appellant, that the cord had already prolapsed prior to the membranes breaking, but would only likely to be detected once the membranes had broken.  Second, that the effect of the membranes breaking was to cause the cord to come past the head and prolapse.  The third possibility was that the cord would not prolapse instantaneously on the breaking of the membranes but would prolapse during some period prior to 13.35.  So far as this third possibility was concerned, it was Mr Johnson’s evidence that it was very unlikely – he put the possibility at about 10 per cent – the foundation for his view being that since the baby’s head was engaged that made it almost impossible for the cord to slip by the head, the head acting as a “bung”.
5.	It was again common ground that if the cord had prolapsed before the completion of the vaginal examination by Mrs Lloyd-Griffiths through either of the first two possibilities, Mrs Lloyd-Griffiths must have been negligent in not identifying it.  If it had been identified during that examination then steps could have been taken to prevent the severe hypoxia that in fact occurred.  Pressure could have been taken off the cord and the baby delivered by 13.45, thus allowing the baby to be born without any brain damage.
6.	It is obvious that this was going to be a difficult case for the judge to try.  The judge was being asked to decide precisely what happened in an event some twenty-five years before.  That is an onerous task on any view but particularly onerous where minutes make all the difference one way or the other.  Where a claimant is as severely damaged as this claimant through no fault of his own, the court’s sympathy must naturally go out to him.  For a professional midwife to find that she faces a charge of professional negligence over something which occurred within a few weeks of her qualifying, some twenty-five years before, is also very tough on her.  The case, furthermore, was not made any easier by what, on any view, was some very poor record keeping.  In addition, one record, the nurse’s cardex (which of course might have given a better record – one simply does not know) was missing altogether.
7.	The judge was assisted by a number of experts.  Only one witness of fact was called and that was Mrs Lloyd-Griffiths.  Putting the matter in broad terms for the present, the judge decided that the expert evidence pointed to two unlikely possibilities.  The first, that the cord had prolapsed at 13.20 but if that had happened there were difficulties in explaining how the baby was ever born alive.  The second, in order to provide the best explanation of how the baby was born alive, was that the prolapse occurred between the end of the vaginal examination by Mrs Lloyd-Griffiths and 13.35, but that involved rejecting evidence to the effect that 13.20, the time when the membranes broke, was the most likely time for the prolapse to occur, or the most likely time that the prolapse, if it had already occurred, could be detected.
8.	The judge ultimately held that a prolapse occurred after Mrs Lloyd-Griffiths had finished her examination.  He found her a compelling witness, who, despite the twenty-five years which had gone by, could remember what was a traumatic birth.  He accepted what she said and he was clearly impressed by her as someone who, if the prolapsed cord had been there, would have found it.
9.	Mr Redfern, realistically recognised that where a judge has seen and heard the witnesses at a trial an appellant has an uphill task in the Court of Appeal.  He put his submission under the following heads.  First he submitted that the judge was wrong to accept Mrs Lloyd-Griffiths as being able to remember, rather than reconstruct the events of this birth.  He pointed to the fact that, in her statement she always used the words “would have” describing what she would have done, rather than saying what she had done.  He pointed out that much of what she said in her evidence was not in her statement at all.  He suggested that the judge had failed to take account of the fact that even what Mrs Lloyd-Griffiths did describe as having taken place when conducting the vaginal examination was below the standards of a midwife in 1980.  In that regard he relied on the fact that Mrs Lloyd-Griffiths suggested that she had not put her finger round the head of the baby, fearing to do it damage, whereas Mrs Kelsall, the expert midwife called by the appellant, gave evidence that when the membranes break there will be a possibility of putting the finger round without causing damage.  Mrs Kelsall had been critical of Mrs Lloyd-Griffiths in this regard.
10.	Perhaps of greater significance, Mr Redfern suggested that the judge’s reliance on Professor Stirrat in preference to Mr Johnson, in relation to the likelihood of the cord prolapsing after the completion of the examination of Mrs Lloyd-Griffiths, was misplaced.  The judge summarised the views of the two experts in paragraphs 30, 31 and 32 of his judgment.  After recording the reasons for the opinion of Mr Johnson that the prolapse must have occurred by or as at 13.20, the judge said:-
“First he relied upon the agreed fact that the greatest risk of cord prolapse is at rupture of membranes . . .Thus (if there were no other evidence about it, direct or circumstantial) one would be entitled to assume, on the balance of probabilities, that the prolapse had occurred at that time.  Secondly, it was his opinion that, once the head was engaged (as it was from the outset), there was no room for the cord to descend past the head.  Thus it was that the cord must have been presenting itself, there to be detected, from at least the time when the head became engaged.  It could not have escaped past the engaged head to the position where it was eventually found by Dr Nall after 13.20.  That, in a nutshell, was the thrust of Mr Johnson’s evidence.”
11.	The judge then went on to deal in summary form with Professor Stirrat saying this:-
“Professor Stirrat did not agree.  Broadly speaking, there were three reasons.  First, he thought it highly unlikely that a qualified midwife (albeit one who was relatively inexperienced at that time) could have failed to detect the prolapsed cord, if it had been there.  Secondly (although accepting that, all things being equal, the cord was at greatest risk of prolapse at the time the membranes ruptured) he was aware that the research document upon which this statement was based provided statistics that 57% of cords which prolapsed did so within 5 minutes of ruptured membranes (43% did not).  Thirdly, he would have expected the cord to occlude or go into spasm earlier rather than later.  If the prolapse had occurred at 13.20, he would have expected the damaging hypoxia to have commenced earlier than 13.35, (noting of course that the fetal heart rate, although compromised, was still registering at 75 bpm at or around that time).”
12.	Mr Redfern submitted that Professor Stirrat’s reliance on the statistics, which came from a paper prepared by Murphy and Mackenzie, were completely misplaced.  He submitted, with some force, that there was no record as to which of the babies, the subject of the study, had their heads engaged as at the time when the cords prolapsed.  Two things followed from that submission, as I understand it.  First, the statistics give no support to the view that where the baby’s head is engaged and the membranes break it may take a further period of up to five minutes for the prolapse to occur.  Second, the statistics give no support to the view that where the baby’s head is engaged there may, after the membranes break, be a further period, longer than five minutes, prior to the cord prolapsing.  Mr Browne in his reply was not inclined to argue with that criticism but submitted that the statistics did not support Mr Johnson’s evidence either.  They were simply neutral.  That in my view is right.
13.	Mr Redfern’s main attack, however, related to the third matter recorded as relied on by Professor Stirrat.  Professor Stirrat was saying that it was right to work backwards from certain matters which were not in issue.  The baby was born at 13.50 brain-damaged.  The neurologists, Doctors Smith and Rosenbloom, had agreed that there needed to have been a flow of blood through the cord up to 13.35 if the brain damage was not to be worse than it actually was at 13.50.  Professor Stirrat was of the view that if the prolapse had been there at 13.20, although occlusion does not necessarily follow, there would have been present all the ingredients – (the full house, as it was termed at the trial) – to make it very likely that occlusion would have occurred earlier than 13.35, the agreed time of the onset of hypoxic ischaemia.  The factors relied on by Professor Stirrat were first that the cord would have descended into the vagina with its lower temperature and increased acidity; second, the cord would have been touched by Mrs Lloyd-Griffiths during the examination (Mr Johnson had surmised in evidence that she would have touched the cord during the examination); third, the pressure on the presenting part of the cord would have increased.
14.	Mr Redfern submitted that these factors were not as powerful as Professor Stirrat had originally suggested.  He pointed out that, in his evidence Professor Stirrat had originally concluded in reliance on the above factors that the prolapse would have been likely to occur closer to 13.35.  But Professor Stirrat ultimately accepted that the most likely time for the prolapse was closer to breaking of the membranes.  He accepted that the prolapse would occur within five minutes of the breaking of the membranes, relying for this purpose not only on the Murphy and Mackenzie figures, but also on his own clinical experience.  Again, there is some force in the point made by Mr Redfern that the Murphy and Mackenzie study did not support a case that prolapse occurs up to five minutes after the break in the membranes, since the question of timing was not the subject of their investigation.  But, as Mr Browne countered, since he used the figure to confirm his clinical experience, there is not much in that criticism.
15.	However, Mr Redfern went further.  He submitted that what Doctor Nall had found, following the examination by Sister Fallon, was a small bump.  This, he submitted, would have been the size of any prolapsed cord as at 13.20 when examined by Mrs Lloyd-Griffiths.  He submitted therefore that the degree to which the cord had descended into the vagina would be very low.  Furthermore, the degree to which it could have been touched was small.  Thus, he submitted, far from there being a full house, the pointers would be against occlusion occurring immediately on the breaking of the membranes.
16.	Mr Browne took us to the evidence and showed us that Professor Stirrat did not accept that if there had been a prolapse at 13.20 all that would have been there would have been a bump.  His view was that if one accepted Mr Johnson’s theory that once the head was engaged there would be no room for a cord to prolapse, the result would be that the degree of prolapse would have been the same at 13.20 as it was when Doctor Nall did his investigation at 13.40.  When Doctor Nall did his investigation at 13.40 he found something that could be mistaken for a vaginal septum, i.e. something more than a bump, and something which, once he hooked his finger round, indeed produced 15 cm of cord.  Thus, Mr Browne submitted, the full house, which Professor Stirrat relied on, would indeed have been there.  Furthermore, he relied on the fact that the judge was unimpressed by the way Mr Johnson had been able to deal with the full house point (see paragraph 40 of the judgment).
17.	Mr Browne did not accept that the judge was not fully aware of the criticisms that could be made of Mrs Lloyd-Griffiths.  He was well aware, as the judgment showed, of the use of the word ‘would’ in her statement and of the danger that Mrs Lloyd-Griffiths might be reconstructing rather than remembering.  He emphasised that the judge would be concerned not just with whether Mrs Lloyd-Griffiths was accurately remembering things, but equally concerned with the sort of person that she was.  She was clearly an impressive witness and Mr Browne emphasised that an important point was that if the cord had prolapsed in the way that Mr Johnson suggested it would not have been a small bump, it would have been readily detectable by a midwife, however inexperienced.  He referred to his cross-examination of Mr Johnson and Miss Kelsall, in which they accepted that it would have been grossly negligent to have missed a prolapsed cord of the size which would have been involved if Mr Johnson was right.  Furthermore, the cord would have been pulsating and difficult to miss for that reason also.  
18.	Mr Browne accepted that Miss Kelsall had suggested that it was easy for an inexperienced midwife to miss a prolapsed cord but that was not consistent with her acceptance that it would have been a gross error to miss the same.  It is fair to say that the judge did not refer to this aspect of Miss Kelsall’s evidence which was given in answers to questions from him as to the ease with which inexperienced midwives could miss a prolapsed cord, but that does not detract from the fact that it was accepted both by her and Mr Johnson that it would have been a gross error to have missed the same and does not detract from the fact that the judge clearly formed the view that it was very unlikely that Mrs Lloyd-Griffiths, being the type of person that he saw her to be in the witness box, would miss the same.
19.	Mr Browne submitted that, the judge having formed the view that he did of Mrs Lloyd-Griffiths, and of the likelihood that she would not miss a prolapsed cord, it would only be if the expert evidence compelled the court to the view that the prolapsed cord must have been there at 13.20, that the Court of Appeal could in any way interfere with the judge’s findings.  I would not accept that as necessarily the right approach.  Indeed, it seems to me, that the judge puts the matter rather the other way round and was right to do so.
20.	What the judge had to do was to weigh up the probabilities by reference to evidence other than that from Mrs Lloyd-Griffiths.  That involved weighing up the competing evidence of the experts, by reference to the records such as they were.   Both experts accepted that the greatest risk of cord prolapse is at the time of the rupture of the membranes.  Mr Johnson’s evidence was that once the baby’s head was engaged there was little, if any, room for the cord to get past, but he could not say that was impossible. That led Mr Johnson to be of the view that the prolapse would have occurred prior to the head being engaged and to it only becoming detectable at the time when the membranes broke.
21.	Professor Stirrat accepted that the greatest risk of a prolapsed cord was at the time of or just after rupture of the membranes.  He did seek to obtain some support from statistics in the Murphy and Mackenzie paper, which I accept was misplaced.  But the critical aspect of his evidence was much more firmly based.  Taking the condition of the baby at birth and working backwards, he would have expected the damaging hypoxia to have commenced earlier than 13.35 when the heartbeat was still at 75 bpm.  Despite Mr Redfern’s efforts before us, it seems to me that that view of Professor Stirrat remains undamaged.  Professor Stirrat was further of the view, as was the view of the expert midwives, indeed of all relevant experts except Mr Johnson, that it was possible for the cord to get by a baby’s head even when the baby’s head is engaged.  Mr Johnson himself conceded the 10% possibility that this could happen and as the judge said “The head could have rotated during subsequent contractions.  There could have been a gap on one side or another, possibly caused by variations in pelvic shape and size, as against the size and shape of the fetal head.”  Mr Redfern suggested that those last comments by the judge were speculation by him, but it seems that Miss Kensall accepted that the head could have rotated and Mr Johnson accepted the other possibilities.
22.	The judge’s assessment of the expert evidence was that it pointed in the direction of the prolapse not having been present when Mrs Lloyd-Griffiths conducted her examination at or around 13.20.  Even if that could be said to be putting the matter too highly in the light of the misplaced reliance on  the statistics in the Murphy and Mackenzie paper, on any view the expert evidence did not point conclusively in the direction of the prolapse being there at 13.20.  It is in that context that the evidence of Mrs Lloyd-Griffiths has to be assessed.
23.	The judge was entitled to take the view that for anyone to have missed the prolapsed cord, which Mr Johnson suggested must have been there, would have been “grossly” negligent.  He had the ability over a considerable period to assess Mrs Lloyd-Griffiths as a witness, assessing her, not only as to whether she had a recollection of the events, but also as to whether she was the type of person who would have missed a prolapsed cord.  He took the view that she would not have missed it and on that basis found that there was no prolapsed cord as at the completion of her examination and on that basis he cleared her of negligence. That was a view clearly open to the judge on the evidence and not a view with which the Court of Appeal can interfere.
24.	I have, of course, the greatest sympathy for the claimant, but my view is that this appeal must be dismissed.

Lord Justice Tuckey :		I agree.
Lord Justice Jacob:		I also agree