CDE v Surrey and Sussex Healthcare NHS Trust

In a medical negligence claim based on delayed care, factual causation must be assessed on the correct but for scenario. Where the evidence establishes what the particular clinician would have done on hearing an earlier warning, the court should use that evidence rather than insert a generic delay based on another professional’s likely response. Specific trial findings on timing must be applied consistently, even where witness estimates were approximate. An appellate court may correct an error of legal logic that makes the counterfactual inconsistent with those findings, subject to the high threshold for interfering with factual conclusions. Where a newly established short delay may have materially affected injury, and expert evidence has not addressed that precise counterfactual, the issue should be remitted for further evidence.

The appellant suffered severe hypoxic-ischaemic brain injury following a rare maternal uterine vascular event during labour. In a liability-only trial, Ritchie J found breaches in delaying transfer and monitoring but concluded that, on the counterfactual case, emergency delivery would have occurred at the same time. The claim therefore failed on factual causation.

On appeal, the claimant argued that the judge had wrongly inserted a midwife’s response time. The central issue was whether, on the judge’s own findings, the consultant obstetrician would have heard the bradycardia outside the room and entered one minute earlier, and what consequence that lost minute might have had.

The appeal was allowed. The finding that Miss Nicks would have entered the room at 17:52 was quashed, and the case was remitted to the same judge for further expert evidence on whether delivery at 18:07 would have reduced the claimant’s injury or functional disability.

1. Counterfactual causation. In an omission case, the court must ask what would have happened if the duty had been performed. This was more akin to the approach in Bolitho v City and Hackney HA [1998] AC 232 than to introducing a generic interval based on what a responsible midwife might have done under Bolam v Frien Hospital [1957] 1 WLR 582. The undisputed evidence was that Miss Nicks would have entered immediately on hearing the bradycardia.
2. Timing findings. The judge had found that Miss Nicks was outside the room at 17:50, that the CTG should then have been operating, and that she entered at 17:52 after hearing the bradycardia. Those findings required the counterfactual entry time to be 17:51. The judge had therefore introduced an unnecessary one-to-three-minute midwife response period.
3. Appellate review. The Court applied the approach to factual findings stated in Staechelin v ACLBDD Holdings Limited [2019] EWCA Civ 817 and the meaning of plainly wrong in Henderson v Foxworth Investments Ltd [2014] UKSC 41. Although appellate intervention is exceptional, the error here was one of legal logic, or alternatively an incorrect factual conclusion, rather than a permissible difference of view.
4. Remittal. The trial experts had not been asked to address specifically the effect of delivery one minute earlier. Since the judge had accepted that any reduction in hypoxic-ischaemic injury could reduce primary brain injury, the question whether the lost minute probably made a material difference required determination on further expert evidence.

Jackson LJ concurred, emphasising that once specific timings had been found they became fixed points, and that the pleadings and submissions had preserved the claimant’s case that even a short delay could materially contribute to injury. Davis LJ agreed with both judgments.

• Court of Appeal (Civil Division): Appeal allowed. The finding that Miss Nicks would have entered at 17:52 was quashed, and the medical-causation issue was remitted to the same judge.
• High Court of Justice: Ritchie J, in a liability-only trial, found breaches of duty but held that the claimant had failed to establish factual causation because the emergency delivery would probably have occurred at the same time in any event.