KB-2023-001305 - [2025] EWHC 2488 (KB)

Before my intervention, the parties had treated this case as one involving only the question of whether or not the medical paediatricians ought to have organised an USS of Sidney’s head “before discharge”. Dr Conway, however, in answer to questions from the bench, clarified, as I have noted, that it was not negligent per se for Sidney to be discharged home on Saturday as long as a scan was to be carried out very soon thereafter. There were no grounds for suspicion that Sidney would receive anything other than loving care from both of his parents following his discharge home. Thus the focus of the case shifted from the “before discharge” to the “very soon” threshold of USS intervention.

In this regard, I drew the attention of the parties to the case ofMeadows v Khan [2022] AC 852 as being of potential relevance to the proper approach to the circumstances of this case.

In that case, the claimant sought advice with a view to establishing whether she was a carrier of the haemophilia gene. Following blood tests, she was led to believe by the doctor that any child she might conceive would not have haemophilia. Later, she became pregnant with her son. Shortly after his birth. he was diagnosed as having haemophilia and autism (unrelated to his haemophilia). Damages were sought which included compensation not only for the extra expenses arising out of the condition of haemophilia but also those relating to that of autism. The claimant was awarded both at first instance but the Court of Appeal and Supreme Court declined to allow the claim in respect of the consequences of autism.

A majority of the Supreme Court held that a helpful model for analysing the place of the scope of duty principle in the tort of negligence consisted of asking six questions in sequence. It was not an exclusive or comprehensive analysis, but could bring some clarity to the role of the scope of duty principle which the earlier authority of South Australia Asset Management Corp v York Montague Ltd [1997] A.C. 191 had highlighted. Those questions were:

However, it is to be noted that this list is not to be treated as a straightjacket requiring an inflexible step by step and discrete consideration in every case. As the majority observed at para 29:

“It is quite possible to consider these matters in a different order and to address more than one question at the same time; for example, in many cases the second and the fifth questions can readily be analysed together.”

In this case, there is no dispute that the additional injuries sustained by Sidney at the hands of his mother are of a kind which would be actionable subject to the determination of the remaining issues. The actionability question must therefore be resolved in his favour.

With respect to the scope of duty question, the Court in Meadows held:

“37.

The scope of duty principle may also be of analytical value and of central importance in other circumstances, such as where a claimant seeks to establish liability arising from a defendant's omissions. One example is when the court is considering whether a defendant owed a duty to prevent injury or damage to the person or property of a claimant which has been caused by a third party…

38.

In our view it is often helpful to ask the scope of duty question before turning to questions as to breach of duty and causation. It asks: "what, if any, risks of harm did the defendant owe a duty of care to protect the claimant against?" The question is appropriately asked and answered at this stage, if it can be, in relation for example to the circumstances in which loss has been incurred, as in Caparo where the auditor owed no duty to the would-be investor, or in relation to claims resulting from omissions as in the cases mentioned above. The matter is less straightforward where a scope of duty question arises in relation to the quantification of damages, as in SAAMCO, where there is a question whether part or all of the loss claimed was the consequence of the risk against which the defendant had to take care. In such circumstances, having identified the risks against which the defendant has undertaken to protect the claimant, the further question at stage 5 of our suggested sequence (the duty nexus question) addresses how the defendant's scope of duty determines the extent of a defendant's liability.”

In this case, the duty on the defendants was to take reasonable care (in the Bolam/Bolitho sense) to take reasonable steps (whether by way of testing, treatment or otherwise) to respond to the risk of any deterioration in or failure to recover from any ongoing condition from which Sidney may have been suffering.

However, in the circumstances of this case, I am satisfied that there was no duty on the defendants to take steps to protect Sidney from any and all consequences of being discharged from hospital into the care of his parents regardless of whatever such consequences might turn out to be. The fact that his mother was later shown to have been responsible for his initial admission takes Sidney’s case no further. The scope of the duty of care of a defendant is not readily susceptible to retrospective expansion on the existence of facts which that defendant neither knew nor ought reasonably to have suspected at the relevant time.

I reject the submission made on Sidney’s behalf that this is simply a matter of fact and not a scope of duty question. If it were just a matter of fact then the scope of the defendants’ duty would (to take a reductio ad absurdum example) cover any injury sustained by Sidney in a road traffic accident on his way home from discharge.

No purpose is served by speculating about the practicalities of discharging Sidney and arranging for his attendance on the following Monday. Even on his case put at its highest, the second assault occurred before an USS scan of his head ought to have been carried out in fulfilment of the defendants’ duty to him. His discharge provided the opportunity for Sidney’s mother to assault him again but was unrelated to the nature of the duty owed by the defendants to Sidney. The “but for” test may have been satisfied but this is relevant to the fourth, factual causation, question in Meadows which will not usually be reached before the second, scope of duty, test has been satisfied,

I therefore conclude that this claim must fall at the hurdle of the scope of duty question in the Meadows formulation before the factual causation question arises.

Nevertheless, in case I am wrong about this, it remains appropriate for me to go on to consider the third issue (the breach question). I have resolved question two taking Sidney’s case at its highest but I nonetheless have all the necessary evidence to determine if his case on breach is to be preferred over that of the defendants. If I were to conclude that the defendants’ approach were reasonable on the Bolam/Bolitho test then Sidney’s case would fail whatever analysis were applied to the preceding issue of scope of duty.

In this regard, I accept without reservation the evidence of the defendants’ expert, Dr Rose. His approach was, at all stages of the litigation, reasonable, logical and fair. In contrast to that of Dr Conway, it also remained consistent. The basis of Dr Conway’s criticisms of the defendants was significantly attenuated by important concessions which eventually resulted in very little remaining of the case as originally presented.

Of course, in some cases, a willingness to see the other side’s point of view and change a previously held opinion may be taken to enhance rather than diminish the weight to be given to expert evidence. In others, however, the point is reached where the scale and significance of the concessions undermines the level of confidence to be attached to what remains. Such a point was reached in this case. Of particular significance was the fact that the changes in Dr Conway’s stance were not primarily, if at all, based either upon any changes in the available information upon which his earlier opinions had been advanced or upon the presentation of new arguments which he had previously overlooked. I note, in this regard, the contrast between his early unequivocal condemnation of the defendants for not performing an USS of the head on 6^th or 7^th January which was followed by an equally unequivocal concession that a scan over this time period was, after all, not necessary.

Dr Rose pointed to the fact that Sidney had been under 24 hours of observation in hospital during the course of which, save for the cranial circumference measurement, all signs of raised intracranial pressure had resolved completely. Indeed, this was accepted by Dr Conway. Furthermore, there was also no abnormality to be found upon examination of the fontanelle which, while not conclusive in itself. was a further factor to be taken into account.

Dr Rose considered all of the factors relevant to the proper approach to Sidney’s subsequent treatment and could find nothing wrong in the plan to have the health visitor follow up the issue of head circumference over the next one or two weeks.

I agree with the way in which the defendants put their case. I am satisfied that now to suggest that an urgent USS of the head was called for was a criticism emboldened with the deceptive confidence of hindsight and not by the sober application of reasonable foresight.

Furthermore, those acting on behalf of Sidney were able to point to no literature from any source which tended to undermine the opinion of Dr Rose. Indeed such literature as had been presented to the court on Sidney’s behalf was (as Dr Conway was obliged to concede in cross examination) found to be of no assistance to the court on the issues which fell to be determined. Again, this would not, of itself, be conclusive but it undoubtedly weakens the force of any Bolam arguments. In the absence of any logical flaw, in Dr Rose’s approach, the Bolitho refinement takes Sidney’s case no further. I emphasise that I do not find that those acting on behalf of Sidney have failed to establish negligence simply because Dr Rose presents and maintains a view and is a recognised expert. As the Court of Appeal in Smith v Southampton University Hospital NHS Trust stated:

“44.

The second point is that the deputy judge simply does not address Mr. Soutter's evidence on the point. She makes it clear that she prefers the evidence of Mr. Monaghan, but she does not explain why. She appears to rely exclusively on the Bolam test. Thus, she merely says that Mr Monaghan is highly reputable and that it had not been suggested that he did not represent the view of a responsible body of gyn-oncological surgeons. With great respect to the deputy judge, I do not think this is good enough. Where there is a clear conflict of medical opinion, the court's duty is not merely to say which view it prefers, but to explain why it prefers one to the other.”

Dr Conway also did himself no favours in his approach to responding to questions whilst giving evidence. There were occasions when he was mildly combative. Questions were not always answered directly or first time round. He showed a tendency to assume the intended purpose of any given question and, rather than to answer it, to present his defence to a point not yet made.

I readily accept the unenviable challenges which any witness (expert or otherwise) faces when giving evidence in court but, even taking these into full account, I formed the view that Dr Conway was, to an extent, seeking to fight his corner rather than taking a dispassionate approach to the issues raised. On my analysis, Dr Rose did not succumb to this temptation.

In the event, I am left in no doubt that Dr Rose’s evidence is to be preferred and that those acting on behalf of Sidney have failed to prove breach of duty.

Having concluded that Sidney’s case falls both at the second and third hurdles, little purpose would be served by considering the remaining Meadows issues. I note, however, that this is not a case in where there is a question whether part or all of the loss claimed was the consequence of the risk against which the defendant had to take care. It was always an all or nothing case. As such it fell to be determined on the scope of duty question without later recourse to the duty nexus question as each is formulated in Meadows.