Tulley (A Minor) v Wirral Hospitals NHS Trust

In a clinical negligence claim, the claimant must prove on the balance of probabilities that the alleged breach caused the injury. Where liability depends on disputed historical timings, the court must assess the whole evidential picture, including contemporaneous records, witness reliability, inherent probabilities and the effects of delay and distress on recollection. A perception of delay does not establish negligent delay. The court found that hospital and ambulance staff responded promptly to the reported cord prolapse. The claimant’s witnesses had conflated the time spent waiting for the second ambulance and subsequent transfer with the earlier response period. Causation and breach were therefore not established.

The claimant, a child, sought damages for cerebral palsy and related losses allegedly caused by negligent management of his mother following a prolapse of the umbilical cord shortly before his birth in November 1995. Liability and causation were tried separately from quantum.

The central issue was the timing of the telephone call reporting the prolapse and whether there had been an avoidable delay by either defendant before the ambulance and obstetric Flying Squad attended. The defendants accepted that a delay of the alleged magnitude would have involved negligence, but disputed the claimant’s chronology.

1. Evidence and timing. The ambulance record was accepted as an accurate contemporaneous record of the mobilisation and arrival times. The court inferred that the hospital call to ambulance control was made at about 10:47 pm and that the call reporting the prolapse was made at about 10:40 pm, not at about 10:10 pm. The Flying Squad logbook’s rounded timings were consistent with that conclusion.
2. Witness reliability. The claimant’s witnesses were not found to be dishonest, but their recollections were materially affected by the passage of more than 12 years, the distress of the events and later discussions about the claimant’s disabilities. Their estimates were mutually inconsistent. The court found that they had conflated the period before the first ambulance arrived with the further wait for the Flying Squad, the transfer from the house and the journey to hospital.
3. Breach. The maternity staff recognised cord prolapse as an obstetric emergency and acted promptly to mobilise the Flying Squad. The ambulance service also acted promptly after receiving the request. The court rejected the suggested explanations involving an unexplained failure to pass on the emergency call or a concealed delay.
4. Third call and subsequent delay. A telephone call from the house at 10:54 pm probably concerned the wait for the second ambulance. It did not establish negligent delay in responding to the original emergency call. The treatment after arrival at hospital was accepted to have been prompt and appropriate.
5. Disposition. Neither defendant was negligent. The alleged breach and causation were not proved on the balance of probabilities. The claim failed, and judgment was entered for both defendants.