CNZ v Bath NHS Memorial Hospital

The links below regard a legal case that was judged in January 2023.  The reasons I am posting about it is that it could possibly have a bearing on cases of birth injury.  The ruling is an incredibly long and complex one, with differing opinions from the medical experts and a controversial judgement by the judge.  It was heard at the High Court as are all such cases. 

A quick word on how our legal system works.  One way of having laws/rulings passed is to go through Parliament and be passed into law there.  Local governments can also pass local laws governing their areas.  Another way is by legal precedent.  Courts have a hierarchy; for civil cases like negligence cases; the county court; the High Court; the Court of Appeal.  Birth Injury cases go straight to the High court. 

Legal precedent means that if a higher court makes a ruling on specific facts of a case, all the courts below that level must abide by that ruling, they cannot change it.  The only court that can change that ruling is a higher level court.  That is because a precedent has been set.  This is why you will sometimes see in your Letters of Claim and Response reference to legal cases.  The legal teams are using them to support their case by referencing the precedent.     

The case of CNZ v Royal Bath hospital concerns a young woman injured at birth, who now has cerebral palsy.   The case is very complex and the timings around the birth are very tight.  The first link is to the actual High Court Ruling.  The second is to a summary of the case.  I have read the ruling and agree it is very detailed and not easy to understand.  However, the bottom line is that the Judge tried to pin down precise timings and how those timings affected the young woman’s level of disability.  Because he found discrepancies in the level of damage she sustained according to the reports at the time, and her current level of disability, he could not say with certainty what level of injury would have happened regardless of the actions of the medical staff, and what level of injury occurred because of their actions/inactions.

He therefore concluded that because of the uncertainty, and the scientific gap in knowledge, rather than apportion blame, he had to say that, but for the decisions made by the medical staff, her injuries may have been much reduced.  The Judge said:  where there exists a scientific gap, in that it is impossible to adequately determine to what extent harm arose from negligence or non- negligence, the Claimant should be entitled to recover 100% of the damages.  In saying that he set a precedent that the Defence should be liable to pay full damages to the Claimant. 

It was explained to us that for the time this precedent stood all cases that fit this scenario, should win 100% of the damages.  This judgement has already had an appeal lodged against it, as expected, and the Appeal Court will eventually hear it.  It is very likely it will be overturned, but until that happens, all similar cases heard must be given the same outcome should the circumstances be similar enough for this to occur.   Once a judgement is given on these subsequent cases and in the case above, the judgement stands.  The Appeal ruling cannot be retrospectively applied.  It will however, affect all future cases.   

The Defendants sought permission to appeal on the following 4 grounds:

1. demonstrable misunderstanding of relevant evidence/making a critical finding of fact which had no basis in the evidence
2. wrongful application of Montgomery principles to the intra-partum decision-making.
3. Wrongful rejection of the evidence of Mr Tuffnell on the standard of care.
4. Error in law on approach to material contribution.

Mr Justice Ritchie gave permission to appeal in relation to ground 4 due to the significant public interest and effect on the public purse potentially caused by his findings on material contribution but he declined permission in relation to the other grounds. The Defendants have applied to the Court of Appeal for permission to appeal these and proceed to appeal in relation to material contribution. A decision/hearing is awaited.