Popple (A Child) v Birmingham Women's NHS Foundation Trust

Where medical science cannot identify whether negligence was the sole cause of an injury, but establishes that it made a contribution which was more than negligible, the modified but for test applies and the claimant succeeds. A court may find a perinatal injury occurred immediately before birth where unreliable fetal monitoring cannot exclude the necessary bradycardia and the expert evidence identifies that timing as probable.

An appellate court will not overturn a trial judge’s factual conclusions where they were supported by ample evidence. An isolated imprecise reference to an expert’s evidence is immaterial when the judgment, read as a whole, shows that the judge correctly understood and applied that evidence.

The claimant suffered severe cerebral palsy after an asphyxial injury during labour. He alleged negligent monitoring of the fetal heart rate and contractions, and a failure to expedite delivery by episiotomy or obstetric intervention.

After a nine-day trial, the High Court held the Trust liable. It found that the monitoring was inadequate, that the injury was sustained in the 15 to 20 minutes before birth, and that an episiotomy should have enabled delivery before injury occurred.

The Trust appealed on factual causation. It contended that the injury occurred earlier, that the CTG trace excluded the necessary prolonged bradycardia, and that an earlier delivery could not have been achieved in time.

1. Appeal dismissed unanimously. Lord Justice Ward, with whom Lord Justice Longmore and Lord Justice Richards agreed, held that the trial judge’s findings were fully open to him on the evidence.

2. The trial judge was entitled to accept the clinical consensus that the CTG after 14.20 was fragmentary, unreliable and clinically uninterpretable. It could not reliably exclude the fetal bradycardia necessary for an acute profound hypoxic injury in the 15 to 20 minutes before birth. The expert evidence identified that period as the probable time of injury. The alternative remote-injury hypothesis lacked evidential support, including evidence of the vigorous ventilation required to explain the prolonged delay before the child first breathed.

3. The judge’s literal statement that Dr Rennie had considered the CTG evidence herself was inaccurate. Read in context, however, the judgment showed that he understood that her causation opinion was conditional on his factual finding about the CTG. The error was immaterial because the finding was independently supported by the other evidence and by Dr Rennie’s analysis of the competing causal explanations.

4. The latest safe delivery time was 14.44. Medical science could not identify a single point within the five-minute range in which irreversible damage began. It was therefore wrong to select its midpoint. Delivery by 14.44 would either have prevented all injury or necessarily prevented damage during the final five minutes. Applying Bailey v Ministry of Defence [2008] EWCA Civ 883, that contribution was more than negligible and satisfied the modified but for test.

5. The evidence supported the finding that, had the midwives properly appreciated the position, an episiotomy should have been performed by 14.35 and delivery achieved before 14.39. An episiotomy could be effective before crowning where the fetal head was distending the perineum and the combined circumstances called for intervention. In any event, a failure to deliver by 14.44 materially contributed to the injury.

• Court of Appeal (Civil Division): Dismissed the Trust’s appeal and upheld the finding of liability: [2012] EWCA Civ 1628.

• High Court, Queen’s Bench Division: His Honour Judge Oliver-Jones QC, sitting as a judge of the High Court, held the Trust liable and entered judgment for the claimant.