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  4. Appeal for brain damaged child fails despite "inadequate" judgment

Appeal for brain damaged child fails despite "inadequate" judgment

8th April 2016 | civil litigation , reparation

Parents of a child who suffered brain damage at birth have failed on appeal in their action of damages against the health board responsible for the hospital concerned, even though the court accepted that there had been unreasonable delay in the Lord Ordinary issuing his opinion, an opinion which did not give adequate reasons for aspects of his decision.

Jacqueline and Andrew MacLeod had brought the action against Highland Health Board on behalf of their daughter Rowan, born in June 1999 at Raigmore Hospital, Inverness. Their case was that Rowan had suffered hypoxic brain damage before delivery and then acute profound asphyxia after delivery and during resuscitation, due to the negligence of hospital personnel. She now had quadriplegic cerebral palsy and was completely dependent on others.

Foloowing 22 days of proof and extensive written submissions, the Lord Ordinary, Lord Kinclaven, reserved judgment on 7 February 2013. He issued his opinion in favour of the defenders on 23 January 2014.

On appeal the pursuers argued in essence that the Lord Ordinary’s opinion had failed to give adequate reasons for his decision, and that this failure, taken with the excessive delay in producing his opinion, meant that there had not been a fair trial of the issues. They had not got a fair hearing once the judge’s recollection of the witnesses and the immediacy and atmosphere of the proof had been lost. There was the possibility that the Lord Ordinary’s decision was defective because he had forgotten what the evidence was. In any event, given the delay, the decision should not be accorded the deference usually given the determination of fact by a court of first instance.

Delivering the opinion of the court, Lord Brodie, who sat with Lady Dorrian and Lord Drummond Young, accepted first of all that there had been an unreasonable delay in issuing the Lord Ordinary's opinion, despite the length and complexity of the proceedings as a whole, and apologised to the pursuers on behalf of the court. That was not the sole responsibility of the Lord Ordinary, due to the organising of court business, and "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".

Regarding the form of the opinion, the court commented that it was "written exclusively for the parties and not for its other potential audiences". He had assumed that readers would be familiar with the terminology, but parts of it would be obscure to those who were not. His failure to explain the mentioning of certain details that appeared to be irrelevant, as well as to explain certain critical findings, had allowed the pursuers "to suggest that there had been a failure of engagement with and analysis of the evidence". Further, in a complex case it was not enough simply to adopt a party's submissions where this left the judge's own process of reasoning unclear.

Despite his failure to deal adequately with the expert evidence, however, the court said his conclusion had been "inevitable" because of the body of evidence led by the defenders, which clearly represented a responsible body of medical opinion to support the way the labour had been handled. "We accordingly consider that the defenders would almost inevitably have succeeded on a proper consideration of the evidence", Lord Brodie said.

As regards causation, the Lord Ordinary's reasoning was sufficient to support his conclusion that the pursuers had failed to prove that what they alleged to have been negligence for which the defenders were liable caused Rowan’s injury.

The pursuers had also tried to follow an incompetent course in asking the court to have the whole evidence heard again by a different judge. That was not the Scottish practice and the court would have been able if necessary to carry out its own review of the evidence and reach its own decisions of fact.

In conclusion the court added that the case was not being decided on a technical basis, as it could not be said that the Lord Ordinary had gone "plainly wrong" on the evidence and there were substantive difficulties in the pursuers' way on any approach.

Click here to view the opinion.

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