CNZ v Bath NHS Memorial Hospital
CNZ (Suing by her Father and Litigation Friend MNZ) v Royal Bath Hospitals NHS Foundation Trust & Anor [2023] EWHC 19 (KB). The judgment was handed down by Mr Justice Ritchie on 11 January 2023. A recent High court Judgement which may affect some birth litigation cases as it offers a unique take on 100% liability.
CNZ v Royal United Bath Hospitals NHS Foundation Trust, January 2023
A High Court ruling which clarified important legal principles for obstetric medical negligence claims.
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. This particular case was heard in the High Court.
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. On the particular facts of this case, the Judge concluded that the Claimant was entitled to recover 100% of her damages.
A High Court decision can be persuasive or binding depending on the court hearing the later case and the legal issue involved, but it doesn’t mean every later case with similar facts automatically gets the same result.
The Defendant’s permission to appeal was initially granted on a narrow apportionment ground, but the NHS Trust later abandoned the appeal and settled the case for a reported £430,000 in interim payments plus a *$20.5 million lump sum plus PPOs providing guaranteed, lifelong, index-linked, annual payments of $800,000pa to meet her extensive needs for care. (*NZ dollars used as family reside in New Zealand)
To clarify. If you have a case where the Defence admit negligence but deny it caused all of the damage, if you go to trial at the High Court the ruling means you get 100%. However courts prefer parties to engage in mediation (Round Table Meeting (RTM)) first, and that is where most parties accept a percentage settlement. Legal teams are reluctant to go to court because of the all or nothing nature of it.
A reason for hope
Most birth injury claims are resolved without a full trial, often through negotiation or mediation. But for parents whose case does reach the Court, CNZ may provide an important reason for hope.
The judgment shows that where negligence has materially contributed to a child’s injury, but medical science cannot reliably determine how much of the eventual functional disability would have occurred without the negligence, a court may decide that it is not appropriate simply to guess at a percentage.
In CNZ, the Judge concluded that the scientific evidence could not reliably establish what the Claimant’s functional outcome would have been if the negligent period of hypoxia had been shorter. Rather than reducing the damages to an arbitrary percentage, he concluded that she should recover 100% of the damages.
This does not mean that every birth injury case involving disputed causation will result in 100% damages. Each case depends on its own medical evidence and facts. But for a family facing the prospect of having to prove what difference a few minutes of negligent delay made, CNZ demonstrates that scientific uncertainty does not necessarily mean that a child must lose part of their compensation.
That is an important principle, and one that may give parents some hope if their case ultimately has to be decided by a Court.
In short: where brain injury is divisible in theory but the resulting functional outcome cannot reliably be divided because of scientific uncertainty, CNZ shows that full recovery of damages may be possible.
Sources: The judgment itself: CNZ [2023] EWHC 19 (KB), Judiciary / case law
