On 12 February 2016, the Outer House of the Court of Session handed down the judgement of Jill Clark v Greater Glasgow Health Board . In this case, the Pursuer was unsuccessful.
The allegations can be summarised as being that the oxygen supply to Ms Clark’s brain in utero was impaired because of her mother’s womb rupturing and that the rupture happened due to the negligent management of the labour by midwives and doctors.
The Pursuer was suing for the sum of £15 million with interest.
Evidence and submissions were heard over 21 days. Sometime after the proof had concluded, the pursuer’s solicitors emailed the Judge’s Clerk to request that the Judgement not be completed pending an application to amend the pursuer’s case. The pursuer wished to add a case of negligent failure on the part of the medical staff to advise the pursuer’s mother of the risks of a uterine rupture during birth after caesarean section. Not surprisingly the motion was opposed and ultimately refused by the judge, Lord Stewart.
A significant part of this case involved factual evidence presented by many witnesses including the pursuer’s parents, Valerie and Joseph Clark, as well as members of the medical team involved in the birth of the pursuer back in March 1992. Both sides did, of course, have several skilled witnesses appearing on their behalf.
Whilst the judgement is fairly extensive which one would expect given the wealth of evidence presented to the court, ultimately it came down to a battle of the experts! The key part of the judgement is to be found at paragraph 18 out of a total number of 133 paragraphs! That is a very well crafted and succinct summary of Lord Stewart’s impression of the various skilled witnesses. It details the balancing act required to be performed by a judge when considering complex expert evidence. Whist the evidence given is clearly very important almost of equal standing are the qualifications of the skilled witnesses, their practical experience and the manner of the presentation of their evidence to the court. In this case it clearly was not an easy process and could have gone either way.
On this occasion, the pursuer (and her experts) were unsuccessful in persuading the judge of their point of view. Perhaps if any lesson can be learnt from this case, it lies in paragraph 18, i.e. one way of pushing the scales in your favour is to ensure that your expert is more qualified and has greater practical experience of the matter at hand than those skilled witnesses appearing for the other side. In clinical negligence cases the ‘battle of the experts’ is often what it’s all about! So, having the support of an expert who is the best in his or her field is a very good starting point!