Judg 1

730
[1987]
[COURT OF APPEAL]
WILSHER v. ESSEX AREA HEALTH AUTHORITY

[1981 W. No. 302]
1986 April 28, 29, 30;
May 1, 2, 6, 7, 8;
July 24
Sir Nicolas Browne-Wilkinson V.-C,

Mustill and Glidewell L.JJ.
Medical PractitionerNegligenceStandard of carePremature baby

placed in special care unitError in inserting umbilical catheter
resulting in false readings of blood oxygen levelsFailure to
detect error for several hoursBaby developing retrolental
fibroplasia and blindnessExpert evidence inconclusive as to C
actual cause of injuryFailure to monitor oxygen levels accurately
accepted as possible causeWhether burden of proof shifting to
defendantsWhether medical staff negligentWhether lower
standard of care expected of inexperienced doctors
The plaintiff was born prematurely and was placed in a
special care baby unit at a hospital managed by the defendants.
If he was to survive, he needed extra oxygen and to ensure
that the correct amount was administered it was necessary to
insert a catheter into an umbilical artery so that his arterial
blood oxygen levels could be accurately read on an electronic
monitor. A junior doctor mistakenly inserted the catheter into
the umbilical vein with the result that the monitor would give a
lower reading. Neither he nor the senior registrar appreciated
that the X-rays taken showed the catheter in the vein but both
realised that there was something wrong with the readings on
the monitor. The senior registrar inserted another catheter but
into the same vein and other means of monitoring the arterial
blood oxygen were also adopted. The following day, it was
realised that the plaintiff had been supersaturated with oxygen
for a period of about 8 to 12 hours and within about 30 hours of
the plaintiff being received into the special unit the second
catheter was replaced by one in the artery. Thereafter the
monitoring of the arterial blood oxygen levels continued and at
times during the following weeks there were periods when the
levels were considered too high. The plaintiff developed
retrolental fibroplasia, a condition of the eyes, which resulted in
blindness. A likely cause of the condition but not a definite or
the only possible cause was that too much oxygen had been
administered within the first 30 hours or at a later stage. The
plaintiff claimed damages from the defendant health authority
for the negligent medical treatment he had received in their
special care baby unit. The judge held that the defendants were
liable since they had failed to prove that the plaintiff's condition
had not been caused by the negligence of their employees.
On appeal by the defendants:
Held, (1) that the onus of proving negligence and causation
rested on the plaintiff and, in determining whether the defendants
were vicariously liable for negligence, the court did not apply a
standard of care reasonably to be expected of a special care
baby unit but it considered the acts of the individual doctors
attached to the unit and (per Mustill and Glidewell L.JJ.)
731
^
1 Q.B.
Wilsher v. Essex A.H.A. (C.A.)
whether they had performed to the standard reasonably to be
expected of professional men holding the post they occupied in
that unit but without regard to the fact that inexperienced
doctors gaining knowledge of a specialist branch of medicine
were necessarily employed in the National Health Service (post,
pp. 7 4 9 G 7 5 0 F , H751C, 7 5 4 C - D , 7 5 6 C - D , 7 7 4 C - E , 775C, 776G,
778F779A).
Bolam v. Friern Hospital Management Committee [1957] 1

W.L.R. 582 applied.
(2) That the senior registrar should have appreciated that
the X-rays showed that the catheter was not situated in an
artery and, in failing to do so, he had been negligent; that the
junior doctor had been entitled to rely on his work being
checked by the senior registrar and, in all the circumstances, no
finding of negligence should be made against him; but that the
plaintiff had failed to establish negligence in the control of the
oxygen levels in the weeks following the correct insertion of the
catheter into the artery (post, pp. 757G758E, 759A-B, 761F-H,
762E-F, 763C-E, 774G775B, 778F779A).
(3) That the weight of expert evidence was that high levels
of oxygen could in the early stages of the plaintiff's life have led
to the development of retrolental fibroplasia and, in the
circumstances, the plaintiff had proved that the negligence of
the senior registrar could have caused or contributed to the
development of that condition; that, although the administration
of too much oxygen was not the only factor to be suspected in
the state of medical knowledge, its administration while the
catheter was situated in the vein had increased the possible risk
factors for a premature baby developing the condition; and (Sir
Nicolas Browne-Wilkinson V.-C. dissenting) that since the
negligence of the senior registrar made it more likely that the
plaintiff would contract the disease, the plaintiff had established
both a vicarious breach of duty by the defendants and a
sufficient connection with the loss the plaintiff had suffered to
make the defendants liable in damages and, accordingly, the
appeal should be dismissed (post, pp. 766E-F, 771B-C, G772c,
D-E, 7 7 6 E ) .
McGhee v. National Coal Board [1973] 1 W.L.R. 1, H.L.(Sc)

applied.
Per Sir Nicolas Browne-Wilkinson V.-C. and Glidewell L.J.
A health authority which so conducts its hospital that it fails to
provide doctors of sufficient skill and experience to give the
treatment offered at the hospital may be directly liable in
negligence to the patient. There is no reason why, in principle,
the health authority should not be liable if its organisation is at
fault (post, pp. 775B-C, 778A-C).
Per Sir Nicolas Browne-Wilkinson V.-C. The standard of

care required of an individual doctor holding a post in a hospital
is not an objective standard to be determined irrespective of his
experience or the reason why he is occupying the post (post,
pp. 776H777A). The occurrence of retrolental fibroplasia
following a failure to take a necessary precaution to prevent
excess. oxygen causing the disease provides no evidence and
raises no presumption that it was excess oxygen rather than one
of the other factors which caused or contributed to the
plaintiffs condition (post, p. 779E-F).
Observations on the conduct of medical negligence litigation
(post, pp. 772E774A, 776F, 780G781A) .
732
Decision of Peter Pain J. affirmed on different grounds.
[1987]
^
The following cases are referred to in the judgments:

A/S Rendal v. Arcos Ltd. (1937) 43 Com. Cas. 1, H.L.(E.)
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582;
[1957] 2 All E.R. 118
Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; [1956] 2 W.L.R.
707; [1956] 1 All E.R. 615, H.L.(Sc)
B
Clark v. MacLennan [1983] 1 All E.R. 416
McDermid v. Nash Dredging & Reclamation Co. Ltd. [1986] Q.B 965;
[1986] 3 W.L.R. 45; [1986] 2 All E.R. 676, C.A.
McGhee v. National Coal Board [1973] 1 W.L.R. 1; [1972] 3 All E.R. 1008,
H.L.(Sc)
Rahman v. Kirklees Area Health Authority (Practice Note) [1980] 1 W.L.R.
1244; [1980] 3 All E.R. 610, C.A.
c
Thompson v. Smiths Shiprepairers (North Shields) Ltd. [1984] Q.B. 405;
[1984] 2 W.L.R. 522; [1984] I.C.R. 236; [1984] 1 All E.R. 881
Whitehouse v. Jordan [1980] 1 All E.R. 650, C.A.; [1981] 1 W.L.R. 246;
[1981] 1 All E.R. 267, H.L.(E.)
The following additional cases were cited in argument:
Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1
Q.B. 428; [1968] 2 W.L.R. 422; [1968] 1 All E.R. 1068
Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634;
[1985] 1 All E.R. 635, H.L.(E.)
from Peter Pain J.
By writ dated 28 January 1981 and statement of claim dated 16 April
1981, the plaintiff, Martin Graham Wilsher, an infant suing by his
mother and next friend, Heather Marjorie Wilsher, sought damages for
personal injuries and consequential loss arising out of negligent medical
treatment carried out on the plaintiff by the defendants, Essex Area
Health Authority, between 15 December 1978, the date of the plaintiffs
birth, and about 16 March 1979, when he was discharged from the
Princess Alexandra Hospital, Harlow, which was under the control and
management of the defendants. By their defence dated 23 May 1981 the
defendants denied negligence.
On 21 December 1984 Peter Pain J. gave judgment for the plaintiff
in the sum of 116,119-14. By notice of appeal dated 31 January 1985
the defendants appealed. The grounds of the appeal were, inter alia,
that in directing himself on the issue of liability the judge wrongly held
that in a case where guidelines or precautionary limits existed as to the
amount of oxygen administered to a premature infant after birth, as
measured by the partial pressure of oxygen in the infant's blood, and
there was evidence that the defendants may have caused or permitted
that pressure to rise above those guidelines or precautionary limits, then
the burden shifted on to the defendants to prove that there had been no
negligence; and that on the issue of causation the judge wrongly directed
himself that on his finding that the defendants were negligent, it was for
the defendants to prove that any or all of the periods of exposure to
allegedly high levels of oxygen in the blood did not cause or materially
contribute to the development of retrolental fibroplasia.
APPEAL
733
1 Q.B.
"
The facts are stated in the judgment of Mustill L.J.

Ian Kennedy Q.C. and Stephen Miller for the defendants. The
plaintiff was born about three months prematurely and weighing some
1200 grammes. Because of his prematurity he was in poor condition at
birth and there were many problems in his management which called for
consideration and treatment. Included in that treatment was the provision
of supplemental oxygen, which was continued for 81 days in all.
It was estimated that taking all the plaintiff's problems into account,
he had only a 20 per cent, chance of survival. He survived without brain
damage but is virtually blind due to retrolental fibroplasia (RLF). The
plaintiff's case is that his RLF was caused by the negligent and excessive
administration of oxygen.
The defendants' case is that there was no negligence in the
administration of oxygen, that the cause of the plaintiff's RLF is
unknown, and that in so far as there is any association between oxygen
and RLF, on the amounts and timings in the plaintiff's case, oxygen was
not the cause.
The appeal gives rise to issues both of fact and law. The first issue of
fact is whether the defendants' servants, Dr. Wiles and Dr. Kawa were
negligent in not realising that an umbilical catheter had been misplaced
when in fact it had been inserted into a vein instead of an artery, and to
what extent excessive quantities of oxygen had been administered to the
plaintiff as a result of that misplacement.
The second is whether, after the catheter was correctly placed, the
defendants' servants or agents were negligent in their administration of
oxygen to the plaintiff when monitoring the effect of oxygen by
measuring the tension of oxygen gas in the plaintiffs blood.
There is also the further issue relating to the periods both before and
after the catheter was correctly placed, as to whether any excess of
oxygen caused the plaintiffs RLF. That raised questions as to (a) the
cause of RLF and (b) whether any negligent excess of oxygen was likely
to have been the cause in the plaintiffs case.
The first issue of law is as to the burden of proof. The judge, Peter
Pain J., followed his own decision in Clark v. MacLennan [1983] 1 All
E.R. 416, and reversed the burden of proof on both negligence and
causation. He erred in doing so. The burden of proving that a defendant
was negligent rests upon the plaintiff throughout and there is no decision
of an appellate court which suggests that the onus of proof ever shifts to
the defendant. Moreover, the report of the Royal Commission on Civil
Liability and Compensation for Personal Injury (1978), Vol. 1 (Chairman:
Lord Pearson) (Cmnd. 7054-1) at para. 1336 considered and rejected the
reversal of the burden of proof in medical negligence cases.
Peter Pain J. in Clark v. MacLennan [1983] 1 All E.R. 416 put
forward the proposition that where there is a situation in which a
general duty of care arises and there is a failure to take a precaution,
and damage occurs against which the precaution is designed to be a
protection, then the burden lies on the defendant to show that he was
not in breach of duty. That decision was said to be based upon the
734
[1987]
speeches of the House of Lords in McGhee v. National Coal Board

[1973] 1 W.L.R. 1.
However, the McGhee case is not authority for a shift in the burden
of proof in establishing negligence, nor is it authority for a generalised
shift in the burden of establishing causation. In the McGhee case the
breach of duty had already been established, and it had been proved on
a balance of probabilities that damage had been caused by a combination
or accumulation of two factors. All that could not be proved was which
one was the actual cause.
Nothing in the McGhee case supports the approach to the issue of
negligence or breach of duty adopted in Clark v. MacLennan [1983] 1
All E.R. 416 or in the present case and Peter Pain J. was wrong.
The plaintiff must also prove that the negligence caused his damage
or materially contributed to it. In Bonnington Castings Ltd. v. Wardlaw
[1956] A.C. 613 the House of Lords held that a material contribution
was all that the plaintiff had to show, but that the plaintiff had to prove
that material contribution: see Lord Reid at p. 629. See also Barnett v.
Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B.
428.
If any question of policy is relevant, then different considerations
must apply in medical negligence cases. In an industrial injury case, the
employer creates the environment in which the damage is caused. In the
McGhee case [1973] 1 W.L.R. 1 and the Bonnington Castings case
[1956] A.C. 613, the employee had come undamaged to his place of
work and in each case it could be said that both negligent and nonnegligent factors caused or contributed to the damage even if the two
causes could not be isolated.
In medical cases however, a doctor or health authority, unlike an
employer, is faced by a patient who is already imperfect. They do not
create the situation but react to it to try to control or eradicate it. That
reaction might introduce new risks, as indeed most treatment does, but
it would be unjust to make the doctor answerable for the entirety of the
damage as was the case in McGhee.
The judge also imposed liability upon the defendants in respect of
the actions of Dr. Wiles and Dr. Kawa without considering the quality
of their errors in the context of their respective posts. The action was
brought against the defendants, the Essex Area Health Authority, it
being alleged that they were vicariously liable for the negligence of the
doctors and nursing staff who individually and/or collectively had care of
the infant plaintiff in the first few weeks of his life.
The judge found that Dr. Kawa, a senior house officer, had made a
negligent mistake in failing properly to interpret the position of a
catheter on an X-ray and found the defendants vicariously liable for that
negligent mistake. The judge declined to take into account as being
relevant, the fact that the mistake was by a junior doctor, and held
without more that the plaintiff was entitled to expect from the defendants
the standard of care due from a hospital holding itself out as capable of
taking care of premature babies.
A doctor's experience and position within the medical profession are
relevant factors when determining whether he or she has exercised due
"
735
1 Q.B.
"
care and skill in a given situation. If a particular task is habitually and

properly delegated to a junior hospital doctor, then it is the standard of
care expected of a junior hospital doctor which should be the yardstick.
On the issue of causation, the rule is that the plaintiff must prove, on
the balance of probabilities, that the defendants' breach of duty caused
the injury of which he complains. Any qualifications to that rule must
not be compounded so as to undermine the rule.
In Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613 the question
was whether the plaintiff's illness resulted from his having inhaled dust
from the unprotected grinders ("negligent dust") over the eight years of
his employment. The greater proportion of the dust inhaled was innocent
dust, but the House of Lords concluded that the plaintiff had breathed a
mixture of innocent and negligent dust for eight years and the issue
whether the negligent dust had materially contributed to his illness was
decided in the plaintiffs favour.
McGhee v. National Coal Board [1973] 1 W.L.R. 1 concerned
dermatitis caused by dust and the suggestion of a non-occupational
dermatitis was rejected. The breach of duty in not providing washing
facilities was admitted. The House of Lords could not accept the
distinction drawn between materially increasing the risk that the disease
would occur and making a material contribution as in the Bonnington
Castings case.
In principle there is no difference between the Bonnington Castings
case [1965] A.C. 613 and the McGhee case [1973] 1 W.L.R. 1. In the
former case the issue was whether the negligent dust made a material
contribution to the illness and in the latter case, whether the extended
exposure to dust made a contribution. The Bonnington Castings case
was a dose-related issue and the McGhee case was a time-related one. In
neither case was there any question of transfer of onus of proof. Each
plaintiff had proved that his injury had been caused by dust, although in
one case the negligence was in increasing the quantity and in the other
case in extending the time.
A plaintiff must prove that the negligence made a material
contribution to the result. Where there is a long necessary exposure to
risk, any increase must be shown to be material against the exposure as
a whole. Where there are a number of causal factors, the entire position
must be assessed to see whether the negligent increase is material
viewed against those factors which are causal. The justice of the results
in the Bonnington Castings and McGhee cases cannot be extended
without doing violence to the central rule.
The error in Clark v. MacLennan [1983] 1 All E.R. 416 is that it
cannot be said on the basis of the McGhee case that the burden of proof
shifts to the defendants so far as damages or causation are concerned.
[Reference was also made to Maynard v. West Midlands Regional Health
Authority [1984] 1 W.L.R. 634.]
Stuart McKinnon Q.C. and James Badenoch for the plaintiff. The
defendants operated a special care baby unit, the raison d'etre of which
was to give very specialised care to very tiny, ill, premature neonates. In
that unit the care was provided by a team consisting of senior and junior
doctors and nurses. That team, collectively, and by the nature of the
736
[1987]
work also severally, undertook certain very specialised procedures,

including the use of arterial catheters and the administration and
monitoring of oxygen supply.
In carrying out any such specialised procedures the standard of
performance of given team members must be judged in relation to the
standard expected of members of such a specialised unit. If they fell
below that standard, it was negligence for which the defendants were
vicariously liable.
The catheter was used for the purpose of protecting the infant and
that could only be effectively achieved if the catheter was inserted into
an artery and not into a vein. It was possible, even by use of the best
skill, to enter the wrong vessel. It was therefore standard practice, which
was followed in the plaintiff's case, to take post-insertion X-rays of the
infant in order to ascertain, inter alia, the true route of the catheter.
The defendants' servants inserted a catheter, intended to be arterial,
into the plaintiff and took post-insertion X-rays which clearly showed
that the catheter was in a vein. It was to be expected of the unit that
that fact could and would from the available evidence be identified.
The medical staff at the defendants' hospital were negligent in that
there was an admitted failure to identify the misplacement of the
catheter from the X-rays. That evidence amply supports the judge's
finding that in so failing, the defendants' servants fell below the standard
of care required by law of doctors of their status undertaking the task
delegated to them in such a unit and so were negligent.
In any event, the judge found, as he was entitled to do on the
evidence, that it should have been apparent to any competent doctor
that the catheter was not in an artery.
Moreover, the "medical and nursing staff referred to in the plaintiff's
statement of claim embraces all the medical and nursing staff who
played a part in the work of the unit, including the consultant
paediatrician and consultant radiologist. It was common ground that
staff of consultant status could and would have been expected to identify
the mislocation of the catheter from the X-rays taken and it could
properly be expected of the unit that that would be done.
The failures and errors which the plaintiff proved were and could
only have been failures and errors by one or more of the defendants'
employees for whom the defendants were vicariously liable.
[Attention was drawn to parts of the evidence which supported the
judge's findings of fact and his conclusion that there were times when
the plaintiff's blood oxygen levels were unduly high.]
All the expert evidence was that high blood oxygen levels materially
increased the risk of RLF. If high blood oxygen levels cause or
materially contribute to RLF, then it must follow that they materially
increase the risk of RLF. The fact that the plaintiff suffered from other
conditions and problems does not dilute the fact that the high blood
oxygen levels to which he was exposed materially increased the risk of
his developing RLF.
On the prima facie case of liability, the judge correctly found in
favour of the plaintiff. Quite apart from any reliance on Clark v.
MacLennan [1983] 1 All E.R. 416, the prima facie case on liability
737
1 Q.B.
consisted of findings of fact that, inter alia, there was negligent failure to
interpret the X-rays correctly and to check the monitor sufficiently
frequently and that by reason of that negligence the plaintiff was at risk
from RLF and that any further exposure was likely to increase the risk
to a greater extent than it would in a baby who had not been so
exposed.
It was at least implicit in the judge's approach to causation that the
defendants' negligence led to periods of exposure to oxygen which
materially increased the risk of RLF to the plaintiff. Alternatively, the
case of Clark v. MacLennan [1983] 1 All E.R. 416 was correctly
decided.
The judge applied the correct test and on a balance of probabilities
he found that the period when the plaintiff was exposed to excess
oxygen had caused or materially contributed to the development of
RLF.
Alternatively, on the basis of the findings made and of the evidence
relied upon in his judgment the judge was entitled to make and should
have made the finding that the plaintiff had established a prima facie
case on liability, and on the same basis the judge was entitled to make
and should have made the finding that certain of the periods of exposure
probably caused or materially contributed to the development of RLF.
Kennedy Q.C. replied.
Cur. adv. vult.
24 July. The following judgments were handed down.

MUSTILL L.J. Martin Wilsher was born on 15 December 1978. He
was a tiny baby, and his birth was nearly three months early. His
prospects of survival were very poor: according to one estimate they
were as low as one chance in five. He could not breathe effectively, and
for more than 11 weeks he needed extra oxygen. Repeatedly, the
oxygen, carbon dioxide and acid balances of his blood went awry. From
time to time he ceased to breathe. An early extra-ventricular haemorrhage
led to hydrocephalus, for which he required surgery. On one occasion
he was believed to have pneumonia. Undoubtedly, he lingered close to
death, and there was always present the spectre of brain damage. Yet
Martin is alive and well today with his intellect unimpaired. Beyond
doubt this is due to the treatment which he received during his long days
and nights in the special care baby unit at the Princess Alexandra
Hospital, Harlow.
Sadly, Martin is nearly blind. He suffers from retrolental fibroplasia,
an incurable condition of the retina. On his behalf it is said that this
condition was caused by an excess of oxygen tension in his bloodstream
during the early weeks, attributable to a want of proper skill and care in
the management of his oxygen supply. A claim was put forward on his
behalf against the Essex Area Health Authority, which is still before the
courts, more than seven years after the event. After a trial which was
made more difficult than it need have been by circumstances which I
shall later describe, Peter Pain J. held the defendants liable in the sum
of 116,199-14. Against that judgment the defendants now appeal.
738
Mustill L.J.
[1987]
This action, and the resulting appeal, give rise to three groups of
questions:
1. Were there occasions during Martin's stay on the special baby care
unit when the oxygen tension of his blood was allowed to attain and
remain at an unacceptably high level? For this purpose, it is necessary to
distinguish between a related series of incidents occurring in the first two
days after the baby's birth, and a number of isolated occasions during
the succeeding weeks. I will call these the "first episodes" and "later
episodes" respectively.
2. Did any of the episodes of which complaint is made take place
through any breach of duty for which the defendants are liable?
3. If so, was any breach of duty the proximate cause of the physical
affliction, and the financial loss, of which the plaintiff now complains?
At the trial, there were other issues, relating to the aetiology of the
plaintiff's current problems with his right eye, and to the proper
quantification of his financial loss. The findings of the judge on these
issues are not now disputed.
Narrative
Before addressing the difficult issues of fact and law to which these D
questions give rise, it is convenient first to summarise the physiological
and clinical background to the dispute, and then to set out in outline
those aspects of the story which are not in dispute.
First, as to the bloodstream. Blood is the medium by which
substances are carried from one part of the body to another. To each
living cell are conveyed the materials which it needs in order to live and p
perform its own particular task: one of these materials is oxygen. The
bloodstream also removes from the cells those waste products whose
presence inhibits their functions: amongst these products is carbon
dioxide. The blood is enabled to act as an efficient carrier of oxygen and
carbon dioxide by the special properties of haemoglobin, the principal
component of the red blood cells, which has the capacity to enter into
reversible reaction with oxygen and carbon dioxide. The amount of F
these gases taken up by the haemoglobin is dependent on the partial
pressure (or tension) of the gas in the blood. The reaction is rapidly
reversible. Thus, the haemoglobin takes up oxygen under the high
partial pressures encountered at the alveoli in the lungs and releases it
rapidly when the partial pressure falls, at the tissues. Haemoglobin does
not absorb oxygen indefinitely. There comes a point at which all the Q
available haemoglobin has been converted to oxyhaemoglobin. This is
reached at a partial pressure (PO2) of about 12 KiloPaschals (KPa).
Beyond this point, a very small proportion of gas enters directly into
solution in the blood fluids. As partial pressures are increased, the
amount of oxygen thus transported by the blood is increased, but not in
an efficient manner, so that there is no point in increasing the PO2
indefinitely.
H
The transportation of carbon dioxide proceeds in a similar manner,
but in the reverse direction. The partial pressure of carbon dioxide
(PCO2) and the PO2 are related in a manner which it is unnecessary to
739
1 Q.B.
"
MustiU L.J.
describe. Another related variable is the pH value of the blood, a

measure of the acidity or alkalinity of the fluid.
The blood is moved from one part of the body to another through
the circulatory system. The motive agent is the heart. The right-hand
portion of the heart is responsible for the circulation of venous blood. In
the fully formed human it receives into the right atrium the oxygendepleted blood, via the inferior and superior vena cava. The blood
passes to the right ventricle through a valve and is forced into the lungs
via the pulmonary artery. Thence the oxygenated blood returns to the
left atrium, enters the left ventricle and is pumped into the arterial
system through the aorta and other vessels.
In the foetal child the mechanism is different. The baby depends
entirely on the placental blood of the mother, which is already
oxygenated. The infant lungs have no part to play. Accordingly, most of
the blood flow across the lungs is short-circuited by two routes. First,
the ductus arteriosus connects the pulmonary artery, which in the selfsufficient human conveys venous blood to the lungs, to the aorta which
conveys arterial blood away from the heart. Second, a valve between the
right and left atria, named the foramen ovale, admits blood from the
right (venous) side of the heart to the left atrium, and thence to the left
ventricle and the arterial side of the system. In the full-term infant,
which can and must breathe through its own lungs, these short circuits
are useless. The ductus arteriosus becomes vestigial, and the foramen
ovale is soon tightly sealed.
The premature child is in a quite different situation. Mechanically
and biochemically its system is not yet fully formed. It cannot breathe
properly, or cannot breathe at all. Formerly, premature babies would
die, or if they survived would suffer brain damage for want of sufficient
oxygen. During the first half of this century medical science began to put
this right. Premature babies were helped to breathe by artificial means,
and were enabled to live in environments which were much richer in
oxygen than ordinary atmospheric air. The result was a precipitous
decline in the perinatal mortality of premature babies. Various methods
are currently used to ameliorate the respiratory problems of premature
babies. First, there is ventilation, called intermittent mandatory
ventilation ("IMV") in the case papers, which employs electro-mechanical
means to make the baby breathe. Second, there is continuous positive
air pressure ("CPAP"), which maintains a pressure sufficient to prevent
the lungs from entirely closing, and hence facilitates the opening of the
lungs on the in-breath. Third, there is the provision of an oxygen
enriched atmosphere, by a headbox or other device, in which the baby
can breathe spontaneously, with its respiratory deficiencies compensated
by higher oxygen content of the air in the lungs. The records report the
degree of enrichment in terms of percentages: sometimes the baby is
breathing 100 per cent, oxygen. The higher the percentage of oxygen
when the baby is breathing, the higher the PO2 is likely to be, but the
units in which the figures are expressed are different, and the two are
only loosely connected.
The success of these developments in the neonatal care of premature
babies has been dramatic. There are untold numbers of people alive
740
Mustill L.J.
[1987]
today who would have perished, if born more than 50 years ago: or, if A
they had survived, would have suffered from irreversible brain damage.
But after a while it began to seem that there might be a price to pay. In
the early 1940s a quite new affliction was noticed. It was found that
some premature babies were suffering from a formation of fibrous tissue
behind the lens of the eye. For this novel complaint the term retrolental
fibroplasia (hereafter "RLF") was coined. For a while, it was regarded
simply as a disease of prematurity: i.e., as a disease to which premature "
babies were subject, but which had not previously been observed,
because most premature babies died. In the 1950s, however, it was
observed that there appeared to be an association, if not a correlation in
strictly statistical terms, between the use of enriched oxygen to save
premature babies from death or brain damage and the incidence of
RLF. This led to a reaction, whereby the use of enriched oxygen Q
environments was abated. The consequence was expressed graphically in
an article entitled "Cost of Preventing Retrolental Fibroplasia" by K. W.
Cross, "The Lancet," October 1973, vol. 2, p. 954:
"It is suggested that while the policy of restricting the amount of
oxygen in incubators has diminished the number of cases of
retrolental fibroplasia (RLF) in the U.K., it has concurrently
increased the number of deaths in the first 24 hours of life. A rough
estimate suggests that for each case of blindness prevented, there is
an excess of 16 deaths. It is further suggested that the proper cost
of preventing RLF would be the supply of adequate equipment and
staff in all premature-baby units."
Once again there was a reaction. The assumption that excess oxygen was E
likely to be a prime cause of RLF continued to exercise an important
influenceperhaps, as we shall later see, more important in the past
than it is today. At the same time, the price in death and brain damage
of avoiding blindness in the premature child was too high to be
uncritically accepted. A balance must be struck. The baby should have a
high enough PO2 to keep it alive and well, but not so high as to risk
damage to its sight. Since the question is one of balancing risks, there ^
can be no clear cut-off point at which the PO2 level passes from the
wholly acceptable to the wholly unacceptable. There was, however, a
broad consensus in the evidence led at the trial that, if the PO2 level
rose above 15 KPa of blood measured in the abdominal aorta (which
would have a PO2 less than the blood at the retina), steps should
promptly be taken to reduce it. Some witnesses would have preferred to Q
put the level rather lower than this. A level at or rather above 5 KPa
would reflect a measurement of pure venous blood, and would of course
be much too low. Again, there are no absolute requirements for the
carbon dioxide tension, but a reading of 10 KPa or above would be
markedly too high. For a good acid balance, the pH of the blood should
be about 7.42.
At the time in question, the means of maintaining this balance were ^
three-fold. First, there was informed observation of the child's
appearance. A child suffering from oxygen deficiency would become
cyanosed: it would seem "dusky." A child with sufficient oxygen would
741
1 Q.B.
"
Mustill L.J.
have a healthy appearance: it would be "ruddy." Crude as they might

seem, these criteria were valuable. Skilful neonatal nurses knew their
babies. But the test operated only in one direction. A dusky baby could
be assumed to have too little oxygen. But a ruddy baby might have
either enough, or too much.
Secondly, there were measurements of arterial blood samples. These
could show the partial pressures of oxygen and carbon dioxide and also
the pH of the blood. They were performed on a machine operated by a
technician. The samples could be obtained ab extra by an arterial stab.
The problem with arterial samples was that in 1977 the sample had to be
as large as 0.5 ml., whereas the entire blood supply of a baby of Martin
Wilsher's size was not more than about 100 ml. There was no scope for
continuous sampling. Moreover, an arterial stab was unpleasant for the
baby; it became increasingly difficult to find a correct site; and like any
form of handling it tended to depress the PO2, and hence falsify the
reading.
Third, the PO2 could be directly measured by means of an indwelling
probe. These were of various kinds. The one employed at the neonatal
unit in Harlow was the Searle Oxygen Monitoring System. This consisted
of a hollow catheter, at the tip of which was an electronic sensor. An
electrical conductor ran down the catheter and was connected to a
monitor outside the patient's body, where the PO2 level was registered
on a dial. A small aperture was located about one centimetre behind the
probe, through which samples of blood could be obtained, for the
purpose of conventional blood gas analysis. It was recognised that the
electrical monitor could not be relied upon to give a consistently
accurate reading, and if a significant discrepancy (which the makers of
the instrument said was usually regarded as greater than 10 per cent.)
was noted between the reading on the dial and the results of blood gas
analysis on samples drawn down the catheter, it was necessary to
recalibrate the monitor. This was effected by means of a calibrating
knob, which was turned so as to bring the reading on the dial into
conformity with the results of the blood gas analysis. If any appreciable
time had elapsed between the taking of the sample and the return of the
analysis from the laboratory, a proportionate calculation would have to
be made so as to ensure that the calibration was not based on a blood
gas figure which was out of date. The operating instructions of the
Searle device had this to say at paragraph 7.2 about recalibration:
"The main purpose of this system of continuous monitoring is to
provide an indication of trends in oxygen tension between the times
when blood samples are taken regularly for analysis of blood gas
parameters. As with conventional umbilical catheters, blood samples
should be taken to confirm the calibration at least every eight
hours."
In the case of a newly born baby there was ready access for the
catheter to the blood vessels, in the shape of one vein and two arteries,
previously circulating the foetal blood to the placenta, the severed ends
of which are presented at the stump of the umbilical cord. If the arterial
route is taken, the catheter is inserted into one of the arteries. Its route
742
Mustill L.J.
[1987]
is at first downwards towards the femoral artery, where it turns upwards

and passes into the abdominal aorta. Care has to be taken not to situate
the tip of the catheter at a level where it may occlude the entrance to
one of the blood vessels supplying the abdominal organs. This danger
was well recognised at the material time, and it was the practice to
verify the position of the tip by means of an X-ray.
At first sight, it might be assumed that a reading of oxygen tension
taken by a probe situated in the lower abdominal aorta would give a
reasonably accurate reflection of the partial pressure in the blood vessels
which supply the retina. This is not, however, necessarily the case, since
there may be right to left shunting through the ductus arteriosus, causing
some admixture of venous blood into the arterial blood in the aorta.
The ophthalmic artery is, however, "upstream" of the shunt, and is fed
by pure arterial blood, so that a reading from an arterial catheter will
understate the PO2 at the retina. A radial arterial stab will, by contrast,
give a more accurate picture, since the radial artery is also upstream of
the shunt. Account has to be taken of this factor when assessing the
results of blood gas readings.
Against this background, I turn to the events which led up to the
present dispute.
The special care baby unit at the Princess Alexandra Hospital was
the creation of Dr. J. D. Hardy, a consultant paediatrician with the
Essex Area Health Authority. When he took over the post he had to
decide whether to build up a new unit, with little in the way of
equipment or staff, or to refer all sick neonates elsewhere, with all the
risk of mortality which that involved. He decided to build up his own
unit, and from 1976 onward he was able to accumulate equipment,
raising half of the cost from charity, by great personal efforts. He also
succeeded in finding the necessary staff. At the time in question, the
staff of the unit included Dr. Hardy and another consultant, together
with one of his registrars, Dr. Z. I. Kawa. This doctor was qualified
abroad in 1970, and possessed six years' experience in paediatric
medicine, which included one year of intensive baby care. Although Dr.
Kawa was primarily concerned with the paediatric wards, he was also
responsible, on those nights or weekends when he was on call, for
covering the duties of the medical registrar with whom he alternated.
Below Dr. Kawa in the hierarchy were two senior house officers. These
changed from time to time. They included a Dr. Stamboulis and also
Dr. A. R. Wiles, who remained in the unit until 5 January 1978. The
latter had qualified in New Zealand during 1974. Dr. Stamboulis was
involved during the daytime with the maternity area and special care
baby unit, whilst Dr. Wiles dealt with another ward. At night time the
two house officers rotated cover, with whoever was on duty being
responsible for all paediatrics, including the special care unit, the
obstetrics unit, one ward and the paediatric casualty department. Each
had every other weekend and every other night off duty. Otherwise they
were continuously working or on call.
The nursing officer in charge of the special care unit was Miss J. K.
Pearson. She had 15 years' experience as a qualified nurse, much of it in
neonatal nursing. The unit comprised three neonatal nursing sisters by
743
1 Q.B.
j)
Mustill L.J.
day and two by night. There were also two or three staff midwives or
neonatal nurses as well as subordinate nursing staff. In 1978 the unit
housed on an average some 15 children, of whom a maximum of two
would be on ventilators or in incubators.
Martin Wilsher was born at the Harlow Hospital at 2325 hours on
the night of Friday 15 December 1978. Although it was the weekend,
Dr. Wiles was standing by, because the baby was so much premature.
Martin was as ill as could be expected. Dr. Wiles said that he was a very
floppy blue baby. There were problems getting him to breathe, and he
was intubated. After eight minutes the tube was out and he was taken
down to the special baby unit. His colour improved when an oxygen
mask was applied.
Dr. Wiles promptly began the usual procedures for a baby so
premature. In particular, he set out to pass an arterial catheter for
connection to the Searle device. This happened some time after 0100
hours on Saturday, 16 December. Dr. Wiles made a mistake. The
severed ends of the blood vessels presented at the umbilical stump are
very fine-bored. It is hard to tell which is which. Dr. Wiles inserted
the catheter into a vein instead of an artery. Nobody has suggested
that this amounted to actionable negligence, for it was an error which
competent doctors could and from time to time did commit. The
catheter did not pursue a downward course and turn up again, as it
would have done if inserted into an artery. Instead, it went almost
straight up along the line of the baby's trunk, entering the right
atrium of the heart through the vena cava. Thence it passed
transversely across the heart, through the foramen ovale, and lodged
in the left atrium.
The monitor was then connected. The first electronic readings were
taken, and a blood sample was drawn through the catheter. Dr. Wiles
telephoned the technician at home, to come in to analyse the sample.
The chance event that the catheter had entered the venous system but
had penetrated the arterial side of the heart made the readings doubly
deceptive. If the sensor and the sampling hole had remained on the
venous side, the PO2 readings would have been so low that the faulty
location might at once have been recognised. Instead, the fluid being
sampled contained arterial blood. But it was also admixed (to a degree
unknown) with venous blood passing through the foramen ovale. The
partial pressure of the oxygen in the sample thus bore no relation to the
pressure of the oxygen in the blood which was reaching the retina.
For the whole of the next 24 hours the doctors were afflicted by
two quite different problems in their efforts to keep the oxygen
partial pressure under control. The first problem was one which they
recognised: namely that there was something wrong with the monitor.
The electronic messages from the sensor did not correspond with the
results of analysing the samples drawn down the catheter. It is
pointless to speculate about the reasons. The sampling hole was one
centimetre to the right side of the sensor, and may have been drawing
blood richer in oxygen. Perhaps the electronics were not working
well.
744
Mustill L.J.
[1987]
The second problem was one which the doctors did not recognise: A
namely, that both the electronic sensor tip and the blood sampler just
behind it were investigating the wrong blood.
Having inserted the catheter, Dr. Wiles arranged for an X-ray, which
he inspected. He then called for Dr. Kawa to come and check what he
had done. Dr. Kawa looked at the X-ray and decided that the tip of the
catheter was too high, so he directed that it should be withdrawn by 2
cm. Neither doctor realised that the configuration of the catheter ^
disclosed by the X-ray meant that it must be following the line of a vein,
not an artery: nor indeed did the consultant radiologist when she made a
routine examination of the plates some time after this episode was over.
At about 1000 hours Dr. Kawa decided to change the catheter,
probably because of the discrepancies in the readings. Dr. Wiles
withdrew the old catheter and Dr. Kawa inserted the new one. Again Q
the instrument was inserted in a vein. A further X-ray was taken and
inspected, but again the error in placing the catheter was not recognised.
The new catheter appeared to perform no better than the old. Entries in
the clinical notes suggest that attempts to calibrate the monitor from
1345 hours onward were given up, and at 2200 hours the monitor was
abandoned as "useless on this catheter." It is reasonable to assume that,
throughout this later period, the medical staff were controlling the D
oxygen supply by reference partly to the baby's colour and partly to the
results of the blood gas analyses. These had been consistently disturbing:
the PO2 and pH were too low, the PCO2 was too high. Accordingly, the
baby was put on the ventilator and the oxygen content of the
administered air was raised progressively until by 2200 hours the figure
stood at 100 per cent., where it evidently remained throughout the night g
of 16/17 December.
The following table summarises the blood gas readings of the first 30
hours:
BLOOD GASES EX CATHETER
Date
16 Dec
Time
0200
1000
Monitor
5
13
1315
17 Dec
1620
2200
0730
11
PO2
5.8
7.7
CPO2
8.9
9.3
pH
7.15
7.08
5.4
9.0
7.14
5.9
8.6
10.1
26.0
6.2
6.4
6.0
7.26
7.29
7.28
(ex arterial
Oxygen %
Comments
70
60
After
catheter
pulled down
80
On CPAP after
second catheter
inserted
80/90
95/100 on IMV
100
on CPAP/IMV
stab)
So matters stood when Dr. Wiles returned to duty at 0700 hours on

17 December. He was puzzled by what he saw. The baby's colour
seemed better than it should be having regard to the blood gas figures.
He decided to check everything, including the second X-ray. He must
have become suspicious about the position of the catheter, for he wrote
in the clinical notes: "umbilical catheter seems arterial on X-raycheck
with arterial stab." He then obtained a sample by arterial stab, and took
this together with a sample drawn by the catheter to the laboratory,
"
745
1 Q.B.
"
Mustill L.J.
carrying them himself in the interests of speed and safety. The analyses
showed a PChof 10.1 KPa for the catheter sample, and 26 KPa for the
stab sample. In his own words, after receiving the figure of 26 KPa, he
jumped off the couch and ran back to the unit. He turned the controls
from ventilation to CPAP, and then began to reduce the oxygen supply.
As a first reaction he wrote: "Baby has probably been supersaturated
with O2 for about 28 hours." However, after a telephone conversation
with Dr. Hardy, and looking back over the records, he added "Probably
less than 12 hours." Subsequently, the catheter was changed again. This
time, it was in an artery and the blood gas samples thenceforth became
a reliable guide. This marked the conclusion of the first episode.
It is convenient to pause here, because the negligence alleged in
relation to the first episode, and the consequences said to flow from the
negligence, are of a quite different character from those asserted in
relation to later stages of the baby's case. It can be seen that the first
episode fell into two parts, (a) Whilst the first catheter was in placeas
originally sited, and then retracted. During this period, which lasted for
eight of the baby's first 11 hours, both the monitor and the gas samples
were unreliable. The former may have been due to deficiencies in the
electronics; the latter was undoubtedly caused by the wrong positioning
of the sampling orifice of the catheter. The consequences of the mistake
in positioning the catheter are impossible to ascertain, without knowing
what the baby actually received by way of oxygen, and what consideration
led the medical staff to decide what levels of oxygen to supply. All one
can say is that the baby appears to have been on CPAP with
concentrations of 60-80 per cent. Whether this was too much, and what
the true PO2 levels were, is impossible to determine, (b) Between the
insertion of the second catheter and the recognition of the mistake. This
period lasted for about 24 hours. The electronic side of the monitor is
irrelevant for almost all of this period, since it was soon recognised as
unreliable: see above. The crucial factor was that the blood gas samples
were giving readings which were too low because the sampling orifice of
the catheter was in the wrong place. The progressive increase to pure
oxygen must have been an attempt to remedy the situation apparently
disclosed by these false figures.
In these circumstances, I believe that the plaintiffs advisers were
right to accept (in conformity with Dr. Wiles' revised opinion) that the
adverse consequences of the misplacement cannot be shown to have
manifested themselves in terms of excessive PO2 until some time between
1620 hours and 2200 hours, when the concentrations of administered
oxygen were reaching really high levels; and I also believe that the
defendants' advisers were right to accept that the levels probably did
become unacceptably high at about the time when the baby started to
receive pure oxygen. This gives a bracket of about 8 to 12 hours, as the
duration of the period during which the baby's PO2 levels became
excessive because of the mistake in siting the second catheter. What
those levels actually were cannot, of course, be deduced.
When one turns to the remainder of the exposures about which the
plaintiff complains, the position is quite different. Here, there is no
complaint about the accuracy of the blood gas samples. On the contrary,
746
Mustill L.J.
[1987]
they are relied upon as the only safe guide to the baby's oxygen tension,
drawn as they were from the correctly placed third catheter. The
allegation is directed to the monitor which, it is said, was relied upon by
the nursing staff when controlling the oxygen concentration, which was
in fact giving inaccurate readings; and which ought to have been restored
to accuracy by more frequent calibration against blood samples.
The exposures originally criticised are said to have taken place on
19/20 December; on 28/29 December; on 8 January; on 11 January; on
17 January; and on 22/23 January. On each occasion the figures for PO2,
derived either from blood gas analyses or from the monitor, showed an
excess over 15 KPa. The plaintiff's argument was that this excess
continued for substantial periods, and that it was negligent to allow the
figure to remain so high for so long. By way of elaboration, it was
argued for the plaintiff that on these occasions the intervals between the
taking of blood gas analyses were too long, so that the nurses were
controlling the baby's oxygen supply by reference to the readings on a
monitor which, for lack of calibration, might well have been reading too
low, thus leading to the administration of excess oxygen. In essence, the
judge has held that, with the exception of the last episode, the
defendants gave no adequate reason for not taking more frequent
readings, and have failed to displace the inference that, in the absence
of additional analyses, the baby must be taken to have suffered high
oxygen tensions for excessive periods. On the hearing of the appeal, it
was accepted on behalf of the plaintiff that the finding of the judge in
relation to the penultimate exposure could not be sustained. The
argument therefore centered upon the three remaining exposures. I
return to these in more detail at a later stage.
Breach of duty: the law
This appeal raises three questions of law relating to the allegation
that the defendants are liable for breach of duty: 1. What is the nature
of the cause of action upon which the plaintiff relies? 2. What standard
of care was demanded of those members of the medical and nursing
staff who are said to have been negligent? 3. Upon whom rests the
burden of proof in relation to the allegation of negligence?
Before addressing these questions we must face up to a problem
which must oppress many of those who have to deal with cases of this
kind. Expressed in terms of the present case, it is this. Here we have a
medical unit which would never have existed but for the energy and
public spirit of Dr. Hardy. If the unit had not been there, the plaintiff
would probably have died. The doctors and nurses worked all kinds of
hours to look after the baby. They safely brought it through the perilous
shoals of its early life. For all that we know, they far surpassed on
numerous occasions the standard of reasonable care. Yet it is said that
for one lapse they (and not just their employers) are to be held liable in
damages. Nobody could criticise the mother for doing her best to secure
her son's financial future. But has not the law taken a wrong turning if
an action of this kind is to succeed?
I must say at once that no rhetorical question of this kind formed
part of any argument advanced by Mr. Kennedy, and rightly so in my
"
747
1 Q.B.
Mustill L.J.
opinion. It could not be acceptable crudely to say that the plaintiff

should count himself fortunate to be alive, or that he must take the
rough with the smooth. Nor can I envisage any practicable system of
liability which would enable a professional man to say that, so long as
he had provided an adequate service on average, he should not be held
liable for occasions when his performance fell below the norm. The risks
which actions for professional negligence bring to the public as a whole,
in the shape of an instinct on the part of a professional man to play for
safety, are serious and are now well recognised. Nevertheless, the
proper response cannot be to temper the wind to the professional man.
If he assumes to perform a task, he must bring to it the appropriate care
and skill. What the courts can do, however, is to bear constantly in
mind that, in those situations which call for the exercise of judgment,
the fact that in retrospect the choice actually made can be shown to
have turned out badly is not in itself a proof of negligence; and to
remember that the duty of care is not a warranty of a perfect result.
Returning to the first of the questions stated above, it appears that
the nature of the plaintiffs cause of action was never explored in the
course of the trial. The result has been to create problems, both with
the judgment itself and with the arguments addressed on the duty of
care. This may be illustrated by the claims based on the first episode.
One way to formulate the claim would be to assert negligence on the
part of one or more individuals, and then hold the employer vicariously
liable for the acts of these individuals. Here, the attention would be
focussed on Dr. Kawa and Dr. Wiles. If either of these fell short of the
standard of care required of him as an individual, then that person
would be liable (although not sued) and so also would be the defendants.
Conversely, if each of the two men did all that could properly be
expected of him, neither the doctors nor the defendants would be liable.
There is, however, a quite different proposition which might have
been advanced: namely, that the defendants are directly liable for any
adverse consequences of the episode. For example, it might have been
said that the defendants owed a duty to ensure that the special baby
care unit functioned according to the standard reasonably to be expected
of such a unit. This approach would not require any consideration of the
extent to which the individual doctors measured up to the standards
demanded of them as individuals, but would focus attention on the
performance of the unit as a whole. A rather different form of the
argument might have been advanced on the following lines. Although
the catheter, with its monitor and sampling facility, is a valuable
instrument, it will yield misleading and potentially dangerous results if
the head is in the wrong place. The defendants therefore owed a duty, if
they were to use the catheter on patients entrusted to their care, to
ensure that those who were to operate the device knew how to detect
when it was wrongly placed: and on their own evidence the junior
doctors did not know this. Finally, it might have been said that, if the
junior doctors did not have sufficient skill or experience to provide the
special care demanded by such a premature baby, the defendants were
at fault in appointing them to the posts which they held.
748
Mustill L.J.
[1987]
If the nature of the plaintiffs cause of action had been a live issue on
\
this appeal, it would have been necessary to look with care at the
developing line of authority on liability for medical negligence. For Mr.
Kennedy asserted roundly that no health authority ever had been, or in
principle ever could be, under any such direct liability as suggested,
except perhaps in the case of a person being appointed to a post for
which he is not qualified. In the event, however, Mr. McKinnon
explicitly disclaimed on the plaintiff's behalf any intention to put forward
a case of direct liability. The trial had been conducted throughout, he
made clear, exclusively on the basis of vicarious liability. It is therefore
unnecessary to express any opinion on the validity in law of a claim on
the alternative basis. Unfortunately, this does not deprive the point of
all practical significance in the present context. Possibly because the
statement of claim could be read as raising a direct claim and possibly Q
also because the circumstances of the trial precluded a systematic
analysis of the plaintiff's real complaints, the judge approached the
question of negligence on a basis different from the one which was
common ground before this court. Thus, in the course of discussing the
authorities he said:
"It was contended by Mr. Miller for the defendants that in
establishing the standard of care owed by the defendants I should
bear in mind that the mistake as to where the catheter was originally
inserted was made by Dr. Wiles, who was then a fairly junior
doctor of limited experience. I cannot accept this. The action is
brought against the defendants and not against Dr. Wiles. I must
follow the standard of care propounded by May J. in Murray
v. Kensington and Chelsea and Westminster Health Authority E
(unreported), 1 May 1980: 'But as a matter of law I think that
Robert was entitled to expect from the defendants, it so happens in
the person of Dr. Marfitt, that standard of care to be expected of a
hospital holding itself out as capable of taking care of premature
babies.'"
Later, when rounding off his views on the facts, he said:
p
"I hold that the failure to interpret the X-ray correctly was negligent
in the defendants. They fell short of the proper standard of care for
a special care baby unit, partly through Dr. Wiles' difficulty through
inexperience in reading the X-ray and partly through Dr. Kawa's
carelessness in not checking the X-ray properly."
The judge, therefore, never had occasion to express an opinion on the G
individual standards of care demanded of Dr. Kawa and Dr. Wiles
standards which, as both parties agreed on the argument of the appeal,
were not the same. Nor did he perform a similar task in relation to
those who might be alleged to be negligent in relation to the later
episodes: I say "might be alleged" because, in relation to the later
episodes, the plaintiff has never identified even the categories of persons,
let alone the individuals, for whom the defendants are to be held H
vicariously liable. The problem must therefore be approached de novo.
It is convenient to begin by mentioning a number of considerations
which, in my judgment, have no bearing on the present appeal.
749
1 Q.B.
rj
Mustill L.J.
In the first place, there is the situation where the doctor embarks on
a form of treatment which is still comparatively untried, with techniques
and safeguards which are still in the course of development: or where
the treatment is of particular technical difficulty. In such a case, if the
decision to embark on the treatment at all was justifiable and was taken
with the informed consent of the patient, the court should, in my
judgment, be particularly careful not to impute negligence simply
because something has gone wrong. For my part, however, I do not
accept that any such consideration is relevant here. So far as concerns
the first episode, there was nothing novel about the use of an umbilical
catheter, nor was there any technical difficulty in examining the X-ray to
verify that the catheter was in the right place. Again, although the
management of this baby was plainly a difficult matter for several weeks,
the techniques to be adopted were not of a novel or recondite kind, and
there is no suggestion that if it had been appropriate to take more
frequent blood gas samples at the time of the later episodes, the persons
concerned would not have had the means and opportunity to do so. This
does not appear to me a case where the staff of the baby unit were
operating on the frontiers of medical science.
Again, I accept that full allowance must be made for the fact that
certain aspects of treatment may have to be carried out in what one
witness (dealing with the use of a machine to analyse the sample) called
"battle conditions." An emergency may overburden the available
resources, and, if an individual is forced by circumstances to do too
many things at once, the fact that he does one of them incorrectly
should not lightly be taken as negligence. Here again, however, the
present case is in a different category, for none of those accused of
negligence who were called to give evidence on their own behalf
suggested that, if mistakes were made, this happened because their
attention was distracted by having to do something else at the same
time, or because they had to take a difficult decision on the spur of the
moment.
Next, there is the established body of authority, of which Bolam v.
Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586-587 is
a conspicuous example, to the effect that a doctor who adopts a practice
accepted as proper by a responsible body of medical men skilled in the
relevant branch of medicine is not to be taken as negligent merely
because there is a contrary view. Although this principle may have some
bearing on the later episodes, it can have nothing to do with the first
episode for, although there were witnesses who regarded it as excusable
in a young doctor not to know about the significance of the loop and its
absence, there was no body of medical opinion which could regard it as
appropriate to overlook the indications given by the X-rays as to the
position of the catheter. The doctors made a mistake, although not
necessarily a culpable one.
I now turn to the real content of the standard of care. Three
propositions were advanced, the first by Mr. Badenoch on behalf of the
plaintiff. It may, I think, be fairly described as setting a "team" standard
of care, whereby each of the persons who formed the staff of the unit
750
Mustill L.J.
[1987]
held themselves out as capable of undertaking the specialised procedures

which that unit set out to perform.
I acknowledge the force of this submission, so far as it calls for
recognition of the position which the person said to be negligent held
within this specialised unit. But, in so far as the proposition differs from
the last of those referred to below, I must dissent, for it is faced with a
dilemma. If it seeks to attribute to each individual member of the team
a duty to live up to the standards demanded of the unit as a whole, it
cannot be right: for it would expose a student nurse to an action in
negligence for a failure to possess the skill and experience of a
consultant. If, on the other hand, it seeks to fix a standard for the
performance of the unit as a whole, this is simply a reformulation of the
direct theory of liability which Mr. McKinnon has explicitly disclaimed.
The second proposition, advanced on behalf of the defendants,
directs attention to the personal position of the individual member of
the staff about whom the complaint is made. What is expected of him is
as much as, but no more than, can reasonably be required of a person
having his formal qualifications and practical experience. If correct, this
proposition entails that the standard of care which the patient is entitled
to demand will vary according to the chance of recruitment and
rostering. The patient's right to complain of faulty treatment will be
more limited if he has been entrusted to the care of a doctor who is a
complete novice in the particular field (unless perhaps he can point to
some fault of supervision in a person further up the hierarchy) than if he
has been in the hands of a doctor who has already spent months on the
same ward: and his prospects of holding the health authority vicariously
liable for the consequences of any mistreatment will be correspondingly
reduced.
To my mind, this notion of a duty tailored to the actor, rather than
to the act which he elects to perform, has no place in the law of tort.
Indeed, the defendants did not contend that it could be justified by any
reported authority on the general law of tort. Instead, it was suggested
that the medical profession is a special case. Public hospital medicine
has always been organised so that young doctors and nurses learn on the
job. If the hospitals abstained from using inexperienced people, they
could not staff their wards and theatres, and the junior staff could never
learn. The longer-term interests of patients as a whole are best served
by maintaining the present system, even if this may diminish the legal
rights of the individual patient: for, after all, medicine is about curing,
not litigation.
I acknowledge the appeal of this argument, and recognise that a
young hospital doctor, who must get on to the wards in order to qualify
without necessarily being able to decide what kind of patient he is going
to meet, is not in the same position as another professional man who
has a real choice whether or not to practise in a particular field.
Nevertheless, I cannot accept that there should be a special rule for
doctors in public hospitalsI emphasise public, since presumably those
employed in private hospitals would be in a different category. Doctors
are not the only people who gain their experience, not only from
lectures or from watching others perform, but from tackling live clients
*>
"
751
1 Q.B.
Mustill L.J.
or customers, and no case was cited to us which suggested that any such
variable duty of care was imposed on others in a similar position. To my
mind, it would be a false step to subordinate the legitimate expectation
of the patient that he will receive from each person concerned with his
care a degree of skill appropriate to the task which he undertakes, to an
understandable wish to minimise the psychological and financial pressures
on hard-pressed young doctors.
For my part, I prefer the third of the propositions which have been
canvassed. This relates the duty of care not to the individual, but to the
post which he occupies. I would differentiate "post" from "rank" or
"status." In a case such as the present, the standard is not just that of
the averagely competent and well-informed junior houseman (or whatever
the position of the doctor) but of such a person who fills a post in a unit
offering a highly specialised service. But, even so, it must be recognised
that different posts make different demands. If it is borne in mind that
the structure of hospital medicine envisages that the lower ranks will be
occupied by those of whom it would be wrong to expect too much, the
risk of abuse by litigious patients can be mitigated, if not entirely
eliminated.
I now turn to the third question, which relates to the burden of
proof. It is most readily illustrated by a citation from an earlier judgment
of the same judge, Peter Pain J., in Clark v. MacLennan [1983] 1 All
E.R. 416, in which, after discussing the decision of the House of Lords
in McGhee v. National Coal Board [1973] 1 W.L.R. 1, he said, at p.
427:
"On the basis of this authority, counsel for the plaintiff contended
that, if the plaintiff could show (1) that there was a general practice
not to perform an anterior colporrhaphy until at least three months
after birth, (2) that one of the reasons for this practice was to
protect the patient from the risk of haemorrhage and a breakdown
of the repair, (3) that an operation was performed within four
weeks and (4) that haemorrhage occurred and the repair broke
down, then the burden of showing that he was not in breach of duty
shifted to the defendants. It must be correct on the basis of McGhee
to say that the burden shifts so far as damages are concerned. But
does the burden shift so far as the duty is concerned? Must the
medical practitioner justify his departure from the usual practice? It
is very difficult to draw a distinction between the damage and the
duty where the duty arises only because of a need to guard against
the damage. In McGhee's case it was accepted that there was a
breach of duty. In the present case the question of whether there
was a breach remains in issue. It seems to me that it follows from
McGhee that where there is a situation in which a general duty of
care arises and there is a failure to take a precaution, and that very
damage occurs against which the precaution is designed to be a
protection, then the burden lies on the defendant to show that he
was not in breach of duty as well as to show that the damage did
not result from his breach of duty."
752
Mustill L.J.
[1987]
The judge then went on to apply the principle which he had stated to A
the later episodes of the present case, although not to the first episode,
in respect of which he made an affirmative finding of negligence. His
conclusion on the later episodes was that:
"I therefore cannot find that the defendants have established that
the high readings that occurred prior to 11 January occurred without
negligence on their part."
g
With respect, I must dissent from this approach, although I
acknowledge the problems which this entails. If, as McGhee v. National
Coal Board [1973] 1 W.L.R. 1 certainly decides, there are special rules
governing standard or burden of proof in those cases where the current
state of knowledge does not permit the proof or disproof of a causal
connection between breach and loss, the maintenance of a different rule
for proving the breach itself will not always be easy to achieve in
practice, since in some instances breach and causation will be closely
linked. This is illustrated by the present case, where the issue whether
there were long periods of excessive oxygenation might be assigned
either to the part of the case concerned with breach of duty, or to the
group of questions concerned with the consequences of the breach of
duty. I prefer the former view, but the question is not easy. Nonetheless,
I would find it impossible, unless impelled by binding authority, to hold
that proof of the primary facts constituting negligence is in some way
dispensed with merely by showing that some step, which is designed to
avert or minimise a risk, has not in the particular circumstances been
taken, is itself sufficient to establish a breach of duty. I now turn to the
decided cases.
Turning to the authorities cited, the first is the McGhee case [1973] 1
W.L.R. 1 itself. Here, the pursuer was exposed to the effects of brick
dust during his working day, in circumstances which did not constitute a
breach of duty by his employers. His exposure was, however, prolonged
by the failure of the employers to provide washing facilities, so that he
had to cycle home still covered in dust and sweat. The lower courts held
that this failure did constitute a breach of duty. The pursuer contracted
dermatitis. There was no doubt that the complaint was brought about by
contact with dust, but it was impossible on the current state of medical
knowledge to prove whether or not the additional period of exposure
tipped the scale to cause the pursuer to contract the disease when
otherwise he would not have done so. The pursuer was, however, able
to show that the failure to provide showers materially increased the risk
that dermatitis would set in. The House of Lords held that this was
sufficient to connect the breach of duty with the pursuer's loss.
Plainly, the decision in the McGhee case [1973] 1 W.L.R. 1 has no
direct bearing on the issues in the present case concerning the alleged
breach of duty: for such a breach had already been established before
the case reached the House of Lords. Indeed, in certain of the speeches
there appears to be implicit the idea that, in a sense, the proof of breach
is equivalent to proof of causation, and the damage which the required
standard of care is designed to forestall has in fact materialised. Nor do
I see how the fiction (for such Lord Wilberforce acknowledged it to be)
753
1 Q.B.
Mustlll L.J.
whereby proof of an enhancement of risk was equated to proof of a

contribution to the injury can be transferred to a situation where
negligence, rather than causation, is in dispute. Is it to be held that,
once the defendant is shown to have done an act which involves an
element of risk to another, the court must always presume that his act is
a breach of a duty of care, unless he proves the contrary? Surely this
cannot be right, for there are many instances (notably in the practice of
medicine) where one person may properly take risks in the best interests
of another: and there is no reason or principle in holding that it is for
the defendant to justify his conduct. Nor, to my mind, is it legitimate to
fasten on the feature of the McGhee case [1973] 1 W.L.R. 1 that the
effect of the breach was unknown, and to say by analogy that, where a
plaintiff suffers damage through the acts or omissions of someone, and
where the nature and quality of the acts cannot be ascertained, a
presumption must be made in favour of the plaintiff. Certainly, there
are situations where a plaintiff can win where the circumstances of the
damage are unknown. But, in cases of res ipsa loquitur the plaintiff
succeeds in spite, not because, of the uncertainty as to the precise
course of events. The injurious act speaks for itself, and there is no need
for any presumption.
The next authority relied upon is Clark v. MacLennan [1983] 1 All
E.R. 416. The plaintiff, who had recently given birth, suffered from a
not uncommon post-natal complaint. In order to give the plaintiff relief,
the defendant performed an operation one month after birth. It was the
usual practice not to perform this operation until three months after
birth, the purpose of the delay being to avoid certain consequences.
Unfortunately, precisely those consequences did occur, and the plaintiffs
disability became permanent. The judge held that the defendants were
liable in negligence.
If I may say so, the summary of the evidence contained in the
judgment in Clark v. MacLennan [1983] 1 All E.R. 416 has certainly
persuaded me that, as a decision on the facts, the case is unimpeachable.
Moreover, although the judge indicated, at p. 425, that he proposed to
decide the case on burden of proof, this could be understood as an
example of the forensic commonplace, that where one party has, in the
course of the trial, hit the ball into the other's court, it is for that other
to return it. But the prominence given in the judgment to the McGhee
case [1973] 1 W.L.R. 1, and the citation from Clark v. MacLennan
[1983] 1 All E.R. 416 in the present case, suggest that the judge may
have set out to assert a wider proposition, to the effect that in certain
kinds of case, of which the Clark case and the present action form
examples, there is a general burden of proof on the defendant. If this is
so, then I must respectfully say that I find nothing in the McGhee case
or in general principle to support it.
Finally, there was Thompson v. Smiths Shiprepairers (North Shields)
Ltd. [1984] Q.B. 405. The plaintiffs had for many years been employed
in the yards of shipbuilders and ship-repairers. In the course of time
they became progressively more hard of hearing, because of industrial
noise. It was held at the trial that, after a certain date, the defendant
employers should have taken steps to prevent the hearing loss, but that
754
Mustill L.J.
[1987]
before that date they were not in breach of duty. Thus, as in the A
McGhee case [1973] 1 W.L.R. 1, there were consecutive periods of
excusable and inexcusable periods of exposure to risk. It was therefore
argued that the whole of the hearing loss should be attributed to the
defendants' fault. This argument failed, because the evidence showed
conclusively that most of the hearing loss had taken place during the
earlier period; an apportionment between the losses taking place during
the two periods was possible, although not with any precision; and it ^
would be wrong to hold the defendants liable for a contribution to the
plaintiffs' hearing losses which was known not to be the result of the
defendants' breach. This aspect of the case had nothing to do with
breach of duty, which had already been dealt with at a stage of the
judgment before apportionment came to be considered. Nor, in relation
to causation, did the judgment do more than attempt a summary of the Q
McGhee case and an explanation of why it did not apply to the case in
hand. It does not, to my mind, offer any help in regard to the problem
now under discussion.
Accordingly, I would hold that, so far as concerns the issue of
negligence, the facts of the present case must be approached on the
footing that the burden of proof rests on the plaintiff.
The facts: first episode
It will be recalled that two catheters were inserted into the plaintiff's
umbilical vein. The first insertion was performed by Dr. Wiles alone, at
about 0100 on 16 December. An X-ray was taken, which was studied by
both doctors. Neither observed that it was misplaced, although Dr.
Kawa did conclude that the tip was too high, and asked for it to be E
pulled back. The second insertion was performed by Dr. Kawa, with Dr.
Wiles in attendance, at about 1000 hours on the same day. Another Xray was taken. The evidence suggests that the plate was seen by both
doctors. Neither observed that the catheter was misplaced.
The mistakes made on these two occasionsfor mistakes they
undeniably werewere of a rather unusual kind. To recognise the _,
misplacements did not call for the kind of meticulous study of the X-ray
plates, for which there might be insufficient time during the busy life on
the ward. Nor did it require any profound skill or learning. Once
furnished with the necessary elementary knowledge of the circulatory
system, and told how to apply it, even a layman can recognise when the
instrument is not in an artery. In that sense, the misplacement was
obvious. But in another sense it was not obvious, and this was because G
the doctors did not apply their anatomical knowledge to what they saw
on the plates. In the words of Dr. Kawa, "it just did not click." The
question is whether it should have done.
The first step is to see what explanation the doctors gave for this
omission. Dr. Wiles knew that it was possible for a catheter to be
accidentally inserted in a vein, for he himself had diagnosed just such an
occurrence about a month previously. Two locum doctors had put a "
catheter in a vein. When Dr. Wiles saw the X-ray he recognised that the
catheter had gone into the portal vein towards the liver. This was
obvious to him because the catheter took a sharp bend to the right.
755
1 Q.B.
H
H
Mustill L.J.
When he looked at Martin Wilsher's first X-ray, he thought it showed an

arterial line that was placed too high. He possibly did know that there
would be a loop if the catheter was in an artery, but that was not what
he was looking for on the X-ray. He would have been looking for a
deflection to a different line such as he had seen before, and would also
be looking at the position of the tip. He thought that the tip was in the
knuckle of the aorta, and did not realise the significance of the fact that
the tip was aimed towards the baby's left (through the two atria) rather
than to the right (at the aortic knuckle).
Dr. Wiles was asked very few questions about the crucial second
catheter. He simply said that what he saw on the X-ray was the same as
before; if anything, appearing slightly more to the left, but that was
probably just twisting of the baby's body. Finally, when he checked the
X-ray again on the Sunday morning, he thought, and noted down, that
it still looked like an arterial catheter. He was not asked to explain his
thought processes on these two occasions when he looked at the second
catheter, but presumably they were the same as on the first occasion.
Turning to Dr. Kawa, he had considerable experience of inserting
umbilical catheters, on average at the rate of about one per week since
he had joined the special care unit. He did not say in evidence whether
he knew of the risk of accidental insertion in a vein, but it seems safe to
assume that he did. In relation to the first catheter, he said that the
purpose of the X-ray was to ascertain the condition of the lungs as well
as the position of the tip. He knew that the artery had a downward
loop, but had never come across the point before (i.e. the point that a
venous catheter would show up with a loop), and it just did not click.
Later, he said:
"Q. On this occasion, as we know, looking at the first two X-rays,
you did not make sure that you had put the catheter into an artery.
Is that not right? A. I did make sure. I mean, looking at the X-ray
I was sure that it was arterial to start with. It would have helped me
more if I would have inserted the catheter myself. Looking at the
X-ray after somebody else has, I mean half of the, shall we say,
advantage here of judging about the position of the catheter is not
there. You would be in a better position to judge about the
correctness, shall we say, of the position of the catheter if you had
inserted it yourself. Q. You came along to check somebody else's
work? A. Correct. . . . Q. Why did you not spot that? A. I do not
know. Now in retrospect it seems much easier to observe. Maybe I
just had a look at it, did not have any second thoughts in my mind
that it was arteriala quick glance, 'O.K., it is too high,' pull it
down, and that is itas simple as that. Then perhaps turned your
attention to some other concomitant (?) condition of the lungs, the
(?) [sic] etc. Once you have satisfied yourself that you have got
the catheter, shall we say, in an artery, the right place, you do not
waste another second to think more about itgive it any more
thought."
Dr. Kawa had nothing to say about his inspection of the second X-ray.
This is a pity, because one of the reasons which he gave for failing to
756
Mustill L.J.
[1987]
detect the misplacement of the first catheternamely, that he assumed

that a catheter inserted by someone else was in the right placedid not
apply to the second catheter, which he had inserted himself. Perhaps if
asked he would have said that he inserted the catheter in the same
blood vessel as had been used on the previous occasion, and assumed
that Dr. Wiles had got it right. We do not know.
The position is therefore that the two doctors accounted for the
mistake in quite different ways. Dr. Wiles knew that the X-ray could be
used to verify the route of the catheter through the vascular tree, and
looked at it with that specific purpose in mind. He did not, however,
realise the significance not only of the absence of a deflection but also of
the absence of a loop. By contrast, Dr. Kawa did not use the X-ray to
verify that the instrument was in an artery.
The judge plainly found these explanations insufficient. As previously
mentioned, however, he was measuring both doctors' performance
against the standard expected of a special baby care unit. For my part, I
believe that the yardstick should be the standard expected of the
individual doctor, holding the particular post which he did hold in the
unit. In relation to Dr. Kawa, this distinction is immaterial, since the
judge described his error as "carelessness," which must be a finding of
negligence whatever test is applied. But with Dr. Wiles it was ascribed
to inexperience. I am confident that the judge would have found this
doctor to have been negligent, applying the test which I prefer.
With this in mind I turn to the expert evidence. On this part of
the case, the evidence of the experts, distinguished and fair-minded as
they were, must be approached with some reserve. In the first place,
the unhappy history of the proceedings (to which I shall later refer)
had the consequence that Dr. Harvey, Professor Hull and Dr.
Roberton gave evidence before either of the Harlow doctors; Dr.
Chiswick gave evidence before Dr. Kawa; and, although Professor
Campbell gave evidence after both Harlow doctors, it appears from
the transcript that he may not have been fully aware of what they had
said. In consequence, a substantial amount of their evidence on this
topic amounted to speculation about the two doctors' thought
processes, rather than a commentary on what those processes actually
were. Thus, for example, Professor Hull took it to be clear from the
notes that Dr. Wiles had looked at the X-ray to see where the tip
was, and went on to express the view that young doctors were being
misled into not using radiography to verify that the catheter was
arterial by the fact that almost all the works of reference spoke
exclusively of using it to check the position of the tip. In fact, we
know that Dr. Wiles was not so misled, but did look at the X-rays for
the purposes (amongst others) of ensuring that the catheter was not in
a vein.
Second, the attention of the expert witnesses tended to be focussed
on the knowledge and capability of the young and inexperienced house
officer. There was little separate consideration of the standard to be
expected of the registrar.
Third, on a number of occasions the witnesses were asked, or
volunteered, opinions on whether the mistakes were "understandable."
757
1 Q.B.
Mustill L.J.
In company with the judge, I do not find these helpful. Any sound
professional will recognise that he himself has committed errors in the
past, and can understand that other competent men may do the same.
But an understandable mistake may still be negligent: see Whitehouse v.
Jordan [1980] 1 All E.R. 650, 666 per Donaldson L.J. and in the House
of Lords [1981] 1 W.L.R. 246. A similar comment may be made to
some extent, on the use of the word "blameworthy."
B
I do not intend to set out the expert evidence at length. On the one
side, Professor Hull in his first report stated that any doctor who passes
an umbilical catheter into a newborn baby must be able to assess where
the tip of the catheter is sited and that means that he must be able to
read the X-ray. If the X-ray is misread then it is a serious mistake. Dr.
Harvey said that anyone concerned in administering treatment in a unit
Q such as this should be able to read an X-ray like this correctly. He
would not accept the suggestion that the mistake was not blameworthy.
Dr. Roberton also considered that anyone putting in an umbilical
arterial catheter should have the necessary skill to interpret the X-ray. A
competent house officer should be able to identify exactly the position of
the catheter. Dr. Chiswick said that it was not conventional practice to
take note of the route, but nevertheless considered that either the
D doctor who put the catheter in or a doctor working with him, responsible
for the unit at that time, should know whether the catheter has gone
into a vein or an artery. He thought that this was a mistake which a
doctor in the position that these doctors were in, in a baby care unit,
ought not to have madebut added that he could hardly call it
blameworthy.
g
On the other side, Professor Hull in his oral evidence withdrew the
opinion contained in his report, because subsequent inquiries had shown
him that there was virtually nothing about the loop in the literature, and
the junior doctors whom he had asked did not know about it. The
defendants also relied on the notation placed on the X-ray by the
consultant radiologist after a routine inspection of the plates three days
after the event. If a person experienced in the study of X-rays could
F believe the catheter to be in the aortic knuckle, how could it be
negligent for the other doctors to make the same mistake? For myself, I
am not disposed to attach much weight to this. The radiologist was not
called, so we know nothing about her thought processes, or what she
was looking for, or whether she was even aware that umbilical catheters
might be accidentally misplaced. The standard of care must, it seems to
Q me, be different in respect of the task which this radiologist was
performing, from the one to be demanded of the doctors on the baby
care unit.
In the light of all this evidence I have come to the clear conclusion
that the judge was right to find that Dr. Kawa was negligent. He was in
charge of the unit; he was called in expressly to verify the work of Dr.
Wiles on the first occasion, and himself inserted the catheter on the
** second. I fully recognise the danger of hindsight, and acknowledge that
something which is obvious, once isolated and pointed out, is not
necessarily obvious when it is encountered in the course of the day's
work. Even so, I consider that somebody in the position of Dr. Kawa
758
Mustill L.J.
[1987]
should have recognised the complication of what he saw: and whether

his failure resulted from an absence of the necessary knowledge about
the clue which the absence of a loop would provide, or (as seems more
likely) he never applied his mind at all to the route taken by the
catheter, the conclusion is the same. He fell short of the required
standard of care and the defendants are vicariously liable for any proved
consequences of his negligence.
If this is right, the position of Dr. Wiles is of no practical
importanceexcept of course to the doctor himselfsince it is not
suggested that his acts caused any damage additional to any which
flowed from the acts of Dr. Kawa. The problem is not easy. The judge
formed a good impression of Dr. Wiles. His evidence reads well in the
transcript. He was plainly an energetic and caring man, to whom the
baby owed a great deal. Moreover, he did three important things right:
he looked at the X-ray to see whether the catheter was arterial; he
called Dr. Kawa to check his work; and he was alert enough to see that
the baby's appearance did not match the recorded figures. At the same
time, the weight of the expert evidence favoured the view that he should
have detected the error, and I find it disturbing to think that a doctor
could be regarded as measuring up to the standards of his post in the
baby care unit if he is incapable of recognising that the instrument upon
which he relies is so positioned as to give dangerously misleading
information. If the judge had clearly found, applying the test previously
stated, that Dr. Wiles had been personally negligent, I would, with the
same reluctance as expressed by the judge, have concluded that this
court should not interfere. But I do not think that he did find this, and
in the circumstances I do not think it appropriate to add a new finding
adverse to this doctor's skill and care which has no bearing on the
outcome of the action.
The facts: later episodes

The shape of this part of the case is harder to make out. On a
number of occasions the PO2, as measured by samples taken either from
a correctly positioned catheter or by an arterial stab, exceeded 15 KPa.
At one time the plaintiff appears to have been asserting that this should
not have happened. This is no longer the case. It is not now contended
that the occurrence of transient elevations above that figurewhat were
called "spikes"was a matter for blame. It is quite clear that this
concession was rightly made. The baby's PO2 was volatile. He was very
ill on many occasions. An improvement in (for example) PCO2 had to G
be bought by measures which would push up his PO2. The best
management could not prevent the level from rising too high. What had
to be done was to ensure that, other clinical factors permitting, it
remained there for the shortest possible time.
The case now presented is that the defendants failed in this regard. It
is said that, because the medical staff did not take sufficient blood gas
samples to calibrate the monitor, the nurses relied on the monitor at "
times when it was not giving accurate readings, so that they did not take
steps to reduce what in reality were excessive partial pressures of
oxygen.
759
1 Q.B.
On this matter the judge has found (i) the defendants have not
proved that they were free from fault in allowing such long periods to
elapse; (ii) there were excessive periods when the oxygen tension was
too high. For the reasons already stated, I consider that the first finding
erroneously places the burden of proof on the defendants. The judge
has not found affirmatively whether or not they were negligent. Is it
legitimate for this court to make its own finding? Eight years after the
event, I believe that we must try. A retrial must be avoided, unless all
else fails.
For this purpose I will consider in relation to each episode not only
the allegation that the intervals between sampling were excessive, but
also the assumption (or perhaps positive finding) that the PO2 remained
excessive for "lengthy periods."
By way of introduction it must be noted that Dr. Hardy regarded a
range of about 7 to 13 KPa as acceptable for PO2. Dr. Stamboulis, who
was the houseman at the relevant time, prescribed a range of 10 to 15
KPa, but Miss Pearson did not agree, and aimed to keep the reading
between 10 and 12 KPa. The alarms on the monitor were set at 5 and 15
KPa. It was not suggested on behalf of the plaintiff that Miss Pearson's
policy was wrong, nor that the nurses did not carefully try to put it into
practice. Rather the reverse, since it was the plaintiffs case that reliance
on the monitor readings had led the nurses to think that the level of
oxygen supply was safe when it was not.
At the trial, complaint was made about five later episodes. The
complaint which was related to events on 22-23 January was rejected by
the judge. Another, concerned with 17-20 January, appears to have
been inferentially accepted, but was abandoned on the argument of the
appeal, there being no evidence that the PO2 ever did exceed the
equivalent of 15 KPa for a sample taken in the aorta. (At this stage, the
catheter had been removed, and samples were taken by stab.) The
circumstances of those remaining were as follows.
(a) 20 December
Late on 19 December the baby had an incident of apnoea. At 2230
hours a blood gas sample revealed the following:
PO2
Monitor
PCO2
pH
12.5
11
13.4
6.92
The figures for PCO2 and pH were very poor. The baby was put on
ventilation to flush out the CO2; the notes indicate half-hourly CPAP
and ventilation, with oxygen concentrations of 65-70 per cent, and 80-90
per cent, respectively. The ventilation would tend to increase the PO2.
This treatment, which was ordered by Dr. Wiles, produced the following
results, obtained at 1030 hours on 20 December.
PO2
Mustill L.J.
Monitor
PCO2
pH
calibrated
monitor
17.5
6.6
7.20
15
According to the notes, the proportional calibration exercise performed
when the analysis result came back resulted in a re-setting at 15 KPa
760
Mustlll L.J.
[1987]
when the needle had been reading 13.5 KPa. The PO2 had thus fallen,
(The proportional calculation suggests that the monitor needle must
have been reading rather more than 15 KPa when the sample was
taken.)
At 2115 hours on the same day there was another gas analysis
yielding the following figures:
PO2
10.6
Monitor
11
PCO2
11
pH
7.14
The PO2 level was thus back in control, although the PCO2 was now
high again. By this time the concentrations of administered oxygen has
been reduced. That concluded episode (a), as identified by the argument
for the plaintiff.
C
(b) 28/29 December
The relevant figures are as follows:
Date
Time
PO2
27 Dec
27 Dec
27 Dec
29 Dec
1000
1400
1100
1345
17.4
18.8
29 Dec
2300
6.4
Monitor
PCO2
pH
9.7
7.18
15
6.5
5.7
7.28
7.25
10
7.0
calibrated
monitor
13.4
13.0
14.2
18.3 (at
1600 hours)
The clinical and nursing notes indicate that the baby was alternatively
on IMV and CPAP during 28/29 December. The PO2 of 17.4 KPa was
based on a sample taken whilst the baby was on IMV at 35-45 per cent.
oxygen. The readings made later on the same day were taken when the
baby was on IMV.
(c) 6/7/8 January
On 6 January the baby had a severe cyanotic attack lasting for 10
minutes, but responded when oxygen was applied by face mask. At 1130
hours on 7 January the figure was:
P0 2
10.6
PCO2
8.1
PCO2
8.4
pH
7.22
At 1315 hours on 7 January an accident occurred, resulting in the baby

receiving no oxygen supply. The monitor reading fell to 5 KPa and the
baby became very cyanotic. He was given oxygen by face mask. His
colour improved, and the monitor reading went to more than 15 KPa.
There was no further blood gas analysis until 1115 hours on 8 January,
which yielded:
P0 2
13.5
n
u
pH
7.14
I now turn to the evidence. So far as concerned the general practice,

Dr. Harvey said that, in the initial stages, his custom was to perform
checks three or four times daily during the first two days after insertion,
761
1 Q.B.
Mustill L.J.
and then, if it seemed satisfactory, to reduce the figures to once or twice

each day. He thought that the manufacturers' instructions were very
cautious. Also, he preferred not to exhaust too much of the baby's
blood supply by taking samples. Dr. Wiles said that in the first two days
they would sample much more often than daily, unless they had reason
for more frequent checks. It was not something that was suggested to be
done whilst he was on call at night. Miss Pearson did not discuss the
policy of sampling, and Dr. Stamboulis, who had the care of the baby
for most of this time, was not called. It appears from the records,
however, that Dr. Hardy's practice was followed in this case. The new
catheter was checked three times in 10 hours on 17 December, and
thereafter twice a day for several days.
Of the other witnesses, Dr. Roberton said that in the early days of the
baby's illness, the blood gases should be sampled, where there was an
in-dwelling catheter, three, four or five times a day. Dr. Chiswick
considered that when the monitor had settled down one could do blood
gas tests once or twice a day. If the PO2 was high, one might want to do
two blood gases a day. To miss a whole day might be bad practice, but
it would depend upon the prevailing circumstances. The quantity of
blood loss by sampling would not as a single factor be a realistic
limitation on the frequency of sampling.
Turning to the individual episodes, with regard to the episode of
19/20 December, Dr. Roberton thought that after the reading of 12.5
KPa on the night of 19 December, readings should have been more
frequent. The PCO2 was much too high, and the pH was exceptionally
low, and he would have liked to check that they were improving. Also,
the PO2 control was not good, so they should have checked the
calibration of the catheter. They should undoubtedly have been checked
before the blood gas at 1030 hours on 20 December.
Dr. Chiswick pointed out that, with the baby alternating between
IMV and CPAP, the PO2 would oscillate, making the results of any
additional blood gas samples hard to use.
Dr. Campbell thought that the staff were probably busy getting the
baby ventilated and did not have time to do a sample, particularly as the
laboratory technician was off duty during the night. It would have been
helpful to have additional blood gases, but he could understand the
doctors asking the nurses to keep an eye on the monitor.
In my judgment, if the judge had found that the defendants were at
fault in not taking an additional reading overnight, the finding would
have been hard to assail, given the evidence of Dr. Roberton. But he
did not do so, given his opinion on burden of proof, and I believe that
the position is not so clear cut as to justify this court in making a finding
against the defendants on its own account. The same conclusion applies
a fortiori to the 11-hour gap after the reading at 1030 hours on 20
January. The position had been unsatisfactory, but the levels were
falling sharply during the period between the sampling and the return of
the samples from the laboratory, and the staff could well have been
justified in concluding that the situation was in hand.
I should add a few words about the duration of any time when the
PO2 was excessive. The judge has not found explicitly that this particular
Q.B. 198731
762
Mustill L.J.
[1987]
episode was one which involved "lengthy periods" of exposure. If he has

done so by implication, I must respectfully disagree. I accept that there
must have been some period before 1030 hours on 20 January when the
monitor was not reading truly and when the staff were unaware that the
true partial pressure was above the 15 KPa mark. But there is no means
of knowing, as Dr. Roberton accepted, how long this had lasted. The
increase cannot be assumed to have been on a straight line basis,
particularly in view of the alternation between IMV and CPAP. As
regards the position after 1030 hours on 20 January, the PO2 was falling
rapidly, and there is no reason to suppose that it remained above 15
KPa for much longer than it takes to get the blood gas results back from
the laboratory.
I now turn to the episode of 28/29 December. Periods of 25 hours
and 26f hours elapsed between the first and second, and the second and
third, critical blood gas analyses. Dr. Wiles explained that normally Dr.
Stamboulis did the blood gas samples when he arrived at about 9 or 10
o'clock in the morning. He did not know why the reading on 29
December had been postponed until the afternoon. Dr. Roberton
described this as a particularly dangerous period, but did not deal
explicitly with the intervals between readings, although the tenor of his
evidence as a whole is plainly to the effect that they were too long. Dr.
Chiswick said that it would have been helpful to have had a blood gas in
the intervening period. He went on to say, however, that this was in an
ideal world, and that he honestly felt that the doctors' course of action
was reasonable. Professor Campbell accepted that further blood gas
samples should have been taken between the three crucial sets of
readings.
On this evidence, is it legitimate for this court to make a finding of
negligence which the trial judge has not made? After much hesitation, I
have come to the conclusion that it is not. The witnesses did not
squarely address the question whether the decision to allow intervals of
a day to elapse was one which no house doctor occupying the post
which he did occupy, and faced with the clinical situation which he did
face, could properly have made. I do not think that on such scanty
materials we can properly hold that the doctors were negligent, striking
although the facts undoubtedly were.
I should add a few words on what the position would have been if I
had reached the opposite conclusion, and hence had been called on to
decide whether there were lengthy periods of hyperoxygenation which
could have been avoided by more frequent tests. We have no firm data
on this, apart from the knowledge (from the calibrations) that the meter
readings fell while the samples were being analysed on 28 December,
and that they remained nearly constant on 29 December. Dr. Roberton
in his report spoke of a likelihood that the baby was exposed to
sustained hyperoxaemia. In evidence, however, he acknowledged that
one could only speculate about the position in the 24 hour period after
the calibration of 14.2 KPa. Dr. Chiswick was of the view that, during
the periods of CPAP at least, it would be very unlikely that the PO2
levels would be in the region of 17 to 18 KPa. (The baby was on IMV at
the times of the sampling.) Professor Campbell agreed that there would
**
763
1 Q.B.
"
Mustill L.J.
have been periods of high PO2 but thought that a sustained period was
unlikely in view of the fluctuating ambient oxygen and the use of IMV
and CPAP. It was difficult to interpret the position from the documents
alone, without getting a feel for the fluctuating course of the baby.
On this material I would hold that the judge was not justified in
finding that there were lengthy periods of excessive PO2. That there
were some periods of excess is indisputable, for there cannot just have
been spikes, coinciding by chance with the moments when the samples
were taken. But there is no means of knowing how long the periods
lasted. Moreover, and this is just as important, it is impossible to tell
whether, if extra samples had been taken, they would have made any
difference. It is recognised that the error on the monitor varies, and that
the baby's PO2 varies. For all that anyone can tell, any extra sample
might have been taken at a time when the monitor was performing
within tolerance (as it was at 1345 hours on 29 December) and when the
PO2 level happened to be acceptable. In such a situation the nurses
would be reassured, not warned.
Finally, there is the incident of 7/8 January. I can deal with this
briefly. It happened at a time when the monitor was not being calibrated
daily, a practice of which Dr. Chiswick and, no doubt, the other doctors
disapproved. But there is no evidence to show that the episode was
other than transient. Indeed, there is no evidence to show that the PO2
ever exceeded 15 KPa, since the reading was taken from the monitor,
not a blood gas analysis. Plainly, there had been an accident which
called for the immediate application of oxygen. There may have been an
overshoot. The staff were watching the monitor. No doubt, they reduced
the oxygen supply as soon as they thought it safe to do so. I can see no
reason to suppose that taking a sample later on the same day would
have made any difference.
Causation
The primary case for the plaintiff at the trial was that even
if the breach of duty was not the sole cause of his developing RLF,
nevertheless it made a significant contribution, and accordingly is to be
treated as the proximate cause for the purpose of an award of damages:
Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613. Evidence to this
effect was given by Dr. Harvey and Dr. Roberton, and the first report
of Professor Hull might also be read in this sense. In the event,
however, the judge did not take this line for, although there are
passages in his judgment which might be understood as findings of a
proved proximate cause, this can hardly have been the effect intended,
given the prominence of the argument based on the McGhee case [1973]
1 W.L.R. 1. Moreover, although, if the judge had expressed a preference
for the evidence of the plaintiff's experts on this point, we might have
been justified in making our own finding in favour of the plaintiff, he
did not do so, and the division of opinion is too sharp to make such a
step permissible on the basis of the transcripts and literature alone.
Thus, we must consider the correctness of the route which the judge
preferred to take. This was as follows: 1. It is common ground that
exposure to excessive PO2 involves an increased risk of RLF. 2.
764
Mustill L.J.
[1987]
Therefore, the plaintiff was subjected to an increased risk of RLF by the

episode or episodes for which the defendants were to blame. 3.
Accordingly, the burden was on the defendants to show that the
exposures did not cause harm: McGhee v. National Coal Board [1973] 1
W.L.R. 1, 4. The defendants have not discharged this burden, and
accordingly the plaintiffs disability is to be treated as caused by their
breach. Before considering the difficult problems of law raised at the
third stage of this argument, I must consider the facts since we have
been assured (and the transcript bears this out) that the connection
between high exposure to oxygen and risk of RLF was not common
ground at the trial. This is important, because counsel for the plaintiff
have accepted that the McGhee case will not help their case, unless a
connection of this kind is demonstrated.
A considerable volume of written material was formally put in at the
trial. Because of the way the evidence came forward, very little of this
was explored before the judge, and still less was discussed on the
appeal. It would, therefore, be quite inappropriate for this court to base
any conclusions on these documents. Still, it is useful to refer to some of
them, as part of the historical perspective of the oral evidence. As
already stated, the idea of a connection between RLF and prematurity
was developed in the early 1950s. Writing many years later, W. A.
Silverman was able to say in a paper entitled "The Lesson of Retrolental
Fibroplasia":
"By now [i.e. by 1954] it was apparent that the reason for the
sudden appearance of the disease was related to the general
acceptance of a hypothesis (put forward in the early 1940s) that the
high toll of brain damage in premature infants was caused by a lack
of oxygen that up to then had not been recognised. This view
provided the rationale for the continuous administration of a high
concentration of oxygen, even to babies who showed no abnormal
symptoms . . . Oxygen at high concentrations can be toxic, as it
proved to be to the developing blood vessels of the retina of the
premature infant."
Already, it had been shown that, of the infants born during a two year
period with birth weights of less than 1600 gm. in the United States of
America, 30 per cent, were afflicted by RLF. Baum and Tizard had
written in 1970 that the link between RLF and oxygen therapy "is
certain," and they had suggested a pathogenesis involving the constriction
of retinal blood vessels. One year later, Garner and Ashton had written Q
that it was "now common knowledge" that RLF is due to the toxic
effects of oxygen. However, even as these words were in the press, a
project was being carried out under the direction of Kinsey and others,
involving the prospective study at five important teaching hospitals in
the United States of 719 surviving premature babies, of whom 76
developed RLF. Elaborate statistical exercises were performed on this
quite small sample. Ultimately, amidst many conclusions to the effect **
that various correlations were not proven, there emerged the opinion
that the most important risk factors were low birth weight and the
duration (not the concentration) of the oxygen treatment. We have,
765
1 Q.B.
A.
"
- Mustill L.J.
however, been shown sharp criticisms in learned journals of the

methodological basis of this study.
Later, another study by Shohat in an article entitled "Retinopathy of
Prematurity: Incidence and Risk Factors" Paediatrics, vol. 72 (1983),
No. 2, p. 99, suggested a number of significant factors, including apnoea
and the number of transfusions. Duration of oxygen exposure and the
number of episodes of PO2 levels greater than 70 mnHg. were not
significantly higher in the RLF groups. The writer concluded:
"In spite of the more careful attention to the monitoring of oxygen
therapy, the incidence of R.O.P. (i.e. retinopathy of prematurity) is
high . . . It is possible that other risk factors still need to be
determined."
Finally, in an article entitled "A Re-examination of the Role of
Oxygen in Retrolental Fibroplasia": Paediatrics, vol. 73 (1984), No. 1,
p. 82, a thorough review of the literature was made by Lucey and
Dangman, which the authors described as
"a review of the evidence indicating that 'excessive' oxygen
administration is but one cause of RLF. In the present 'epidemic' it
may not even be the major cause."
(It may be noted that this article was clearly written in the context of
malpractice claims asserting the RLF was an iatrogenic disease). The
writers cited the results of studies on very small samples. They pointed
out that some babies with low oxygen administration (and, as other
studies showed, some babies with no extra oxygen) developed RLF;
other babies with high oxygen did not develop the disease. The article
went on to enumerate various conditions (in one case affecting only two
infants) which might be associated with RLF. Of these, the authors draw
particular attention to hypoxia. Relationships with apnoea and
intraventricular haemorrhage (IVH) are also material. The authors
concluded, at p. 93:
"A critical review of the literature of retrolental fibroplasia indicates
that the cause of this disease is not yet known. Oxygen is certainly a
critical factor but it is still not possible to make precise
recommendations as to the amount or the duration of therapy that
is safe. . . . A study of the present epidemic indicates that excessive
oxygen administration probably plays a minor role, in contrast to
the first epidemic in which prolonged oxygen administration was
clearly a major factor."
The evidence given by the expert witnesses at the trial reflects the
differences of opinion to be found in the literature: and indeed the
present uncertainties to which this branch of medical science is subject
are shown by the existence of contradictions within the evidence of more
than one of the witnesses. I think it amounts to this. 1. Nobody is now
sure of the mechanism which brings about RLF. Experiments involving
babies are impermissible, and those performed on very young animals
are not necessarily to be relied upon. 2. The meagre data indicate
correlations between RLF and a number of factors. 3. Because the
766
Mustill L.J.
[1987]
mechanism is unknown, it is impossible at present to be sure of the

extent to which the associations with RLF demonstrate a causal
connection between a particular factor and the onset of the disease. For
example, there is evidence of an association between the incidence of
intraventricular haemorrhage (IVH) and RLF. But this does not mean
that IVH causes RLF. It is just as consistent with the opinion that
premature babies with a low birth weight are prone to suffer IVH, and
also prone to suffer RLF, or are prone to suffer conditions the remedy
of which causes RLF. To say that RLF is a disease of prematurity,
which it undoubtedly is, does not mean that factors such as the
inadvertent administration of oxygen to a premature baby in an attempt
to keep it alive have no part in the causation of the disease. 4. The
evidence does implicate exposure to oxygen as a causative factor,
particularly in the very early days of the baby's life. What is no longer
so clear as it was, is that the concentration rather than the duration of
the exposure is crucial. Moreover, the evidence from the "first epidemic"
of the 1940s related to long exposures at high concentrations. It cannot
be uncritically transferred to a situation where the indiscriminate use of
oxygen has ceased.
The findings thus made can, I believe, be made with the appropriate
degree of confidence even by a court which has not seen or heard the
evidence. What has caused me much anxiety is whether, by making a
further finding on an issue where there was a sharp conflict between the
expert witnesses, we are not going too far in the effort to avoid a retrial
on the issue related to the possibility that the first episode could have
caused RLF. Dr. Harvey and Dr. Roberton considered that it could.
The evidence of Dr. Hardy was equivocal. Dr. Hall in his oral evidence
(but not his report) and Dr. Chiswick were of the opinion that it could
not. Nevertheless, although conscious of the need not to overstep the
functions of an appellate court, I believe it legitimate, after reading and
re-reading the evidence, to add one further finding, namely 5. The
weight of the expert evidence was that high PO2 levels of the kind
experienced in the first episode can, particularly at an early stage of the
baby's life, lead to RLF, although nobody can say that, in this particular
instance, the first episode, rather than some other unknown factor, was
definitely the cause, or one of the causes, of the injury.
With these findings in mind I turn to McGhee v. National Coal
Board [1973] 1 W.L.R. 1. Because this case is so central to the present
appeal, I must quote the judgments at length, but will first recapitulate
the findings of fact. The pursuer sweated profusely, so that the outer
level of his skin was softened and easily injured. The particles of dust
clung to him and injured the outer layer, exposing to injury or infection
the tender cells below. This led to dermatitis. The exertion of cycling
home while still caked with sweat and grime made him liable to further
injury until he could wash. The effect of such abrasion of the skin is
cumulative in the sense that the longer a subject is exposed to injury the
greater the chance of his developing dermatitis.
In the Court of Session it was held that the pursuer had to prove that
his additional exposure to injury caused by his having to cycle home
unwashed caused the disease in the sense that it was more probable than
"
767
1 Q.B.
j-v
Mustill L.J.
not that this additional exposure to injury was the cause of it, or at least
materially contributed to it. This he failed to do. The House of Lords
disagreed. Lord Reid's conclusion on the medical evidence was that the
fact that the man had to cycle home caked with grime and sweat added
materially to the risk that this disease might develop. He continued, at
pp. 4-5:
"I cannot accept the view expressed in the Inner House that once
the man left the brick kiln he left behind the causes which made
him liable to develop dermatitis. That seems to me quite inconsistent
with a proper interpretation of the medical evidence. Nor can I
accept the distinction drawn by the Lord Ordinary between
materially increasing the risk that the disease will occur and making
a material contribution to its occurrence. There may be some logical
ground for such a distinction where our knowledge of all the
material factors is complete. But it has often been said that the
legal concept of causation is not based on logic or philosophy. It is
based on the practical way in which the ordinary man's mind works
in the everyday affairs of life. From a broad and practical viewpoint
I can see no substantial difference between saying that what the
defender did materially increased the risk of injury to the pursuer
and saying that what the defender did m a d e a material contribution
to his injury."
Lord Wilberforce said that there could be little doubt that the
appellant's dermatitis resulted from a combination, or accumulation, of
two causes: exposure to dust while working in hot conditions in the kiln
and the subsequent omission to wash thoroughly before leaving the
place of work; the second of these, but not the first, was, on the
findings, attributable to the fault of the respondents. H e continued, at
p. 6:
"My Lords, I agree with the judge below to the extent that merely
to show that a breach of duty increases the risk of harm is not, in
F
"
abstracto, enough to enable the pursuer to succeed. H e might, on

this basis, still b e m e t by successful defences. T h u s , it was open to
the respondents, while admitting, or being unable t o contest, that
their failure h a d increased the risk, to prove, if they could, as they
tried to d o , that the appellant's dermatitis was 'non-occupational.'
But the question remains whether a pursuer must necessarily fail if,
after h e has shown a breach of duty, involving an increase of risk of
disease, he cannot positively prove that this increase of risk caused
or materially contributed to the disease while his employers cannot
positively prove the contrary. In this intermediate case there is an
appearance of logic in the view that the pursuer, on whom the onus
lies, should faila logic which dictated the judgments below. T h e
question is whether we should be satisfied, in factual situations like
the present, with this logical approach. In my opinion, there are
further considerations of importance. First, it is a sound principle
that where a person has, by breach of a duty of care, created a risk,
and injury occurs within the area of that risk, the loss should be
borne by him unless he shows that it had some other cause.
768
Mustill L.J.
[1987]
Secondly, from the evidential point of view, one may ask, why A
should a man who is able to show that his employer should have
taken certain precautions, because without them there is a risk, or
an added risk, of injury or disease, and who in fact sustains exactly
that injury or disease, have to assume the burden of proving more:
namely, that it was the addition to the risk, caused by the breach of
duty, which caused or materially contributed to the injury? In many
cases, of which the present is typical, this is impossible to prove, B
just because honest medical opinion cannot segregate the causes of
an illness between compound causes. And if one asks which of the
parties, the workman or the employers, should suffer from this
inherent evidential difficulty, the answer as a matter of policy or
justice should be that it is the creator of the risk who, ex hypothesi
must be taken to have foreseen the possibility of damage, who Q
should bear its consequences."
After quoting from the speech of Lord Keith of Avonholm in Bonnington
Castings Ltd. v. Wardlaw [1956] A.C. 613, Lord Wilberforce went on to
say, at p. 7:
"The evidential gap which undoubtedly existed there (i.e. the
absence of proof that but for the addition of the 'guilty' dust the ^
disease would not have been contracted) is similar to that in
the present case and is expressed to be overcome by inference. . . .
The present factual situation has its differences: the default here
consisted not in adding a material quantity to the accumulation of
injurious particles but by failure to take a step which materially
increased the risk that the dust already present would cause injury, g
And I must say that, at least in the present case, to bridge the
evidential gap by inference seems to me something of a fiction,
since it was precisely this inference which the medical expert
declined to make. But I find in the cases quoted an analogy which
suggests the conclusion that, in the absence of proof that the
culpable addition had, in the result, no effect, the employers should
be liable for an injury, squarely within the risk which they created F
and that they, not the pursuer, should suffer the consequence of the
impossibility, foreseeably inherent in the nature of his injury, of
segregating the precise consequence of their default."
The analysis by Lord Simon of Glaisdale was in the following terms, at
pp. 8-9:
"The question, then, is whether on the evidence the appellant
brought himself within this rule [that a material contribution to the
injury will suffice]. In my view, a failure to take steps which would
bring about a material reduction of the risk involves, in this type of
case, a substantial contribution to the injury. In this type of case a
stark distinction between breach of duty and causation is unreal. If
the provision of shower baths was (as the evidence showed) a
precaution which any reasonable employer in the respondents'
position would take, it means that such employer should have
foreseen that failure to take the precaution would, more probably
"
769
1 Q.B.
Mustill L.J.
than not, substantially contribute towards injury: this is sufficient

prima facie evidence. That 'material reduction of the risk' and
'substantial contribution to the injury' are mirror concepts in this
type of case appears also from Viscount Simonds' speech in
Nicholson's case [1957] 1 W.L.R. 613, 618-620 where he was
applying the concept of 'substantial contribution' laid down in
Bonnington Castings Ltd. v. Wardlaw: '. . . it was practicable for
the respondents to have reduced the risk . . . It follows that owing
to the default of the respondents the deceased was exposed to a
greater degree of risk than he should have been, and, though it is
impossible, even approximately, to quantify the particles which he
must, in any event, have inhaled and those which he inhaled but
need not have, I cannot regard the excess as something so negligible
that the maxim 'de minimis' is applicable.' See also Lord Kilbrandon,
Lord Ordinary, in Gardiner v. Motherwell Machinery and Scrap Co.
Ltd., 1961 S.C. (H.L.) 1, 3, a dermatitis case, where he rehearsed
the pursuer's argument, which he accepted, as follows: '. . . that
the washing facilities which were provided were inadequate and
primitive, and that, if they had been up to standard, the risk of
dermatitis would have been very much reduced.' His judgment was
upheld in your Lordships' House, the headnote stating, 1961 S.C.
(H.L.) 1: 'where a workman who had not previously suffered from
a disease, contracted that disease after being subjected to conditions
likely to cause it, and showed that it started in a way typical of
disease caused by such conditions, he established a prima facie
presumption that his disease was caused by those conditions; and
that, since, in the present case, the employers had failed to displace
that presumption, they were liable to the workman in damages at
common law.' To hold otherwise would mean that the respondents
were under a legal duty which they could, in the present state of
medical knowledge, with impunity ignore."
Next, Lord Kilbrandon, at pp. 9-10:
"It would have been possible to state the argument in this way:
'The pursuer cannot show that it is more probable than not that, if
a shower had been provided, he as an individual would not have
contracted dermatitis. Therefore it is impossible to say that the
defenders were under a duty to him as an individual to supply a
shower; A cannot have owed to B a duty to take a precaution the
absence of which B fails to show probably caused him injury.' The
duty can only be examined in relation to the individual who
complains of the breach of it; it is not owed to him as a mere
potential victim of dermatitis; and this is unaffected by the fact that
other men, for reasons we do not understand, would not have
required the benefit of the precaution. But once the breach of duty
to the pursuer has been accepted, this argument seems to me to
become untenable. It depends on drawing a distinction between the
possibility and the probability of the efficacy of the precautions. I
do not find it easy to say in the abstract where one shades into the
other; it seems to me to depend very much upon the nature of the
770
Mustill L.J.
[1987]
case. This is a case in which the actual chain of events in the man's A
body leading up to the injury is not clearly known. But there are
effective precautions which ought to be taken in order to prevent it.
When you find it proved (a) that the defenders knew that to take
the precaution reduces the risk, chance, possibility or probability of
the contracting of a disease, (b) that the precaution has not been
taken, and (c) that the disease has supervened, it is difficult to see
how those defenders can demand more by way of proof of the "
probability that the failure caused or contributed to the physical
breakdown."
Finally, Lord Salmon, at pp. 12-13:
"My Lords, I would suggest that the true view is that, as a rule,
when it is proved, on a balance of probabilities, that an employer Q
has been negligent and that his negligence has materially increased
the risk of his employee contracting an industrial disease, then he is
liable in damages to that employee if he contracts the disease
notwithstanding that the employer is not responsible for other
factors which have materially contributed to the disease: Bonnington
Castings Ltd. v. Wardlaw [1956] A.C. 613 and Nicholson v. Atlas
Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613. I do D
not find the attempts to distinguish those authorities from the
present case at all convincing. In the circumstances of the present
case, the possibility of a distinction existing between (a) having
materially increased the risk of contracting the disease, and (b)
having materially contributed to causing the disease may no doubt
be a fruitful source of interesting academic discussions between F
students of philosophy. Such a distinction is, however, far too
unreal to be recognised by the common law. I would accordingly
allow the appeal."
These speeches raise problems. In the first place, Lord Wilberforce
conceived that the doctrine expounded went to burden of proof. It left
the defendants with the task of proving that the breach of duty did not F
cause the loss. The other members of the House, by contrast, seem to
have concluded that, once it was proved that the breach of duty
increased the risk, this ipso facto proved a connection between the
breach and the injury.
Fortunately, it is not necessary to examine this apparent difference in
reasoning, because the judge has found that in the present case the
defendants have failed to discharge the burden of which Lord Wilberforce G
spoke. The defendants did not, as I understand it, challenge this
conclusion and, if they had done so, I would have held that the
conclusion was plainly right.
Equally, there is another question which we do not have to solve. In
the speeches of Lord Simon of Glaisdale and Lord Kilbrandon, and
perhaps of others, there is the idea that duty and causation are opposite
sides of the same coin. Once the plaintiff has established a breach of
duty, comprising a failure to take measures to forestall a known or
knowable risk, the necessary causation proves itself. This analysis is not
so easily applied to the present case where the risk may be of two
771
1 Q.B.
"
Mustill L.J.
different kinds. The first exists if it is known that excess oxygen can
cause RLF. Here, anyone who allows excess oxygen to be administered
runs the risk of causing injury, even though the injury is not certain to
materialise. But there is also a risk even if it is not known, but merely
suspected, that excess oxygen can cause RLF. Once again, a person who
allows excess oxygen to be administered runs the risk of causing injury:
but here, the contingency is double, not single. A prudent doctor,
familiar with current medical opinion, will not run either of these risks
unless the circumstances force him to do so. Yet there is a difference in
kind as well as degree between the two. Can a causal connection be
presumed in the second case, as well as the first?
In the end I have not found it necessary to solve this troublesome
problem, because on the evidence I find it proved that excess oxygen
can cause or contribute to RLF, so that the case falls into the first
category. But for this, I would have inclined to the view that the
McGhee case could not be applied, and believe that ultimately Mr.
McKinnon did not press the argument to the contrary.
There is, however, one problem which must be tackled. I had at one
time believed that the present case is on all fours with the McGhee case
[1973] 1 W.L.R. 1 and that any apparent difference between the two
simply stemmed from the way in which the problem happened to be
expressed. I am now persuaded that this is not so, and that the two
situations really are different. In the McGhee case there was only one
risk operating, namely that contact of a sweaty skin with brick dust
would lead to dermatitis. The fact that such contact did cause the injury
was not in dispute. Just as in Bonnington Castings Ltd. v. Wardlaw
[1956] A.C. 613 the defenders' fault lay in not taking proper steps to
reduce that single risk. The uncertainty was whether the fault had tipped
the scale. In the present case there is a greater uncertainty. Instead of a
single risk factor known to have caused the injury there is a list of
factors, which cannot be fully enumerated in the current state of medical
science, any one of which might have caused the injury. What the
defendants did was not to enhance the risk that the known factor would
lead to injury, but to add to the list of factors which might do so. I
acknowledge that this is much further from the facts of Bonnington
Castings Ltd. v. Wardlaw, which was the springboard for the McGhee
case than were the facts of the McGhee case itself.
The question is whether this makes a crucial difference. The root of
the problem lies in the fact that, for reasons of policy, their Lordships'
House mitigated the rigour of the rule that the plaintiff must prove that
the breach caused the loss, in the interests of achieving a result which
was considered to be just. Given that this was a decision based on
policy, rather than a chain of direct reasoning, the difficulty is to know
whether a similar approach can properly be adopted in the different
circumstances of the present case. After much hesitation I have come to
the conclusion that it can. Reading all the speeches together, the
principle applied by the House seems to me to amount to this. If it is an
established fact that conduct of a particular kind creates a risk that
injury will be caused to another or increases an existing risk that injury
will ensue; and if the two parties stand in such a relationship that the
772
Mustill L.J.
[1987]
one party owes a duty not to conduct himself in that way; and if the first A
party does conduct himself in that way; and if the other party does
suffer injury of the kind to which the risk related; then the first party is
taken to have caused the injury by his breach of duty, even though the
existence and extent of the contribution made by the breach cannot be
ascertained. If this is the right analysis, it seems to me that the shape
taken by the enhancement of the risk ought not to be of crucial
significance. In the McGhee case [1973] 1 W.L.R. 1, the conduct of the ^
employers made it more likely that the pursuer would contract dermatitis,
and he did contract dermatitis. Here, the conduct of those for whom the
defendants are liable made it more likely that Martin would contract
RLF, and he did contract RLF. If considerations of justice demanded
that the pursuer succeed in the one case, I can see no reason why the
plaintiff should not succeed in the other.
C
Finally, I should mention the certain observations of Lord Wright
(with whose speech the other members of the House agreed) in A/S
Rendal v. Arcos (1937) 43 Com. Cas. 1, 13-15, which have come to the
attention of the court since the conclusion of the argument.
Since we have not had the benefit of submissions upon them, and
since they were uttered in a context very different from the present, it ~
would not be appropriate to found any conclusions upon them. It does,
however, appear that they are consistent with the views of causation
which I have endeavoured to express.
Accordingly, I would hold that the plaintiff has established both a
breach of duty by the defendants, and a sufficient connection with the
loss which he has suffered. This is sufficient to establish liability, and I
would dismiss the appeal.
E
Although this is a long judgment I cannot part from the appeal
without saying something about the history of the action. I do so, not to
criticise the practitioners who conducted the case, but to draw attention
to certain features of medical negligence litigation, as currently conducted
in England and Wales.
The first feature speaks for itself: it is delay. The events in question p
happened in the first two months of Martin Wilsher's life. He is now
aged seven and a half years. Surely this will not do. Quite plainly, the
parties cannot be expected to join battle straight away. Time is needed
for diagnosis, advice, reflection and possibly negotiation. But it is unfair
to expect witnesses at a trial of this kind (or indeed of any kind) to
remember what happened six years before. It is also unfair to the
parties. These cases are of great importance to both sides: to the parent ^
who has to plan her child's future and to the doctors who are accused of
a breach of duty. They should not have to wait so long.
Secondly, the procedures adopted before trial were such as to make
the trial quite unnecessarily difficult to conduct, and to create a real risk
of injustice. What happened was this. During April 1981 a statement of
claim was served, the material part of which read:
H
"The defendants by their servants or agents the medical and/or
nursing staff at the said hospital were negligent in their care
management and treatment of the plaintiff as set forth below."
773
1 Q.B.
Mustill L.J.
There followed seven allegations, of which two were abandoned, and

one was not pursued. The remainder included:
"(iv) They failed accurately and safely to monitor the arterial blood
oxygen, (v) They administered too high a concentration of oxygen
to the plaintiff, whereby the arterial oxygen was raised to a
dangerous level."
No particulars were ever given of the persons said to have been
negligent, or of when or how they were negligent. The defence was
served during May 1981. It said nothing. It did not even admit the
plaintiffs allegation that the catheter had been put into the vein rather
than the artery. No request for particulars, notice to admit or
interrogatory was served by either side.
On 30 September 1981 Master Creightmore made an order by
consent. It dealt with discovery and inspection, but also provided that:
"A medical report be agreed, if possible, and that if not the medical
evidence be unlimited." In consequence, there was no full exchange of
experts' reports before the trial. We are told that one or two reports
were in fact served, but this seems to have made matters worse, not
better. The fact that Dr. Harvey's first report dealt only with the
catheter led the defendants to think that, whatever the statement of
claim might say, the case was about the catheter and nothing else. The
plaintiff's advisers, on the other hand, could not have anticipated that
Professor Hull would at the trial disavow certain opinions expressed in
his report, which appeared to favour the plaintiff on both breach and
causation.
In the result, the parties realised, soon after the case began, that
they had misunderstood what the case was about. As was stated before
us, it was fought "in the dark." It lasted four weeks instead of the
allotted five days, which not only imposed great pressure of time on all
concerned, but meant that the scheduling of the expert witnesses was
put quite out of joint. The judge had nothing to read beforehand,
except some pleadings which told him nothing. The evidence of the
plaintiff's and defendants' witnesses came forward in no sort of order,
sometimes by instalments. Nearly 150 pages of medical literature were
put in, without prior exchange, or any opportunity for proper scrutiny.
All this could have been avoided if there had been adequate
clarification of the issues before the trial. The master is not to be
criticised for making a consent order, in the light of Rahman v. Kirklees
Area Health Authority (Practice Note) [1980] 1 W.L.R. 1244. But I
believe that practitioners do their clients and the interests of justice no
service by continuing to pursue this policy of concealment. Certainly, as
the very experienced members of the court pointed out in Rahman's
case, there can be problems in making a defendant disclose his experts'
reports. Nevertheless, these and similar problems are faced and solved
all the time in cases before the Commercial Court and the official
referees, where it is now axiomatic on technical issues that all the cards
must be on the table before the trial begins. Those cases are concerned
with money. Here, there are also human issues of great importance. To
774
Mustill L.J.
[1987]
me it seems wrong that in this area of the law, more than in any other,
this kind of forensic blind-man's-buff should continue to be the norm.
For the reasons previously stated, I would dismiss this appeal.
GUDEWELL L.J. I have had the great advantage of reading in draft

the judgments of Sir Nicolas Browne-Wilkinson V.-C. and Mustill L.J. I
shall comment only about two subjects on which they do not agree.
r>
First, what is the proper test to be applied to decide whether a
doctor, engaged as were the doctors in this case in a special unit caring
for premature babies, has been negligent? The test usually applied is
that adopted in his judgment by Peter Pain J. from the charge to a jury
by McNair J. in Bolam v. Friern Hospital Management Committee [1957]
1 W.L.R. 582, 586:
"The test is the standard of the ordinary skilled man exercising and ^
professing to have that special skill. A man need not possess the
highest expert skill; it is well established law that it is sufficient if he
exercises the ordinary skill of an ordinary competent man exercising
that particular art."
I agree with the judge that this is the correct test by which to weigh ^
the conduct of all the doctors in the present case.
If I understand him correctly, the Vice-Chancellor would apply a less
stringent test to a newly-qualified practitioner, who has accepted an
appointment in order to gain experience. The suggested test would only
hold such a doctor liable "for acts or omissions which a careful doctor
with his qualifications and experience would not have done or omitted."
With great respect, I do not believe this is the correct test. In my view, E
the law requires the trainee or learner to be judged by the same
standard as his more experienced colleagues. If it did not, inexperience
would frequently be urged as a defence to an action for professional
negligence.
If this test appears unduly harsh in relation to the inexperienced, I
should add that, in my view, the inexperienced doctor called upon to
exercise a specialist skill will, as part of that skill, seek the advice and
help of his superiors when he does or may need it. If he does seek such
help, he will often have satisfied the test, even though he may himself
have made a mistake. It is for this reason that I agree that Dr. Wiles
was not negligent. He made a mistake in inserting the catheter into a
vein, and a second mistake in not recognising the signs that he had done
so on the X-ray. But, having done what he thought right, he asked Dr. G
Kawa, the senior registrar, to check what he had done, and Dr. Kawa
did so. Dr. Kawa failed to recognise the indication on the X-ray that the
catheter was in the vein, and some hours later himself inserted a
replacement catheter, again in the vein, and again failed to recognise
that it was in the vein. Whichever of the suggested tests of negligence
should be applied to Dr. Wiles, we are all agreed that Dr. Kawa was
negligent, and that the defendants must therefore be liable for any "
damage to the plaintiff proved to have been caused by that negligence.
So far, I have considered negligence in relation only to the first 36
hours of Martin's life, to the time early in the morning of 17 December
775
1 Q.B.
Glidewell L.J.
1978 when Dr. Wiles realised that the catheter was in the vein. I can
express my views about the proof of negligence in relation to the later
episode shortly. I agree with Mustill L.J. that the judge was wrong to
hold that the burden was on the defendants to show that they were not
in breach of duty on the later occasions on which it is alleged that
Martin was subjected to excessive blood oxygen pressure. I also agree
that, the burden of proof being on the plaintiff, the evidence before us
does not establish that the defendants were negligent on the later
occasions. When one turns to causation, therefore, the only relevant
negligence is that of Dr. Kawa during the first episode.
There are, however, two other comments I should make in relation
to negligence. Firstly, I agree with the Vice-Chancellor that there seems
to be no reason in principle why, in a suitable case different on its facts
from this, a hospital management committee should not be held directly
liable in negligence for failing to provide sufficient qualified and
competent medical staff. Secondly, I agree with and adopt the rejection
by Mustill L.J. of the suggested concept of "team negligence."
I now turn to consider the second point of disagreement between the
Vice-Chancellor and Mustill L.J., that relating to causation. I too have
found this a most difficult question to decide, but in the end I am in
agreement with Mustill L.J., that the plaintiff has proved sufficient facts
to come within the principle of McGhee v. National Coal Board [1973] 1
W.L.R. 1, and thus to succeed.
I gratefully adopt Mustill L.J.'s summary of the effect of the medical
evidence. I emphasise his fifth conclusion, ante p. 766E-F:
"The weight of the expert evidence was that high PO2 levels of the
kind experienced in the first episode can, particularly at an early
stage of the baby's life, lead to RLF, although nobody can say that
in this particular instance the first episode, rather than some other
unknown factor, was definitely the cause, or one of the causes, of
the injury."
Although the judge said that it was common ground that excessive blood
oxygen pressure increases the risk of RLF, we were told that this was
not accepted, and the medical evidence bears this out. Nevertheless, I
agree with Mustill L.J. that the evidence does, on balance, prove that
excess blood oxygen pressure can cause or contribute to RLF, and thus
that the negligent administration of an excess of oxygen increases the
risk of RLF.
There are, however, a number of other disabilities or diseases from
which premature babies are liable to suffer which, singly or in
combination, can or may cause RLF. Thus, in Martin's case, the
evidence goes no further than establishing the following range of possible
causes of his RLF:
(i) the excess PO2 during the first episode;
(ii) the excess PO2 during the first episode plus possible excess PO2
during one or more of the later episodes for which the defendants
are not liable;
(iii) the excess PO2 during the first episode, plus one or more of the
other disabilities and diseases of prematurity;
776
Glidewell L.J.
[1987]
(iv) one or more of the other disabilities and diseases of prematurity,

excessive PO2 not being a causative factor.
Neither plaintiff nor defendant can prove which of these possibilities is
correct.
How, then, does the decision in the McGhee case [1973] 1 W.L.R. 1
assist the plaintiff in such a state of uncertainty? I think it essential to
note that, in that case, the original exposure to brick dust and the
failure to provide adequate washing facilities were treated as separate
causes. It is, of course, true that the lack of washing facilities resulted in
Mr. McGhee continuing to be exposed to the brick dust but, as a matter
of analysis, the failure for which the defendants were responsible was
itself a separate cause. The plaintiff could not prove that, if he had been
able to wash before he left his workplace, he would not have contracted
dermatitis. All he could prove was the increase of risk. The dermatitis
was thus caused either by the original exposure to brick dust alone or by
that exposure plus the failure to provide washing facilities. Proof of a
possible causative factor for which the defendants were not liable and of
a factor which increased the risk of contracting the disease for which
they were liable was, the House of Lords held, sufficient to establish
liability.
Of course, the factual situation in this case is more complex than that
in the McGhee case [1973] 1 W.L.R. 1, but, in my view, the principle is
the same. Indeed, one difference is in the plaintiff's favour here, since it
is possible in this case that the excess PO2 in the first episode alone
caused Martin's RLF, whereas nobody suggested that the exposure to
brick dust after leaving work could alone have caused Mr. McGhee's
dermatitis. So, in the present case, the plaintiff has proved that his RLF
was either (a) caused or contributed to by the negligence for which the
defendants are responsible, or (b) caused or contributed to by one or
more of the other disabilities or diseases, with the excess PO2 in the first
episode increasing the risk of him contracting RLF. For these reasons,
albeit on narrower and different grounds from those adopted by the
judge, I also would dismiss the appeal.
I conclude by endorsing what Mustill L.J. has said about the
difficulties created for the judge, and for the parties themselves, by the
lack of any material pre-trial disclosure of their respective contentions or
expert evidence. The sooner that such disclosure becomes the norm
rather than the exception in medical negligence suits, the better will
justice in this field be served.
G
V.-C. I gratefully adopt the
statement of the facts and the findings made by Mustill L.J. in his
judgment. Save as to the two points with which I will deal hereafter, I
am also in complete agreement with his conclusions and reasoning on
the issues of law which arise.
The first point on which I differ from Mustill L.J. relates to the
question of negligence. On this issue, I disagree, not with his decision,
but with the process whereby he reaches his conclusion. I enter into this
field with hesitation since it is one in which I have virtually no
experience. But I cannot accept that the standard of care required of an
SIR
NICOLAS
BROWNE-WILKINSON
"
777
1 Q.B.
^

v
$* Nicolas
Browne-Wilkinson V.-C.
individual doctor holding a post in a hospital is an objective standard to

be determined irrespective of his experience or the reason why he is
occupying the post in question.
In English law, liability for personal injury requires a finding of
personal fault (e.g. negligence) against someone. In cases of vicarious
liability .such as this, there must have been personal fault by the
employee or agent of the defendant for whom the defendant is held
vicariously liable. Therefore, even though no claim is made against the
individual doctor, the liability of the defendant health authority is
dependent upon a finding of personal fault by one or more of the
individual doctors. The general standard of care required of a doctor is
that he should exercise the skill of a skilled doctor in the treatment
which he has taken upon himself to offer.
Such being the general standard of care required of a doctor, it is
normally no answer for him to say the treatment he gave was of a
specialist or technical nature in which he was inexperienced. In such a
case, the fault of the doctor lies in embarking on giving treatment which
he could not skilfully offer: he should not have undertaken the treatment
but should have referred the patient to someone possessing the necessary
skills. But the position of the houseman in his first year after qualifying
or of someone (like Dr. Wiles in this case) who has just started in a
specialist field in order to gain the necessary skill in that field is not
capable of such analysis. The houseman has to take up his post in order
to gain full professional qualification: anyone who, like Dr. Wiles,
wishes to obtain specialist skills has to learn those skills by taking a post
in a specialist unit. In my judgment, such doctors cannot in fairness be
said to be at fault if, at the start of their time, they lack the very skills
which they are seeking to acquire.
In my judgment, if the standard of care required of such a doctor is
that he should have the skill required of the post he occupies, the young
houseman or the doctor seeking to obtain specialist skill in a special unit
would be held liable for shortcomings in the treatment without any
personal fault on his part at all. Of course, such a doctor would be
negligent if he undertook treatment for which he knows he lacks the
necessary experience and skill. But one of the chief hazards of
inexperience is that one does not always know the risks which exist. In
my judgment, so long as the English law rests liability on personal fault,
a doctor who has properly accepted a post in a hospital in order to gain
necessary experience should only be held liable for acts or omissions
which a careful doctor with his qualifications and experience would not
have done or omitted. It follows that, in my view, the health authority
could not be held vicariously liable (and I stress the word vicariously)
for the acts of such a learner who has come up to those standards,
notwithstanding that the post he held required greater experience than
he in fact possessed.
The only argument to the contrary (and it is a formidable one) is
that such a standard of care would mean that the rights of a patient
entering hospital will depend on the experience of the doctor who treats
him. This, I agree, would be wholly unsatisfactory. But, in my judgment,
it is not the law. I agree with the comments of Mustill L.J. as to the
778
S" Nlcow.n
v r

v
[1987]
confusion which has been caused in this case both by the pleading and
the argument below which blurred the distinction between the vicarious
liability of the health authority for the negligence of its doctors and the
direct liability of the health authority for negligently failing to provide
skilled treatment of the kind that it was offering to the public. In my
judgment, a health authority which so conducts its hospital that it fails
to provide doctors of sufficient skill and experience to give the treatment
offered at the hospital may be directly liable in negligence to the
patient. Although we were told in argument that no case has ever been
decided on this ground and that it is not the practice to formulate claims
in this way, I can see no reason why, in principle, the health authority
should not be so liable if its organisation is at fault: see McDermid v.
Nash Dredging & Reclamation Co. Ltd. [1986] Q.B. 965 especially at
pp. 978-979.
Claims against a health authority that it has itself been directly
negligent, as opposed to vicariously liable for the negligence of its
doctors, will, of course, raise awkward questions. To what extent should
the authority be held liable if (e.g. in the use of junior housemen) it is
only adopting a practice hallowed by tradition? Should the authority be
liable if it demonstrates that, due to the financial stringency under which
it operates, it cannot afford to fill the posts with those possessing the
necessary experience? But, in my judgment, the law should not be
distorted by making findings of personal fault against individual doctors
who are, in truth, not at fault, in order to avoid such questions. To do
so would be to cloud the real issues which arise. In the modern world
with its technological refinements, is it sensible to persist in making
compensation for those who suffer from shortcomings in technologically
advanced treatment depend upon proof of fault, a process which the
present case illustrates can consume years in time and huge sums of
money in costs? Given limited resources, what balance is to be struck in
the allocation of such resources between compensating those whose
treatment is not wholly successful and the provision of required treatment
for the world at large? These are questions for Parliament, not the
courts. But I do not think the courts will do society a favour by
distorting the existing law so as to conceal the real social questions
which arise.
I have dealt at such length with this issue because the standard of
care applicable is of general importance. But, in the event, I reach the
same conclusion on this issue as Mustill L.J. In my view, Dr. Wiles was
not negligent. He failed to identify the wrongly inserted catheter, despite
the absence of the "loop" disclosed on the X-rays, because he lacked the
experience to look for such loop. Professor Hull's evidence shows that
junior doctors of Dr. Wiles' experience in special care baby units were
in general unaware of the significance of such loop. In the circumstances,
I do not think Dr. Wiles was negligent in failing, through lack of
experience, to appreciate the significance of the X-ray showing no loop
in the course which the catheter took. Moreover, Dr. Wiles called in his
superior, Dr. Kawa, to check what he had done.
However, the case of Dr. Kawa is quite different. He was an
experienced registrar with six years' paediatric experience, including one
**
779
1 Q.B.
^
"

'
,, Sir Nfcoias
year of intensive baby care. His shortcomings in failing to spot the

absence of the "loop" cannot be put down to inexperience and I agree
with the judge that his evidence discloses a negligent failure to apply his
mind properly to the question whether the catheter had been properly
inserted. I therefore agree that Dr. Kawa was negligent and that the
defendants are vicariously liable for such negligence.
The second matter on which I differ from Mustill L.J. is the causation
question. I find this a very difficult point and am in real doubt as to the
correct answer. To apply the principle in McGhee v. National Coal
Board [1973] 1 W.L.R. 1 to the present case would constitute an
extension of that principle. In the McGhee case there was no doubt that
the pursuer's dermatitis was physically caused by brick dust: the only
question was whether the continued presence of such brick dust on the
pursuer's skin after the time when he should have been provided with a
shower caused or materially contributed to the dermatitis which he
contracted. There was only one possible agent which could have caused
the dermatitis, viz., brick dust, and there was no doubt that the
dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of
different agents which could have caused the RLF. Excess oxygen was
one of them. The defendants failed to take reasonable precautions to
prevent one of the possible causative agents (e.g. excess oxygen) from
causing RLF. But no one can tell in this case whether excess oxygen did
or did not cause or contribute to the RLF suffered by the plaintiff. The
plaintiffs RLF may have been caused by some completely different
agent or agents, e.g. hypercarbia, intraventicular haemorrhage, apnoea
or patent ductus arteriosus. In addition to oxygen, each of those
conditions has been implicated as a possible cause of RLF. This baby
suffered from each of those conditions at various times in the first two
months of his life. There is no satisfactory evidence that excess oxygen is
more likely than any of those other four candidates to have caused RLF
in this baby. To my mind, the occurrence of RLF following a failure to
take a necessary precaution to prevent excess oxygen causing RLF
provides no evidence and raises no presumption that it was excess
oxygen rather than one or more of the four other possible agents which
caused or contributed to RLF in this case.
The position, to my mind, is wholly different from that in the
McGhee case [1973] 1 W.L.R. 1, where there was only one candidate
(brick dust) which could have caused the dermatitis, and the failure to
take a precaution against brick dust causing dermatitis was followed by
dermatitis caused by brick dust. In such a case, I can see the common
sense, if not the logic, of holding that, in the absence of any other
evidence, the failure to take the precaution caused or contributed to the
dermatitis. To the extent that certain members of the House of Lords
decided the question on inferences from evidence or presumptions, I do
not consider that the present case falls within their reasoning. A failure
to take preventative measures against one out of five possible causes is
no evidence as to which of those five caused the injury.
My difficulty is that in the McGhee case [1973] 1 W.L.R. 1, two
members of the House (Lord Reid and Lord Wilberforce) accepted that
780
sir Nicolas
[1987]
the decision in that case was based not on logic but on common sense or
public policy. The difficulty is to know whether, as Mustill and Glidewell
L.JJ. think, it is right to extend further an illogical decision taken on
grounds of policy to cover the present case, i.e. does this case fall within
the rationale of the principle applied in the McGhee case? With the
greatest hesitation, I have come to the conclusion that this case does not
fall within the rationale. In my view, it was fundamental to the decision
in the McGhee case that the dermatitis was undoubtedly physically
caused by brick dust. Thus, when Lord Reid says, at p. 5:
"From a broad and practical viewpoint I can see no substantial
difference between saying that what the defender did materially
increased the risk of injury to the pursuer and saying that what the
defender did made a material contribution to his injury."
he made those remarks against the background that the precautions

should have been taken against brick dust, that the risk which was
increased was injury by brick dust and that the actual physical cause of
the dermatitis was brick dust. As Lord Reid says, manifestly there is
common sense in the view that, in such a case, there is sufficient to
prove causation from the failure to take the precaution against dermatitis D
caused by brick dust. So, again, when Lord Wilberforce says, at p. 7:
"the employers should be liable for an injury, squarely within the
risk which they created and that they, not the pursuer, should suffer
the consequence of the impossibility, foreseeably inherent in the
nature of his injury, of segregating the precise consequence of their
default."
the public policy which he is applying stems from the fact that the
defendants created risk (i.e., the continued presence of brick dust) and
the injury (i.e., dermatitis caused by brick dust) fell "squarely" within
that risk. That formulation of the principle cannot be applied in this
case. The risk created by the plaintiffs was RLF caused by excess p
oxygen: unless and until you can say that the plaintiff's RLF was caused
by oxygen, it is impossible to say that the injury falls "squarely within
the risk." In my view, there is no ground of public policy which requires
the defendants to be held liable for an injury which they may well not
have caused and which the steps they ought to have taken would not
have avoided if, in fact, the cause of the plaintiffs RLF was not excess _
oxygen but one of the four other candidates.
For these reasons, and with considerable diffidence, I differ from
Mustill L.J. on the causation question. For myself, I would have allowed
the appeal because the plaintiff has failed to establish that the defendants'
negligence caused his RLF.
Finally, I would like expressly to endorse the remarks made by
Mustill L.J. at the end of his judgment concerning the delay that has H
occurred in this case and the procedures adopted before the trial. The
judge in his judgment commented on the difficulties with which he was
faced arising from those procedures. In my view, the Rules Committee
1 Q.B.
781
sir Nicolas
should, as a matter of urgency, look again at the question of exchange

of medical reports before trial.
Appeal dismissed with costs.
Leave to appeal.
Solicitors: Hempsons; Attwater & Liell, Harlow.
S. H.
[COURT OF APPEAL]
FITZGERALD v. LANE
D
1986
1987
*-*
j-j
Dec. 1, 2, 3, 4, 5;
Feb. 23;
March 6
AND ANOTHER
Slade and Nourse L.JJ. and Sir Edward Eveleigh
NegligenceForeseeability of riskCausationPlaintiff crossing road

when traffic lights in traffic's favourCollision
with first
defendant's and second defendant's carsPlaintiff rendered
tetraplegicEvidence inconclusive as to cause of tetraplegia
Both collisions capable of causing tetraplegiaPlaintiff's failure
to prove that collision with second defendant's car caused or
materially contributed to tetraplegiaWhether second defendant
liable
DamagesPersonal injuriesApportionmentPlaintiff injured by two
independent tortfeasorsPlaintiff equally to blame for injuries
Calculation of apportionmentLaw Reform (Contributory Negligence) Act 1945 (8 &9 Geo. 6, c. 28), s. 1(1)
The plaintiff was crossing a pelican crossing showing green
in the traffic's favour when he was struck by a car driven by the
first defendant. He was thrown up on the bonnet and into
contact with the windscreen which shattered and was propelled
onto the road where he was struck by another car driven by the
second defendant. The plaintiff sustained multiple injuries and
in particular a fracture dislocation of the cervical spine which
resulted in tetraplegia. The plaintiff brought an action in
negligence against both defendants. At the trial expert medical
evidence established four possible causes of the tetraplegia,
namely, the initial impact with the first defendant's car, impact
with the windscreen, impact with the ground and impact with
the second defendant's car. The judge concluded that although
it was probable that the first impact did not cause the spinal
injury there was an equal probability that each of the three
subsequent impacts could have been the cause, and that,
therefore, each of the defendants must bear the responsibility

Judg 1

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730

WILSHER v. ESSEX AREA HEALTH AUTHORITY

Sir Nicolas Browne-Wilkinson V.-C,

Medical PractitionerNegligenceStandard of carePremature baby

Bolam v. Friern Hospital Management Committee [1957] 1

McGhee v. National Coal Board [1973] 1 W.L.R. 1, H.L.(Sc)

Per Sir Nicolas Browne-Wilkinson V.-C. The standard of

The following cases are referred to in the judgments:

Wilsher v. Essex A.H.A. (C.A.)

The facts are stated in the judgment of Mustill L.J.

speeches of the House of Lords in McGhee v. National Coal Board

Wilsher v. Essex A.H.A. (C.A.)

care and skill in a given situation. If a particular task is habitually and

work also severally, undertook certain very specialised procedures,

Wilsher v. Essex A.H.A. (C.A.)

24 July. The following judgments were handed down.

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

describe. Another related variable is the pH value of the blood, a

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

have a healthy appearance: it would be "ruddy." Crude as they might

Wilsher v. Essex A.H.A. (C.A.)

is at first downwards towards the femoral artery, where it turns upwards

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

So matters stood when Dr. Wiles returned to duty at 0700 hours on

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

opinion. It could not be acceptable crudely to say that the plaintiff

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

held themselves out as capable of undertaking the specialised procedures

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

whereby proof of an enhancement of risk was equated to proof of a

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

When he looked at Martin Wilsher's first X-ray, he thought it showed an

Wilsher v. Essex A.H.A. (C.A.)

detect the misplacement of the first catheternamely, that he assumed

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

should have recognised the complication of what he saw: and whether

The facts: later episodes

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

At 1315 hours on 7 January an accident occurred, resulting in the baby

I now turn to the evidence. So far as concerned the general practice,

Wilsher v. Essex A.H.A. (C.A.)

and then, if it seemed satisfactory, to reduce the figures to once or twice

Wilsher v. Essex A.H.A. (C.A.)

episode was one which involved "lengthy periods" of exposure. If he has

Wilsher v. Essex A.H.A. (C.A.)

Wilsher v. Essex A.H.A. (C.A.)

Therefore, the plaintiff was subjected to an increased risk of RLF by the

Wilsher v. Essex A.H.A. (C.A.)

however, been shown sharp criticisms in learned journals of the

Wilsher v. Essex A.H.A. (C.A.)

mechanism is unknown, it is impossible at present to be sure of the