Palmer v Portsmouth Hospitals NHS Trust

In a clinical negligence claim involving an omission, causation is ordinarily determined by asking what would probably have happened if the omitted act had occurred. The Bolam standard is relevant to the hypothetical only where the claimant must prove a further act of negligence in the counterfactual scenario. It is unnecessary where the evidence establishes that proper action would probably have avoided the injury. A claimant must prove the counterfactual outcome on the balance of probabilities; showing that an earlier intervention was merely possible is insufficient.

The claimant suffered cerebral palsy following birth asphyxia at the defendant’s hospital. The Trust conceded that medical assistance should have been summoned earlier during labour. The remaining issues were whether the second on-call registrar was available and would have attended, and whether delivery would probably have occurred by the time necessary to avoid injury.

The claim was tried on liability only. The central dispute concerned the application of Bolitho to the hypothetical causation question.

1. Breach and availability. The Trust had breached its duty by failing to summon medical assistance when the claimant’s mother was moved to the delivery room. On the balance of probabilities, the second on-call gynaecological registrar was available but was not called. The court made no finding that the failure to call him was itself negligent, because that issue had not been argued.
2. The causation test. In an omission case, the primary question is factual: what would have happened if the omitted act had occurred? As explained through Bolitho v City and Hackney Health Authority [1998] AC 232, the Bolam test has no relevance to that factual inquiry. A further Bolam question arises only where the claimant must establish a continuing or secondary negligent act in the counterfactual scenario. The approach was consistent with Joyce v Merton, Sutton and Wandsworth Health Authority [1996] 7 Med LR 01 and Gouldsmith v Mid Staffordshire General Hospital NHS Trust [2007] EWCA Civ 397.
3. Application. The registrar would probably have reached the delivery room at about 20:51–20:52. However, delivery within six minutes was possible but exceptional. Given the degree of descent, the likely need for further procedures, and the time required to assess the situation and effect instrumental delivery, the court could not find that delivery by the end of 20:58 was more probable than not.
4. Disposition. The breach was not proved to have caused the injury. The claim was dismissed.