Evans v Birmingham & the Black Country Strategic Health Authority

In a clinical negligence appeal, the claimant must establish on the balance of probabilities that the breach caused or materially contributed to the injury. An appellate court should not interfere with a trial judge’s assessment of causation where the judge evaluated the expert evidence, preferred particular witnesses, and gave clear reasons for the conclusion reached. The fact that another inference may be arguable is insufficient. Here, the admitted failure to reduce the Syntocinon infusion was not shown to have materially eroded foetal reserves or contributed to the brain damage. The evidence supported the trial judge’s conclusion that the damage resulted from a sudden umbilical cord event associated with the attempted use of forceps.

The appellant suffered serious cerebral palsy following her birth at Birmingham Maternity Hospital. She claimed that negligent management of labour caused the cerebral injury, relying principally on delayed delivery and excessive administration of Syntocinon.

The trial judge found a breach of duty in failing to reduce the Syntocinon infusion, but held that the breach had not caused or materially contributed to the injury. He rejected the delayed-delivery case, and the appellant appealed only on causation. The central issue was whether the evidence required a finding that the excess contractions had depleted foetal reserves and contributed to the later hypoxic event.

The appeal was dismissed unanimously. The Court of Appeal held that the trial judge was entitled to reject the appellant’s causation case.

1. Appellate approach. The appeal could succeed only if the judge was not entitled, on the material before him, to accept the evidence of the respondent’s experts and reach his conclusion. The appellate court should not substitute its own assessment for that of a trial judge who had seen and evaluated the witnesses, particularly where the judgment gave full and clear reasons.
2. Effect of the admitted breach. The failure to reduce the Syntocinon infusion was a breach of duty, but the appellant still had to prove that it caused or materially contributed to the injury. The judge was entitled to find that the additional contractions had not significantly eroded foetal reserves. The normal foetal blood-sample pH at 23.38 hours was important evidence supporting that conclusion. Any uncertainty about the number of contractions during an unrecorded period did not undermine the judge’s ultimate finding.
3. Alternative cause. The judge was entitled to conclude that the damaging hypoxia began with profound bradycardia and that the period of hypoxia was sufficient to account for the brain damage, whatever the earlier state of the foetal reserves. He preferred the evidence that the injury was caused solely by occlusion of the umbilical cord associated with the attempted application of a Kielland forceps blade. The temporal connection between the forceps procedure and the collapse in foetal heart rate supported that conclusion.
4. Disposition. The criticisms of the judge’s treatment of the unexplained contraction period, the tachycardia after the blood sample, and the timing of the forceps procedure did not show a material error in his reasoning or witness assessment. The appeal was dismissed.

• Court of Appeal (Civil Division): appeal dismissed; [2007] EWCA Civ 1300.
• HH Judge Oliver-Jones QC: on preliminary issues, found breach of duty but held that it had not caused or materially contributed to the appellant’s condition. Judgment dated 8 February 2007.