Whitehouse v Jordan

A medical professional is negligent if conduct falls below the standard of an ordinarily skilled practitioner professing the relevant skill and acting with ordinary care. Describing conduct as an error of clinical judgment does not determine liability. The nature of the error and the applicable professional standard remain decisive.

An appellate court must respect factual findings materially dependent on the trial judge’s assessment of witnesses. It may intervene where a finding rests on unsupported inferences or a reconstruction of rejected evidence. An adverse medical outcome, even when it occurs during treatment, does not itself establish fault.

A child born with severe brain damage claimed through his mother that a senior registrar had negligently pulled too hard and for too long during a trial of forceps delivery. The hospital authority remained liable only if negligence by the registrar was established.

The trial judge found negligence and awarded £100,000. A majority of the Court of Appeal reversed that decision, with Donaldson LJ dissenting. The central question before the House was whether the Court of Appeal had been entitled to overturn the trial judge’s factual finding that excessive traction had caused the injury.

1. Disposition. The House unanimously dismissed the appeal and affirmed the Court of Appeal’s order. Lord Wilberforce, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen and Lord Bridge of Harwich each concluded that there was insufficient evidence to sustain the trial judge’s finding of negligence.

2. Professional standard. Per Lord Edmund-Davies, Lord Fraser and Lord Russell, an error of clinical judgment is not immune from a finding of negligence. The governing standard is that of the ordinary skilled practitioner exercising and professing the relevant special skill, as stated in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582. An error is negligent if an ordinarily competent practitioner, acting with ordinary care and possessing the skill claimed by the defendant, would not have made it. Otherwise it is not negligent.

3. Appellate review of fact. Per Lord Wilberforce, Lord Fraser and Lord Bridge, the trial judge’s opportunity to see and hear witnesses requires great respect. Its importance varies with the nature of the finding. Appellate intervention is rare where credibility determines a conflict of primary fact. An appellate court is better placed to intervene where the conclusion is an inference from undisputed or documentary evidence. This case fell substantially within the latter category.

4. The mother’s evidence. The mother’s account that traction lifted her from the bed was physically impossible and had been rejected. The trial judge could not reconstruct it as evidence that she had instead been pulled down the bed with excessive force. That reconstructed account had not been advanced by her or tested with the material witnesses. It therefore supplied no proper evidential foundation for negligence.

5. The medical report and other evidence. Professor McLaren’s use of “disimpaction” did not prove that the foetal head had been tightly wedged through excessive traction. The word admitted of different meanings and appeared in an otherwise wholly exculpatory report. The recorded five or six pulls, normal foetal heart readings during the forceps procedure and the registrar’s evidence likewise failed to establish excessive force or duration.

6. No inference from injury alone. The finding that anoxia occurred during the period of forceps use did not establish negligence. Brain damage may occur during birth without professional fault. The claimant still had to prove independently that the practitioner departed from the required standard.

7. Expert evidence. Lord Wilberforce observed, with Lord Fraser’s express agreement, that expert evidence should be the independent product of the expert and should appear to be so. Legal consultation is permissible, but influence from the exigencies of litigation may make the resulting evidence incorrect and self-defeating.

1. House of Lords: The appeal was dismissed unanimously and the Court of Appeal’s order was affirmed. The appellant’s costs were to be taxed under schedule 2 to the Legal Aid Act 1974. The respondents’ costs in the Court of Appeal and the House were subsequently ordered to be paid from the Legal Aid Fund under section 13.

2. Court of Appeal: By a majority comprising Lord Denning MR and Lawton LJ, with Donaldson LJ dissenting, the court reversed the trial judge’s finding of negligence. It refused leave to appeal.

3. High Court: Bush J found that the registrar had negligently pulled too hard and for too long during the trial of forceps, causing the brain damage, and awarded £100,000 damages.