Supreme Court dismisses appeal against negligence claim for pre-eclampsia and delivery care due to lack of causation.

THE SUPREME COURT

Keane C.J.

Murphy J.

Hardiman J.

156/2000

BETWEEN:

IAN O’MAHONY (an Infant) SUING BY HIS MOTHER AND NEXT FRIEND ANN O’MAHONY

Plaintiff/Appellant

and

TIMOTHY TYNDALE AND DAVID CORR

Defendants/Respondents

JUDGMENT delivered the 13th day of July 2001 by Keane C.J.

The plaintiff in these proceedings was born on the 11th May 1987 in the Bons Secours Hospital, Cork. The first named defendant is

the nominee of the trustees, owners and managers of the hospital. It was not in dispute at the time of the hearing in the High Court

that the plaintiff - who at that time was aged 12 - was suffering from a serious degree of mental handicap, manifesting itself in

severe intellectual, linguistic and behavioural retardation and a significant epileptic disorder. It was also not in dispute that this

condition is static and that the plaintiff has a life expectancy of approximately 50 years of age.

The second named defendant is a consultant obstetrician attached to the hospital. In the proceedings, the plaintiff, suing by his

mother and next friend Ann O’Mahony (hereafter “Mrs. O’Mahony”), claims damages for the negligence and breach of duty of the

defendants in the care of the plaintiff and Mrs. O’Mahony during the period beginning with her admission to the hospital on the 8th

May 1987 and ending with her discharge from the hospital on 15th May. After a hearing lasting 46 days in the High Court, the

plaintiff’s claim against both defendants was dismissed by Quirke J. in a written judgment delivered on the 7th April 2000. From that

judgment and order, the plaintiff now appeals to this court.

At the outset, the sequence of events preceding Mrs. O’Mahony’s admission to the hospital and during her stay in the hospital, insofar

as they are not in controversy, should be set out. Her pregnancy - which was her first - was uneventful until the last few weeks prior

to delivery, where there was an indication of excessive gain of weight and of oedema or retention of fluid. Neither of these, of

themselves and unaccompanied by any other symptoms, would be a cause for concern. However, on the 8th May, which was around

the time of her expected delivery, Mrs. O’Mahony attended her general practitioner, who ascertained that her blood pressure had

risen and that protein was present in her urine. These were indications of the development of a condition unique to pregnancy called

pre-eclampsia, which is particularly prevalent in first pregnancies. It is a serious condition which can lead to the end stage of

eclampsia, a condition manifested by convulsions which can seriously damage the mother and the baby.

Mrs. O’Mahony’s general practitioner told her that she should go straight to the hospital, which she did. This was on a Friday. At the

hospital her blood pressure and urine was monitored and she was informed that the monitoring would continue over the weekend and

that the delivery would be induced on the Monday. It was not in controversy that in the light of the condition of pre-eclampsia, it

was essential that the baby should be delivered without delay.

Mrs. O’Mahony’s labour was, accordingly, induced on the morning of the 11th May and continued uneventfully until what can be

loosely described as the final period of the labour when the plaintiff developed a severe bradycardia, i.e. a significant fall in the

beating rate of the foetal heart. The second named defendant (hereafter “Dr. Corr”), who was Mrs. O’Mahony’s consultant

obstetrician, arrived sometime after the bradycardia had developed and effected the delivery of the plaintiff by forceps. He was then

taken to a unit called the 24 hour observation nursery where he spent the next 19 hours. He was brought back to Mrs. O’Mahony in

the postnatal ward on May 12th and, as already noted, mother and baby were discharged on the 15th May.

During the early months of the plaintiff’s life at home, Mrs. O’Mahony and her husband were concerned by the fact that he appeared

to be irritable and unsettled and they brought him to a number of doctors in the hope of finding out what was wrong and how it could

be dealt with. He was admitted to the hospital in September 1987 and had a lumbar puncture but it was not until February 1988, i.e.

when he was nine months old, that he was diagnosed by Dr. Rosemary Manning, a general practitioner with paediatric training, as

suffering from what she described as “cerebral palsy”. (The implications of that description will be referred to at a later stage.) Mrs.

O’Mahony and her husband then obtained further medical advice as to what might have caused the plaintiff’s condition and ultimately

these proceedings were instituted on the 9th May, 1990, the plaintiff then being aged 3. In the statement of claim, delivered on the

9th July, 1992, when the plaintiff was aged 5, it was alleged that the severe condition of mental and physical retardation from which

the plaintiff was then suffering had been caused by the negligence of the hospital and Dr. Corr. Defences denying any such

negligence having been delivered on behalf of the hospital and Dr. Corr, the case came on for hearing in October 1999.

The claim in the pleadings as originally delivered and the case as opened by counsel on behalf of the plaintiff at the beginning of the

trial against the hospital was that in the light of the condition of pre-eclampsia from which Mrs. O’Mahony was suffering a consultant

obstetrician or registrar should have been in attendance to effect the speedy delivery of the plaintiff when the condition of

bradycardia developed and, as it was said, an emergency arose as a result. In the event, it was said, Dr. Corr was not present until a

significant period of time had elapsed from the onset of the emergency. During this period, it was said, the plaintiff suffered

irreversible brain damage in the final stage of the labour because of an inadequate supply of oxygen, a condition known as hypoxia.

The claim against the hospital was that, because of the system employed in the hospital a consultant obstetrician or registrar was

not available to effect the delivery when the emergency began and that, in the result, the plaintiff suffered irreversible brain damage

before he was actually delivered.

The claim against Dr. Corr was that he had

(a) failed to detect signs of intra-uterine hypoxia and to deliver the plaintiff immediately signs of foetal distress were discernible; and

(b) actively participated in a hospital system which he knew or ought reasonably to have known was defective and unsuitable for the

plaintiff and for Mrs. O’Mahony in that it did not make any adequate provision for the availability of trained or qualified obstetric staff

for the emergency delivery of the plaintiff, a risk which was reasonably foreseeable having regard to the condition of pre-eclampsia

which had led to the admission of Mrs. O’Mahony to the hospital.

Some features of the system in operation at the hospital at that time should be mentioned at this point. The foetal heart rate of the

plaintiff was measured by an instrument called a cardiotocograph (CTG) which provided an electronic recording on paper of the heart

rate of the foetus and the uterine contractions, recorded by way of an electrode attached to the foetal scan internally or by an

external microphone on the maternal abdomen. The heart rate, recorded in beats per minute (bpm), should normally be between 160

and 120 bpm. The condition of bradycardia is said to develop when the rate falls below 120 bpm. In the present case, the plaintiff’s

heart rate, as so recorded, dropped from about 140 bpm to 100 bpm and, approximately seven minutes later, to 60 bpm. However,

the tracing recording the bpm for the final twenty-six minutes before the delivery was not available at the hearing. The absence of

the tracing for that period was explained as follows by the solicitors to the defendants in a letter of the 2nd October 1998:-

“In 1987 the Bons Secours Hospital had one CTG monitor. That monitor was required to be shared among the patients in the

maternity unit at that time. Furthermore, it was then hospital policy to bill patients for the tracings according to the length of time

on such tracings. For those reasons we have been provided with a number of short readings of ten minutes or so, in relation to Mrs.

O’Mahony, in addition to the main CTG reading. Evidence will be given that this was standard practice. Ultimately, as labour

progressed the monitor would be prioritised to Mrs. O’Mahony and used in relation to the final stage of labour, leading to the delivery

of (the plaintiff). When changing the CTG monitor from one patient to another, it was hospital policy to tear the CTG reading at the

perforation nearest the end of the patient’s reading. For that reason each short CTG reading and indeed the main tracing

commenced with the tail end of a previous patient’s tracing. This explains the sudden commencement and abrupt termination of

each reading.”

They enclosed by way of illustration a sample short CTG reading of another patient whose name was not disclosed fully since of

confidentiality. There was thus no tracing of the bpm for the final 26 minutes of the labour.

A record was also kept of the various stages of Mrs. O’Mahony’s labour, including details of times, anaesthesia, medication and other

features by the nursing and midwifery staff of the labour ward on a document described as a “partogram”.

The evidence was that under the system then prevailing in the hospital newly born infants, after some preliminary checks as to their

condition on delivery had been carried out by the nursing and midwifery staff, were transferred to a unit called the 24 hour

observation nursery. While in many cases their stay there would be relatively short before they were brought back to their mothers in

the postnatal ward, in the case of the plaintiff he was kept there for 19 hours, Mrs. O’Mahony having been detained for observation in

the labour ward after the delivery because of her condition of pre-eclampsia rather than being returned immediately to the postnatal

ward. There was also a neonatal unit, consisting of a special care unit and an intensive care unit to which babies whose condition

required special attention were transferred.

At the hearing, Mrs. O’Mahony gave evidence as to the history of her pregnancy and her admission to the hospital. She said that she

was conscious, during the course of the labour, of the recording of the bpm of the foetal heart by the CTG and of the digital display

on the unit. At about 4.30, she complained about a pain in her back and was told by the nurses, who seemed very surprised, that she

was “ready for pushing”. They told her that Dr. Corr would be there soon, but that they would start her off in the meantime. She said

that during the next stage of the labour, the heartbeat on the monitor started beating slower and the numbers changed. She said

that she saw the nurses “panicking” and that she was told that they had called Dr. Corr, that he was on his way and that “all is fine”.

She also said that one of the nurses put her hands over her (Mrs. O’Mahony’s) ears in order to prevent her hearing the monitor. Her

pubic area then having been shaved and oxygen put on, she was wheeled into an operating theatre.

She said that then “Dr. Corr sort of came in fast. He had his sleeves rolled up and gloves on him and he said ‘take off the oxygen ...”

He had no medical clothes on. She then gave details of the delivery of the baby which, she said, was delivered within minutes. Dr.

Corr handed the baby to a nurse. She said that her husband came in then and she told him that the baby had brain damage. She also

said that Dr. Corr pointed out to the nurses that she

(Mrs. O’Mahony) had a hard prominent coccyx. She said that the nurses then brought her the plaintiff wrapped in “a little sheety

thing” and put him into her arms for maybe a minute or two and then took him away. She was then taken into the labour ward where

she was told she was being kept because of her blood pressure. She said that at eight o’clock one of the nurses came in with the

baby wrapped up tightly and gave her the baby to hold for about four to five minutes. She said that she did not see the baby until

the following morning between twelve and one when they gave her the baby, saying that the sister had said to tell her that she had

“a very cranky baby”. Nothing eventful took place then between the 12th and the day of her discharge on the 16th May. She said

that she recalled meeting one of the nurses, Kathleen Barry, in the supermarket on the evening of her discharge, who said to her “you

frightened the life out of us”. She also gave evidence that the plaintiff was thereafter “really, really cranky” and that she brought him

to the hospital a number of times and then ultimately to Dr. Manning.

The plaintiff’s father also gave evidence of what he saw while he was in the hospital during the course of Mrs. O’Mahony’s labour and

after the delivery of the plaintiff.

Professor William Thompson, Professor of Obstetrics and Gynaecology at Queen’s University Belfast, gave evidence that the only

logical explanation of the drop in the foetal heart rate was that the baby was suffering from intra-uterine hypoxia, i.e. a lack of

oxygen supplied to the brain. He said that he would have expected in these circumstances that the baby on delivery would have

required resuscitation after delivery and that he found it difficult to understand how what is known as the “Apgar score” (which is

referred to in more detail at a later stage) did not indicate that the baby was in that condition after delivery. He said that she should

have been admitted to a unit where facilities were available to cope with the complication, i.e. eclampsia.

Professor Alan Weindling, a Professor of Perinatal Medicine at the University of Liverpool and a Consultant Neonatologist, gave

evidence that the plaintiff was suffering from cerebral palsy caused by brain damage sustained within the final minutes before his birth

as a consequence of hypoxia.

Evidence was also given by Professor Ronald Gabriel, Clinical Professor of Neurology and Paediatrics at the University of California. He

said that the plaintiff’s present condition was due to the complications that occurred at the end of his labour and delivery, which had

resulted in a reduced blood flow to his brain resulting in “watershed injuries”. He said that the hypoxia ischemia, as it was called,

which had been sustained did not affect what he described as the deep regions of the brain. Evidence was also given by Dr. Werner

Schutte, a consultant paediatric neurologist, that the plaintiff was suffering from cerebral palsy and that this must have been the

result of a hypoxic ischaemic injury to the brain during his labour. Mr. Roger Clements, a consultant obstetrician and gynaecologist,

also gave evidence that the plaintiff appeared to have suffered from a severe hypoxia during the period of labour.

That, in necessarily highly abbreviated form, was the expert medical evidence adduced on behalf of the plaintiff during the first

thirteen days of the hearing. On the 13th day, evidence was being led as to the plaintiff’s claim for damages. At that stage, the case

was adjourned for approximately two weeks because the trial judge was unavailable during that period. When the hearing resumed,

Mr. Hickey S.C. on behalf of the plaintiff informed the trial judge that during the interval Mrs. O’Mahony had brought the plaintiff to

Liverpool to have a MRI scan performed on him. He said that she had previously been under the impression that such a scan should

not be taken because of treatment that the plaintiff was receiving, but that she had been told by Professor Gabriel during the course

of the earlier hearing that this was not so. At that stage, Mr. Hickey indicated that while it might be necessary to recall some of his

witnesses to deal with the new scan, he did not think it would necessitate the amendment of the pleadings. However, on the 17th

day of the hearing, he applied to the trial judge to amend the pleadings so as to include the following additional particulars:

“The defendants were negligent and in breach of duty to the plaintiff in that they, their servants or agents:

‘5. Caused, allowed and permitted the plaintiff to develop the condition of hypoglycemia as a consequence of the hypoxia

suffered by the plaintiff resulting from the negligence of the defendants and each of them in failing to deliver the plaintiff

promptly after the development of foetal bradycardia.

W. In the knowledge of the plaintiff suffered hypoxia/foetal distress prior to birth and the plaintiff’s mother having had pre-

eclampsia for three days prior to the birth of the plaintiff failed to check adequately or at all as to whether the plaintiff had

developed a hypoglycemia by carrying out routine blood glucose tests.

X. Failed to diagnose that the plaintiff developed hypoglycemia and to continue to suffer from it with the result that the

plaintiff suffered brain damage.

Y. Failed to treat the plaintiff for hypoglycemia by replacing/restoring his blood glucose level by appropriate feeding, if

necessary by tube.

Z.(i) Failed to check that the treatment which should have been afforded to the plaintiff for hypoglycemia was successful and

in the event that it was not in failing to call a doctor and administer intravenous glucose.

(ii) Failed adequately or at all to monitor or observe the plaintiff, in particular for hypoglycemia in the period he was detained

or kept in this area referred to as the observation nursery by the defendants.”

Neonatal hypoglycemia is a condition which consists of the lowering of the blood glucose level in infants, particularly in the hours after

their birth, which can give rise to brain injury. As already noted, none of the medical experts who had at this stage given evidence on

behalf of the plaintiff had referred to it as a possible cause of the plaintiff’s present condition: their evidence was all to the effect

that it had been caused by an episode of hypoxic ischemia in the course of labour. The making of this new case at this stage - the

case had now been 17 days at hearing - was strenuously resisted on behalf of the defendants. The trial judge, however, having heard

lengthy submissions, permitted the necessary amendment of the pleadings to be made as against the hospital but not as against Dr.

Corr. There was no appeal against his amendment of the pleadings in the case of the hospital: the plaintiff has, however, appealed

inter alia against the judge’s refusal to permit an amendment of the pleadings as against Dr. Corr.

Evidence was then given by Dr. W. Pilling, a consultant paediatric radiologist attached to the Alder Hey Hospital in Liverpool, as to the

conclusions to be drawn from the newly obtained MRI scan. Dr. Schutte and Professor Windling were also recalled and gave evidence

as to the conclusions they drew from the new MRI scan. There was also evidence on behalf of the plaintiff by Dr. Evans, a consultant

paediatrician. That evidence will be referred to in more detail at a later point.

Evidence was given on behalf of the defendants by Dr. Corr, a number of nurses who were on duty during the period of Mrs.

O’Mahony’s stay in the hospital, Dr. Seamus O’Donoghue who had been a consultant paediatrician in the hospital at the time of Mrs.

O’Mahony’s admission, Professor Thomas Matthews, Professor of Paediatrics in University College Dublin, Dr. Peter Boylan, an

obstetrician and gynaecologist in the National Maternity Hospital, Dr. Michael Turner, an obstetrician and gynaecologist in the Coombe

Hospital, Dr. James Tolan, a consultant neuro-radiologist in Beaumont Hospital, and Dr. Mary King, a consultant paediatric neurologist

attached to the Children’s Hospital, Temple Street, the Rotunda Hospital and Beaumont Hospital.

In his judgment, the trial judge reviewed carefully and comprehensively the course of events at the hospital from the time of Mrs.

O’Mahony’s admission until her discharge. I will indicate at a later point those aspects of his summary of events with which counsel for

the plaintiff take issue. Having then referred to the respective contentions on behalf of the parties, he set out the principles of law

which he considered applicable, i.e. those identified by Finlay C.J. giving the judgment of this court in Dunne (an infant) .v. National

Maternity Hospital (1989) IR 91.

The learned trial judge considered first the claim against Dr. Corr. He said that his consulting rooms were at the time in question

located within a five-minute car drive from the hospital. He said that he was satisfied that, as a matter of probability, Dr. Corr was

notified between 4.30 and 4.40 p.m. that Mrs. O’Mahoney had achieved full dilatation and that, in response to that notification Dr.

Corr, as the trial judge put it, “within a comparatively short time but without any sense of urgency, left his consulting rooms and

made his way to the hospital”. He also said that it was probable that Dr. Corr did not arrive at the labour ward of the hospital until

some time after 5.00 p.m.: the plaintiff was delivered at approximately 5.15 p.m. He summarised his findings from this aspect of the

case as follows:-

“Accordingly, I am satisfied that as a matter of probability, Dr. Corr was notified between 4.30 and 4.40 p.m. that Mrs. O’Mahony

had achieved full dilatation and that the interval of something over twenty minutes which elapsed between that notification and his

arrival at the hospital was not unreasonable in the circumstances and did not fall short of the requisite standard of care which Mrs.

O’Mahony was entitled to expect from Dr. Corr and did not represent a departure from the general and approved medical practice

which applied to the circumstance in which Dr. Corr then found himself.

“It follows further that Dr. Corr did not discover that (the plaintiff) had suffered a bradycardia and was therefore at risk of intra

uterine hypoxia until he arrived at the hospital shortly after 5.00 p.m. and I am satisfied on the evidence ( and indeed it was not

disputed) that Dr. Corr delivered (the plaintiff) as soon as was reasonably possible after signs of foetal distress became discernible

to him.”

Having made that finding in respect of the first limb of the claim against Dr. Corr, the trial judge then turned to the second limb of the

claim. He pointed out that the system adopted by the hospital and which was in force in 1987 for dealing with emergencies during

childbirth required the attendance of a consultant obstetrician or gynaecologist within approximately ten minutes of the occurrence of

the emergency. He said that it was acknowledged that neither the senior house officers nor the nursing or midwifery staff were

appropriately qualified to deal with such emergencies so that total reliance was placed upon the availability of a consultant

obstetrician or gynaecologist within a very short time after the occurrence of the emergency.

The trial judge also referred to evidence adduced on behalf of the hospital that the consulting rooms of other obstetricians and

gynaecologists were located closer to the hospital than those of Dr. Corr, the rooms of three consultants being actually located

within the hospital complex. The evidence on behalf of the hospital was that the average time within which a consultant should and

would reach the labour ward following an emergency call would be less than five minutes.

The trial judge referred to the evidence of Mr. Clements that this system was “a perfectly reasonable system” and of Professor

Thompson that it was broadly in line with what he would expect. He then summed up his conclusions as to the second limb of the

case against Dr. Corr as follows:-

“Prima facie the system adopted by the hospital for dealing with emergencies or potential emergencies during childbirth was a

reasonable system and Dr. Corr was entitled to expect that it would be operated by the hospital efficiently. No evidence was

adduced on behalf of the plaintiff or otherwise indicating that the system had been inefficiently operated on any other occasion by

the hospital or had ever given rise to problems prior to 1987 and while it was suggested to Dr. Corr in cross-examination that he

ought to have had misgivings about the system and to have moved Mrs. O’Mahony to another maternity unit in Cork City that

suggestion was not supported by way of any expert evidence from either Professor Thompson or Mr. Clements or from any other

witness.

“In the light of my finding that the system adopted by the hospital was not prima facie defective and that Dr. Corr was entitled to

expect the system to be operated efficiently it follows that Dr. Corr did not acquiesce or participate in a defective hospital system

for dealing with emergencies or potential emergencies during childbirth.”

He accordingly dismissed the claim as against Dr. Corr.

The trial judge then proceeded to consider the case against the hospital. Having considered in detail the inferences which he

considered could be drawn from the partogram and the CTG, he said

“... I am satisfied that while the evidence has not been able to perform the almost impossible task of establishing the precise

moment when (the plaintiff’s) heart rate dropped to 100 bpm it has established that it is unlikely that Mrs. O’Mahony achieved full

dilatation before 4.30 p.m. on the 11th May 1987 and that it was probable that she achieved full dilatation between 4.30 and 4.35

p.m. on that date. It follows that the evidence has established that [the plaintiff’s] heart rate probably dropped from 140 bpm to

100 bpm at a time which was not before 4.40 p.m. and not later than 4.45 p.m. on the 11th May 1987.

It is acknowledged on behalf of all the parties to these proceedings that [the plaintiff] was born at 5.15 p.m. on the 11th May 1987

so that the findings which I have just made leads to the conclusion that as a matter of probability [the plaintiff] was born no earlier

than thirty minutes and no later than thirty-five minutes after the moment when his heart rate first dropped from 140 bpm to 100

bpm.”

At the hearing before this court it was contended on behalf of the plaintiff that the trial judge was in error in concluding that

dilatation took place “between 4.30 and 4.35 p.m.”: it was said that the only finding he could have made was that it was 4.30 p.m.

This, however, was ultimately of no significance, since having considered the evidence, not merely of Professor Thompson and Mr.

Clements on behalf of the plaintiff but also of Dr. Boylan and Dr. Turner who had been called on behalf of the defendants, he

concluded that

“... Since I have found that the attendance of a consultant obstetrician took between seven and twelve minutes longer than the

hospital system contemplated and provided for it follows that [the plaintiff’s] delivery took a period of between seven and twelve

minutes longer than was reasonably possible after the bradycardia had been confirmed by the nursing staff.”

That finding has not been challenged on appeal by the defendants.

In the case of the hospital, however, a further issue arose which the learned trial judge defined as follows:-

“Did the hospital:-

(c) Cause or permit (the plaintiff) to develop either

(i) irreversible brain damage, or

(ii) hypoglycemia, or

(iii) a combination of brain damage and hypoglycemia as a consequence of hypoxia

(d) Fail to take appropriate steps

(i) to investigate

(ii) to monitor [the plaintiff’s] condition

(iii) to diagnose the presence of hypoglycemia within a reasonable time after his birth, and

(iv) to treat that condition either adequately or at all?”

As has already been noted, the trial judge had acceded to an application on behalf of the plaintiff on the 17th day of the trial for an

amendment of the pleadings so as to enable the case to be advanced for the first time that the condition from which the plaintiff was

now suffering was not solely the result of hypoxic ischaemic brain damage which occurred before delivery but was the result of a

condition of hypoglycemia which had not been treated adequately or at all by the hospital. When Professor Windling was recalled to

give evidence as to the conclusions that should be drawn from the MRI scan, he said that he had changed his view and was now

satisfied that the plaintiff had not suffered brain damage prior to the delivery, since the scan did not disclose damage to the area

known as “the basal ganglia”. In answer to questions from the trial judge, he said:-

“What I believe happened is the [plaintiff’s] glycogen stores became depleted during the hypoxic ischaemic stress that he was

subjected to, and that then he had no longer sufficient glucose reserves to be able to protect himself.”

He agreed with the trial judge that he did not have irreversible brain damage at that point: it happened subsequently. It could,

moreover, have been detected and dealt with by the nursing staff in the hospital but, in his opinion, had not been.

Dr. Schutte, when recalled to give his views on the new MRI scan, said that he was now satisfied that the condition from which the

plaintiff was now suffering had been caused by what he called a “cascade” of events, the pre-eclampsia condition, the hypoxic

episode and the development of hypoglycemia which had not been detected and handled appropriately.

Dr. David William Pilling, a consultant paediatric radiologist attached to the Alder Hey Hospital in Liverpool, gave evidence as to the

new MRI scan. He said there were features of the scan which suggested that there had been atrophy or shrinkage of part of the brain

underneath that area of fluid. That appearance was restricted to the part of the brain known as “the posterior parietal cortex” and

the literature suggested that this was an area that was particularly affected by the neonatal hypoglycemia. He added

“This is not to say that this is diagnostic of neonatal hypoglycemia but this area seems to be particularly affected by neonatal

hypoglycemia.”

He considered that the changes in this area were more likely to have been caused by neonatal hypoglycemia than by hypoxic

ischaemic damage but that there was no way in imaging that he could differentiate between the two.

Dr. Evans, a consultant paediatrician, also gave evidence on behalf of the plaintiff. He said that the fact that the plaintiff had been

placed in an incubator in the observation ward and was described as being pale would indicate some degree of illness or abnormality.

He also said that it would have been routine to test the blood sugar levels of the baby in order to determine whether hypoglycemia

existed, but that there were no records to indicate that this had been done. He was also of the view that the probable cause of his

present condition was depletion of his reserves of glucose during the period of bradycardia leading to the condition of hypoglycemia.

He thought that this was confirmed by the description given by the nurse to Mrs. O’Mahony of the plaintiff as “a very cranky baby”

and by the indications of irritability that he showed throughout his first few months of life.

Again, in necessarily abbreviated form, that was the expert evidence adduced on behalf of the plaintiff. The plaintiff’s case, however,

against the hospital was also based on what was claimed to be an absence of records that should have been kept by the hospital but

were either not kept or were subsequently destroyed. It is, accordingly, necessary at this point to refer to the evidence which was

before the trial judge in relation to these matters. The nature of the CTG trace which recorded the beats per minute (bpm) of the

foetal heart has already been referred to. It was not in dispute that, while the trace recording the bpm was available for nearly the

entire of the period while Mrs. O’Mahony was in labour, the trace in respect of the final twenty-six minutes was not. It was,

accordingly, not possible to reach a conclusion as to whether the episode of bradycardia continued throughout the whole of that

twenty-six minute period or whether the heart rate improved or disimproved further. As already noted, the paper on which the trace

was recorded consisted of a number of blocks separated by perforations and the evidence by the nursing staff was that it was the

usual practice when detaching the trace to tear it off at the last perforation rather than to go on to the next one, because going on

to the next one would result in a higher charge to the patient.

It was not in dispute that records relating to the plaintiff and Mrs. O’Mahony up to the time when the plaintiff was admitted to the

observation nursery had been kept. Those records indicated that the baby “cried at birth”, was of normal weight and - at 5.30 - had

a temperature of 100 and was pale. The evidence of the nurses who were on the duty in the observation unit where the plaintiff was

for the next 19 hours was that they would note down anything that seemed of any significance to them on jotters or scraps of paper

which they would shred or discard at the end of their shift. There was no system of recording the temperature of the babies in that

unit or the times at which they were fed. When the plaintiff was transferred to the postnatal ward after 19 hours, records were kept

of the feeding of the plaintiff and were available: these describe the plaintiff as at one point as “feeding fairly well” and a later point

as “feeding well”. In accordance with a normal procedure, he was examined by one of the consultant paediatricians attached to the

hospital, Dr. Seamus O’Donoghue, on the 12th May before he was discharged. That examination indicated no abnormalities.

I now turn to the evidence on behalf of the defendants. Neither Dr. Corr nor the nurses who gave evidence were able to recall twelve

years later all the details of what happened from the time Mrs. O’Mahony was admitted to the hospital until her discharge with the

plaintiff. Dr. Corr did, however, recall the delivery of the baby. Although it was necessary to effect the delivery by forceps which, it

was clear from his evidence, he considered in this case to be a delicate procedure, he recalled the baby being perfectly normal and

healthy, displaying no unusual features, and not requiring any form of resuscitation or other intervention. He said that he recalled

pointing out to the nurses that he had had to effect the delivery in what is known as the occipito posterior position owing to the

flatness of the sacrum and the hard coccyx. He said that, while he pointed this out as an interesting finding, he would not have been

engaged in that discussion if the baby was sick.

Ms. Marian Collins gave evidence that she was a registered general nurse and a registered midwife and was working on the 11th May

1987 as a staff midwife in the hospital. She said that she had no recollection of the delivery of the plaintiff but was able to identify

her writing on the partogram as indicating that she was on duty as a nurse/midwife during the labour and delivery. She said that the

procedure she would normally have followed would have been to observe the baby immediately on delivery to see whether it was well

and healthy, to place it on a receptacle called the “Ohio” in order to assess its well-being and then to record what is called the

“Apgar score”. That score was assessed approximately a minute after delivery.

The Apgar score, named after an English paediatrician, is a method of assessing a baby’s condition at birth. Professor Matthews

described it as “slightly old fashioned” but said that nobody had come up with a better way of assessing a baby’s condition at birth.

There was no disagreement with his view that the Apgar score is universally used by paediatricians.

Mrs. Collins said that the record indicated an Apgar score of “8” which, in common with other witnesses, she said was the sign of “a

very well baby”. An unwell baby would be taken immediately to the neonatal unit and would be seen by a paediatric SHO.

Evidence was also given by the nurses who were on duty in the 24-hour nursery. They said that there was a regime in that nursery

under which new-born infants were fed at 1 to 1½ hours after birth and not later than 4 hours and thereafter at 4 hourly intervals.

They said that any matter of concern to them would have resulted in the calling of the paediatrics staff. They also said that they

were trained to watch for signs of hypoglycemia and that they were fully aware of the symptoms and the consequences of a failure

to treat that condition. They also said that the plaintiff would not have been brought on a visit to his mother on the 11th May nor

transferred back to the postnatal ward on May 12th unless he was in a good condition.

Dr. O’Donoghue, who was the consultant paediatrician on duty during the week when the plaintiff was born in the hospital, had no

recollection of either the plaintiff or his mother. He said he would attach no significance to the description of the baby as pale or to

its temperature or to the fact that he was placed in an incubator in the observation ward, which he said was not at all uncommon

where a baby had been delivered by forceps and there had been some anxiety about its heart rate in the latter stages of labour. It

facilitated the more detailed observation of a baby than one which was swaddled and put in a cot. He said that if there had been any

problem with the plaintiff on delivery, he (Dr. O’Donoghue) would normally have been informed and the baby would then have been

admitted to the neonatal unit. He gave details of the form of examination which he would normally carry out on all newly delivered

babies which would include a neurological assessment of the baby. He said that if the plaintiff had suffered hypoxia of such a severity

as to cause brain damage it would have been obvious to him by the presence of encephalopathy. This would normally require

resuscitation or the use of some form of intervention by ventilation. As to hypoglycemia, he said that this would manifest itself by the

baby either rejecting or vomiting its feed and that that would result in a dextro stick test. The hypoglycemia would manifest itself in a

tremulous type of motion, which he called “jitteriness” and disturbance in respiration or apnoea, when the baby would stop breathing.

One would also expect at the very least seizure and stupor.

Dr. O’Donoghue also said that he was surprised to learn that systematic records were not being kept by the nurses on duty in the

observation unit at that time of such matters as the temperatures and feeding of the newly delivered babies. He was of the view that

such records should have been kept. Similar evidence had been given by the medical experts called on behalf of the plaintiff.

Professor Matthews said that

“If the heart rate of 60 caused massive brain damage it is impossible, and I use that word advisedly, that this baby would have no

obvious signs within a day or two of birth. He should have needed resuscitation, he should have had a low Apgar score.”

As to hypoglycemia, he said that this was very common and that there was no evidence that low blood sugar causes any long term

problems. If there had been significant brain related hypoglycemia - which is called “neuroglycopenia” - the symptoms would be coma,

convulsions and a cessation of breathing. As to the information in the records that the baby was feeding “well” or “fairly well”, he was

asked whether that was compatible with a baby who had suffered brain damage from hypoglycemia after birth. He said

“It is totally incompatible. It has never been documented in a human that you can be transiently hypoglycaemic without major

neurological signs ...”

Dr. Tolan disagreed with Professor Gabriel’s reading of the earlier scan as indicating any abnormality. As to the 1999 scan, he said it

showed “a somewhat subtle abnormality” in the form of a loss in volume of the brain. There was, however, no “signal abnormality”.

Having emphasised - as did Dr. Pilling - that he could only give his conclusions as to imaging and that a diagnosis would depend on

clinical findings by a neurologist, he said that, if he were discussing this with a clinical colleague, he would examine some other

possibilities first. He concluded as follows:-

“... Finally, I would come up with the remote possibility, because I would have been aware from my review of the literature which I

do on a regularly monthly basis, I receive x number of journals, was there any clinical evidence that this child might have sustained

neonatal hypoglycemia; not necessarily severe, but a milder form of expression of this disease in the neonatal period. That is how I

would couch my report. I would not be able to say to my clinical colleague that these changes are compatible with a singular

diagnosis of neonatal hypoglycemia.”

Dr. Mary King said that she did not think it was possible that the plaintiff suffered hypoxic ischaemic insult prior to his birth leading to

his present condition. She said there was no evidence of an acute neurological syndrome or acute brain injury to account for his

severe brain disorder. She said that in the hours after birth there were no signs of the degree of brain injury, shock or encephalopathy

that would one expect to explain his present neurological state. The record of his having progressed from feeding “fairly well” to “well”

indicated that it was impossible that he could have had any form of brain injury in the hours before he was born. As to hypoglycemia,

she also said that the symptoms of that, if not treated, would have been stupor, coma, seizures and “floppiness”.

Dr. King compared the 1993 scan with an MRI scan of a child who had suffered from severe neonatal hypoglycemia. She showed both

scans in court, saying that in the case of the plaintiff’s scan, the changes were “very, very mild” and could be described as “subtle”.

By contrast, the scan of the child who had suffered severe neonatal hypoglycemia showed very extensive changes. She said that the

latter child in fact had a milder form of cerebral palsy and had not got severe mental handicap.

Dr. King, who had examined the plaintiff, said that she was of the view that his severe mental handicap was not the result of any

physical motor incapacity: it was an intellectual problem. She said that the term “cerebral palsy” was sometimes used to denote such

conditions as well as conditions resulting from physical motor incapacity. She referred to a video of the plaintiff which had been put in

evidence at an earlier stage of the trial as confirming her view that the plaintiff had not got the form of spastic cerebral palsy or

distonic cerebral palsy which the plaintiff’s experts had suggested he was suffering from. As to its cause, she said that it was a

developmental problem, the cause of which, as commonly happened, it was not possible to identify. She said that in 30% of the cases

which paediatric neurologists saw it was not possible to say what the explanation was for their mental handicap.

In his judgment, the trial judge said that the system for recording the presence or absence of clinical signs and symptoms relevant to

the condition of the plaintiff and his mother prior to his birth was adequate and accorded with generally approved practice. The same

applied to the notes made by the nursing staff prior to labour and to the record of Mrs. O’Mahony’s labour in detail. He was also

satisfied that the system in use for recording the condition and treatment of neonates required to be formally admitted either to the

neonatal unit or the intensive care unit of the hospital by reason of illness was satisfactory and in accordance with general and

approved practice. (I think that the reference to the “intensive care unit” may be slightly misleading in that context: as already

noted, in the case of neonates, the intensive care unit was part of the neonatal unit.) He was also satisfied that the system for

recording the condition of and treatment afforded to new-born babies who were admitted routinely to the postnatal unit was broadly

acceptable and accorded with appropriate medical practice in 1987.

Having said that the system in use in the hospital in 1987 for the recording of medication prescribed for and given to mothers and

infants was “inadequate and insufficient”, he went on

“Of greater relevance I am satisfied that in 1987 the hospital system for recording the condition and treatment of neonates

immediately after birth was wholly inadequate and did not accord with proper and appropriate medical practise in that respect.

“The medical evidence adduced in this case has established that neonates require careful observation and monitoring during the

hours immediately after birth. It established further that good medical practise required that such monitoring and observations

should be recorded with particular reference to the infant’s heart and respiratory rates together with bowel movements, the

passing of urine and meconium and exposure to and tolerance of feeding.”

Having referred to the system already mentioned of the use of jotters and loose leaf papers, he said that the hospital system for

recording the condition and treatment of mothers and their new-born infants

“was inadequate and unsatisfactory in respect of the period whilst neonates were confined to the 24 hour nursery. Although that

period, in respect of most healthy neonates extended for no more than a few hours, in (the plaintiff’s) case (for reasons already

identified) it had extended for a period of 19 hours. Accordingly, by reason of this defect or gap within the hospital’s recording

system (the plaintiff’s) condition during the first 19 hours of his life and the various features associated with it are and remain

unrecorded.”

I do not think that the last sentence should be read literally. As already noted, there was a written record, which was clearly of

considerable significance, as to the first few minutes of the plaintiff’s life.

The trial judge dealt with the issue of the hospital’s liability under two headings. The first was as to whether the evidence established

that the plaintiff’s present condition was caused by irreversible brain damage sustained as a consequence of hypoxia. His conclusion

was as follows:-

“Having considered all of the evidence which has been adduced in relation to this issue I have concluded that (the plaintiff) has not

discharged the onus of proof on the balance of probability that his present condition was caused by reason of irreversible brain

damage sustained as a consequence of a hypoxic ischaemic insult during the thirty minutes or so immediately prior to his birth.”

He identified the second issue as being as to whether the brain damage was a consequence of (1) hypoglycemia or (2) a combination

of hypoglycemia and hypoxic ischaemic insult. He summed up his conclusions on this issue as follows:

“I am further satisfied that the evidence adduced at the trial of this action has not supported the proposition or established as a

probability that (i) (the plaintiff) developed hypoglycemia in the hours immediately after birth which gave rise to his current

profound disability but (ii) that he demonstrated none of the unsubtle symptoms associated with severe brain damage caused by

hypoglycemia.

“It is of particular significance that no adequate explanation has been offered by any of the expert medical witnesses as to how (the

plaintiff) could conceivably have developed hypoglycemia within the first six hours or thereabouts after birth of such severity and

duration as to cause his present disability and thereafter have recovered from that condition spontaneously and entirely without

medical intervention so that when returned to his mother (and the postnatal unit) shortly after midday on the day after his birth he

was in apparent good health and was noted to be feeding initially ‘fairly well’ and subsequently ‘well’. The expert witnesses who

testified on behalf of the hospital were unanimous and unequivocal in their view that such a recovery was ‘impossible’ whilst neither

Professor Windling nor Dr. Evans nor Dr. Schutte could account for this apparent anomaly.

“Subtle evidence of volume or abnormality has been discovered in an area of (the plaintiff’s) brain (the posterior parietal region)

which is associated with brain damage caused by hypoglycemia. It is argued that since all credible causes which could account for

(the plaintiff’s) disability, other than brain damage caused by hypoglycemia, have been out ruled in evidence it must follow on the

balance of probabilities that (the plaintiff’s) disability has been caused by hypoglycemia which in turn must of necessity [have] been

caused by reason of inadequate nursing care immediately after his birth.

“I cannot conscientiously accept that argument. Dr. King has adduced evidence buttressed by three separate epidemiological

studies which provide authority for the proposition that between 33% and 40% of children with severe mental handicap cannot be

diagnosed as to the probable cause of their condition. Professor Gabriel’s opinion to the contrary is unsupported by any medical

literature or case studies.”

He also said

“If (the plaintiff) developed hypoglycemia during the six hours or so immediately after his birth then he did so by reason of grossly

inadequate care and monitoring on the part of one or other or both of the neonatal nurses to whom he was entrusted during that

period and thereafter. I have already given reasons why I believe that it is unlikely that (the plaintiff) was treated (or rather

neglected) in that way.

“Careful consideration of the conflicting evidence as to the cause of (the plaintiff's) present disability has not altered my view. It has

not been established on (the plaintiff’s ) behalf in this case on the evidence and on the balance of probabilities that his disability has

been caused because he developed hypoglycemia by reason of inadequate nursing and monitoring within the ‘24-hour nursery’ during

the hours after his birth.”

He summed up his findings as follows:-

“In two respects namely (1) a delay in (the plaintiff’s) delivery by a period [of] between 7 and 12 minutes longer than was

reasonably possible and (2) by reason of inadequate nursing records within the ‘24-hour nursery’ the hospital’s systems and

procedures have been found wanting. However the evidence adduced at the trial of this action has not established on the balance of

probabilities that either of those two departures by the hospital from what would be a requisite standard of care (or a general and

approved practice with another comparable hospital) has caused or contributed to (the plaintiff’s) present disability.”

While the notice of appeal served on behalf of the plaintiff challenged a number of the findings made by the trial judge, it was

obviously the case that, if the conclusion reached by the trial judge that the two departures by the hospital from what he considered

to be a requisite standard of care had not caused or contributed to the plaintiff’s present disability could not be set aside by this

court in the exercise of its appellate function, the appeal against the dismissal of the plaintiff’s claim against the hospital would

inevitably fail. It was, moreover, properly and inevitably conceded by Mr. Hickey on behalf of the plaintiff that there was credible

evidence to support those findings and that, if the principles laid down in a number of decisions as to the court’s function in reviewing

findings of fact were applicable, that result would follow. The principles were explained as follows by O’Higgins C.J. in Northern Bank

Finance .v. Charleton (1979) IR 149 as follows:-

“A judge’s findings on fact can and will be reviewed on appeal. Such findings will be subjected to the normal tests as to whether they

are supported by the evidence given at the trial. If such findings are firmly based on the sworn testimony of witnesses seen and

heard and accepted by the judge, then the court of appeal, recognising this to be the area of credibility will not interfere. However,

if the finding in question depends on the judge’s view of the evidence or on inferences he draws from such evidence, then the court

of appeal, while respecting this view, will nevertheless disagree if another view or a different inference be the proper one.”

In the present case, the trial judge heard evidence from a number of expert witnesses for the defendants which, if accepted by him,

would lead inevitably to the dismissal of the plaintiff’s claim. It was entirely a matter for the trial judge, having seen and heard all the

witnesses who gave evidence at this lengthy trial both for the plaintiff and for the defendants, to determine which evidence he found

credible and which he did not. Those are findings which, generally speaking, an appellate court cannot set aside.

So far as the evidence of Dr. Mary King was concerned, it was urged on behalf of the plaintiff that the trial judge was in error in

allowing her to refer to the MRI scan of one of her patients, on the ground that it had not been put to the plaintiff’s witnesses, and

to the video of the plaintiff. I am satisfied that there is no substance in either of these objections, which were not in fact raised at

the trial. Dr. King, as an expert, was fully entitled to assist the court as she thought appropriate by producing a comparable MRI scan

in order to indicate the different degrees of brain damage to which she was referring. As to the video, that was introduced into

evidence by counsel on behalf of the plaintiff and thereafter any other witness was entitled to refer to it if it was relevant to the

evidence he or she was giving. It was also urged that her view that the plaintiff’s current disability was developmental in origin had

not been put to the plaintiff’s experts. I am again satisfied that there is no substance in this contention: counsel for the defendants

made it clear to the plaintiff’s witnesses that that would be the evidence on behalf of the defendants and they had, in my view, a

reasonable opportunity of responding to it.

Counsel for the plaintiff sought to rely on the apparently insurmountable difficulties presented by findings made by the trial judge

which were based on credible evidence by invoking the maxim omnia praesumunter contra spoliatorem, literally translated as

“everything is presumed against a wrongdoer”. Mr. Hickey submitted that the application of the principle in the present case meant

that what he described as the destruction or suppression by the hospital of relevant records had as its necessary consequence an

obligation on the trial judge to disregard in its entirety the evidence adduced on behalf of the second named defendants. When

replying to the submissions on behalf of the defendants, he somewhat modified that startling proposition by saying that, at the least,

the application of the maxim in the present case necessarily entailed a shift in the onus of proof and that, as the trial judge had

clearly treated the onus of proof as remaining at all times on the plaintiff, his order should be set aside and a retrial ordered. I am

satisfied that in either form the submission is wholly unsustainable.

The maxim relied on is certainly of ancient origin and it is somewhat surprising that it has escaped the attention of the editors of two

leading English text books, Phipson on Evidence and Cross on Evidence. It is stated in Halsbury’s Laws of England, 4th Edition, Vol. 17,

para. 120, under the heading “Unexplained Circumstances and Suppression of Evidence” as follows:-

“As between an innocent and a guilty party, unexplained circumstances are presumed unfavourably to the wrongdoer. Thus a person

who, having converted property, refuses to produce it so that its exact value may be known, is liable for the greatest value such an

article could have; and an unfavourable inference will be drawn in the case of one who destroys or suppresses, or fails to produce,

evidence, or who declines to give evidence in support of his case, even though he is in court.”

While the rule was referred to as long ago as 1680 in Lewis .v. Lewis Cas. Temp. Finch 471, Mr. Hickey relied on the statement of it in

two more modern cases, Williamson .v. Rover Cycle Company (1901) 2 IR 615, and The Ophelia (1916) 2 AC 206.

In the first of these cases, the plaintiff had purchased a bicycle from an agent of the defendant company. A fracture having occurred

at the top of the steering post, the plaintiff sued for damages relying on representations alleged to have been made by the agent, an

implied warranty under the Sale of Goods Act, 1893 s. 14 and an express guarantee alleged to have been contained in the

defendant’s catalogue. After the accident the plaintiff had the break examined by experts and then sent it to the company “for

inspection”. The company replaced the broken parts and threw the broken pieces away. At the trial the evidence went to show that

the break was a “clean” one and not the result of a flaw or defect in materials or workmanship. The jury, however, found everything

in favour of the plaintiff. A motion for a new trial having come before the Queen’s Bench Division, it was held by the majority (Madden

and Kenny JJ.) inter alia that the loss and non-production of the broken pieces by the defendants did not, under the circumstances

(as the plaintiff’s experts had seen the pieces) make the defendants spoliatores against whom omnia praesumenda or shift upon them

the burden of proof and that a verdict should have been directed for the defendants. Palles CB, dissenting, held that the defendants

were spoliatores, even assuming the broken pieces to have been lost inadvertently because the loss was, as against the plaintiff,

wrongful, and because that which was lost might reasonably with the other evidence (the fact of the break) have been sufficient to

support the plaintiff’s case.

The decision of the majority was unanimously affirmed by the Court of Appeal (Lord Ashbourne C. and Fitzgibbon, Walker and Holmes

JJ.)

Although the majority in the Queen’s Bench Division and all the judges in the Court of Appeal agreed with the Lord Chief Baron that

the maxim could be applicable even where the destruction of evidence was bona fide, he was alone in his view that the destruction of

the evidence was sufficient of itself to shift the burden of proof in the case to the defendants. Fitzgibbon L.J. in the course of his

judgment said:-

“I do not differ from the Chief Baron, either as to his statement of the law, or to its applicability, as stated, to the present case. But

making every reasonable presumption against the defendants, and even assuming them to be ‘spoliatores’ - though I am not

prepared to say that they were - I cannot find any affirmative evidence against them sufficient to maintain the verdict for the

plaintiff. Agreeing with all the other judges - including the Chief Baron - that the evidence, apart from the ‘spoliation’ of the broken

pieces of the machine, was insufficient, I cannot add anything to that evidence merely because the fragments were not

forthcoming at the trial, having regard to what was proved about them.”

The second of these authorities arose from the seizure as a prize of a German hospital ship encountered in the North Sea during the

Great War by a British squadron. The issue was as to whether the sending by a hospital ship of a wireless message in secret code of

itself subjected her to capture and condemnation. The evidence was that the captain had thrown a number of documents overboard,

many of which, he said, contained absolutely innocent messages. The matter having come before the Privy Council by way of appeal

from the judgment of the prize court condemning the ship as a lawful prize, Sir Arthur Channell, delivering the judgment of the Privy

Council, said in reference to the maxim under discussion:-

“The substance of it, however, remains and is as forcible now as ever, and it is applicable, not merely in prize cases, but to almost

all kinds of disputes. If anyone by a deliberate act destroys a document which, according to what its contents may have been,

would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it

would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention

to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the

corroboration which might have been expected in his case.”

In the present case, the maxim is said to apply to the non-availability of the paper which recorded the bpm in the last twenty-six

minutes prior to delivery. There is nothing to indicate that a trace which had been taken was in fact destroyed by the defendants,

but, altogether apart from that consideration, the maxim is clearly of no relevance. The trace, if it had been available, might have

shown that the condition of bradycardia continued, and even intensified, up to the time of delivery. Alternatively, it might have shown

that it settled down. Since, however, the defendants’ case, supported, as it obviously was, by credible evidence, was that if the

episode of bradycardia had led to hypoxia, the baby could not possibly have presented the normal and healthy appearance which it

did, of which Dr. Corr gave evidence and which was also borne out by the nurse midwife’s record of the baby having cried on delivery,

the missing trace would not have been in any way critical to the issue which had to be resolved. As to the destruction of whatever

records were kept by the nurses in the 24-hour observation nursery, there is no evidence of any records of the baby’s feeds having

been taken or of any abnormal symptoms which the baby was displaying. The criticism, indeed, of the hospital system of record-

keeping, accepted by the trial judge, was that routine records were not kept by the nurses in the observation nursery and there was

no evidence whatever of any written records recording anything in relation to the plaintiff ever having existed in the case of the

observation nursery. I am satisfied, accordingly, that the maxim had no application whatever in the present case.

The maxim is intended to ensure that no party to litigation, be they plaintiff or defendant, is subjected to a disadvantage in the

presentation of his or her case because his or her opponent had acted wrongly by destroying or suppressing evidence. Its application

will, accordingly, as the two authorities cited demonstrate, depend entirely on the circumstances of the particular case in which it is

invoked. Not surprisingly, there is no authority for the proposition that it could be invoked so as to produce a clear injustice, i.e. an

obligation on a court of trial to disregard the weight of the evidence which it has heard because some of the documents, although of

no significance in the outcome of the case have been, for no sinister reason, mislaid or destroyed or because some documents never

existed in the first place.

As to the appeal in the case of Dr. Corr, it is clear that this would have met the same fate, even if an allegation of a want of

reasonable care had been established against him, since again no causative link was established between the alleged want of care on

his part and the present condition of the plaintiff.

However, apart from that consideration, I am satisfied that the finding by the trial judge that there had been no want of care on his

part was fully borne out by the evidence. It was not in dispute that, at the time that he was informed that Mrs. O’Mahony had

reached full dilatation, there was no emergency and that the episode of bradycardia began after Dr. Corr had received that

information and had left for the hospital. It was also not in dispute that on arrival he ensured that the plaintiff was delivered as

quickly and skilfully as possible. As to the claim that he participated in a system which, because it did not allow for the presence of

senior obstetrical staff at the appropriate time was unsafe, there was credible evidence from both the plaintiff’s and the defendant’s

experts that the system in place was reasonable and that the delay in the present case was simply the malfunctioning of a system

which normally operated satisfactorily. I am also satisfied that the refusal by the trial judge to allow the amendment of the pleadings

as against Dr. Corr was a perfectly reasonable exercise by him of his discretion and that there is not the slightest ground to suppose

that it resulted in any injustice in this case.

There is one other matter to which I wish to draw attention. The transcript of the proceedings in the High Court consisting of 46

volumes was lodged with the Books of Appeal in this case. These included the evidence of witnesses relating exclusively to the issue

of damages which did not arise in any way on the appeal together with records of counsel’s submissions on various matters. At a

conservative estimate, the amount of superfluous material with which the court was thus burdened constituted approximately 17% of

the transcript. It should have taken a competent solicitor and/or junior counsel a matter of minutes to remove this entirely

superfluous material from the transcript. I have also not the slightest doubt that, while it might have taken somewhat longer, it would

have been perfectly possible for counsel and solicitors on both sides to have agreed on a heavily abridged version of even those parts

of the transcript which related exclusively to liability, thereby additionally easing the burden on the court.

This court will shortly begin an examination of proposals for the management of cases coming by way of appeal to the court so that

they can be heard in the most expeditious, efficient and economical manner consistent with the achievement of justice. Clearly, the

co-operation of the professions will be essential in that process. In the meantime, I would urge practitioners, in cases such as the

present, to ensure that the task of the court in cases of this nature is not rendered unnecessarily difficult by the lodgement of wholly

irrelevant material.

I would dismiss the appeal and would affirm the judgment and order of the High Court. I would make no order on the notice to vary.