Morrison v Liverpool Women's NHS Foundation Trust

An appellate court should focus on the substance of a trial judgment. Imperfect structure or expression does not justify interference where the reasoning can reasonably be understood. In professional negligence claims, an express reference to the Bolam/Bolitho test is desirable, but its application may be inferred from the judge’s reasoning and findings.

The absence of supporting guidance or literature is not automatically fatal to expert evidence. Clinical decisions must be assessed in their actual practical context, including competing demands supported by evidence. Where risk is significant and increasing, general assumptions about competing priorities are insufficient. Causation may be established by a balance-of-probabilities inference from the timing and nature of clinical symptoms.

The claimant suffered a uterine tear and hysterectomy after giving birth at the defendant’s hospital. She alleged negligence in failing to perform an emergency caesarean section when she was assessed at 4:10 am during latent labour, and contended that the delay caused the injury.

At trial, Mr Recorder McLoughlin found for the claimant and awarded damages. The defendant appealed, challenging the structure and reasoning of the judgment, the approach to breach of duty and competing clinical priorities, the treatment of the claimant’s obstetric history, and the finding on causation. The central questions were whether the Recorder had applied the correct legal test and whether his findings on breach and causation were open to him.

1. Appeal dismissed. A judgment is not susceptible to appeal merely because it could have been expressed more clearly or structured more logically. Where the reasoning can reasonably be understood, the appellate court should avoid allowing form to triumph over substance. The approach was consistent with the observations in Simetra Global Assets Ltd and Another v Ikon Finance Ltd and 11 Others [2019] EWCA Civ 1413.
2. The Recorder’s failure expressly to refer to the Bolam/Bolitho test did not establish legal error. His treatment of the competing expert opinions showed that, by necessary implication, he applied the appropriate test for professional negligence.
3. The lack of directly supporting literature or guidance did not automatically defeat the claimant’s case. The expert evidence could be assessed by reference to logical clinical analysis and relevant professional experience.
4. The reference in the treatment plan to an emergency caesarean during labour did not necessarily mean established labour. The risk of uterine rupture related principally to the strength of contractions, rather than the extent of cervical dilatation. The Recorder was entitled to find that a clinical judgment was required on each review and that established labour was not a threshold before breach could arise.
5. Practical competing priorities were relevant, but had to be grounded in the evidence of what was actually occurring. A significant and increasing risk required close examination of those competing considerations. There was no sufficient evidence of a competing emergency at 4:10 am, and the Recorder was entitled to prefer the claimant’s expert evidence.
6. The Recorder’s findings concerning the communication of the claimant’s medical history did not undermine the result. Once it was found that no reasonable clinician with adequate knowledge would have delayed the caesarean beyond 4:10 am, breach was established, whether the explanation was a communication failure, an ill-informed decision, or a well-informed but unreasonable decision.
7. The finding on causation was also open to the Recorder. Increasing and strong contractions after 5:35 am supported the inference that the uterine tear occurred later than that time, on the balance of probabilities.

• High Court (Queen’s Bench Division): The defendant’s appeal from the trial judgment of Mr Recorder McLoughlin was dismissed.
• Trial court: The Recorder found for the claimant and awarded damages.