Miah v Birmingham and the Black Country Strategic Health Authority

In an appeal against a trial judge’s factual finding in a medical-negligence claim, the Court of Appeal must evaluate the competing expert evidence and records. It is not confined to asking whether that evidence compels a different conclusion merely because the trial judge saw the witness. The trial judge may assess both the reliability of a witness’s recollection and whether the witness was the sort of person likely to have missed the condition alleged. Where the expert evidence is inconclusive and the finding is reasonably open on the whole evidence, including the judge’s assessment of the witness, an appellate court should not interfere.

The appellant, who suffered severe athetoid cerebral palsy, alleged that negligent failure to detect a prolapsed umbilical cord during his mother’s labour caused his brain damage. The critical factual issue was whether the cord had prolapsed before or during the midwife’s vaginal examination at about 13.20, or only afterwards.

His Honour Judge MacDuff QC, sitting as a High Court judge, found that the prolapse occurred after the examination and rejected the allegation of negligence. The appellant appealed, challenging the assessment of the expert evidence, the midwife’s recollection and the judge’s reliance on her credibility. The central issue was whether the judge’s factual conclusion was one with which the Court of Appeal could properly interfere.

The appeal was dismissed. Lord Justice Waller delivered the judgment, with Lord Justice Tuckey and Lord Justice Jacob agreeing.

1. The Court of Appeal rejected the submission that, once the trial judge had formed a favourable view of the midwife, intervention was possible only if the expert evidence compelled the opposite conclusion. The judge had to weigh the probabilities by reference to the competing expert evidence and the available records, as well as the witness evidence.

2. The expert evidence did not establish conclusively that the cord had prolapsed by 13.20. The statistics relied on by one expert from the Murphy and Mackenzie paper were misplaced and, at most, neutral. The more important clinical reasoning, based on the baby’s condition at birth and the timing of the hypoxia, remained capable of supporting a later prolapse. It was also accepted that a cord could pass an engaged head, although the possibility was disputed as to likelihood.

3. The judge was entitled to consider not only whether the midwife accurately remembered events twenty-five years earlier, but also whether she was the sort of person who would have missed a prolapsed cord of the size alleged. On the evidence, he was entitled to regard such a failure as gross negligence and to conclude that she would not have missed it.

4. The finding that the prolapse occurred after the examination was plainly open to the trial judge. The Court of Appeal therefore could not interfere with it, and the appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal.
• High Court, Queen’s Bench Division, Birmingham District Registry: His Honour Judge MacDuff QC, sitting as a High Court judge, found that the cord prolapsed after the midwife’s examination and rejected the allegation of negligence.