11 April, 2016
Macleod v Highland Health Board  CSIH 25, 07 April 2016
Ampersand advocates David A. Stephenson Q.C., and Jamie Dawson appeared for the defenders in the reclaiming motion in this case. David previously appeared with Ampersand’s Catherine Devaney for the defenders at the Proof. Lord Kinclaven assolizied the defenders after proof. The pursuers appealed and their reclaiming motion has now been refused by the Inner House.
The pursuers sued on behalf of their daughter, Rowan, who was born by Caesarean section at Raigmore Hospital, Inverness on 2 June 1999. It was accepted Rowan had suffered catastrophic brain damage due to a period of acute profound asphyxia following delivery and during resuscitation. No negligence was alleged in respect of this (damaging) period. However, the pursuers claimed that before delivery Rowan had become chronically hypoxic in utero; that shortly before delivery she had begun a process of agonal gasping which caused her to inhale a plug of meconium deep into her trachea; and that the presence of the plug was the cause of the delay in successfully resuscitating Rowan after she was born. They maintained that the failure to appreciate and respond to Rowan’s alleged chronic hypoxia in utero was attributable to negligence on the part of midwives and a doctor managing the labour; and that had Rowan’s condition been appreciated this would have resulted in earlier Caesarean section thereby avoiding agonal gasping and the inhalation of the meconium plug. The sum sued for was £10.5 million.
In a lengthy decision the Inner House held:
- The delay of almost 12 months in Lord Ordinary issuing his Opinion was unreasonable but not material. -
- The Lord Ordinary’s Opinion was inadequately expressed. His approach to the statement of his reasons was “an abrogation of the Lord Ordinary’s responsibility to provide a coherent judicial decision”. 
- Despite the inadequacies of the Lord Ordinary’s Opinion, in respect of the case of fault the “defenders would almost inevitably have succeeded on proper consideration of the evidence”. 
- The Lord Ordinary was entitled to apply the reasoning he did whereby he excluded the pursuer’s causal mechanism and he had done enough to justify not deciding what the cause of the tracheal obstruction had been. -
- The Lord Ordinary’s Opinion was so defective as to make matters at large for the Inner House so that it might substitute its view for that of the Lord Ordinary on the basis of the transcript of the evidence, but whereas the Court would have been willing to embark upon this exercise it had been asked by the pursuer not to do so but instead to order a re-trial before a different Lord Ordinary.
- In Scotland it is not open to a party to seek a re-trial, this not being part of our procedure.
- “Thus, while the reason why the pursuers case fails can be described as a procedural difficulty, in truth the difficulty appears to us to have been more substantive. Although we have not heard full argument on the correctness or otherwise of the Lord Ordinary’s opinion, as indicated at paragraph  of this opinion, we have considered the evidence of Professor Walker and concluded that the Bolitho principle must almost inevitably apply, with the result that the pursuer’s case must fail. We have further considered the evidence on causation, as summarised at paragraph  and concluded that the Lord Ordinary was entitled to conclude that the causal mechanism had not been proved, notwithstanding Professor Stenson’s evidence. That conclusion too means that the pursuer’s case cannot succeed.” 
The decision of the Inner House can be found here.