Sutcliffe v Aintree Hospitals NHS Trust

In a clinical-negligence claim, breach and causation may be inferred on the balance of probabilities from factual and expert evidence establishing contamination and a mechanism inconsistent with proper procedures, even though the precise lapse cannot be identified. Such reasoning is distinct from using res ipsa loquitur as an automatic solution in a complex medical case. An appellate court should not disturb factual findings where the trial judge relied on evidence which he was entitled to accept, including expert evidence revised after the expert had heard the evidence.

The appellant employer challenged a liability judgment following a caesarean section involving spinal anaesthesia. The claimant developed chronic adhesive arachnoiditis. After a liability-only trial, Mr Justice Irwin found that the condition was probably caused by chlorhexidine contaminating the spinal anaesthetic through liquid-to-liquid contact, resulting from a breach of duty by one of the clinicians involved.

The appeal alleged that the findings were unsupported because the precise breach and mechanism had not been identified. It also alleged that the judge had effectively relied on res ipsa loquitur. The central issue was whether the findings were properly open on the evidence.

1. Appeal dismissed. Latham LJ delivered the judgment, with Longmore LJ and Buxton LJ agreeing. The liability judgment in favour of the claimant was upheld.
2. The trial judge was entitled to accept Professor Pollard’s evidence that contamination was probable. Professor Pollard had initially been unable to express that opinion, but experiments conducted during the trial and the evidence as a whole led him to revise his view. The judge was entitled to rely on the revised evidence, notwithstanding its difference from the expert’s earlier position.
3. The factual findings were properly supported. The evidence established that contamination was probably caused by chlorhexidine, that the contaminant was present in a measurable quantity, and that liquid-to-liquid contact had occurred. The procedures adopted by the clinicians were specifically designed to prevent that contact. Those findings justified the conclusion that a breach of duty had occurred, although the precise lapse could not be identified.
4. The appellant’s argument that the necessary contamination required gross clumsiness was rejected. The judge had assessed the clinicians as generally conscientious and competent, but was entitled to find that a lapse had occurred on this occasion. There was no proper basis for appellate interference with those findings of fact.
5. The judge had not treated res ipsa loquitur as an easy answer. He had considered Radcliff v Plymouth and Torbay Hospital and Another [1998] Lloyds Law Reports Medical 162 and Delaney v Southmead Health Authority (1995) 6MLR 355, and had properly directed himself that the doctrine could not itself resolve a complex case. His conclusion rested on the factual and expert evidence.

1. Court of Appeal (Civil Division): On appeal from the Queen’s Bench Division, dismissed the appeal and upheld the liability judgment under [2008] EWCA Civ 179.
2. Queen’s Bench Division: Mr Justice Irwin conducted a trial limited to liability and entered judgment for the claimant. The lower court case number was U20070036.