Baynham v Royal Wolverhampton Hospitals NHS Trust

On appeal, assessment of competing expert evidence is ordinarily for the trial judge. Intervention is justified where the judge misunderstood the evidence or reached a conclusion not open on it; reasonable disagreement or evolving expert analyses is insufficient. A judge may rely on medical factors supported by expert evidence and need not resolve subsidiary theories that do not affect causation. A fresh-evidence application under the Civil Procedure Rules rule 52.11(2) is guided, though not controlled, by Ladd v Marshall [1954] 1 WLR 1489. The evidence must probably have an important influence on the result. Post-trial misconduct by an expert, unrelated to the trial evidence or appeal grounds, does not satisfy that requirement.

The claimant, born at approximately 28 weeks following a placental abruption, developed cerebral palsy, learning difficulties and epilepsy. She claimed that a negligent delay of about 30 minutes in carrying out an emergency Caesarean section caused or materially contributed to her injuries.

After a three-week trial, Mr Justice Goss preferred the defendant’s expert evidence and dismissed the claim on 14 November 2014. The appeal challenged the assessment of the expert evidence, the significance of changes and inconsistencies in the parties’ cases, several medical factors, and the judge’s conclusion that a single reperfusion pathology explained the injuries. The claimant also sought to adduce evidence concerning a defendant’s expert’s post-trial cocaine offence. The central issue was whether the judge’s causation findings were open on the evidence.

Disposition. Lord Justice Jackson gave the judgment, with Lady Justice Black and Lady Justice Gloster agreeing. The appeal was dismissed, and the application to adduce fresh evidence was refused.

1. The fresh-evidence application fell to be considered under rule 52.11(2) of the Civil Procedure Rules. The guidance in Ladd v Marshall [1954] 1 WLR 1489 was relevant but not binding. The claimant failed by a wide margin to satisfy the second limb, because evidence of the expert’s cocaine offence, occurring after the trial, would not probably have had an important influence on the result. It did not bear on the quality of his trial evidence or on any ground of appeal.
2. An appellate court may intervene if a trial judge misunderstood expert evidence or made findings which were not open on it. The assessment of the quality, expertise and reliability of expert witnesses is ordinarily within the trial judge’s province, particularly where the judge heard their oral evidence over several days. There was no serious or obvious error in the judge’s assessment.
3. The claimant’s case and the experts’ thinking had evolved during the litigation. That development should not itself count against the expert evidence. The judge’s failure to mention the evolution of the defence case did not undermine his analysis, since he was assessing the competing opinions given at trial.
4. The judge was entitled to disregard subsidiary matters which were immaterial to the causation issue. The possible uterine spasm was speculative and non-critical. The precise timing or trigger of reperfusion was likewise immaterial where the experts agreed that reperfusion occurred within two days of birth and resulted from the earlier abruption.
5. The stable fetal heart rate, absence of microcephaly or significant renal impairment, marked asymmetry, and stable neonatal blood pressure were all factors which the judge was entitled to consider in evaluating the competing causation hypotheses. The finding that bilateral intraventricular haemorrhages constituted reperfusion injuries was open on the evidence. The Court of Appeal would not reweigh the complex expert and medical material merely because legitimate arguments existed on both sides.

1. Court of Appeal (Civil Division) — [2016] EWCA Civ 1249: appeal dismissed; application to adduce fresh evidence refused.
2. High Court, Queen’s Bench Division — Mr Justice Goss dismissed the negligence claim on 14 November 2014, holding that the 30-minute delay had not caused or contributed to the claimant’s injuries.