Aeden Balwah (by Shelly-Ann Balwah, his Mother and Next Friend) and Anor v Marwan Ahmad Alsayed Abdulla (Trinidad & Tobago)

An appellate court may replace a trial judge’s finding of primary fact only where it is plainly wrong: the finding must be one that no reasonable judge could have reached. The appellate court must respect the trial judge’s assessment of the whole evidence and its weight.

Pleadings define and give notice of the issues, but a trial judge may permit a limited departure where justice requires after considering all material matters and prejudice.

In negligence, proof that an injury could have occurred within a particular period establishes only possibility. Liability requires a causal link, proved on the balance of probabilities, between the injury and an established breach of duty. An appellate court cannot enter judgment where essential causal questions remain undecided.

Aeden Balwah was born with severe neurological injury following an induced labour at Surgi-Med Clinic. Proceedings brought on his behalf alleged that Dr Marwan Abdulla and Surgi-Med had negligently caused a hypoxic-ischaemic brain injury during labour.

The High Court found limited breaches of duty but dismissed the claim for want of causation. It found that Dr Abdulla arrived at 4.30 am and that attempted vaginal delivery ended at 5.30 am, leaving insufficient time for the alleged injury to have arisen during the subsequent unmonitored period. The Court of Appeal substituted an arrival time of 4.00 am, entered judgment against Dr Abdulla and remitted damages, while upholding the dismissal against Surgi-Med.

The issues before the Board were whether the Court of Appeal was entitled to reverse the primary factual finding, whether the substituted timing established breach and causation, and whether any resulting liability should also extend to Surgi-Med.

Held

1. Dr Abdulla’s appeal was allowed. Aeden’s appeal was refused, and Surgi-Med’s cross-appeal was refused as unnecessary. The trial judge’s decision dismissing the claim was restored.

2. Lady Wise, giving the judgment of the Board, held that appellate courts must exercise restraint before disturbing primary findings of fact. Applying the principles stated in Christo Gift v Dr Keith Rowley [2025] UKPC 37 and Volpi v Volpi [2022] EWCA Civ 464, the question was not whether the appellate court would have reached another conclusion, but whether no reasonable judge could have made the finding. The trial judge’s 4.30 am finding had ample evidential support and was not rationally insupportable. The Court of Appeal had also disregarded the presumptions that the judge considered the whole evidence and was entitled to determine its weight.

3. The Court of Appeal also erred in treating Dr Abdulla’s pleadings as an unequivocal admission requiring a different factual finding. The pleadings and witness evidence contained competing positions, and the time of arrival was squarely in issue. A court must make one finding about a single historical fact affecting multiple parties; it cannot logically impose mutually inconsistent findings against different defendants. Consistently with Loveridge v Healey [2004] EWCA Civ 173, Ali v Dinc [2022] EWCA Civ 34 and Phones 4U Ltd v EE Ltd [2025] EWCA Civ 869, a trial judge may permit a limited departure from the formally pleaded case where justice requires. The relevant evidence had been admitted without objection, and no prejudice analysis justified excluding it.

4. Even if the unmonitored period had begun earlier, that would merely have established that an intrapartum injury was possible. It would not prove causation. The established breaches were limited, and there was no finding that foetal heart-rate monitoring before 5.30 am had been inadequate. Aeden would still have needed to prove that an established breach caused the injury and, in relation to monitoring, that proper monitoring would have detected the condition in time for effective intervention and safe delivery. The Court of Appeal therefore went too far in entering judgment; had its substituted factual finding stood, the unresolved causal issues would have required further adjudication below.

5. The same causation defects disposed of Aeden’s appeal against Surgi-Med. A longer possible injury period alone could not establish the clinic’s liability.

6. Obiter, the threshold in rule 20.1(3) of the Civil Proceedings Rules permits a late amendment only where there is a good explanation and a prompt application. The overriding objective cannot bypass that threshold. As the rule may exclude an amendment which justice otherwise requires, the Board suggested that the Rules Committee reconsider whether amendment at any stage should instead be discretionary, balancing prejudice against the interests of justice.

• Privy Council: In [2026] UKPC 31 , allowed Dr Abdulla’s appeal, refused Aeden’s appeal and refused Surgi-Med’s cross-appeal as unnecessary. The High Court’s dismissal of the claim was restored.
• Court of Appeal of the Republic of Trinidad and Tobago: On 30 July 2024, allowed Aeden’s appeal against Dr Abdulla, entered judgment on liability and remitted damages to a Master in Chambers. It upheld the dismissal of the claim against Surgi-Med. No neutral citation is stated.
• High Court: Ramcharan J’s final written judgment of 4 September 2021 dismissed the claim against both Dr Abdulla and Surgi-Med because causation had not been established. No neutral citation is stated.